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Romanian Judges’ Forum regarding the naming procedure of chief magistrates

In this regard the Justice Minister proposes the revision of the laws of justice, as it follows:

  • The President and the Vice-Presidents of the High Court of Cassation and Justice will be named by Romania`s President after the Superior Council of Magistracy – section for judges proposal, among the High Court of Cassation and Justice’s judges, who ruled at this Court at least 2 years and had not been disciplinary sanctioned.
  • The General Prosecutor of the Prosecutor’s Office attached to the High Court of Cassation and Justice, the First Deputy Prosecutor General and his Deputy, the Chief Prosecutor of the National Anticorruption Directorate, his Deputies, the Heads of Sections of the Prosecutor’s Office attached to the High Court of Cassation and Justice and to the National Anticorruption Directorate, also the Directorate for Investigating Organized Crime and Terrorism Chief Prosecutor and their Deputies are named by the section for prosecutors, at the Justice Minister’s proposal.
  • Due to a transparent judicial procedure, the Justice Minister presents at least 2 proposals, among the prosecutors having at least 10 years seniority in the practice of the prosecution activity.

 

  1. Regarding the intention to modify

These proposed changes to justice laws don’t have any judicial reason, but obviously, the reasons could be of a different kind.

Firstly, beyond any further arguments the naming procedure in this positions was previously established, but in order for Romania to join the European Union, agreed with the members of the Community field and accepted by the Cooperation and Verification Mechanism.

Afterwards, none of the annual reports criticized the naming procedure in these positions, nor sustained that the balance of state powers could be affected.

 

  1. The proposed changes regarding the Heads of Prosecutor’s Offices

As the proposal it’s being made by the Justice Minister, the Superior Council of Magistracy has not a full liberty of choice, the alternative of a refusal being almost excluded within the Decision No 98/7 February 2008 of the  Romania Constitutional Court.

This is an unsafe procedure, because, on one side, the SCM has only the choice of a “Yes” or a “No”, regarding the Justice Minister’s proposal, couldn’t be able to choose between the large number of Romanian prosecutors, and on the other side the responsibility for the decision could be lost between the SCM members who might hidden at the guard of the secret vote.

In fact, the Justice Minister will be the one who consolidates a main position in the naming of the Heads of Prosecutor’s Offices.

Much worse is that this mechanism which allows the Justice Minister to name the Heads of Prosecutor’s Offices (knowing that he has to choose between 2 proposals) liaised with the proposal which allows the Chief Prosecutor to infirm solutions based either on illegal reason (as it is now), or on unfounded reason (as it’s proposed), generates the right conditions for a political control of the Prosecutor’s Offices, which would affect the credibility of the Criminal Justice.

Therefore, it would not exist any possibility for a democratic control of the criminal investigations, which could be finished or initialized based on the decision of some Chief Prosecutors politically named by the Justice Minister.

Among all the investment procedures or removal from the important positions of the Prosecutor’s Offices (The General Prosecutor’s Office, the National Anticorruption Directorate, the Directorate for Investigating Organized Crime and Terrorism) the current procedure was the only one to generate the conditions of a real criminal justice in Romania, thanks to a tripartite mechanism which offers counter-weights like: the Justice Minister (Government’s representative), the President of Romania (directly elected by the citizens), SCM formed of magistrates and civil society representatives.

By maintaining the role of the Justice Minister and removing from the process the Romanian President – the Romanian dignitary with the main democratic legitimacy, directly elected by the majority of Romanian citizens – it would generate a serious imbalance. 

Dragoș CĂLIN

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