Controversies surrounding GEO on judicial laws

The emergency ordinance  on judicial laws was published in the Official Journal on Tuesday, 24 hours after it was adopted by the Government. Prosecutors from all prosecutor’s offices will remain in office provided they meet the conditions included in the new legal provisions. The Government emergency ordinance (GEO) came into force the moment it was published in the Official Journal. The legislative act establishes that, in order to be promoted to the Prosecutor’s Office attached to the High Court of Cassation and Justice (PICCJ), “prosecutors must have no disciplinary sanctions, good professional training, irreproachable moral conduct, at least 10 years seniority as prosecutor or judge, at least the professional rank corresponding to the prosecutor’s office attached to the Court of Appeals, and must have been declared admitted following a competition organised by the commission set up for this purpose.” The Prosecutor General, the Chief Prosecutors of the National Anticorruption Directorate (DNA) and the Directorate for Investigating Organised Crime and Terrorism (DIICOT), their First Deputies and Deputies, as well as the chiefs of the sections of these prosecutor’s offices are nominated by the Justice Minister and appointed in office by the President of Romania, with the opinion of the Superior Council of the Magistracy (CSM), from among prosecutors who have minimum seniority of 15 years as judges or prosecutors, for a three-year term, with the possibility of being reinstated in office only once. Previously, the chiefs of sections were appointed by the CSM’s Section for Prosecutors. Candidates will be heard by the Justice Minister and the hearings will be broadcast live on the Justice Ministry’s website. To be eligible for appointment within the DIICOT or DNA, prosecutors must have no disciplinary sanctions, good professional training, irreproachable moral conduct and at least 10 years seniority as prosecutor or judge and must be declared admitted following a competition organised by the commission set up for this purpose. The GEO stipulates that “the representatives of civil society take part in the proceedings of the CSM’s plenum and have the right to vote.” The legislative act also stipulates that “the Justice Minister can ask the Judicial Inspection to establish whether there are any clues pointing to prosecutors perpetrating a disciplinary offence.” A CSM member can be dismissed if the relevant CSM Section ascertains, based on the Judicial Inspection’s report, that the said member “did not fulfil or improperly fulfilled, in a grave, repeated and unjustified manner, the prerogatives stipulated by law.” Prosecutors from all prosecutor’s offices will remain in office only if they meet the conditions included in the new legal provisions. The GEO came into force the moment it was published in the Official Journal. Justice Minister Tudorel Toader presented on Monday, after the Government meeting, several provisions of the GEO, including the one raising the seniority needed to be appointed Prosecutor General, First Deputy Prosecutor General and Deputy Prosecutor General, and Chief Prosecutor of the DNA and DIICOT. “The minimum seniority is 8 years now and it will be 15 years. At the Justice Ministry, when those interviews take place, the Venice Commission recommends we show more transparency. We took over the CSM model and in the future the said interviews will be broadcast live, will be archived, will be viewable by anyone interested,” Toader emphasised. Another modification raises to 10 years the seniority needed to work as prosecutor within the DNA or DIICOT. “The GEO also consolidates the statute of prosecutor on secondment at the DNA or DIICOT, in the sense that at present the Prosecutor General can dismiss them if he enforces against them the most lenient sanction – a warning. So, we’ve eliminated the Prosecutor General’s ability to dismiss [them] in the presence of the lowest sanction. One observation here which is only liable to emphasise the fact that the future prosecutors who want an office within the section investigating judiciary crimes will benefit from the rights of prosecutors on secondment,” the Justice Minister also explained. Another amendment introduced by the GEO is that the Justice Minister will be able to ask the Judicial Inspection to establish whether there are clues pointing to disciplinary offences on the part of the prosecutors. Tudorel Toader brought as an argument the authority that the Justice Minister has over prosecutors, authority conferred by the Constitution. “Obviously, this authority would be purely declarative if you didn’t have also a juridical instrument to intervene. (…) I’ve been a minister for one year and a half and I’ve never used this instrument. I also wish I won’t have to,” Toader pointed out. Referring to the dismissal of CSM members, the minister said he finds it necessary to eliminate from the law the provision that says that CSM members can be dismissed if they lose the confidence of those who elected them, because confidence is subjective and cannot be quantified. Toader said that the Venice Commission shared this opinion too and took over procedural elements proposed by the CSM in this regard. The early retirement of magistrates has been postponed for the end of 2019, to avoid a personnel deficit crisis, the Justice Minister also announced. “We have decided to postpone early retirement at 20 years for the end of 2019. The Venice Commission would say that it would be a problem if magistrates were to retire after 20 years of actual work, I understand we would be talking about 2,100. That doesn’t mean all would retire on the same day. The proposal came from the CSM, the CCR validated it, the Commission said there is a problem, because a personnel deficit would be created. So, to maintain balance, to respond to the Venice Commission’s concerns, we’ve decided to postpone for the end of 2019, let’s see how many retire, how many enter the system and it will be decided at the end of next year,” the minister explained. Toader also said that an analysis will be made at the Public Ministry’s level to see how many prosecutors on secondment meet the legal criteria to hold their offices....

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