In the context of your 6th to 8th February 2019 visit to Bucharest, in order to take part to the informal reunion of Justice and Domestic Affairs Ministers of the European Union Members States, the Romanian Judges’ Forum Association, the Movement for Defence of Prosecutors’ Status Association along with the Initiative for Justice Association, summing up an important amount of Romanian judges and prosecutors, kindly request you take into consideration an update of the reunion agenda, in order to discuss the state of judiciary independence in Romania, in the context of national authorities’ failure to observe the recommendations provided within the Cooperation and Verification Mechanism and opinions of both Venice Commission and GRECO.
The Report issued by the European Commission on the 13th November 2018 within the Cooperation and Verification Mechanism sets out 12 benchmarks, taking into account the extent to which the amendments of the three Justice laws could impair the effective independence of magistrates and limit the role of the Superior Council of Magistracy as the guardian of judicial independence, as follows:
• the new system of appointment and dismissal of Chief Prosecutors and the role of the Minister of Justice in these procedures;
• limitations of the freedom of expression and information, through an amendment which requires magistrates to refrain from “defamatory manifestation or expression against the other powers of the state”;
• new provisions dealing with the material liability of magistrates, which have been seen as opening the possibility to be used as methods of pressuring the magistrates. They open the possibility for the Ministry of Finance to launch regress action against a magistrate for judicial error, on the basis of its own assessment, with only a consultative role for the Judicial Inspection. A decisive role in determining these actions is given to the Judicial Inspection and the Ministry of Finance, rather than to the Superior Council of Magistracy;
• a new department for investigating criminal offences committed by magistrates (unique of its kind), that can be seen as an additional instrument of pressuring magistrates, taking into account the complete lack of explanation for this special treatment of magistrates compared to other office holders and civil servants, along with ignoring the National Anti-Corruption Directorate (DNA) already established solid track record in investigating and prosecuting cases of corruption within the magistracy;
• the possibility of revoking the Superior Council of Magistracy members through a non- confidence vote/petition from courts and prosecution offices, which would risk upsetting the balance between the accountability and the stability and independence of SCM members;
• the removal of previous reference regarding the independence of prosecutors in their statute which, taking into account the cumulative effect of other measures and given the complex political context currently prevailing in Romania, further tends toward reinforcing hierarchical control and the authority of the Minister of Justice and entails a risk of giving way to political interference in criminal cases;
• the incentive towards early retirement and the increase of the training period for justice auditors create serious risks of disruption of the human resources management in the judiciary, with consequences on its efficiency and quality.
The European Commission reminded that these concerns were already reflected in the conclusions and recommendations of the GRECO report of March 2018 and have been further confirmed by the conclusions of the opinion of the Venice Commission of 20 October 2018 which also issued recommendations for Romania in order to address the problems identified with the laws. Since 2017 the MCV report shows that the Judicial Inspection has been involved in a number of controversial steps in terms of a series of disciplinary investigations started against all the heads of the judicial institutions and also conducted management controls, at the request of the Ministry of Justice, and thematic controls at the office of the General Prosecutor and the DNA. In at least two cases potentially misleading information reached the public domain before the end of the control and was used in public debate. An area of concern was expressed that the DNA appears to have been a particular target in terms of pressure likely to damage its independence. The report further voiced that heavy public and media criticism from senior politicians, the fact that both dismissal of the sitting Chief Prosecutor and the proposed appointment of a new Chief Prosecutor for the DNA took no account of the clear and strong opinion of the Superior Council of the Magistracy (SCM) raised major doubts about the process. An added concern regarded the actions taken by the Judicial Inspection, which launched several disciplinary proceedings against the former Chief Prosecutor of the DNA, which have been used as a justification for the dismissal even though they were not definitive and have been eventually rejected by the SCM.
Following this unseen situation within an EU Member State, the Romanian Judges’ Forum Association took an unprecedented approach and asked the Court of Olt District to address EU Court of Justice with a preliminary request, in accelerated procedure, concerning the interpretation of Cooperation and Verification Mechanism pursuant its set up by the Commission Decision 2006/928/CE of 13th of December 2006. Questions were addressed in terms of requesting the interpretation of the legal nature of the CVM as an act issued by an EU institution and therefore legally binding for our country, as well as the provisions of art. 19 par. 2 of the EU Treaty in terms of holding responsible Member States to implement necessary means in order to ensure proper safeguards in areas regulated by EU Law, namely the one regarding independent disciplinary proceedings conducted against judges, apart from any outside political influence, as could be even an interim appointment of Chief Inspector by the Government. Equally unseen before in the EU, we express concern about the approach of the Judicial Inspection to ask for the transfer of the case file from the court which ruled in favor of lodging the EU Court of Justice with the above mentioned request, already registered as C-83/19, Asociația Forumul Judecătorilor din România, in an attempt of cancelling the possibility of such a preliminary ruling.
Besides, these days the Minister of Justice is fully involved in the dismissal of Mr. Augustin Lazar, the General Prosecutor of Romania, ignoring the famous precedent broadly criticized by both the European Commission and Venice Commission, which also caused a complaint lodged with the European Court of Human Rights regarding the right to defend oneself in the proceedings. The present dismissal procedure appears to be based on a claim of unrestrained freedom of speech, improper to the highest ranked prosecutor and in this case as well the negative opinion of the Superior Council of Magistracy was disregarded. In the same time, many Romanian officials, such as several ministers among which Mr. Tudorel Toader himself, voiced as unavoidable the enactment of a Government Emergency Ordinance aiming at the annulment of all final criminal decisions issued in the last five years by the five panels judges of the High Court of Cassation and Justice, thus jeopardizing fundamental values of the rule of law, disregarding a well-established ECHR jurisprudence on security of legal relations and cancelling all previous judicial efforts to fight corruption, creating the risk of not recovering financial damages amounting to 2 billion euro.
Last but not least, simultaneously to the dismissal of the General Prosecutor following an identical procedure as in the case of the former chief of the National Anticorruption Directorate, we witness another stunning approach of the Minister of Justice, equally improper for a EU Member State, namely that of institutionally boycotting the nomination of Mrs Laura Codruta Kovesi, citizen of Romania, as the first option for the vacancy of European Prosecution Office Chief. Although Mr. Tudorel Toader has proclaimed so far a need of loyal institutional cooperation and patriotic feelings, claimed to be proper for any public servant, we appreciate that this behavior is likely to highly damage the public image of a prosecutor whose abilities and professional experience were validated by the EU as front runner for a top position within an institution for which also Romania strived to set up.
In conclusion we underline that developing the civil and commercial cooperation between Member States, collecting e-evidence and enforcing mutual trust in criminal matters are impossible to attain in the absence of effective rule of law, as uncertainty, instability, ambiguity and unpredictability are incompatible with it.
Please accept, Your Excellencies, the assurances of our highest consideration.
The Romanian Judges’ Forum Association
Dragoș Călin, co-president judge
Anca Codreanu, co-president
The Movement for the Protection of Prosecutors’ Statute Association
Antonia Diaconu, co-president prosecutor
Adrian Cosmin Iordache, co-president
The Initiative for Justice Association
Bogdan Pîrlog, co-president
Sorin Lia, co-president