Romania. SIIJ IN NUMBERS: ONE PROSECUTOR TO 900 CASES

A Q Magazine exclusive story: the reality of the Division for the Investigation of Criminal Offenses in the Judiciary (SIIJ) in numbers. The average workload for each SIIJ prosecutor reaches 900 cases.

Where USR more and more vehemently demands that this division must be closed down, and the task of investigating criminal offenses committed by magistrates be returned to the National Anticorruption Directorate (DNA), judge SIMONA MARCU, member of the CSM (Superior Council of Magistracy) reminds of only a few of the many cases in which DNA destroyed the lives and careers of judges and prosecutors just to then close the cases or have the courts throw them out and acquit.

“More troubling is that DNA did not acknowledge its mistakes in the activity reports, but rather tried to justify them by transferring the guilt on judges or, more recently, on the Constitutional Court”, says Simona Marcu for Q Magazine.

IN ONE SINGLE YEAR, SIIJ SOLVED 552 CASES

The incumbent government, a coalition made of PNL, USR PULS and UDMR, holds the dismantling of the Division for the Investigation of Criminal Offenses in the Judiciary (SIIJ) as its main goal. Minister of Justice Stelian Ion already sent to the Superior Council of Magistracy (CSM) for endorsement a draft law proposing not only to close down the SIIJ, but to give back to the DNA the competence to investigate crimes committed by magistrates, a reinstatement to the situation prior to the establishment of the SIIJ.

One of the justifications for this move is that the SIIJ would not be efficient enough. The question is, however, how efficient COULD it have been since, as per information obtained exclusively by Q Magazine, the workload for the 7 prosecutors that currently work at the SIIJ amounted to 6636 cases? That is, an average of 900 cases per prosecutor. Out of these, 2984 cases were registered in 2020, and 3652 were left from 2019.

These cases deal with complaints from natural and legal persons as well as from public institutions – 2800 cases in this category. 180 cases came to the SIIJ having been declined by other prosecution offices. Where DNA used as a matter of routine to launch investigations sua sponte, without any third-party complaint, the SIIJ only started 4 cases in this manner, i.e., 0.1% of its cases.

As per DNA’s own information: “Between 1 September 2002 and 11 October 2008, the National Anticorruption Directorate registered a total of 5854 criminal cases concerned with alleged corruption crimes committed by magistrates. 655 of these cases, which means 11.1% of the total, were launched without a third-party complaint”.

According to Q Magazine sources, in 2020 the SIIJ solved 522 cases on the merits, out of which 2 ended up in indictments sending 3 defendants to court – one of whom is the notorious Ploiești DNA prosecutor Mircea Negulescu, aka Portocală.

In 550 cases, the SIIJ prosecutors CANCELLED the investigations.

Out of the 550 cancelled cases, 373 were concerned with the crime of abuse of office provided by Art.297 of the Criminal Code; 8 cases – abusive investigation; 12 cases – unjust repression; 11 cases – favoring the perpetrator; 14 cases – constituting an organized criminal group; 3 cases – battering and other violent acts; 10 cases –  bodily harm by negligence; 6 cases – neglect of office; 3 cases – forgery of official documents; 6 cases – intellectual forgery; 1 case – criminal deceit; 1 case – destruction of property; 2 cases – theft; 1 case – driving without a license; 1 case – running from the scene of an accident; 1 case – illegal access to an IT system; 2 cases – electoral fraud; 1 case – actions against the constitutional order.

At the end of 2020, the number of unsolved cases was 5915.

As for time-wise effectiveness, out of the 552 cases, 112 were settled within 1 year from the first complaint, and 440 in a term longer than 1 year.

In 2020, the SIIJ carried out 3 informational systems searches, one of which at the request of the High Court of Cassation and Justice, and heard 720 persons, out of which 12 suspects, 7 defendants and 243 victims.

SIIJ ACTIVITY IN COURTS

The SIIJ activity in courts is regulated under Art. 88⁸ of Law 304/2004, republished, according to which “The participation to the court trial in cases within the remit of the Division is ensured through prosecutors belonging to the Judiciary Division of the Prosecution Office attached to the High Curt of Cassation and Justice, or through prosecutors belonging to the prosecution offices attached to the courts vested with settling the case”.

In compliance with this legal norm, the prosecutors participating to court hearings in trials dealing with cases of the SIIJ were prosecutors belonging to the prosecution offices attached to the courts holding those hearings.

Prior to the publication of Decision 547 of 7 July 2020 of the Constitutional Court, the SIIJ prosecutors directly drafted the motives of the appeals or challenges filed by themselves, or by prosecutors belonging to other offices.

3 such challenges were filed in 2020.

In 2020, the SIIJ registered 248 complaints against acts and measures taken during the criminal investigation. 145 of these are complaints made and not solved in 2019. The total number of complaints made in 2020 against acts and measures taken during the criminal investigation was of 393. 174 of these have been settled (151 rejected, 23 admitted), while other 46 were sent to the competent body: 173 complaints are still pending.

As for complaints, memoranda and notifications related to the attributions of the Public Ministry, in 2020 the SIIJ had 2874 such cases to settle. 2157 of these were received in 2020, and 717 had been left unsolved from 2019.

In 2020, the SIIJ settled 2095 cases, 285 being granted and 1810 rejected. Other 534 cases were sent to the competent body. 245 cases are still pending.

Out of the 208 such works allocated for verification and settlement based on the applicable laws, regulations, orders and dispositions, the SIIJ carried out 186 analyses, studies, verifications and reports.

So, this is in essence what the 7 prosecutors of the SIIJ have achieved in just two years. All of this while they did not even have offices for a few months, while their requests for additional judiciary personnel were never satisfied more than by half, in the best of cases, while they never benefitted, like the DNA did, of the support of the Romanian Intelligence Service (SRI), of huge budgets, of hundreds of prosecutors and judicial officers, of the external funding directed towards the DNA. On the contrary, what they “benefitted” of was a constant boycott from all of those that could have helped make the Division’s activity more efficient and optimal time-wise. These 7 prosecutors were asked to do in two years what hundreds of DNA prosecutors from services all over the country did in many more years. And this, while the enemies of the SIIJ argued – including by false reports to international bodies – that the low number of crimes committed within the judiciary does not justify the existence of a separate prosecutorial structure to investigate them.

Judge SIMONA MARCU draws attention to the fact that the DNA committed countless abuses in its investigations against judges and prosecutors, including a case where a judge was under criminal investigation for 10 years before the investigation was simply cancelled by the DNA.

Simona Marcu is a judge at the Administrative and Fiscal Litigation Division of the High Court of Cassation and Justice and, since 2017, a member of the Superior Council of Magistracy

A JUDGE’S INDEPENDENCE IS NOT A WHIM

Q Magazine: The political pressure to close down the SIIJ is increasing, even though the Constitutional Court in its Decision 33/2018 commended the creation of such separate structure, completely independent of politics. Indeed, the constitutional judges took a very eloquent position: the SIIJ “constitutes a legal guarantee of the principle of the independence of justice as far as the individual aspect is concerned, that is, the independence of the judge. This is a way to ensure that magistrates are adequately protected from the pressures put on them, and against abuses created by arbitrary complaints/denunciations, as well as to ensure a unitary practice at the level of this prosecution office as regards the criminal investigation acts in cases of crimes committed by magistrates”. How do you comment?

SIMONA MARCU: As a judge, I cannot get involved in the usual political game specific to any democracy, as I have an obligation of reserve. From this position, I cannot comment on the strategies promoted by various political organizations, on their electoral calculations and political stakes of all sorts.

Equally, though, I am a member of the Superior Council of Magistracy, an institution which, under the Constitution, is “the guarantor of the independence of justice. And justice, also according to the Constitution, “is realized by the HCCJ and the other courts of law”, which form one of the three powers in the state – the judicial power.

The matter you propose for discussion – the closedown of the SIIJ – is connected to the independence of justice, especially the independence of judges. While the fight for the independence of one of the powers is eminently political, the specificity of this particular policy is that it transcends political parties’ agendas and resides at the level of the system of checks and balances that ensures the functioning of a democratic state. The rule of law, seen as governance based on the law, or by law, existed in dictatorships as well. The democratic state, however, legitimizes the rule of law, as it is based in the will of the people and guarantees its effectiveness by the trust it enjoys among the people.

This is why, where we discuss the independence of judges, absent which the independence of justice is meaningless, we cannot be reserved; on the contrary, we must be militant.

As brilliantly put by the Constitutional Court in the decision you have mentioned, by reference to its previous practice: “the provisions of Art. 123 para (3) of the Constitution, according to which judges are independent and subject only to the law, are not merely declarative, but constitute constitutional provisions mandatory to the Parliament, who has the duty to adopt the laws that create the mechanisms able to adequately ensure a true independence of the judges, lacking which it is impossible to conceive of the rule of law, provided in Art. § para (3) of the Constitution.”

Therefore, the judges’ independence is not a whim, a principle meant for declaration only, in internal or international papers; on the contrary, it is a fundamental pillar of the rule of law, and it is the duty of the legislative power to find the most adequate legal mechanisms to ensure that this value becomes reality. And where the legislative power fails to do so, then the CSM, as guarantor under the Constitution, must step in. Otherwise, what is that guarantee about, and what is left of that guarantee?

DNA INVESTIGATED A JUDGE FOR 10 YEARS BEFORE CLOSING THE CASE

Q Magazine: The draft law closing down the SIIJ, recently submitted to public debate by the Ministry of Justice, provides, among other things, that, on the date the law enters into force, the DNA regains its competence on cases involving the judges of the HCCJ, as well as all the other judges and prosecutors, including the military judges and prosecutors, as well as those that are members of the CSM. How do you comment, considering that the Judicial Inspection Report on Compliance with the General Principles Governing the Activity of the Judges in DNA Cases Involving Magistrates and Related Cases, validated by the CSM in 2019, confirms that, between 1 January 2014 and 31 July 2019, the DNA had 1459 registered cases regarding 845 prosecutors and 1442 cases regarding 1962 judges (the Report stating expressly that “it is NOT possible to determine precisely the number of judges concerned in the criminal cases under review”)?

Judge MARCU: The draft law you refer to will be submitted for endorsement to the Plenary of the Superior Council of Magistracy sometime in February. In my view, the draft is unacceptable as submitted and I will vote against it without any doubt.

To give the competence to investigate to “prosecution offices competent in accordance to the law”, which mainly means the DNA, as the draft proposes in Art. 1 para (2), raises a number of issues, which have already been discussed and debated in the public arena.

I would only refer for now to the Report you have mentioned in your question, which Report was approved by Decision 225/15 October 2019 of the Plenary of the CSM, available on the CSM website. The conclusions of this Report indicate numerous violations of the procedural norms by the DNA prosecutors who criminally investigated prosecutors and judges between 1 January 2014 and 31 July 2018.

The report presents very many concrete cases, I cannot refer to all of them, but I can give just two examples, taken at random:

• Case no. 37/P/2006, which was cancelled after 12 years and 6 months as of registration, just at the time when the SIIJ becoming operational was imminent; in this case, the criminal investigation in personam against a judge had been ordered on 8 November 2010.
• Case no. 182/P/2012, where a sua sponte investigation started on 30 April 2012 against a judge of the High Court of Cassation and Justice, and where the judge was subject to technical surveillance between 30 April 2015 and 27 July 2015 without being informed of this measure; in this case, the ordinance closing the investigation as per Art. 16 para (1) let. c) of the Criminal Procedure Code was given on 21 April 2017, while the Judiciary Inspection concluded that no work had been done in this case for long periods of time (years).

Laura Codruta Kovesi lead the DNA for 5 years. In this period, the DNA indicted 68 dignitaries, out of which 37 were convicted by final decision. Laura Codruta Kovesi’s favorite slogan was “We are the DNA!”

An extreme number of procedural violations was found, all of them documented in the Report. I would only exemplify with three such violations, which reveal how dangerous it is to leave the competence to criminally investigate judges to the DNA.

First of all, I want to remind of the cases in which officers of the Romanian Intelligence Service carried out criminal investigation work in cases concerning magistrates. Of course, it is not at all recommended to have the intelligence services present in any judicial proceedings. Intelligence evidence is one thing, and it has to do with national security, while judicial evidence is another thing, which is centered upon the defense of human rights, the right of defense, the right to a fair trial and equality of arms. Where the person under investigation is a member of the judicial power, the involvement in the investigation of persons working outside the judicial power amounts to an interference of the executive in a domain where the rule of law absolutely forbids them to go. In such cases we are no longer discussing about potential abuses against isolated individuals, we are discussing about affecting the operations of an entire system, which endangers the society in its whole. In other words, this is not about just the protection of judges, as it might seem at first sight, its is about protecting all justice-seekers and protecting social harmony as a whole.

When a judge is abused, justice is in danger, and when justice is in danger, the balance among powers and, consequently, the society and the state are in danger.

Secondly, it has been found that the DNA had an actual practice of asking for case files on the dockets of the courts so as to allegedly evaluate the measures that the judges were ordering in pending cases. In reality, this is not at all an evaluation, but a threat meant to force the judge to pass a certain solution according to the wishes of the prosecutor. We cannot speak of the independence of a judge where, while he is working on a case, he is forced to justify his acts to the prosecutors.

Thirdly, there is the issue of the DNA acting sua sponte, without a third-party complaint, and launching criminal investigations against judges for the decisions they passed in various cases. But the independence of justice entails precisely that, that the judge cannot be criminally investigated, let alone indicted, for the decisions he renders. This obviously does not mean that a judge benefits of impunity and will not be held liable for violating criminal law, but his legal reasoning as a judge can never be subject to control or censorship by the criminal investigation body. This issue, of a judge being investigated for the decisions he passed, is more pertinent today than ever – and I refer to a case that was prominent in the media recently. I do not want to go into details on this, because there are a few matters under review at the CSM at this point in time on this issue, but I will certainly present my point of view at the right time.

All of these issues, coupled with the virulence of the reactions against those who merely try to inform the public about these issues, as well as with a total lack of admission of responsibility, as an institution, make me believe that it is not at all recommended, at least not at this time, to give the competence to investigate judges and prosecutors back to the DNA.

THE MCV REPORTS WERE WRONG SOMETIMES

Q Magazine: The Constitutional Court, in tis Decision no. 33/2018, rejected the objections of unconstitutionality and retained that establishing the SIIJ does not violate either the provisions of the Constitution of Romania, or the international treaties to which Romania is a party. However, in the 2019 CVM Report, the European Commission indicates that “the Division in question may be used as an instrument of political pressure”. Which is true? Who tells the truth?

Judge MARCU: The truth is that the concern expressed in the CVM Report has no justification in the legal framework, which was found to be constitutional.

The SIIJ is a structure within the Public Ministry, the least affected by political pressure, because, under Law 304/2004 the entire procedure for the selection and validation of the prosecutors working for this Division is exclusively carried out by the CSM.

I have my own reservations about the manner in which these CVM reports are prepared, as far as the accuracy of the information given by various sources goes. It has been more than once that I have notified the CSM about matters that were wrongly presented in these reports.

On the other hand, I have also discovered that those who take decisions at the national level sometimes use a double standard when it comes to CVM recommendation. For instance, the same CVM reports have been constantly recommending for years now that high-level prosecutors be appointed by a transparent procedure, based on merit and designed “with the support of the Venice Commission”, able to offer sufficient guarantees against political interreference.

Still, high-level prosecutors continue to be appointed by the President of Romania, who is a politician, at the proposal of the minister of Justice, also a politician, the endorsement of the Judges Division of the CSM being merely consultative. The proposal that this endorsement should be mandatory does not solve the core of the problem, as far as it will still be the minister of Justice, a politician, who decides who he proposes for that position and who he does not propose.

Finally, the fact that the SIIJ is totally outside the political game due to the manner in which the prosecutors working in this Division are recruited does not mean that these prosecutors cannot commit errors, like any other magistrate.  But any comparison with the situations that we have discussed, and have been documented, is completely misplaced.

Unlike the former Division for Combatting Corruption in the Judiciary, established within the DNA by Order no. 10/31 January 2014 of the DNA chief prosecutor, the members of the SIIJ are appointed by the CSM, and not by the chief of a prosecution office, regardless of his rank. There is no comparison in terms of independence and institutional transparency between the CSM and the DNA chief prosecutor. Let alone the constitutional role.

In this context, I remind that the judges and prosecutors elected to the CSM are representatives of their colleagues from all the levels of the judiciary, and are appointed by direct vote, without political interference, while the procedure for the appointment of high-ranking prosecutors, which is still in force despite criticism in the CVM reports, is highly political.

I would add that, in reality, the SIIJ never operated at its full capacity. At the time of this discussion, the Division only has 7 prosecutors, 6 of which have executive functions, and one coordinator – this means less than half the number provided in the law. Practically, the SIIJ is not bigger than a territorial unit of the DNA.

It is thus obvious that there has been no true will to supplement the personnel to reach the number set forth under the law, specifically so that afterwards the Division could be accused of lack of effectiveness as reason for closedown.

Gabriela Scutea, General Prosecutor of Romania, member of the CSM

Q Magazine: Is it recommendable to create a division within the DNA that would carry out the investigations for crimes committed by magistrates or related crimes, using the model of the former Division for Combatting Corruption in the Judiciary, established by Order no. 10/31 January 2014 of the DNA chief-prosecutor?

Judge MARCU: This is a rhetorical question, is it? All that I have said so far are arguments for a negative answer to your question.

DNA ASKED FOR, AND REVIEWED 2166 DECISIONS PASSED BY A DIVISION OF THE HIGH COURT OF CASSATION AND JUSTICE

Q Magazine: Beyond interminable political discussions, what is really at stake in dismantling the SIIJ, so that the Romanian citizens understand properly?

Judge MARCU: The people must understand that their only guarantee for a fair trial, for their fundamental rights and liberties being respected, is an independent judge.

The SIIJ is not in itself a goal. I would recount a sad case in the recent history of the HCCJ, in 2011-2018, where the DNA abusively investigated and indicted 4 judges of this court, specifically from the Administrative and Fiscal Litigation Division (SCAF).

The DNA reviewed the entire activity of a senior judge of the HCCJ in the period January 2010 – July 2011, asking for copies of all the decisions passed in that interval. This request from the DNA also concerned other two judges of the High Court, so that the HCCJ – SCAF ended up giving the DNA 2166 court decisions, which is recorded in the Criminal Sentence no. 1055/29 November 2016, passed by the HCCJ – Criminal Law Division in Case File no. 2820/1/2016, which is now final.

Judge Gabriela Bîrsan, former chief of the Administrative and Fiscal Litigation Division of the High Court of Cassation and Justice, was accused by the DNA of corruption. After 5 years of trials, during which she was suspended from magistracy and slandered by the media, she was acquitted. Accused alongside her was Corina Corbu, currently President of the HCCJ, two other other judges, as well as lawyers and businessmen.  All have been acquitted.

We must not forget the ordeal to which these 4 judges accused by the DNA in this case were subjected, and the devastating consequences this case had on their careers and their personal lives.

Nor should we forget about the harassment perpetrated against the 15 witnesses, also judges of the same court, most of them members of the SCAF, for imagined crimes, in procedures which had been perverted from their legitimate purpose.

Do you ask yourself what must have been the pressure under which these judges of the High Court had to work and the conditions under which they settled claims of the nature of those for which they were investigated? These illicit actions hurt the judicial system in its essence, but also hurt the justice-seekers.

Lord Acton said that power corrupts and absolute power corrupts absolutely. The balance of powers is essential in a state. We must balance the powers within both the prosecution office and the court authority.

DNA PUT A GENERAL PROSECUTOR OF ROMANIA UNDER INVESTIGATION, FORCED HIM TO RESIGN, AND THEN CLOSED THE CASE

Q Magazine: Last year, the Plenary of the CSM gave a negative vote on a legislative proposal seeking to dismantle the SIIJ. Which were the reasons for that decision? Will the CSM hold on to its position this year as well, since the new minister of Justice resent the draft law to the CSM for endorsement? We have seen that the current President of the CSM, Judge Bogdan Mateescu, has recently stated in an interview that, absent guarantees and filters to defend the magistrates, he will not vote favorably on the draft submitted by Minister Stelian Ion.

Judge MARCU: Indeed, by its Decision no. 102/28 May 2020, the Plenary of the CSM gave a negative vote to the draft law proposing to close down the SIIJ received last year.

The reasons were concerned with both formal flaws of legislative technique, and substantive flaws.  The substantive flaws were related to the previously-discussed Decision no.33/2018 of the Constitutional Court, but also to the endorsement received from the Venice Commission in October 2018, which retained that there are problems with the organization and structure of the Public Ministry and these problems fall within the remit of the national authority, appreciating at the same time that the lawmaker must take care to ensure effective procedural guarantees for magistrates within this structure.

Last but not least, the Plenary of the CSM took into account that the High Court and Cassation and Justice and the big appellate courts in Romania also opposed the dismantling of the SIIJ. I am firmly of the view that the magistrates of these courts opposed that the DNA regains the competence to investigate judges as they had experienced directly the manner in which this prosecutorial office carried out criminal investigations not so long ago.

It may also be because, despite numerous abuses sometime ascertained by final court decision, nobody has so far apologized to the justice seekers, to the judges or to the public in general for all the derailments and all the serious harm brought to the image, and not only the image, of the judicial system and of the persons under investigation.

More troubling is that DNA did not acknowledge its mistakes in the activity reports, but rather tried to justify them by transferring the guilt on judges or, more recently, on the Constitutional Court.

Meaningful on this aspect is the case of a former General Prosecutor of Romania (Q.M.: Tiberiu Nițu), who was placed under criminal investigation and forced to resign for this reason, just to have thereafter the DNA cancel the case under Art. 16 para.(1) let. b) of the Criminal Procedure Code because the alleged abuse of office for which he had been charged had been decriminalized by the Constitutional Court, while the actual deed for which the former General Prosecutor was accused had not even existed, as later ascertained by the High Court of Cassation and Justice by final decision.

For all these reasons, I personally will maintain my point of view as previously expressed and I hope that the majority of the members of the CSM will take the same approach.