RAPORT MCV ROMÂNIA - document

Vă prezentăm fragmente esenţiale din raportul MCV privind România, documentul original făcut public în urmă cu puţin timp:

PROGRESS ON KEY REMAINING STEPS

In the November 2017 report, the focus was able to remain strongly on the key remaining steps identified in the January 2017 CVM report and the actions taken by the Romanian authorities to fulfil the recommendations. However, given developments since January 2017 and as set out in the report from the Commission, it is also necessary to set out broader issues, which could have a bearing on whether the progress underlying the baseline assessment of January 2017 has been compromised.
Benchmark 1: ensure a more transparent and efficient judicial process notably by enhancing the capacity and accountability of the Superior Council of Magistracy. Report and monitor the impact of the new civil and penal procedures codes
Since the November 2017 report, there have been a number of developments with important implications across Benchmark 1. These are summarised here before looking specifically at the recommendations under this benchmark.

Justice laws

The three Justice laws adopted in 2004 define the status of magistrates and organise the judicial system and the Superior Council of Magistracy.8 They are therefore central to promoting the independence of magistrates and the good functioning of the judiciary. The Justice laws were an essential basis for the positive assessment of the progress of Romania in the January 2017 CVM report.

At the time of the November 2017 report, the amendment process for the three Justice laws in Parliament had just started. The report warned that some of the proposed changes concerned judicial independence and raised questions about whether the January 2017 assessment would have to be reconsidered. The Commission emphasised that the the provision by the Government and the Parliament of an open, transparent and constructive legislative process on the Justice laws would be crucial. This echoed the view of the Council of Europe Consultative Council of European Judges on the importance of involving the judiciary in the preparation of legislation.

The laws as amended by the Parliament have been promulgated by the President of Romania. At the time of writing this report further changes were introduced ex-post in Government Emergency ordinances, delaying very selectively the entry into force of certain provisions criticised by the Venice Commission but otherwise accentuating some of the problems already highlighted. The Venice Commission opinion on the Justice laws concludes that “Although welcome improvements have been brought to the drafts following criticism and a number of decisions of the Constitutional Court, it would be difficult not to see the danger that, together, these instruments could result in pressure on judges and prosecutors, and ultimately, undermine the independence of the judiciary and of its members and, coupled with the early retirement arrangements, its efficiency and its quality, with negative consequences for the fight against corruption”.
Beyond the most problematic changes pointed out by the Venice Commission opinion, there are changes in the Justice laws regarding the practical organisation of the courts and prosecution offices and the running of judicial proceedings which have been introduced without impact assessment and where the future impact of those changes on the effectiveness of the judicial system is therefore difficult to establish.

Concerns with the content of the Justice laws

The extent of the amendments of the three Justice laws is considerable. Many amendments were important amendments modernising certain human resources aspects (such as addressing long-term sickness or promotions) and had been discussed within the judicial system since 2015. Other changes were deemed necessary to align the laws with Constitutional Court decisions.

However, other amendments have been the source of major concern amongst the magistracy and observers including civil society. A number of these amendments could open the door to putting pressure on judges and prosecutors and hence undermining the independence of the judiciary. This also includes a greater potential for inference in individual cases. These concerns have been echoed by GRECO and the Venice Commission. In its opinion, the Venice Commission has singled out a number of aspects in the laws "which seen alone, but especially taking into account their cumulative effect in the complex political context currently prevailing in Romania, are likely to undermine the independence of Romanian judges and prosecutors, and the public confidence in the judiciary." 
Several problematic amendments affect the independence of magistrates and limit the role of the Superior Council of Magistracy, the guarantor of the independence of the judiciary:
 The new system for appointment and dismissal of Chief Prosecutors and the role of the Minister of Justice (see below);
 Limits on the freedom of expression and information. Firstly, an amendment requires magistrates to refrain from "defamatory manifestation or expression against the other powers of the state".

Whilst a general duty of restraint is understandable, highlighting a special protection for other state powers puts into questions the capacity for magistrates to express views on issues and legislative changes affecting the functioning of justice. This could even affect the role of the SCM to defend judges and prosecutors from public statements from other state bodies, which may damage judicial independence. Secondly, there is a concern that an amendment to the Criminal Procedure Code will prevent public authorities and courts from providing information about criminal proceedings. This may be detrimental to the right of the public (and possible victims) to be informed.
 New provisions dealing with the material liability of magistrates. These provisions have been seen as opening a possibility to be used as a means to put pressure on magistrates. They open the possibility for the Ministry of Finance to launch regress action against a magistrate for judicial error, on the basis of its own assessment, with a consultative role for the Judicial Inspection. A decisive role in determining action is given to the Judicial Inspection and the Ministry of Finance, rather than to the Superior Council of the Magistracy (given its responsibilities both for judicial independence and disciplinary liability).
 A new department for investigating criminal offences committed by magistrates. The establishment of this new department could be seen as an (additional) instrument to put pressure on judges. The rationale for a special treatment of magistrates compared to other office holders and civil servants has not been made clear. In addition, the National Anti-Corruption Directorate (DNA) already has an established solid track record in investigating and prosecuting cases of corruption within the magistracy.
 The revocation of members of the Superior Council of Magistracy. The possibility of revoking SCM members through a non-confidence vote/petition from courts and prosecution offices risks upsetting the balance between the accountability and the stability and independence of SCM members.
 The removal of the previous reference to the independence of prosecutors in their statute. Taking into account the cumulative effect with other measures and given the complex political context currently prevailing in Romania, this further tends toward reinforcing hierarchical control and the authority of the Minister of Justice and entails a risk of giving way to political interference in criminal cases.

In addition, amendments such as the incentive to early retirement15 and the increased training period for entry into magistracy16 create serious risks of disruption of the human resources management in the judiciary, with consequences on its efficiency and quality. Several other changes are less obviously problematic but could affect the daily operations of the courts and prosecution offices and the challenges resulting from their introduction seems not to have been thought through.17 The individual and cumulative impacts of the changes have not been subject to impact assessment whereas many of the changes have implications in terms of managerial, human and financial resources.

These concerns were already reflected in the conclusions and recommendations of the GRECO report of March 201818, and have now been further confirmed in the conclusions of the opinion of the Venice Commission of 20 October 2018. The Venice Commission has also issued recommendations for Romania in order to address the problems identified with the laws. 
The introduction of the Justice laws

In August 2017, the Minister of Justice presented the main lines of the planned amendments to the three laws. In October 2017, the Parliament started the debate over three new legislative initiatives concerning the three laws, on the basis of drafts tabled by Members of Parliament. The amendments were adopted at the end of December 2017 by the Romanian Parliament. An overall process of a potential reform of the three laws had been considered starting 2015, but those previous drafts have been eventually abandoned to promote the new amendments, with an accelerated adoption process in Parliament. The slow progress on the 2015 amendments raised further questions as to why the 2017 process was considered so urgent. The amendments were processed by a special joint committee of the two chambers of Parliament set up for this particular purpose.

Because of the accelerated parliamentary procedure, the opportunities for the proposed amendments to these key Justice laws to be subject to consultations with magistrates, other stakeholders and civil society were few. Many key judicial interlocutors sought nevertheless to give a view and their conclusions were often highly critical. This included two negative opinions from the SCM, opinions of the High Court for Cassation and Justice, and a request for the withdrawal of the draft amendments signed by almost 4,000 magistrates, as well as street protests and warnings from civil society. This also included calls to postpone the adoption process of the amendments until after an evaluation of the Venice Commission that could have recommended practical solutions to address the most controversial issues raised by the proposed amendments. The Venice Commission regretted that the current process could not benefit from such a wide and comprehensive debate.

The adopted amended laws have been challenged several times before the Constitutional Court, by the President of Romania, the opposition parties in Parliament, as well as the High Court for Cassation and Justice. The challenges have addressed potential constitutional issues, but constitutionality checks do not cover other issues regarding potential impacts on the quality and efficiency of the functioning of courts and prosecutor's offices.

In its initial recommendations, and also in the November 2017 report, the Commission had emphasised the role of the Venice Commission. However, it was not until April 2018 that the Venice Commission was seized, and then by the Parliamentary Assembly of the Council of Europe rather than the Romanian authorities. The opinion on the amended Justice laws by the Venice Commission seems to have had no impact on the accelerated timetable for the laws and has not been the subject of debate in Parliament. The result is that the recommendations of the Venice Commission came when the avenues for referral had been exhausted. The President was required to promulgate the laws: the law on judicial organisation was promulgated in July, the law on the Superior Council of Magistracy was promulgated in September and the law on the status of magistrates was promulgated in October.
As soon as the law on the judicial organisation was promulgated, the High Court of Cassation and Justice was criticised for not changing the appeal panels in line with the new law. The controversy was amplified when the Judicial Inspection announced the start of a possible disciplinary investigation against the President of the High Court at end of August. At the beginning of October, the Government referred the High Court to the Constitutional Court invoking a constitutional conflict with the Parliament regarding to the implementation of the amended law on judicial organisation.

On 10 October, the Government adopted an emergency ordinance in relation to interim measures for setting up the new special prosecution department for investigating magistrates. It modifies ad interim the rules and criteria for appointing the Chief Prosecutor, the deputy and the prosecutors of the department. This seemed in conflict with one of the arguments used earlier in the year to reassure critics of the department - that the organisation of the appointments would fall entirely under the competence of the Superior Council of Magistracy and offer important procedural guarantees. In its opinion the Venice Commission had noted the importance of procedural guarantees such as a project-based competition for the Chief Prosecutor and the involvement of the Plenum of the SCM (i.e. judges and prosecutors) in the appointments. The SCM applied the modified rules of the emergency ordinance and the President of the SCM issued a statement on 23 October when the department entered into operations.

On 15 October, the Government adopted another emergency ordinance, modifying the law on the status of magistrates. This text postpones the entry into force of the provisions on the early retirement of magistrates until 1 January 2020 and holds the implementation of the provisions on the composition of three judges' panels. At the same time, it adds further seniority conditions for prosecutors in in the National Anti-Corruption Directorate and the Department for investigating Organised Crime and terrorism by adding a compulsory experience of 10 years. In addition to postponing the entry into force of certain problematic provisions (but not removing them all together) the Emergency Ordinance changes the rules for the organisation of the prosecution services and consolidates the power of the Minister of Justice to trigger disciplinary proceedings specifically against prosecutors.

Cooperation between the intelligence services and the judicial institutions

A particular debate has arisen concerning the cooperation in criminal cases between the Romanian Intelligence Service (‘SRI’) and various judicial institutions, including the DNA and the General Prosecutor’s Office. In particular, it has been claimed that classified cooperation protocols concluded between SRI and various judicial institutions have led to widespread abuses and the illegal gathering of evidence in criminal proceedings, notably related to technical surveillance measures such as interceptions. Given the role of the courts to establish whether or not allegations of abuses are substantiated and to decide on the legality of the evidence gathered on the basis of these protocols in criminal cases, as of today no court decision clearly upholding those claims has been reported to the Commission services.

While the operation of the national intelligence services and the democratic control thereof is not a matter of EU competence, the debate has relevance for the CVM process in the sense that arguments raised in this debate have been cited as a justification for the changes in both the Justice laws and the Criminal Code and Code of Criminal Procedures.30 Senior political figures have also used them as core arguments in the public criticism of magistrates and judicial institutions. In early October 2018, the Chamber of Deputies filed an action with the Constitutional Court invoking a possible constitutional conflict between the Public Ministry (the General Prosecutor’s Office) and the Parliament in relation to these protocols.

From the information that became public in 2018, it appears that the collaboration between the SRI and the judicial system was regulated in various laws, which were in place before the accession of Romania to the EU and stipulated a strict separation of the role of the prosecution and the technical support from the Intelligence services. The Senate is responsible for oversight of the security services in Romania, with annual reports from the SRI.

Practical arrangements for these collaborations were later laid down in technical agreements (the protocols) referring to the laws regulating the collaborations. According to judicial authorities, these protocols were classified at the request of the SRI. The main document subject to controversy is a cooperation protocol concluded in 2009 between the Prosecutor General and the SRI. The Protocol was declassified in 2018 and is now in the public domain. It sets out a number of principles and technical provisions concerning the operational cooperation between SRI and the prosecution, notably with regard to technical surveillance measures taken during criminal proceedings at the initiative of the prosecutor, in accordance with the Criminal Procedure Code, as well as with regard to information exchange regarding notifications from the SRI in relation to indications of a possible crime to be followed up by the prosecutors. Other protocols signed with the courts contained provisions to ensure the confidentiality of the exchange of information concerning judicial warrants.

In February 2016, the Constitutional Court issued a decision regarding technical surveillance actions implemented by the SRI. These technical surveillance interventions required a mandate issued by a judge on the request of a prosecutor. The national authority for wiretapping was a department within the SRI owning the technical platforms for such operations. In its decision the Constitutional Court declared unconstitutional a provision of the Criminal Procedure Code which allowed ‘other specialised state bodies’ (i.e. other than the prosecutors and law enforcement agents) to enforce technical surveillance mandates upon request of the prosecutor. To fill the gap, the government adopted an emergency ordinance putting the technical surveillance function in the hands of specialised police within the prosecution services and setting up a “Chinese wall” between the management of the tools by the SRI and the requests of the prosecution. This was noted in the January 2017 CVM report. Commission services had also previously discussed with the DNA the sources of their signals, including from the SRI, where DNA underlined that these notifications could not be used as evidence, and that prosecutors still had to gather the evidence necessary to demonstrate the existence of a crime. The January 2017 report noted that the DNA had explained that, as public confidence in their work increased, over 80% of signals came from the general public and therefore their reliance on the SRI and other public authorities had diminished.

This debate is also linked to the question of fair trial rights in criminal proceedings. The Commission had noted that the issue of respect of fair trial rights was often used as an argument in public debates to criticise the judiciary and advocate for changes in the (corruption) laws. Successive CVM reports have highlighted that respect of fair trial rights in line with the case law of the Court of Justice and the European Court of Human Rights is an essential element of the criminal codes and the criminal judicial proceedings, and that trust in the respect of fair trial rights in another country are the basis for judicial cooperation in criminal matters and mutual recognition. CVM reports therefore welcomed the entry into force of the new Criminal Code and Criminal Procedure Code in 2014 as increasing guarantees for the rights of suspects, defendants and also the victims of crimes. The Commission had also been informed by the European Court of Human Rights (ECtHR) and the Council of Europe that many applications to the ECtHR alleging a violation of fair trial rights by the prosecution services (in corruption cases) had not been admitted. Some proceedings are now ongoing and the results may have a bearing on whether or not there is a need to amend the Criminal Code or Criminal Procedure Code.

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