The Association of the Romanian Judges’ Forum and the Justice Initiative Association have taken note of the issuance by the Judicial Committee within the Chamber of Deputies of the report on the draft law regarding the abolition of the Section for Investigation of Crimes in Justice and point out that imposing the obligation for judges and prosecutors to be subject to trial, for certain offences, in particular those of corruption, only with the approval of the Section for Judges or, as the case may be, of the Section for Prosecutors within the Superior Council of Magistracy, rises problems of “unconstitutionality” and there is the risk to be perceived by civil society as “guarantee of impunity” for magistrates or as a “super immunity”.
An incorruptible, honest and professional body of magistrates excludes the granting of such immunities that no ordinary citizen enjoys, and according to art. 16 par. (1) and (2) of the Romanian Constitution, „citizens are equal before the law and public authorities, without privileges and discrimination. No one is above the law.” Judges and prosecutors cannot be placed above ordinary citizens. Moreover, this opens the way for creation of privileges for other social groups as well.
Prior approval by an administrative body is incompatible with the values of the rule of law, as it is an inadmissible privilege and a filter that make impossible for a judge/prosecutor to be prosecuted. This will ensure impunity, such hindrance being inconceivable in stable democratic societies. This consent is also contrary to the principle of judicial independence, as justice is performed only by the courts, not by the Superior Council of Magistracy, which is an administrative body and has the role of court only in the field of disciplinary responsibility.
There is no argument to support the necessity of direct involvement of administrative bodies, with extrajudicial powers, such as the section for judges/prosecutors of the Superior Council of Magistracy, in the usual activity of a prosecutor, in the form of approval for the prosecution of investigated judges and prosecutors. In order to verify the legality of the indictment, the Criminal Procedure Code regulates the preliminary chamber stage.
Approving the indictment, both sections of Superior Council of Magistracy would become a kind of hierarchical superior of the investigating prosecutors, which is in direct contravention with art. 132 par. (1) of the Romanian Constitution. According to this constitutional norm, prosecutors operate under the principles of legality, impartiality and hierarchical control, but this hierarchical control is performed exclusively within the Public Ministry, by hierarchically superior prosecutors, not by administrative bodies outside the Public Ministry.
Moreover, limiting this prior approval only to crimes related to justice, corruption and service or similar offences is unexplainable and it may be reasonably to think that the purpose is to control investigations on corruption in the judiciary, being practically a filter proposed only for judges and prosecutors suspected of corruption, who must be protected by an administrative body, before an independent court rules on the guilt/non guilt of indicted judge/prosecutor.
We call on the President of the Chamber of Deputies to refer urgently this draft law to the Venice Commission and GRECO.
Association of the Romanian Judges Forum
Justice Initiative Association
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