The European Commission for Democracy through Law, aka the Venice Commission, has published an opinion, adopted during its 18-19 March plenary meeting, on the draft law on the dismantling of the section for investigating criminal offences within the judiciary.
The opinion was requested by the Committee on the Honouring of the Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee) of the Organisation’s Parliamentary Assembly.
On 23 and 24 February 2022, the rapporteurs held online meetings with the Minister of Justice of Romania, the Parliament (the President of the Legal Committee of the Senate and President of the Legal Commission of the Chamber of Deputies), the National Anti–Corruption Directorate (DNA), the Prosecutor General, the acting president of the Superior Council of Magistracy (SCM), professional associations of judges and prosecutors, representatives of the international community and NGOs. The Venice Commission is grateful to the Ministry of Justice for the organisation of these on–line meetings.
The draft law was approved by the Government on 14 February 2022, after which it was submitted to the Romanian parliament. The Chamber of Deputies adopted the draft law on 21 February 2022. It was made clear to the delegation of the Venice Commission during the on– line meetings that the draft law would be adopted before the Commission would be in a position to issue its opinion and indeed, on 28 February 2022, the Senate adopted the draft law. Following a constitutional challenge of the draft law (which was unanimously rejected by the Constitutional Court on 9 March 2022), the law was signed by the President of Romania on 11 March 2022 and entered into force a few days thereafter. At all stages of the legislative procedure amendments were made to the draft law.
This is not the first time the Venice Commission provides an opinion on the section for investigating criminal offences within the judiciary (hereafter: SIOJ), a structure in the prosecution service dedicated to investigating and prosecuting offences committed by judges and prosecutors.
In October 2018, the Venice Commission gave its opinion on the establishment of the SIOJ. In this opinion (hereinafter “the 2018 Opinion”), the Venice Commission pointed to “questions and strong concerns raised”, in particular as regards “the reasons for its existence, its impact on the independence of judges and prosecutors and on the public confidence in the criminal justice system and in the Romanian judicial system, more generally. Possible conflicts of competence with specialised prosecutor’s offices (such as DNA
or DIICOT, especially with respect to already well–advanced investigations), and issues of effectiveness of centralising all such investigations in one single location are additional aspects that have raised concern. Finally, but not of a lesser concern, the possible rerouting of high–profile cases of corruption, which are pending with the DNA, has been pointed out as one of the most serious risks entailed, as, together with investigated judges and prosecutors, other persons investigated for corruption will be removed from the specialised jurisdiction of the DNA; this would undermine both DNA’s anti–corruption work and DNA as an institution.
”1. It recommended the Romanian authorities to “reconsider the proposed establishment of a separate prosecutor’s office structure for the investigation of offences committed by judges and prosecutors”, indicating further that “specialised prosecutors, coupled with effective procedural safeguards appears as a suitable alternative in this respect”. 2. This recommendation was however not followed by the Romanian authorities and SIOJ was established in October 2018.
In its Opinion of June 2019 on emergency ordinances GEO no. 7 and GEO no. 12 amending the Laws of Justice (hereafter “the 2019 Opinion”), the Venice Commission repeated its criticism of the establishment of the SIOJ, stating that “the reasons for the creation
of the special Section for the investigation of criminal offences in the judiciary (the Section), with loosely defined jurisdiction, remain unclear”. 3. It also expressed criticism of the prosecutors of the Section being appointed under a transitional scheme “which de facto
remove the prosecutors’ wing of the Supreme Council of Magistracy (the SCM) from the decision–making process, which does not sit well with the institutional design of the SCM” and observed that it was “uncertain to what extent the prosecutors of the Section and its Chief Prosecutor are under the full hierarchical control of the Prosecutor General”. 4. The Venice Commission concluded that “since the Section would be unable to effectively deal with all cases within its competence, it risks being an obstacle to the fight against corruption and organised crime”.
In January 2021, the Romanian Government decided to dismantle the SIOJ, outlining that this would be an essential and urgent first step in the reform of the justice laws and would be followed by the adoption of three draft laws, respectively on the status of judges, judicial organisation and the SCM. It requested the Venice Commission for an Opinion on the draft law dismantling the SIOJ. In its opinion adopted in July 2021 (hereafter “the 2021 Opinion”), the Venice Commission expressed a positive view pointing out that “the Venice Commission could agree that the draft Law is in line with its recommendation by abolishing the SIOJ and transferring the pending cases to the Prosecutor’s Offices competent under the law. The same applies to the re-establishment of the competence of the National Anti-Corruption Directorate vis-à-vis judges and prosecutors, as provided by the draft Law in Article 3”.
Dismantling the SIOJ should not be an objective in itself, says the Venice Commission. “The objective of dismantling SIOJ should be to ensure more efficacy in investigating and prosecuting offences – most importantly corruption – committed by judges and prosecutors. It is implausible that a structure of non–specialised prosecutors at the level of the prosecutor’s offices attached to the High Court of Cassation and Justice and those attached to the courts of appeal will be better placed to conduct investigations into allegations of corruption by judges and prosecutors than the existing specialised prosecution service DNA. Given DNA and DIICOT’s relative autonomy and functional independence, their specialisation, experience and the technical means at their disposal, the Venice Commission regrets that unlike the draft law it assessed in its 2021 Opinion (which would have returned to the situation to what it was before the 2018 amendments), the legislator has not restored the competences of these specialised prosecution services. Consequently, the Venice Commission recommends restoring the competences of these specialised prosecution services to also investigate and prosecute offences within their remit committed by judges and prosecutors.”
In addition, the Commission considers that the way in which vexatious complaints (often criminal complaints) by private individuals against judges and prosecutors are addressed needs to be reformed urgently. “Furthermore, as an additional priority, operational rules under which prosecutorial files can be removed from the competence of specialised prosecution services if other persons are investigated together with magistrates need to be revised and/or further safeguards against the take–over of such cases need to be
provided.“
Finally, if the Law is maintained as is, the Venice Commission recommends to provide the prosecutorial section of the SCM a stronger involvement in the selection of the prosecutors designated to investigate offences by judges and prosecutors to do justice to the institutional design of the SCM, to provide for a competitive selection procedure and a clearer delineation of some of the criteria for the appointment (and termination of this appointment) of the designated prosecutors, as well as a longer period of appointment.
“As dismantling the SIOJ is only a first step in a larger package of reform measures, the Venice Commission would like to encourage the Romanian authorities to continue this wider reform and it remains at the disposal of the Romania authorities and the Parliamentary Assembly for any further assistance that may be required.”