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Cronicile

Laws on judiciary, amended again by OUG: judges who were once prosecutors may be appointed as prosecutors

de Mariana Bechir , 25.2.2019

The Government approved on Tuesday an OUG that was not publicly debated, which amends several provisions from laws on the judiciary that refer to prosecutors (Statute of magistrates, CSM Law and the Judiciary System Act).

By this ordinance, the Section for investigating magistrates receives a higher autonomy, and politics can more easily control the appointment of the heads of prosecutor’s offices in the current context.

The First Vice-President of the European Commission, Frans Timmermans, said on Tuesday in Brussels that he did not know that a new emergency ordinance on amending the laws of the judiciary would be adopted by the government headed by Viorica Dancila, informs Mediafax.

Before I can comment, I need to see what OUG is this. I did not know it was going to be adopted, I will look as soon as I get to the office,” said Frans Timmermans, the First Vice-President of the European Commission, when asked how he sees the fact that Dancila government adopted a new emergency ordinance to amend the laws on the judiciary.

The OUG text was not published until the Justice Minister came out to provide details, but a draft obtained by Adevarul shows that the special Section for investigating magistrates becomes independent of the General Prosecutor’s Office, and it is taken out of its authority.

The head of the section will decide in offenses referring to their jurisdiction, not the prosecutor general. The prosecutor general will no longer be able to refute, from now on, the acts he considers illegal or unfounded. A potential case is the one targeting Laura Codruta Kovesi, investigated by the special section, whose dissolution has been demanded by the Venice Commission, which explained that it could turn into a pressure tool upon magistrates.

Judges may run for the Prosecutor’s Office

Tudorel Toader, who insisted last year that the separation of magistrates’ careers is needed (a different path for judges and prosecutors), has included in the OUG at least two provisions that contradict his previous theory:

  • High-level prosecutors (the public prosecutor and his deputies, DIICOT and DNA heads and their deputies) will receive an opinion from CSM plenary, not from the Prosecutors Section from CSM. That, in the context that one of the ambitions of the new laws on the judiciary was to separate the judge career from the prosecutor career. That does not also apply to judges, for whom the opinion remains to be obtained from judges section. It is worth mentioning that the CSM plenary is considered close to Justice Ministry’s positions following the election of Lia Savonea as president.
  • Judges who have worked in the past as prosecutors may also be candidates for the prosecutor’s office – “These high-level positions that cannot be filled by delegation, potential candidates and the power to issue the advisory opinion. According to the ordinance, prosecutors who meet legal requirements can run for the positions but judges who were prosecutors can as well (…) He is a prosecutor with all professional competencies. Why does he become a chief? Due to managerial skills. The OUG only refers to these few high-level positions,” explained Tudorel Toader.

Other controversial provisions:

  • Prosecutors cannot be delegated to leading positions within prosecutor’s offices for which the appointment is made by the Romanian President
  • For high-level prosecutors, who are appointed by presidential decree, delegations of more than 45 days will no longer be allowed. “They are filled and have to be filled under the law. Unfortunately, today, right when we speak, many high-level prosecutor positions are filled by delegation. Those concerned have a 45-day term,” said Tudorel Toader. The mention will force the country’s president to accept the minister’s proposal.
  • A so-called “on-the-spot” promotion has been reintroduced – the possibility to work within a court, but having an income corresponding to a higher court if the person passed the exam for the latter.
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