USR PLUS wants (again) Romanian judges to be arrested by DNA (National Anticorruption Division)

„ Coherent motivation” and “solid substantiation” of the draft law on the abolition of the SIIJ, adopted today by the government: “many voices in Romania have demanded the abolition of”….

1. As a preliminary point, it should be noted the extremely brief nature of the instrument of presentation and motivation and the lack of sound substantiation of the draft normative act. Thus, even if the legislative proposal contains alleged substantiations, being fulfilled, from a formal point of view, the requirement imposed by Article 30 paragraph (1) of Law No. 24/2000 on the norms of legislative technique for the elaboration of normative acts, in the sense of existence an instrument of motivation), they are deeply DEFICIT, in relation to the mandatory requirements of quality and predictability of the law, imposed by the provisions of art. 1 para. (3) and (5) of the Constitution, in relation to those of art. 30-32 of Law no. 24/2000, equivalent to LACK OF MOTIVATION. However, WITHOUT clearly showing the requirements that required legislative intervention, WITHOUT a coherent motivation, it is NOT possible to know the reason of the legislator, which is ESSENTIAL for its understanding, interpretation and application.

According to the provisions of art. 6 para. (1) of Law no. 24/2000, “The draft normative act MUST establish the necessary, sufficient and possible rules that will lead to the greatest possible stability and legislative efficiency. The solutions it contains must be FULLY FOUNDED, taking into account the social interest, the legislative policy of the Romanian state and the requirements of correlation with all internal regulations and harmonization of national legislation with Community law and international treaties to which Romania is a party. and with the jurisprudence of the European Court of Human Rights.”

Mentions such as “many voices in Romania have called for the abolition of the Special Section” NOT only cannot be a substantiation of the law, but is equivalent to the lack of motivation of the legislative solution!

THE SUMMARY CHARACTER of the instrument of presentation and motivation, as well as the LACK OF FUNDAMENTAL GROUNDS of the normative acts were sanctioned by the Constitutional Court in its jurisprudence, in relation to the same requirements of clarity, predictability of law and security of legal relations imposed by art. 1 para. (5) of the Constitution, with the invocation of both the norms of legislative technique for the elaboration of normative acts.

Thus, by Decision no. 710/2009, the court of constitutional control held that “the statement of reasons does NOT include the motivation on any of the envisaged solutions, which IS CONTRARY to the constitutional and legal provisions indicated above” [of art. 29-31 of Law no. 24/2000 regarding the norms of legislative technique for the elaboration of normative acts (regarding the motivation of the drafts of normative acts, under the aspect of the instruments of presentation and motivation, as well as of the content and wording of the motivation) and of art. 1 para. (5) of the Basic Law (…)].

Likewise, by Decision no. 682/2012, the Court found that “the provisions of art. 6 of Law no. 24/2000 regarding the norms of legislative technique for the elaboration of normative acts, republished in the Official Gazette of Romania, Part I, no. 260 of April 21, 2010, as subsequently amended and supplemented, establishes the OBLIGATION TO BASE THE REGULATORY ACTS. (…) THE LACK OF A FUNDAMENTAL GROUNDING of the normative act in question determines, for the reasons shown, the VIOLATION of the provisions of the Constitution contained in art. 1 para. (5) according to which, “In Romania, the observance of the Constitution, of its supremacy and of the laws is obligatory”, as well as of art. 147 para. (4) according to which the decisions of the Constitutional Court are generally binding. ” (points 2.21 and 2.22). With regard to the object of the legislative initiative, pronounced technically, of strict specialty, the Court finds that also in the present case the FORMAL MOTIVATION, WITHOUT A FUNDAMENTAL BASIS OF THE CRITICIZED LAW, AFFECTS THE QUALITY AND PREDICTIBILITY OF IT, with the consequence of the violation. 1 para. (5) of the Constitution”.

By Decision no. 139/2019, the Constitutional Court also ruled the following: “THE FUNDAMENTAL GROUNDS of legislative initiatives is a REQUIREMENT imposed by the mentioned constitutional provisions, as it PREVENTS arbitrariness in legislative activity, ensuring that proposed and adopted laws meet real social needs and social justice. Accessibility and predictability of the law are requirements of the principle of security of legal relations, constituting guarantees against arbitrariness, and the role of constitutional review is to ensure these guarantees, as opposed to any arbitrary legislative intervention. Thus, the Court notes that THE LACK OF MOTIVATION OF LEGISLATIVE SOLUTIONS is likely to affect the provisions of art. 1 para. (3) of the Constitution, which enshrines the rule of law and the principle of justice (…). “

2. It is mentioned in the substantiation note, in summary terms, that the approach of establishing the Section for the Investigation of Crimes in Justice “was recorded as constitutional”. However, it was mandatory (in relation to the provisions of art. 147 para. (4) of the Constitution, which establish the final and general binding nature of the decisions of the constitutional court) that the initiators of the draft normative act take into account and show that by Decision no. 33/2018, the Constitutional Court of Romania REJECTED, as unfounded, the objections of unconstitutionality formulated, showing that by establishing this Section with exclusive competence in conducting criminal prosecution, neither the provisions of the Romanian Constitution nor the international treaties to which Romania is a party are violated.

The Court also confirmed the OPPORTUNITY to set up the new structure, which was completely depoliticised, noting that it “constitutes a legal GUARANTEE of the principle of the independence of the judiciary, in terms of its individual component, the independence of the judge. It ensures, in this way, an adequate PROTECTION of magistrates against the pressures exerted on them, against abuses committed through arbitrary notifications / denunciations and ensures a unitary practice, at the level of this prosecutor’s office structure, regarding the performance of criminal prosecution acts for crimes committed by magistrates ”. (para. 141 of the Decision).

3. Assessments in the sense that “the parameters in which it carries out its activity contravene the organization of prosecutor’s offices in Romania” do NOT have a logical basis, by reference to the fact that prior to the establishment of the Section for investigating criminal offenses (Law no. 207/2018), within D.N.A it worked, CONTRARY to the way the prosecutor’s offices were organized (starting with 31.01.2014), The Service for Combating Corruption in Justice (SCCJ) – established by Order no. 10 of the Chief Prosecutor D.N.A. and having as its attribution the investigation of criminal cases having as object offenses committed by magistrates or in connection with them. And the “parameters” in which this service operated were amply highlighted by the Judicial Inspection Report on “Observance of the general principles governing the activity of the Judicial Authority in cases within the competence of the D.N.A. targeting magistrates or in connection with them ”, validated in 2019 by the CSM: between 01.01.2014 – 31.07.2018 they were registered at the level of D.N.A. 1,459 cases involving 845 prosecutors and 1,443 cases involving 1,962 judges (the report expressly states that “it is NOT possible to make an exact calculation of the total number of judges involved in the criminal investigation cases analysed”)!

The document shows that during the existence of this service there were numerous abuses and pressures, being indicated, among others, “situations of requesting from the courts the civil / criminal cases that were pending before the courts, regardless of the stage of settlement, in order to carry out criminal prosecution in cases concerning magistrates, which may constitute a POTENTIAL PRESSURE FACTOR on judges invested with the settlement of those cases “, respectively” requests for a criminal case to be taken over by DNA central structure, in relation to settlement by the judge of requests for extension of technical supervision mandates targeting magistrates, which may constitute a POTENTIAL PRESSURE FACTOR over the judge concerned ”.

However, beyond this issue, the assessments in question have NO legal basis, in the context in which, as the Constitutional Court ruled by Decision no. 33/2018, “as long as the respective prosecutor’s office structure does not have a constitutional consecration, being established and functioning also as a result of the option of the ordinary legislator, the aspects related to its competences remain within the decision of the legislator, based on the constitutional provisions contained in art. .131 paragraph (2), according to which “the Public Ministry exercises its attributions through prosecutors constituted in prosecutor’s offices, in accordance with the law.” (para. 128 of the Decision).

4. The criticism according to which “it appears atypical to regulate the appointment of judicial police officers and officers and specialists by a chief prosecutor in a prosecutor’s office” is lacking not only motivation but also technical-legal reasoning, given the existence of situations identical at the level of other prosecutor’s offices that are set up and operate under the High Court of Cassation and Justice.

A simple comparative analysis reveals that this way of regulation is as “atypical” as the appointment of officers and judicial police officers seconded to the DNA, by order of the chief prosecutor of this directorate (as stated in the provisions of art. 10 paragraph (5) of GEO No. 43/2002 on DNA).

However, the Ministry of Justice did NOT explain / argue the “atypicality”.

5. Regarding the “arguments” regarding an alleged “violation of the principle of career separation” of magistrates, it can be easily observed that they are “substantiated” only by taking over the expositions of the separate opinion of judges Livia STANCIU and Simina TĂNĂSESCU to Decision no. 547/2020 of the RCC, which, however, cannot automatically give them the necessary coherent motivation and solid substantiation (especially against the background of not presenting concrete arguments).

6. The criticism regarding the circumstance that “the appointment and revocation of the management of the Section is made by the Plenum of the CSM, of which judges are part” is deeply unfounded and cannot be retained.

This is given that even the first recommendation of the European Commission in the MCV Report of 15 November 2017 reiterates a recommendation made by the European institution in its previous reports on Romania, namely to “[…] implement a robust and INDEPENDENT system of appointment of high-ranking prosecutors, based on clear and transparent criteria, with the support of the Venice Commission, recommending including the revision of the provisions of art. 132 para. (1) of the Romanian Constitution and the amendment of Law no. 303/2004, so that the CSM’s approval becomes MANDATORY.”

At the same time, it is “conveniently forgotten” the fact that, by Approval 924/2018, referring to the Section for the Investigation of Crimes in Justice, the Venice Commission stated that, “THE DECISION on the organization and structure of the Public Ministry belongs to the competent national authorities”, welcomed the “concern of the legislator to ensure, in the context of the proposed new section, effective procedural guarantees for magistrates”, noting that “it is in particular the involvement of the CSM in appointing the Chief Prosecutor of the Section by project competition organized by a special commission set up within the Council. The same mechanism is envisaged for revocation. The participation of the plenary (i.e. judges and prosecutors) is important as the Section, although it will be headed by a chief prosecutor, will investigate both prosecutors and judges.

More than that, it was necessary to point out that there was NO request / recommendation from the Venice Commission to abolish the Section, but only the recommendation of “additional, effective and comprehensive consultations with the professional body” in connection with this structure of the Public Ministry.

7. Alleged “de facto criminal immunity of SIIJ prosecutors in certain situations” is invoked, without explaining the nature of this “immunity” and WITHOUT exemplifying those “situations”.

If we consider the allegations of the initiator of the draft normative act and report them to the level of judges, we could appreciate, for example, that judges at the level of the HCCJ tried for committing crimes have the same “de facto criminal immunity” before fellow judges invested with the trial of cases (according to the provisions of art. 40 para. (1) C.Proc.Pen., the High Court of Cassation and Justice judge, both in the first instance and the appeals against criminal decisions pronounced in the first instance by the Section criminal law of the HCCJ) crimes committed by HCCJ judges). However, this is NOT possible in a state governed by the rule of law, where justice is done in the name of the law, being unique, impartial and equal for all. As we can NOT make up for presumptions the lack of consistency, arguments and foundation of the draft normative act (both in a general sense and in a special sense, in relation to this alleged “immunity of de facto criminal jurisdiction of SIIJ prosecutors”) .

8. The resumption of the issues related to the “definition of the notion of hierarchically superior prosecutor” cannot be received, given that, by Decision no. 547/2020, the court of constitutional control has already ruled in this regard, the obligation of the legislator being in the sense of punctual remedy of problems related to violation of the principle of hierarchical superior control, and NOT the very abolition of the Section.

9. From the perspective of opportunity, the substantiation note of the draft normative act states that “relevant conclusions can be drawn in the sense of the need to abolish this structure”, stating that “the Section did not have special results” and being mentioned “in terms of statistical”. However, the presentation is extremely biased, not only in relation to the fact that it is NOT mentioned on what criteria / arguments these “relevant conclusions” were “based”, but also in relation to the objective reality, represented by the fact that the 7 prosecutors who had 6,636 cases to be solved within the SIIJ (average of approximately 900 cases / prosecutor), 2,984 being registered only in 2020, and 3,652 being remaining / taken over from 2019

Also, although “statistically” the Ministry of Justice intends to report “on 01.12.2020”, regarding the solved cases, only “the first semester of 2020” is considered, a period in which it is mentioned that “there were solved 212 cases, of which one by indictment and 211 by dismissal”. However, the figures do NOT correspond to the REAL / official ones (see the SIIJ report, sent to the CSM during this month), which confirms that “during 2020 a number of 552 cases were resolved on the merits, of which 2 indictments, through which 3 defendants were sent to trial. In a number of 550 cases, the prosecutors of the Section ordered dismissal solutions.”

10. It claims alleged “opinions in the sense of abolishing the SIIJ” which would have been “expressed during the consultations on how to implement the European recommendations, views in this regard being requested HCCJ, CSM, PÎCCJ, DNA, DIICOT, SIIJ and magistrates’ associations ”and exemplifies 5 (five)“ arguments put forward by the consulted entities in favour of abolishment”. And this, WITHOUT mentioning that the most important of the opinions  (that of CSM, which is, according to the provisions of art. 11 para. (1) of the Constitution, the guarantor of the independence of the judiciary) was NEGATIVE.

Through this approval, the CSM confirms that the draft law aims to change the competence to carry out criminal prosecution in cases of crimes committed by magistrates, the files will return to other prosecutor’s offices, including DNA. In this context, it is stated that “the proposed normative solution is NOT, however, accompanied by the establishment of GUARANTEES meant to give effect to the principle of independence of justice, by ensuring adequate protection of judges and prosecutors against possible PRESSURE exerted on them.”

At the same time, the CSM criticizes the Minister of Justice extremely harshly, pointing out that his approach in connection with the draft law not the judge or prosecutor. The judge is the last stronghold in the support of the citizen, in his natural approach to capitalizing on and defending his rights and legitimate interests. However, ONLY an independent judge, who enjoys adequate guarantees, can respond to this desire of the citizen and, equally, of the rule of law. The judge must act in accordance with the LAW, without being affected by any FEAR that he could be subjected to proceedings initiated by one of the participants because of the case he is investigating, for the purpose of INTIMIDATION. (…) Likewise, prosecutors must carry out their activity independently, protected from any form of unjustified PRESSURE.

At the same time, the CSM criticizes the Minister of Justice extremely harshly, pointing out that his approach in connection with the draft law „denotes misunderstanding of the real significance of the principle of the independence of the judiciary, which, in its essence, is meant to protect, first of all, the CITIZEN, and not the judge or the prosecutor. The judge is the last stronghold in the support of the citizen, in his natural approach to capitalizing on and defending his rights and legitimate interests. However, ONLY an independent judge, who enjoys adequate guarantees, can respond to this desire of the citizen and, equally, of the rule of law. The judge must act in accordance with the LAW, without being affected by any FEAR that he could be subjected to proceedings initiated by one of the participants because of the case he is investigating, for the purpose of INTIMIDATION. (…) Likewise, prosecutors must carry out their activity independently, protected from any form of unjustified PRESSURE.”

The CSM Plenary also notes that “it is beyond any discussion the need to provide ADEQUATE GUARANTEES to ensure real independence of justice and the obligation of the legislator to regulate such guarantees”, recalling that, according to the project promoted by Minister Stelian Ion, it is possible to “suspend from office a judge or prosecutor only by the effect of the EXCLUSIVE assessment of the prosecutor who orders the prosecution.”

There are also reiterated aspects retained by the CSM Plenum in Decision no. 225 / 15.10.2019, approving the Judicial Inspection Report no. 5488 / IJ / DIJ / 1365 / DIP / 2018 on “observance of the general principles governing the activity of the Judicial Authority in cases within the competence of DNA concerning magistrates or in connection with them”, the CSM concluding, following the examination of this report, the perspective of observing the guarantees provided by law for the magistrates involved in the cases pending before the National Anticorruption Directorate, it can be ascertained the existence of SIGNIFICANT DEFICIENCIES regarding the performance of criminal prosecution acts in a series of cases.”

Moreover, those associations of magistrates that have been consulted are NOT indicated (especially since the public information is in the sense of the expression, by the majority of these associations, of strong criticisms towards the draft law on the abolition of SIIJ) and nor did all the entities consulted make arguments only in favour of the abolition of the section (which seems, in any case, a UTOPIA)…