The state of emergency does not mean establishing impunity for corruption or other offences in connection with procurement of medical equipment.
The Venice Commission has consistently stated that “even in genuine cases of emergency situations the rule of law must prevail.”[1]
The Geneva Declaration, adopted by the World Congress of the International Jurists’ Committee, also found that “The role of the judiciary and legal profession is paramount in safeguarding human rights and the Rule of law in times of crisis, including declared states of emergency. Members of the legal profession, including judges, lawyers, and prosecutors, have a duty to safeguard and uphold human rights and the Rule of Law. This duty includes the legal and ethical responsibility to ensure that they engage in no conduct in the performance of their job that would impair another person’s human rights. In times of crisis, States often curtail the rights and fundamental freedoms of individuals. In such circumstances, legal professionals have a duty to ensure that rights are respected and that the Rule of Law and the principle of legality are guaranteed. In this respect, the legal profession plays a primary role in the protection of human rights by guarding against abuses and inhibiting conduct by the political branches which exceeds permissible bounds in emergencies and other crises. Prosecutors must continue to investigate and bring criminal action for violations of rights in times of emergency, such as the right to life, and for crimes under international law, such as extrajudicial killings or enforced disappearances. (…) Judges must retain the authority within the scope of their jurisdiction as final arbiters to state what the law provides. The judiciary itself must have the sole capacity to decide upon its jurisdiction and competence to adjudicate a case. The judiciary must be able to decide upon its own jurisdiction. The executive and legislative branches should not control or influence what matters can or cannot come before a court of law. This principle ensures the upholding and maintenance of the independence of judges in concrete conditions. If the legislative or executive were to determine the jurisdiction and competence of judges to decide upon a case, judicial independence would be a mere chimera. The judiciary has jurisdiction, either directly or by way of review, over all issues of a justiciable nature, including issues of its own jurisdiction and competence. The judiciary has the exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law and on the basis of the Rule of Law.”
In the same register, GRECO (Group of States against corruption) warned on 21 April 2020 of the increased risks of corruption in the context of the health emergency caused by the pandemic of COVID-19, indicating that the health sector is exposed mainly due to the urgency of immediate medical equipment needs and the simplification of public procurement rules, overburdened medical services and the overtired medical staff, corruption can exist in various forms: bribery in the fields related to the medical sector, conflicts of interest, the role of lobbying in research and development of new products, as well as the marketing of counterfeit medical products.
GRECO called on central, regional and local authorities to be fully transparent in their decisions (“we must not allow COVID-19 to compromise our values and standards, including transparency and accountability”), recalling that decisions must be subject to control and accountability.[2]
In this context, statements made by officials of the Romanian State or public entities involved in the fight against the present pandemic, which are likely to put pressure on the activity of prosecutors in aspects concerning possible judicial investigations into the public procurement carried out during this period, as well as on judges, when such cases are resolved, are inappropriate and may affect the independence of the judiciary (Mr. Adrian Streinu-Cercel, manager of „Matei Balş” Institute of infectious diseases in Bucharest: “When this sickness, the pandemic, is over, others will be coming to tuck us up: How did you make these purchases? In this situation, there must be drawn up a clear normative framework which clearly states that nobody will be allowed to touch us in the future”[3]; Mr. Raed Arafat, Secretary of State in the Ministry of Internal Affairs: “Whoever has avoided the bureaucracy now for health procurement should not be punished! (…) If we tackle on the opportunity, on the fact that someone did not follow a rule or went faster to solve a problem, then we have a big problem. No one will do anything in the future. There are two aspects – for the real aspects of corruption you have nothing to say, but if for overcoming some bureaucratic aspects someone violated a procedure, a rule, considering that today we are talking about masks and in two hours there were no more and you had to move very fast.”)[4].
The judge is independent from other powers of the state, subject only to the Constitution and the law. The prosecutor, within the limits of the law, is independent in the activity of carrying out the criminal investigation, not receiving orders or dispositions from any other person or entity. The prosecutor directly leads and controls the activity of criminal investigation of the judicial police and of the special criminal investigation bodies, provided by law. The prosecutor also supervises that the criminal investigation acts are carried out in compliance with the legal provisions.
Based on art.30 of Law no. 317/2004 on the Superior Council of Magistracy, republished, with subsequent amendments and completions, including those brought by Law no. 234/2018, the corresponding sections of the Superior Council of Magistracy have the right, respectively the correlative obligation to notify ex officio to defend judges and prosecutors against any act of interference in professional activity or in connection with professional activity, which could affect the independence or impartiality of judges, respectively the impartiality or independence of prosecutors in ordering solutions, in accordance with Law no. 304/2004 on the judicial organization, republished, with subsequent amendments and completions, as well as against any act that would create suspicions regarding them.
In such a context, Romanian Judges Forum Association and Association Justice for Initiative call on the Superior Council of Magistracy to defend the independence of the judiciary in relation to the recent statements of Mr. Raed Arafat and Mr. Adrian Streinu-Cercel.
The Romanian Judges’ Forum Association
Judge Dragoș Călin, Co-President
Judge Lucia Zaharia, Co-President
Association Initiative for Justice
prosecutor Bogdan Pîrlog, co-President
prosecutor Sorin Lia, co-President
[1] See Opinion no. 359/2005, CDL-AD (2006) 015-e – on the protection of human rights in emergencies, available at https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2006)015-e [last accessed 21.04.2020].
[2] See web page https://www.coe.int/en/web/greco/-/covid-19-pandemic-greco-warns-about-corruption-risks [last accessed 21.04.2020].
[3] See web page https://www.hotnews.ro/stiri-coronavirus-23756688-adrian-streinu-cercel-achizitii-nimeni-nu-are-voie-atinga-noi.htm [last accessed 21.04.2020].
[4] See web page https://www.digi24.ro/stiri/actualitate/arafat-cine-a-ocolit-birocratia-acum-pentru-achizitii-sanitare-sa-nu-fie-pedepsit-daca-se-va-uita-in-ce-am-fost-avem-o-mare-problema-1293806 [last accessed 21.04.2020].
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