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Justice Minister initiated procedure for dismissing General Prosecutor

de Mariana Bechir , 29.10.2018

Minister of Justice announced on Wednesday that asks for the dismissal of General Prosecutor Augustin Lazar (photo) for 20 reasons (they could be more, Tudorel Toader wanted to stress) presented in the assessment report on Augustin Lazar’s managerial activity.

It is noteworthy to mention that the announcement was made on the very day when President Klaus Iohannis discussed at Cotroceni with the parliamentary parties the possibility of a pact on the judiciary.

According to the procedure initiated, the revocation proposal goes to the Superior Council of Magistracy (CSM), where the Prosecutor’s Section has to issue an advisory opinion.

Minister Toader’s report and CSM’s opinion are then sent to the Presidential Administration so that the head of state to make a decision – signs or not the revocation decree.

We remind that Laura Codruta Kovesi has been dismissed as head of DNA following a similar assessment of her managerial activity.

The President was forced to sign the revocation from office after the Constitutional Court ruled that he must implement the request of the Justice Minister because he does not have an own discretionary power in the revocation proceedings, but a power to check its regularity.

The controversial CCR decision had been taken based on an interpretation, very criticized including by the Venice Commission, of Article 132 paragraph 1 of the Constitution, which should be amended, according to the Venice Commission, within the next revision of the fundamental law.

What that article says:

Prosecutors operate in accordance with the principles of legality, impartiality and hierarchical control, under the authority of the Minister of Justice.

What the Venice Commission says in its opinion on the laws on the judiciary regarding the way CCR interpreted the provision:

“CCR decision that imposed DNA chief’s dismissal leads to clearly strengthening the Minister of Justice’s capacities regarding the prosecutors, while, on the contrary, especially in the current context, it would be important to strengthen prosecutors’ independence and increase the role of institutions that could balance the minister’s influence – the head of state and CSM.”

Because no other meaning can be assigned to this article, after the Constitutional Court has ruled, the Venice Commission proposes for the provision to be amended when the fundamental law is revised:

“The Constitutional Court has the authority to interpret the Constitution in a binding manner and it is not for the Venice Commission to challenge the interpretation of the Constitution (…)

In this respect, a key measure would be to amend this provision, in the context of a future revision of the Romanian Constitution.”

Reasons put forward by Tudorel Toader for dismissing Augustin Lazar

The acts and deeds listed, intolerable, prove that Augustin Lazar’s managerial activity contradicts the constitutional and legal obligation.

It is no longer possible to support the access to and the exercise of the management position within the Public Ministry.

The gravity of behaviours, general prosecutor’s public messages hijacked the activity of the Public Ministry from its constitutional role,” Minister Toader said before announcing the initiation of the revocation procedure.

Main reasons:

  • He strongly argued the lack of a legal basis for DNA chief prosecutor’s assessment.
  • Paragraph 10, the non-fulfilment of objectives set by the general prosecutor in the management project. It is written in the project that all measures will be taken to reduce the delegation of powers in executive or management positions, which means for those who hold such positions to exercise them in reality and if we look into the assessment of the Public Ministry, we find the opposite. In his, he increased the number of delegations of powers. In other words, we say something and do something else.
  • The illegality of his appointment – the assessment was missing from the candidacy file for the general prosecutor position. On April 27, 2016, the President signed the appointment to the position of general prosecutor, where there was no assessment of the professional performance criteria. It means that the Justice Minister from that moment made the nomination to the general prosecutor position without complying with the legal criteria and procedures. The President of the Republic did not check the legality of the evaluation in the nomination proposal.
  • Contesting the laws on amending the laws on the judiciary after the constitutionality check. I shall give you one example, although I have more. Much has been discussed publicly about that special section (the section for investigation of magistrates, editor’s note). The General Prosecutor expressed his point of view, but at one point the Constitutional Court validated the solution as constitutional. And we know that CCR’s decisions are final and binding, and you, as the prosecutor, are the first called upon to comply with the law.
  • Public speeches of a political nature, unprecedented accusations against state’s authorities, the legislative, executive powers.
  • Practicing and encouraging behaviours contrary to constitutional and legal obligations. The use of phrase “high-level defendants”.
  • Contesting CCR’s decisions in the sense of not complying with CCR’s decisions. While a citizen who has no education may say “maybe yes, maybe not” a general prosecutor who encourages the non-compliance is much worse. I am considering the same approach, an investigation within the parliamentary committee.
  • The delays in the proceedings for the proposal regarding the head of DNA, Adina Florea.
  • The decisions taken in the case of August 10 protest file
  • Violation of the law by signing protocols (the protocol concluded with SRI in December 2016), which means creating basis for a parallel judiciary.

General Prosecutor’s reaction – This is the answer that Government gives to Venice Commission

General Prosecutor Augustin Lazar said on Wednesday evening that this assesement report is actually the answer that the Government gives to the Venice Commission, and does not include reasons, but “stupid sayings.”

Augustin Lazar’s statements:

  • Just two days ago, the Venice Commission reported that prosecutors’ independence could be affected by the appointment and dismissal of prosecutors and recommended for these provisions to be examined. The report of the managerial activity carried out by the PICCJ’s general prosecutor is the response that the Government, through the Justice Minister’s voice, understands to offer to the Venice Commission. The report presented today is the way in which the Government, through the Minister of Justice, understands to respect the authority of the Public Ministry as part of Romania’s judiciary system
  • The general prosecutor’s assessment was carried out by CSM and conclusions were also positive. Rating “very well” has been issued. The conclusions reached by the Justice Minister without a solid and factual basis, represent an attempt to destabilize the Public Ministry. The institution’s stability is essential.

Raluca Pruna rejects accusation that proposal of appointing Augustin Lazar to the General Prosecutor’s Office was illegal

Raluca Pruna, former Justice Minister in Dacian Ciolos government, who appointed Augustin Lazar, rejects the allegation of this appointment’s illegality.

In a post on Facebook, she explains:

“I am the Minister of Justice who made the nomination of Mr. Augustin Lazar as General Prosecutor of the Prosecutor’s Office attached to the High Court of Cassation and Justice. I have an obligation to publicly react to statements made by Minister Toader on the alleged illegality of this proposal. I make the following clarifications:

  1. At the time of issuing the proposal, Prosecutor Augustin Lazar met all formal criteria (seniority of 10 years, “very good” rating at the latest professional assessment, the absence of any disciplinary sanction in the last 3 years), according to Law 303/2004.
  2. These formal criteria have been re-examined by the Superior Council of Magistracy, prior to issuing the opinion, by consulting the candidate’s professional file which was in the administration of the Council. CSM opinion on the proposal to appoint the prosecutor Augustin Lazar as the general prosecutor of Romania confirms the fulfilment of all legal and procedural criteria. The opinion was given unanimously.
  3. This appointment proposal’s submission to the President of Romania included all elements required by the law.

Some additional elements. Prosecutor Augustin Lazar had at that time 34 years of uninterrupted work in his profession and only “very good” ratings obtained throughout his career. At the time of the proposal, Augustin Lazar was general prosecutor of the Prosecutor’s Office attached to Alba Iulia Court of Appeal, within the second mandate obtained through a contest organsized by CSM. The Council checks the formal criteria of seniority, qualification and lack of professional sanctions prior to the appointment to a senior management position. CSM verified the fulfilment of requirements in December 2015 when Prosecutor Lazar obtained the second mandate as General Prosecutor within the Prosecutor’s Office attached to Alba Iulia Court of Appeal. And, as I said in April 2016, when I filed the nomination for the General Prosecutor of Romania.

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