Thus, in the recent period, the Romanian Minister of Justice started a procedure for selecting prosecutors to fill the top and middle management positions within the Prosecutor’s Office attached to the High Court of Cassation and Justice, the National Anticorruption Directorate (DNA) and the Directorate for Investigating Organized Crime and Terrorism (DIICOT).
The Report of the European Commission within the MCV issued on November 13, 2018 imposed 12 recommendations for Romania, resuming in the Report of 2019, that the changes of the “judiciary laws” can affect the independence of judges and prosecutors and can limit the role of the Superior Council of Magistracy, as guarantor of the independence of the judicial system.
Among them, the respect of negative opinions from the Superior Council of Magistracy on appointments or dismissals of prosecutors at managerial posts, until such time as a new legislative framework is in place in accordance with recommendation to put into practice a robust and independent system of appointing top prosecutors, based on clear and transparent criteria, drawing on the support of the Venice Commission.
It was also noted that the new Special Section created exclusively for investigating offenses committed by judges and prosecutors (SIIJ), unique in Europe, is perceived as an (additional) instrument of pressure on magistrates, provided that the justification for applying a special treatment has not been clarified in the case of magistrates compared to other civil servants and the importance of the National Anticorruption Directorate (DNA) experience in investigating corruption cases among judges and prosecutors was eluded.
For its part, in the Follow-up report on the ad hoc Report on Romania (Rule 34), adopted at the 83rd Plenary Meeting (Strasbourg, June 17-21, 2019), GRECO stated that
The Superior Council of Magistracy has still not been given a stronger role in the procedure of appointment and revocation of the most senior prosecutors.
On 11 February 2020, the Section for prosecutors of the Romanian Superior Council of the Magistracy issued negative opinions for two of the candidates and positive opinion for the third, in the procedure for occupying the leading positions of the Prosecutor’s Office attached to the High Court of Cassation and Justice, the National Anticorruption Directorate (DNA) and the Directorate for Investigation of Organized Crime and Terrorism (DIICOT).
On 13 February 2020, one of the members of the prosecutors’ Section (Nicolae Andrei Solomon) was summoned as a witness in a case registered in 2018 at the Section For Investigating Criminal Offenses in Justice (SIIJ), dealing with organized crime and abuse of office (In connection with the solution of rejecting by the prosecutors’ Section the disciplinary action against prosecutor Laura Codruta Kovesi, former Romanian Prosecutor General and Chief Prosecutor of The National Anti-corruption Directorate, current European Chief Prosecutor – EPPO).
According to the Superior Council of Magistracy statement, the summons was made through the judicial police bodies, at the Superior Council of Magistracy headquarters, for 17 February 2020.
On 14 February 2020, another member of the Section for Prosecutors of the Superior Council of Magistracy (Florin Deac) was summoned, as a witness, in a case registered in 2018, which deals with crimes of negligence in service, involuntary manslaughter and bodily harm by guilt. The summons was also made through the judicial police bodies, at the headquarters of the Superior Council of Magistracy, for 19 February 2020, the summon being signed by the same prosecutor.
The summoning of the two members of the Superior Council of Magistracy took place shortly after the Section for Prosecutors issued the opinions for the three proposals submitted by the Minister of Justice, in order to hold the top positions at the Public Ministry level, two of which were negative.
Such a situation is unheard of, overlapping with the current activities of the Section for Prosecutors of the Superior Council of Magistracy of the Superior Council of Magistracy, including giving future opinions on other candidates selected by the Minister of Justice for other top positions in these three prosecutor’s offices, which are to be issued at 2 and 3 March 2020.
The Section for Prosecutors of the Superior Council of Magistracy appreciated that the subpoena of two members in the manner shown, in cases pending at the Special Section created exclusively for investigating offences committed by judges and prosecutors (SIIJ) since 2018, as well as the leak in mass-media of the information regarding the two procedural activities, in the context of the ongoing partially negative opinion procedure of the Minister’s proposals for occupying the high-ranking positions at the level of the Public Ministry and of a media campaign directed against the members of the Section, represents a factor of pressure and institutional undermining. The Section for prosecutors has informed the public opinion that it will notify the European Commission in order to bring these circumstances to its notice.
The Romanian Judges’ Forum Association considers that such situations may represent an extremely dangerous precedent for the independence of the Romanian Judiciary and for the functioning outside any pressure of the Superior Council of Magistracy, constitutional guarantor of the independence of the justice, especially in the situation in which the members must approve essential appointments in top and middle management within the Prosecutor’s Office attached to the High Court of Cassation and Justice, the National Anticorruption Directorate (DNA) and the Directorate for the Investigation of Organized Crime and Terrorism Offenses (DIICOT).
We also underline that at the Court of Justice of the European Union are pending several requests for preliminary ruling sent by different Romanian courts (for example, the joined cases C-83/19, C-127/19 and C-195/19, Asociaţia Forumul Judecătorilor din România şi alţii), concerning, inter alia, the terms, nature and duration of the Cooperation and Verification Mechanism (CVM), established by Commission Decision 2006/928/EC of 13 December 2006, and if it falls within the scope of the Treaty concerning the accession of the Republic of Bulgaria and Romania to the European Union, as well as the possible violation of the principle of the judicial independence, enshrined in the second subparagraph of Article 19(1) TEU and in Article 47 of the Charter of Fundamental Rights of the European Union, by setting up the Section for the Investigation of offences committed within the Judiciary (SIIJ), and the Advocate General’s opinion is expected to be published on 31 march 2020.
The recommendations and requirements contained in the CVM reports, pursuant to Article 2 of Decision 2006/928, aim to achieve the benchmarks. The achievement of these benchmarks is an obligation of result on the part of Romania, and MCV reports are built around these objectives that Romania must achieve, making common body with the decision, assuming concrete and precise obligations and commitments.
Therefore, the recommendations made by the Commission in order to achieve the benchmarks, based on the principle of loyal cooperation, as laid down in art. 4 par.3 of the Treaty on European Union, must be taken into account by the Romanian authorities, precisely for the purpose of achieving the reference objectives set out in the Annex to Decision 2006/928/EC and to abstain from any measure that might violate or endanger their achievement.
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