”Ten reasons why the Romanian Judges’ Forum Association and the Initiative for Justice Association publicly request the dismissal of the Minister of Justice, Mr Catalin Predoiu” (November 25, 2020)

The Romanian Judges’ Forum Association and the Initiative for Justice Association conclude that the mandate of the Minister of Justice was a disastrous one, the harmful effects being comparable to those produced during the mandate of the ministers Mr Florin Iordache and Tudorel Toader.

In the interests of independent justice, in order not to have affected Romania’s European path and in order to remove the blocking of access to European funds, it is imperative that Mr Catalin Predoiu to be dismissed immediately, because of several issues, the most important of which are:

1. Flagrant violation of the Cooperation and Verification Mechanism by delaying and blocking changes to the laws of the justice, which are vital for the functioning of the judicial authority as a whole. Although the current Justice Minister has been in office for more than a year, the “Justice laws” in the Florin Iordache – Tudorel Toader version are still applicable, without any adjustment, despite the cascading criticism of relevant international entities and Romanian judges and prosecutors.

The CVM report of 13 November 2018 specifically asked the Romanian State, inter alia, to ”suspend immediately the implementation of the Justice laws and subsequent Emergency Ordinances” and ”revise the Justice laws taking fully into account the recommendations under the CVM and issued by the Venice Commission and GRECO”, and suspend the appointments and dismissal of high-ranking prosecutors, ”in accordance with the negative opinions of the Superior Council of Magistracy (SCM)”.

The unacceptable speech by the Minister of Justice (”We need not hurry. Everyone is impatient, we all want to repair these laws, but we do not have to hurry. It is also the requirement of the country report, the text: Don’t hurry, talk to everyone, reach a common denominator as much as possible, and then move on to the proposals in Parliament”) confirms the complete disregard of the principles on the independence of the judiciary in Romania and of the Romanian state’s commitments aimed at rapidly remedying the legislative aspects vehemently criticized by all relevant domestic and international factors.

Consequently, the Special Section for Investigating Judges and Prosecutors continues to function and the Minister of Justice proposes that the procedural documents carried out by the prosecutors of the respective section be maintained, ignoring the fact that the existence of this structure violates the Treaty of the European Union and, by this, the Constitution of Romania.

2. Flagrant breach of the Cooperation and Verification Mechanism by triggering immediately after the investment, the appointment procedure for high-level prosecutors and appointment proposals made, in breach of the negative notes of the Superior Council of Magistracy – Section for prosecutors.

The Romanian Judges’ Forum Association and the Initiative for Justice Association asked the Minister of Justice not to start the procedures to appoint them until the legal provisions on the matter were agreed with the recommendations constantly expressed in the reports of the European Commission to the European Parliament and the Council on the progress made by Romania in the EU Framework of the Cooperation and Verification Mechanism (CVM reports), reports of GRECO on Romania and opinions of the European Commission for Democracy through Law (Venice Commission) and the Consultative Council of European Prosecutors (CCPE).

The Romanian press recently revealed that on August 4, 2020, ”the Prosecutor’s Office under the High Court of Cassation and Justice (PICCJ) closed the money laundry file in which the company Rail force was involved, of businessman Costel Comana, but also the current Justice Minister, lawyer Catalin Predoiu, was involved in the case. According to an official reply from the prosecutor’s office to a request by G4media.ro”. All the superior hierarchical prosecutors of the case prosecutor (the general prosecutor of the Prosecutor’s Office of the High Court of Cassation and Justice, his first deputy and deputy, as well as the chief prosecutor of the Criminal prosecution Department of the Prosecutor’s Office of the High Court of Cassation and Justice) who are competent to check the solution, they have been appointed by the current Justice Minister himself, and they also depend on him with  their leadership positions.

Such a factual situation is likely to create within the public opinion the appearance of a conflict of interest when appointing top management positions in the public offices, in the absence of guarantees of impartiality and the real involvement of the judiciary in these proceedings.

Furthermore, the European Commission’s Report of 30 September 2020 on The rule of law situation in the European Union – chapter on the rule of law situation in Romania – notes that the Prosecutor General and the Chief prosecutor of DIICOT (Directorate for Investigating Organised Crime and Terrorism) have been appointed (by President Klaus Iohannis, at the proposal of the Minister of Justice, Catalin Predoiu), ”despite a negative opinion of the Council. This situation highlighted the long-standing shortcomings previously set out by the Commission, which, in the context of the CVM, has recommended that a more robust and independent appointment procedure is needed, and that a sustainable solution could best be achieved with the support of the Venice Commission”.

3. Promoting further changes in the ”laws of justice” in the public domain that seriously affect the independence of justice

In the spring of 2020, the Ministry of Justice proposed an unacceptable project, under which new filters were put in place to investigate prosecutors and judges. This legislative initiative strengthened a kind of ”wide impunity” for judges and prosecutors.

Under these provisions, disapproved by the undersigned associations, it was intended that criminal proceedings against a judge or prosecutor would be started only with the prior authorization of the Romanian General Prosecutor, and that the prosecution of judges and prosecutors would be approved by the SCM – Section for Judges or by the SCM – Section for prosecutors.

In September 2020, the Ministry of Justice submitted to public debate a new draft in which the procedures for appointing high-ranking prosecutors do not comply with the recommendations constantly made by the European Commission reports under the Cooperation and Verification Mechanism, the reports of the Group of States against Corruption (GRECO) on Romania and the opinions of the Venice Commission and the Consultative Council of European Prosecutors (CCPE). The political factor continues to play a crucial role in the election/removal of high-ranking prosecutors, given that the recommendations of all relevant international entities were that the appointment and removal from the highest positions in the prosecutor’s offices should be done through a transparent procedure and based on objective criteria, in which the Superior Council of Magistracy should be granted a much more important role.

The possibility of disciplinary action against judges and prosecutors by the Minister of Justice is reintroduced; this measure will affect the independence of magistrates, by interfering in the management of disciplinary issues in the careers of judges and prosecutors.

Contrary to the explanations provided by the Ministry of Justice, the proposed draft law does not seek to ensure adequate representation of the management of courts and prosecutor’s offices in the management boards.

On the contrary, by introducing the section vice-presidents and presidents, as full members, in the management boards of the courts, at the same time with reducing the number of members without management positions (remaining purely symbolic in the board) the very idea of democratizing the decision/management in the courts and ensuring a counterweight in relation to the attributions of the president of the court is affected. Practically, the management bodies are turned into the support team of court presidents (appointed by commissions appointed by the Section for Judges of the SCM, a section that directly appoints the section presidents of courts), also becoming some sort of unuseful administrative formalities.

The proposal concerning the non-permanent work of the elected members of the Superior Council of the Magistracy, in the case of elected members coming from the High Court of Cassation or prosecutor’s offices, it would be necessary to maintain the permanent activity, as the former could be colleagues with the judges of the High Court of Cassation and Justice who settle appeals against the disciplinary decisions of the Section for Judges on disciplinary matters, in which case it is necessary to maintain an appearance of impartiality and to remove any risk of influencing them, and the others could thus be protected from any possible pressure or interference, given the hierarchical subordination of prosecutors within the Public Ministry.

The draft also proposes the transfer of competencies of the SCM – Section for Prosecutors to the Prosecutor General of the Prosecutor’s Office attached to the High Court of Cassation and Justice (appointment and dismissal of prosecutors within DIICOT and DNA, secondment), respectively to the Minister of Justice (approval of the Internal Regulation of the prosecutor’s offices).

In fact, the SCM – Section for prosecutors loses most of its prerogatives and becomes an accessory to the General Prosecutor and to the Minister of Justice, who will concentrate all decision-making prerogatives. Granting such powers to politically appointed persons, to the detriment of the body that has, according to Art. 133 par. (1) of the Romanian Constitution, the role of guarantor of the independence of the judiciary, is an obvious violation of the independence of the judiciary. The fact that the activity of the prosecutors (who make up the Public Ministry) is carried out under the authority of the Minister of Justice does not mean subordination in administrative terms. The human resources management issues of the Public Ministry are a component of the independence of prosecutors and the normative act regulating these issues has to be approved by the SCM Section for Prosecutors, a council whose constitutional role is to guarantee the independence of the judiciary.

Also, accepting the unlimited intervention of the Prosecutor General of the Prosecutor’s Office attached to the High Court of Cassation and Justice on the documents drawn up by any prosecutor within the Public Ministry (the solutions adopted by the prosecutor may be refuted with reasons by the hierarchically superior prosecutor when they are considered illegal) means recognizing an exceptional power to the same, which allows them to circumvent without any limit the legal way to perform the hierarchical control. In the case Kövesi vs. Romania, the European Court of Human Rights found that the principle of the independence of prosecutors is a key element in maintaining the independence of the judiciary. In the absence of the prosecutor’s independence in carrying out or supervising the criminal prosecution, the independence of adopting a solution is devoid of content. Therefore, the Prosecutor General of the Prosecutor’s Office attached to the High Court of Cassation and Justice may carry out, directly or through specifically designated prosecutors, exclusively powers of coordination and control of the administration of all prosecutor’s offices. By Opinion No 934 of 13 July 2018, CDL-PI(2018)007, the European Commission for Democracy by Law of the Council of Europe (Venice Commission) suggested Romania to remove or better define provisions allowing higher ranking prosecutors to invalidate prosecutors’ solutions for non-prosecution situations. In the report on European standards on the judiciary adopted by the Venice Commission in 2010, para 31, it is stated that, in the hierarchical system of the organization of the work of prosecutors, their independence is reflected in the fact that, in the exercise of the powers provided for by law, they shall not obtain an approval from the supervisor or confirmation from the supervisor.

4. The refusal to notify the Venice Commission on the draft amendments of the “justice laws” presented on 30 September 2020, although the European Commission requested to “put in place a robust and independent system of appointing top prosecutors, based on clear and transparent criteria, drawing on the support of the Venice Commission, recommending, inclusively, the revision of the provisions of Article 132 (1) of the Constitution of Romania and the amendment of Law no. 303/2004 so that the endorsement from the Superior Council of Magistracy becomes mandatory”, the procedures of appointing top prosecutors proposed by the new bills, announced on 30 September 2020, fail to comply with the constant recommendations included in the reports of the European Commission, the reports of the Group of States against Corruption (GRECO) concerning Romania and the opinions of the Venice Commission and of the Consultative Council of the European Prosecutors (CCPE).

5. Failure to take the necessary measures to prevent the spread of COVID-19 at the level of the institutions within the judicial authority.For almost one year, the Romanian Government (through the Ministry of Justice) has proved incapable to foster at least a minimal project of digitalization in Parliament, in the event that on a daily basis dozens of magistrates or clerks become carriers of the new coronavirus, and dozens of other colleagues enter isolation, making the functioning of courts and prosecutors difficult. The headquarters of the courts have become outbreaks of the spread of the SARS-CoV-2 virus, with numerous cases of infection in large courts in the country’s major municipalities, which led to the temporary closure of the activity and the postponement of the trial of files. The Ministry of Justice did not appreciate the urgency and necessity of extended digitization of courts, the communication of procedural documents exclusively by electronic means, by rapidly adopting a normative document with a view to establishing rules on videoconferencing judgment, as well as restricting the oral phase to certain legal reasons. Although the Minister of Justice announced publicly on 10 November 2020 that 546 cases were registered in the courts, including 5 people who went to intensive care and 3 died, he refused to take any responsibility. After long hesitations, at least to point to image level, on 20.11.2020, the Romanian Government decided to adopt the draft law on some measures in the field of justice within the context of the COVID-19 pandemic, after the approval of the Superior Council of Magistracy of this move in the course of 18.11.2020, without consulting the judicial system, about measures to ensure the functioning of justice as a public service. However, the proposed Regulation comes more than eight months after the official declaration of the pandemic by the World Health Organization, including unnecessary or, where appropriate, inapplicable solutions, in relation to what was requested by the two professional associations. The project does not appear on Parliament’s websites, probably not being submitted, and its adoption by the Parliament after a few months in the current context is evidence of contempt for the serious situation of SAR-CoV-2 virus infections in courts and prosecutor’s offices. The Ministry of Justice does not present daily data on the dramatic situation they have reached, with the number of infections exceeding 1000, with many magistrates and clerks being admitted to ICU daily, some of them having died.

6. Public disinformation on cases of COVID-19 in prisons. Thus, according to the press release published on the Ministry of Justice website on 19 November 2020, Minister Predoiu stated that ‘The National Administration of Prisons had performed in meaning that no inmates had become infected for months’ and that ‘in the last month, the first cases of infections among the detainees occurred, but the figure remains at a reasonable level.” These statements are contradicted even by the regular press reports published on the NAP website, which showed that cases of infection among people deprived of their liberty have been recorded since September. Furthermore, the press release issued on November 11 mentions that at the Bucharest-Jilava penitentiary, at present, is ensured the treatment of 214 persons with positive confirmed by SARS-CoV-2, other 123 being treated and declared healed. It is obvious that minister Predoiu knew these facts, but for image reasons he chose to present non-real information to the public.

7. Lack of serious endeavours for the adoption of amendments to the Criminal Procedure Code, transposing the provisions of Decision No 55/2020 of the Constitutional Court of Romania, for the purpose of regulating a procedure of challenging technical supervision and obtaining financial data and for the declassification of the acts on which those measures were authorized, where they concerned interested persons who are not parties to the criminal proceedings, which would have led to the saving of those evidence already administered in the criminal files. Instead, the Minister of Justice initiated a draft legislative amendment that wrongly refers to Law no. 51/1990 and not to the Code of Criminal procedure, and the legislative proposal is incomplete, as it does not cover all the situations in practice.

8. The disastrous human resources policies. Lack of serious endeavours for immediate legislative changes necessary to carry out judicial admission contests, graduation exams in the National Institute of Magistracy and capacity examinations, as well as the transfer of magistrates. 2020 was the first year after 1989 in which no admission contests were organized in the magistracy, because the legislative and executive powers (especially the Minister of Justice) were unable to adopt a rapid Regulation, in line with a decision of the Constitutional Court issued in March 2020.

The unprecedented situation overlaps with a time when there are hundreds of vacant positions in courts and Prosecutor’s offices, the effects being similar to the measure of doubling the study period at the National Institute of Magistracy proposed by the reform of Iordache-Toader. The CVM report of 25 January 2017 called for solutions with regard to the problems of excessive workload, a systemic problem of Romanian justice, which will intensify by applying, from the 1st of January 2021, the provisions relating to the formation of three judges in appeals, to which the Ministry of Justice has not proposed any solution to the Executive or Parliament.

9. The devastating consequences for the public Ministry image of the actions of the Minister of Justice. Use of the Ministry of Justice and the activity of judicial authorities in the election campaign. One of the high-ranking prosecutors supported for appointment by Minister Catalin Predoiu was Ms Giorgiana Hosu, despite her husband’s being indicted in a corruption case, with his subsequent conviction in the first instance and the resignation of that prosecutor, who was noticed at the level of public perception by the initial failure to exercise control over the solution ordered in the file “August 10”, followed by the referral to the judge of the preliminary chamber of the Bucharest Court of Appeal, which has caused a significant delay in the possible reopening of the criminal investigation (still not solved). Following the publication of the Report on trafficking in human beings (2019) published by the Embassy of the United States of America, in which it is found that the authorities have diminished the law enforcement efforts in the criminal prosecution of human trafficking offenses, as stipulated by Article 210 of the Criminal Code, and trafficking of minors, provided for by Article 211 of the Criminal Code, which are given by the legislator in the exclusive competence to investigate DIICOT, The Minister of Justice has chosen the way of mystification and concealing the truth by presenting in the public space non-real information on the real dimension of human trafficking and the exponential development of organized crime (e.g. underworld clans) and has not taken any concrete endeavours to make the fight more effective. Except for statements lacking any factual support, he did not initiate any serious criminal policy measures to combat human trafficking and organized crime. The statements made include: “It’s over. What has been under way for months will continue until this phenomenon is fully wiped out”, “there are already things in motion. (…) the bulldozer will enter, with its blade, to the ground layer.” or “we have created an institutional front against organized crime in the previous months. It is starting to deliver results. Underworld clans are starting to fall.” The paradox of this statement is that, a few hours after the announcement of generic “falls” of underworld clans, a bloody confrontation between the presumptive members of such groups took place on the outskirts of the capital. Catalin Predoiu claimed the results started to show in the fight against human trafficking, although the statements made by the Minister of Justice were not related to any concrete actions. Although 108 non-governmental organizations have requested that Law no. 217/2020, which effectively reduces the prescription for crimes related to human trafficking and child pornography, not to be promulgated, the Government blocked a parliamentary initiative to improve the criminal legislation on human traffic. In a report by the European Commission, Romania is at the top position as the home state of the victims of human trafficking at European level. Of the 14.145 victims of trafficking identified in EU Member States, most of them came from Romania. The US State Department’s annual report on trafficking in human beings, published in June 2020, also noted Romania’s lack of progress in fighting trafficking in human beings. Together with Ireland, Romania was the only EU Member country placed on the level 2 surveillance list.

10. Lack of any vision regarding the judicial police. There was no attempt to take over all or part of the judicial police at the public Ministry, moreover, the Ministry of Interior was allowed to impose its views on the Regulation of the procedure for granting and withdrawing the judicial police notice. There has been no criminal policy approach that takes into account prosecution and judicial police in an integrated vision. The Ministry of Justice had no point of view and did not get involved in any way in the reform project of the Ministry of Internal Affairs a project that will also include a comprehensive “reform” of the Romanian police, including the judicial police. In fact, it has not given any evidence that he understands the essential role of the judicial police in prosecution.

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