The European Commission for Democracy through Law (Venice Commission of the Council of Europe) has published an urgent opinion on three laws regarding the judicial system in Romania: the law on the Superior Council of Magistracy, the law on judicial organization and the status of magistrates (judges and prosecutors), the Council of Europe informed in a press release.
According to the quoted release, as the opinion is urgent, the Commission cannot rule out the existence of other problems than those observed in the three regulations, but appreciates that in general the three laws seem to be oriented in the right direction, reports Agerpres.
Several positive elements are notable, the first being the absence of political interference in National Anticorruption (DNA)’s activity.
Even if the laws were adopted in the emergency procedure, the preparations included the consultation of all interested parties, the commission appreciates. The appointment and dismissal of prosecutors with important positions is now regulated by law, not by orders of the minister, and the involvement of several parties in such appointments ensures transparency.
According to the legal provisions, superiors’ instructions to the subordinate prosecutors must be given in writing, must be legal and must be motivated if they contradict the subordinates’ decisions. The general prosecutor cannot reject the decisions of DNA and Directorate for Investigating Organized Crime and Terrorism (DIICOT) prosecutors, and the control of the Ministry of Justice is limited to management issues.
The Venice Commission nevertheless regrets that the Romanian authorities did not request its opinion on the draft laws and formulates several recommendations for amending the legislation in the judicial field.
Thus, in the commission’s opinion, the deputy heads of the courts and prosecutor’s offices should also be selected by competition. High-ranking prosecutors, including the general prosecutor and the chief prosecutors of DNA and DIICOT and their deputies should be appointed for a longer term, without the possibility of a second term. The Prosecutor General should not bypass the hierarchy when he/she finds that prosecutors are taking illegal or unjustified measures; in such cases, they should be warned hierarchically. The legislation should explicitly provide that the judicial police is not answerable to the Ministry of the Interior for the activities carried out.
The Commission draws attention to the fact that the conditions for the implementation of the laws are also very important. In preparing the opinions regarding Romania, the Commission found that sometimes there are very different points of view regarding the existing or pursued realities; therefore, it is vital that all participants in the judicial system – judges, prosecutors, the Ministry of Justice and the President – collaborate with a spirit of loyalty to ensure the proper administration of justice.
The opinion of the Venice Commission was requested in September 2022 by the Commission for Honoring the Obligations and Commitments of the Member States of the Parliamentary Assembly of the Council of Europe (PACE). On October 25, the Romanian minister of justice requested that the opinion be formulated as an emergency.
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