La data de 05.07.2021, Coaliția pentru Apărarea Statului de Drept, Asociația pentru Dialog și Solidaritate a Avocaților, Asociația OCH, Asociația Angel și Victor Alistar – reprezentant al societății civile în CSM au transmis Comisiei de la Veneția o Scrisoare referitor la proiectul de lege privind desființarea SIIJ.
Scrisoarea transmisă Comisiei de la Veneția:
To
Venice Commission
To the attention of the Mr. President Gianni BUQUICCHIO
Reference: CDL-REF(2021)042, Opinion No. 1036 / 2021
Dear Sir,
The undersigned Rule of Law Defence Coalition, a non-profit, non-governmental association, established in order to defend the constitutional rights and freedoms of citizens, as well as the constitutional order and the rule of law in Romania, based in Romania, Bucharest, Matei Voievod street, no. 27, sector 2, registered in the Special Register under no. 28/23.03.2021, CUI: 44037400, e-mail: [email protected], tel: 0040743120002, legally represented by Elena Radu, as President,
The undersigned Association for Dialogue and Solidarity of Lawyers, a non-profit, non-governmental association, based in Romania, Bucharest, Turnul Eiffel 6, sector 2, CUI: 29233217, legally represented by Silvana Racoviceanu, as Vicepresident,
The undersigned Organized Crime Harm Reduction Association, a non-profit, non-governmental association, based in Romania, Bucharest, Independenţei street, no 2K, Sc. 1 Et. 1, CUI: 32512840, e-mail: [email protected], legally represented by Eugen Chiracu, as President,
The undersigned Angel Association, a non-profit, non-governmental association, based in Romania, Bucharest, Spătaru Preda street, no 19, bl 19, SC 3, ap 45, sector 5, CUI: 14240275, e-mail: [email protected], legally represented by Eugen Lucan, as President,
The undersigned Victor Alistar, civil society representative within Superior Council of Magistracy,
In consideration of the request of the Romanian Minister of Justice to issue an Opinion on the draft law on the dismantling Section for Investigating Crimes within Judiciary, we inform you of the following:
- To guarantee the right to a fair trial, Romanian citizens have the right to an independent court.
- The draft law on the dismantling the Section for Investigating Crimes within Judiciary establishes that the National Anticorruption Directorate (DNA) will be competent to investigate offences committed by judges and prosecutors (Article 3).
As a result of the fact that in the Opinions issued so far by the Venice Commission on the establishment/dismantling the Section for Investigating Crimes within Judiciary (SIIJ) no reference was made to the conclusions of the Plenum of the Superior Council of Magistracy (CSM) on the investigation of judges and prosecutors conducted by National Anticorruption Directorate (DNA) during 01.01.2014 – 30.07.2018 presented in the Decision of the Plenum of the CSM no. 225 of 15.10.2019, we consider it necessary to bring to your attention the conclusions of the Plenum of the CSM so that you can issue an Opinion based on factual situations.
The Venice Commission’s analysis of these conclusions (of the Plenum of the CSM) is necessary to determine whether the establishment of the SIIJ represented an attack on the independence of judges and prosecutors in Romania or, on the contrary, an attempt to guarantee their independence.
We hereby inform you that, on 18.04.2019, the Judicial Inspectorate[1] issued a Report on compliance with the general principles governing the work of the Judicial Authority in cases within the jurisdiction of the National Anticorruption Directorate concerning magistrates or related to them[2].
This report was drawn up by the Judicial Inspectorate (IJ) as a result of an inspection which had as its general objective the respect of the general principles governing the activity of criminal prosecution, i.e. the activity of trial, in cases under the jurisdiction of the National Anticorruption Directorate (DNA) in which the accused were investigated, accused and judged, prosecuted persons having the status of magistrates and in cases before the courts in which the referral for trial was made by indictments issued by the Prosecutor’s Office of the High Court of Cassation and Justice – National Anticorruption Directorate (DNA) in connection with cases in which magistrates were investigated, the period concerned being 01. 01.2014 – 30.07.2018.
It has been notorious that the Judicial Inspectorate (JI) has drawn up this report, with several press articles referring to it.[3]
It should be noted that before the establishment the Section for Investigating Crimes within Judiciary (SIIJ), the National Anticorruption Directorate (DNA) was responsible for the criminal investigation of possible offences committed by judges and prosecutors.
The Judicial Inspectorate’s report regarding DNA was approved by the Superior Council of Magistracy (CSM) by Decision no. 225 of 15.10.2019[4], the conclusions of the Plenum of the Superior Council of Magistracy being as follows (pages 121 – 125 of the Decision):
” Considering all the above mentioned, the Plenum of the Superior Council of Magistracy notes a judicious argumentation of the factual findings and conclusions of the report under consideration on the prosecution activity, as follows:
– Unjustified duration of investigations in many cases, mainly due to the lack of rhythm in the criminal proceedings, correlated with periods of inactivity;
– Infringement of procedural rules by the prosecutors conducting the prosecution, consisting of the following:
– Infringement of the procedural rules concerning the prosecutor’s obligation to inform the intercepted/technically supervised person, i.e. the absence of orders for the postponement of the measure, as well as the failure to notify the magistrates concerned by the investigation of the closure decisions;
– Absence of orders to initiate criminal proceedings „in rem”;
– Issuance of „in blank” delegation orders, i.e. the execution of prosecution acts by the criminal investigation bodies in the absence of delegation;
– Redistributing files without any reasoning/justification of the measure;
– Carrying out specific acts of criminal prosecution by Romanian Intelligence Service officers in cases against magistrates;
– The practice of requesting cases pending in several courts to evaluate measures/solutions pronounced by judges from a possible criminal perspective;
– Other inadequate issues raised:
– Request for taking criminal cases by DNA Central Structure in function of the judge’s decision of the request for extension of technical supervision measures concerning other magistrates;
– Making inappropriate comments about the solutions pronounced by the judges, in acts carried out/issued by DNA prosecutors;
– The technique of ex officio accusations, especially against judges and their investigation for the solutions ordered in various cases;
– The bulk solution of cases left in processing, sometimes for a very long period of time, prior to the operationalization of the Section for Investigating Crimes within Judiciary.
From the perspective of compliance with the guarantees provided by law for magistrates involved in cases pending before the National Anticorruption Directorate, it can be noted that there are major deficiencies in the conduct of criminal prosecutions in a number of cases.
Thus, the equitable nature of the procedure requires, according to ECHR case law, ensuring a balance between the protection of the general interest of society in punishing all offenders, on the one hand, and the legitimate interest of each innocent person not to be subjected to criminal coercion, on the other.
Equally, fairness implies a permanent concern not to unduly infringe fundamental rights and freedoms enshrined in the Constitution, which requires strong safeguards to prevent any abuse and to remove the consequences of violations of the law by the judiciary.
As a component of fairness, the reasonableness of the length of the proceedings is assessed according to the circumstances of the case and taking into account the criteria set out in ECHR case law, namely the complexity of the case, the conduct of the applicant, the conduct of the authorities and the importance to the applicant of the subject matter of the case.
However, an analysis of the situations presented in the Judicial Inspectorate’s report shows that the way in which the prosecuting authorities exercised their powers fell outside the scope of the requirements laid down by the ECHR, with the consequence that the reasonable duration of the proceedings and their fairness were violated.
In many cases, periods of unjustified inactivity (of the order of years) have been found, subsequent to the ordering of technical surveillance measures, often for significant periods of time, measures which, by their nature, are extremely intrusive in the rights and freedoms of the magistrates concerned.
In many cases, the inactivity of the prosecution authorities was doubled by measures to delay informing the persons concerned about the technical surveillance carried out, which undoubtedly increased the negative consequences on the fundamental rights and freedoms of the magistrates concerned.
At the same time, in the cases mentioned, there is a clear lack of interest on the part of the prosecuting authorities in resolving the case, even though, as sometimes stated in the closure decision, there were no indications that a crime had been committed.
In the light of the above circumstances, it can be concluded that the guarantees of independence of the magistrates under investigation in these cases have been impaired as a direct consequence of the manner in which the criminal proceedings were conducted.
In the conduct of criminal proceedings, judicial bodies must ensure strict compliance with the law, which is imperative both in terms of the actions of other participants in the criminal process and, above all, the actions of the judicial bodies themselves.
Beyond the blatant disregard of mandatory procedural provisions, the shortcomings highlighted by the Judicial Inspectorate Report raise serious doubts as to the appearance of impartiality that should characterise the conduct of the prosecution bodies during the criminal proceedings.
Serious violations of criminal procedural rules, such as failure to inform the persons subject to the technical surveillance measure, failure to issue an order for the commencement of criminal proceedings in rem, issuance of „blank” delegation orders (a measure that would allow the preparation of documents with false data), redistribution of files without any justification/reasoning for the measure, the performance of specific acts of criminal prosecution by officers of the Romanian Intelligence Service in cases concerning magistrates or the practice of requesting files pending before the courts in order to evaluate the measures/solutions of judges, in addition to the procedural consequences on which only the competent judicial bodies can pronounce, under the law, undoubtedly generate in the public perception distrust in the objectivity of the prosecution bodies or, moreover, the justified fear that their activity is not subject to the law.
All the circumstances described above have, cumulatively, also the consequence of representing a factor of evident pressure on the magistrates regarding the files in question, constituting, at the same time, a severe impairment of the principle of legality of the criminal process and the presumption of innocence, which are the foundations of a fair criminal trial.
In the same context, other working methods of the prosecution bodies are also highlighted by the findings of the judicial inspectors.
Thus, relevant is the large number of judges involved in prosecution activities in cases pending before the National Anticorruption Directorate (Central Structure and territorial structures), seen in correlation with the total number of judges in the respective courts, on the one hand, and with the fact that in the overwhelming majority of these cases non-prosecution decisions were ordered.
For example, at the High Court of Cassation and Justice more than 75 judges were targeted (9 of them being investigated at the territorial services of Brasov, Oradea, Constanta), at the Bucharest Court of Appeal about 100 judges, at the Oradea Court of Appeal about 35 judges (out of about 40 judges), at the Ploiesti Court of Appeal about 30 judges (out of about 50 judges), at the Brasov Court of Appeal about 25 judges, at the Court of Appeal Iasi about 20 judges (out of about 45 judges), at the Court of Appeal Constanta more than 15 judges (out of about 40 judges), at the Court of Appeal Timișoara more than 15 judges (out of about 60 judges), more than 85 judges at the Bucharest Court, more than 25 judges at the Argeș Court (out of about 40 judges), more than 30 judges at the Bihor Court (out of about 40 judges), more than 25 judges at the Dolj Court (out of more than 70 judges).
In total, more than 1,900 judges at the level of the Central Structure and territorial structures of the National Anticorruption Directorate were targeted.
The practices of DNA prosecutors who have handled cases against judges in the ways mentioned below have been forms of pressure on judges, with direct consequences for the delivery of justice.
Thus, the technique of ex officio referrals against judges and their investigation for the solutions decided in cases is an unacceptable fact, of unprecedented gravity, which undoubtedly represents a factor of pressure not only on those concerned, but on the entire professional body of judges.
The doubts on the working methods of the prosecutors of the National Anticorruption Directorate are amplified by the fact that cases were left unresolved for a long period of time, after having previously been subject to technical surveillance for significant periods of time, were solved all together, by not being brought to trial, even before the operationalization of the Section for Investigation of Crimes within Judiciary.
Such a practice raises serious questions about the reasons for keeping cases on the docket for years and raises legitimate suspicions that this is a factor of pressure on the work of the magistrates and, ultimately, on the right of the parties to a fair trial.
In the same vein is the practice of requesting cases pending before various courts in order to assess the measures/solutions pronounced by judges from a possible criminal perspective. In fact, this manner of investigation represented a real intrusion into the judge’s freedom of appreciation.”
All these conclusions regarding the activity of DNA for the period 01.01.2014 – 30.07.2018 prove the abuses against magistrates generated by the fact that the same structure of the Public Ministry, DNA, had both the quality of accuser of a citizen before the court and also that of criminal investigation body of the judge who ruled on the accusation made by DNA.
These abuses have been a factor of pressure on the work of magistrates and have had the consequence of affecting the impartiality of magistrates, the principle of legality of the criminal process, the presumption of innocence and the right of citizens to a fair trial.
However, precisely in order to eliminate these abuses, the Section for Investigating Crimes within the Judiciary (SIIJ) was set up, which is only responsible for conducting criminal prosecutions committed by judges and prosecutors, and the participation in court hearings in cases under the jurisdiction of this section is ensured by prosecutors from the Judicial Section of the Prosecutor’s Office of the High Court of Cassation and Justice (another prosecutorial structure).[5]
- With regard to the draft law for which an opinion was requested [6], the Superior Council of Magistracy issued a negative opinion [7], claiming, among other things, that it affects the independence of justice and referring to the Decision of the CSM Plan No 225 of 15.10.2019.
- Subsequent to the submission of the draft law for which the Opinion was requested by the Ministry of Justice, numerous discussions have arisen regarding the guarantee of the independence of justice in both variants (both if the draft law is approved, the SIIJ is abolished and jurisdiction is returned to DNA, and if the draft law is rejected and the SIIJ is maintained), which directly affects the Romanian State’s guarantee of the right to a fair trial to its citizens.
Following analysis of all the arguments put forward for and against the draft law, on 29.03. 2021, Rule of Law Defence Coalition informed the Romanian Senate that, if the solution of the majority of senators is to abolish the SIIJ, then it is necessary, in order to guarantee the right to a fair trial to Romanian citizens, by respecting the independence of the judges, to set up a new structure of prosecutor’s office with legal personality, depoliticised, whose prosecutors (including the chief prosecutor) will be appointed by the CSM, which would have exclusive jurisdiction to prosecute offences committed by magistrates and which would be attended by prosecutors from the Judicial Section of the High Court of Cassation and Justice Prosecutor’s Office or by prosecutors from the prosecutor’s office of the court hearing the case.
It is relevant, with regard to the standards consistently set by the Venice Commission, that the autonomy of the States party to the Council of Europe to regulate the organisation of the judiciary should be exercised without affecting the principles of judicial independence. The following comparisons should be noted in the light of the specific situation, leading to the conclusion that the regulatory solution of returning to an ex ante status quo is likely to weaken the guarantees of the current model of judicial organisation:
| Standard | The current situation governed by the organisation and functioning of the SIIJ or the alternative project proposed by the undersigned | Return to the status quo ex ante – Jurisdiction of DNA and DIICOT | Evolution |
| Political influence in the work of prosecutors who can investigate magistrates | Chief and executive prosecutors are selected by the Superior Council of Magistracy, the constitutional guarantor of the independence of justice in Romania | Chief prosecutors are appointed by political will by the President of Romania at the proposal of the Minister of Justice, while executive prosecutors are seconded through a selection procedure carried out by politically appointed chief prosecutors. | Regress with the effect of the indirect control of politics over justice given the control it can have through the persons selected to head the structures for investigating magistrates |
| Effective remedies against abuse through legal proceedings | Against excess of power, the magistrates under investigation may appeal to the judge of rights and freedoms or request the annulment of the indictment before the preliminary chamber judge. | Against excess of power, the magistrates under investigation may appeal to the judge of rights and freedoms or request the annulment of the indictment before the preliminary chamber judge. | There are no changes to judicial control over the work of the prosecutor |
| Effective remedies for risk of risk of harassment or institutional deviation | If the investigation procedures turn into an unfair practice of harassment of magistrates (of the type reported by CSM Decision No 225/2019), the Superior Council of Magistracy may ask for explanations and order managerial sanctions. | If investigation procedures turn into an unfair practice of harassment of magistrates (of the type reported by CSM Decision No 225/2019), there is no remedy to stop abusive, discriminatory or preferential institutional practices. | Regress with the effect of deprivation of remedies against situations leading to the suspension of judges from the profession or other mechanisms of surveillance or intimidation for a long period of time without referral to court which makes remedies for the above criterion impossible. |
All this is in clear contradiction with the Venice Commission Report on the independence of the judiciary and the recommendations of the European Judges’ Advisory Council on the necessary safeguards in the liability mechanisms for judges.
In this regard, Rule of Law Defence Coalition has also submitted to the Romanian Senate proposed amendments to the Draft Law for the dismantling of the Section for Investigating Crimes within Judiciary, requesting that they be examined by the Legal, Appointments, Discipline, Immunities and Validations Committee of the Romanian Senate.
We attach the address sent to the Romanian Senate together with the proposed amendments to the Draft Law for the dismantling of the Section for Investigating Crimes within Judiciary.
Sincerely,
| Rule of Law Defense Coalition President Elena Radu | Organized Crime Harm Reduction Association President Eugen Chiracu |
| Association for Dialogue and Solidarity of Lawyers Vicepresident Silvana Racoviceanu | Angel Association President Eugen Lucan |
| Victor Alistar, civil society representative within Superior Council of Magistracy | |
[1] The Judicial Inspectorate is an autonomous structure within the Superior Council of Magistracy, set up to contribute to improving the quality of justice and the efficiency and effectiveness of the judicial system, through independent checks and evaluation of its work.
[2] http://storage1.dms.mpinteractiv.ro/media/2/2961/35594/18470594/2/Raport_IJ_5488.pdf?fbclid=IwAR1bbmz6OE8oGJUHngRLFJUM9wKJz_6wVTCUA_2VGYkMIUFzPNHjaW64fhg
[3] https://evz.ro/document-oficial-dna.html
[4] http://old.csm1909.ro/csm/linkuri/08_01_2020__97031_ro.pdf?fbclid=IwAR2pPWiYK1263rsom2QLbVCzYsQZE57cn79fhfHEKWG1XoR72RnvMSd0umc
[5] Art. 888 alin. (2) din Legea nr. 304/2004. (http://legislatie.just.ro/Public/DetaliiDocument/53087).
[6] https://senat.ro/legis/lista.aspx?nr_cls=L76&an_cls=2021#ListaDocumente
[7] https://senat.ro/legis/PDF/2021/21L076SM.pdf
Scrisoarea in format .pdf: Letter to Venice Commmision ref draft law SIIJ -de incarcat
