OPINION ​​Beware Justice minister Tudorel Toader's laws! How politicians subdue prosecutors and justice

Romanian Justice minister Tudorel Toader has went to the special parliamentary commission for the laws of Justice, headed by Social Democratic MP Florin Iordache, with about the same draft laws that have massively dissatisfied magistrates, and their essence is to increase the role of the Minister of Justice in controlling the activity of magistrates on several levels, not just in the process of appointing chief prosecutors from which the head of state is removed. For example, one of the changes – the most dangerous and long term effects – reinforces the idea that the Public Ministry is part of the executive, and does not function as an independent institution.

The most important changes:

• The President of Romania disappears from the process of appointing the Chief Prosecutors
• The Justice Minister gains increased power and extends control over the magistrates activity: he gets the right to appoint chief prosecutors, approves the establishment of territorial services, offices or new compartments within the National Anti-Corruption Division(DNA), and appoints the leadership of the future Divizion of Special Investigation of Crime commited by Magistrates.
• The Minister of Justice is required to report annually on the work of the Directorate in Parliament, as if it were a pack that answers to politicians.
• Through a series of modifications, the Public Ministry takes a decisive step towards the Executive, being legally established as „exercising its powers under the authority of the Minister of Justice”. What is the difference from the current constitutional stipulations?
• The Judicial Inspection will be an autonomous institution, neither at the Supreme Council of Magistracy nor at the Ministry of Justice, but we do not know whether the future inspectors and the Inspectorate’s management will be appointed by a body that is politically controlled or only by the body of magistrates.

First Amendment to the Law no. 304/2004 states that „the Public Ministry exercises its powers under the authority of the Minister of Justice, through prosecutors constituted in prosecutor’s offices, according to the law”.

The current law stipulates that „the Public Ministry shall exercise its powers through prosecutors constituted in prosecutor’s offices, according to the law.”

The amendment proposed by Tudorel Toader adds, in my opinion, to the Constitution and puts forward the prosecution offices under the control of the Minister of Justice. But he is politically appointed or even member of the party so that may lead to achieving effective political control over prosecutors. What does „The Public Ministry exercise its attributions under the authority of the Minister of Justice” mean? In a broad interpretation, it can go up to the idea that the Minister of Justice can intervene in their work. Some will say that the amendment proposed by Tudorel Toader does not differ much from a stioulation that already exists in the Constitution. Article 132 of the Fundamental Law stipulates that „Prosecutors carry out their activities in accordance with the principles of legality, impartiality and hierarchical control, under the authority of the Minister of Justice.”

So how would Tudorel Toader’s proposal be different? The article in the Constitution, as it is drafted, refers to the symbolic authority of the Minister of Justice on prosecutors. No one has ever used this article to invoke the right of the minister to intervene in the affairs of the prosecutor’s offices, nor did anyone ever fill with legal content this principle vaguely enunciated in the fundamental law.

Tudorel Toader takes a step forward and clarifies in the law what he thinks the Constitution is saying. Therefore, adds in the organizational law that the Pulibc Ministry exercises its attributions under the authority of the Minister of Justice, who becomes in fact the head of the prosecutor’s offices and they practically enter the Executive.

This stipulation has to be corroborated with other essential ones, which together read strengthen the Minister’s control over the activity of prosecutors. For example, according to the law in force, the Minister of Justice proposes the leadership of the General Prosecutor’s Office, National AntiCorruption Divizion(DNA),Directorate for the Investigation of Organized Crime and Terrorism (DIICOT), and the Supreme Council Of Magistracy will issue an advisory approval and the effective appointment in the position is the responsability of the President of Romania.

According to the proposed amendments to the statute of magistrates, the head of state is completely removed from the appointment process and the Minister of Justice has the last word in the appointments of the chief prosecutors, their deputies and the chief prosecutors of the sections.

By modifying the organizing law, the minister of justice also gains power in the establishment of offices, or other specialized departments within the National Anticorruption Directorate (DNA),which have to be approved by the minister.

The law in force states that „Within the National Anticorruption Directorate may be established territorial services, offices and other departments of activity, by order of the chief prosecutor of this department” (art. 86 from Law 304 regarding the judicial organization). In other words, the Chief Prosecutor of the National Anticorruption Directorate organized his institution as he pleased. According to the amendment proposed by Tudorel Toader, this is no longer the case without the Minister of Justice’s approval. Paragraph 1 shall be amended and shall have the following content:

„Within the National Anticorruption Directorate, territorial services, offices and other departments may be established by order of the chief prosecutor of this department, with the approval of the Prosecutors Section of the Superior Council of Magistracy and the Minister of Justice.”

There are seemingly minor changes, but I would point out that they should be read as a whole and show the legislator’s desire to increase the attributions of the Minister of Justice to prosecutors, more clearly placed in the subordination of the Government than before.

Add to all of this that Tudorel Toader maintained his proposal to set up a Special Directorate to investigate the crimes committed by magistrates within the High Court’s Prosecutor’s Office. The head of this Special Directorate will be appointed by the Minister of Justice, which adds an additional means of control to the Minister on the activity of prosecutors.

According to Toader’s proposal, the Special Directorate „works with a maximum of 50 posts, of which 20 prosecutor positions and 30 auxiliary specialist posts and economic and administrative staff. The maximum number of posts may be modified by Government decision. „. A genuine National Anticorruption Directorate ,that is,specially set up for judges and prosecutors, whose appointment lies exclusively on the Minister of Justice, with a formal approval from the Supreme Council Of Magistracy.

Prosecutors in the Directorate for the Investigation of crimes commited by Magistrates would be appointed following a simple interview organized by a commission set up for this purpose. The interview, without verifying knowledge in a written test and a clear evaluation grid, is a safe method of conducting arbitrary employments. Some will argue that the same way you enter into National Anticorruption Directorate (DNA) today, but that does not mean that the recruitment method is good.

In the newly introduced article on the „Special Investigation Division for crimes cmmited by Magistrates”, we find a bizarre stipulation, namely the Minister’s obligation to present to the Parliament the conclusions of the Annual Activity Report of the Directorate as if it were subordinate to the Legislature. Regarding the organization of the Judicial Inspection as a perfectly autonomous structure, neither at the Supreme Counci Of Magistracy nor at the Ministry of Justice, there are some questions here.

„Within 6 months from the entry into force of this law, the organization and functioning of the Judicial Inspection as a public authority with legal personality, which operates at national level as a single structure, by the reorganization of the Judicial Inspection within the Superior Council of Magistracy „, It is shown in the proposed amendments to the Supreme Council of Magistracy operating law.

Here the devil hides as usual in the details, and it needs to be clarified from now who is going to appoint the new inspectors perfectly autonomous . With all their autonomy, if the new inspectors are to be appointed by a politically controlled body and not by the body of magistrates, then there is every chance to have an autonomous Judicial Inspection, apparently, but in fact politically controlled. At this point, it is not clear who will name the future inspectors and the head of Inspectorate. A key institution in the justice system, the Judicial Inspection decides whether to apply disciplinary measures against prosecutors and judges, which can go as far as exclusion from the magistrate.

It should be stressed again that the three draft laws amending the laws of justice were presented on Wednesday by Justice Minister Tudorel Toader in the special committee in Parliament without having been adopted in the Government. Prime Minister Tudose has said the draft law is waiting for the Venice Commission’s approval, which is due to meet in December. Minister Toader explained on Thursday that he hastened the parliamentary debate in order to gain time but failed to explain to former minister Catalin Predoiu why such a rush if the Commission’s approval still does not exist.

On the other hand, PSD leader Liviu Dragnea and PSD jurists, with whom we discussed from the Special Commission, have decided to adopt the laws of justice until the end of the parliamentary session, without waiting for the Venice Commission approval. In addition to the three draft laws, Parliament is also debating – amendments to the Penal Code and Criminal Procedure Code in the special commission led by Florin Iordache. Codes should be aligned with Constitutional Court decisions, with the most controversial change being the introduction of a threshold for abuse of office. The size of the threshold could work as a partial disincrimination that would benefit those investigated for abuse of office or complicity in abuse, as is the case with PSD leader Liviu Dragnea.

This time there are great chances to pass through Parliament all these changes to the laws of justice and to the Codes. First of all, most PSD-ALDE mimics the public debate, of which the opposition is quasi-absent. Changes are no longer made like in the case of EGO 13 „at night as thieves”, but transparent, at sight, assumed. Including the public, he was already accustomed to the idea that these laws must and will eventually be altered.

Thus, the sense of imminent danger disappeared, even though in practice the risk of irreversible changes in the architecture of the justice system remained as great as in the winter. Said truncatedly, minimized, or held in secret, announced changes are even wider and worse than seem at first glance. Some do not even verbalize them, to diminish any potential negative impact. They do not care, Minister Toader defies the whole body of magistrates by reiterating the most important stipulations rejected in block of judges and prosecutors. Neither President Klaus Iohannis nor the opposition had any reaction up to this hour. Their lack of interest helps the PSD party and the ALDE party to lead the assault to justice without any further resistance.

Finally, all these changes, including the possible replacement of Laura Codruta Kovesi from the National Anticorruption Directorate(DNA) headquarters, are expected to take place somewhere in December, that is, during a holiday season, when the street response is minimal.