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Florin Iordache, Chairman of the Special Parliamentary Committee on the Laws of Justice, responds in a statement to the preliminary report of the Venice Commission on the Amendment of the Penal Codes
of Romania
This is a press release press posted on the website of the Chamber of Deputies, signed by Florin Iordache. According to Digi24, this point of view was made public only after Iordache's discussion with PSD President Liviu Dragnea and with ALDE member Călin Popescu Tăriceanu
Full text:
Clarifications from the conclusions of the Venice Commission's preliminary opinion of 13 July 2018, the six representatives of France, Sweden, Moldova, Belgium, Poland and Finland received from the Chairman of the Special Committee of the House Deputies and Senate systematization, unification and legislative stability in the field of justice. Deputy Minister Florin Iordache (PSD Parliamentary Group)
The Venice Commission has hailed the "separation of careers" of prosecutorial judges by transferring the appointment powers of the Plenum to the two sections of the CSM
"The New Way of taking "career decisions" will lead to increased independence of judges, which is not entirely possible as long as decisions on the career of judges are also made by prosecutors, "said the Commission (para 133.
We recall that both the President and the Opposition, as well as the prosecutors and the Judges' Forum Association, strongly contested this change. praised by the Venice Commission, was to refer the President of the appointment procedure to the leadership of the High Court of Cassation and Justice
. "The proposed system to make the SCM actor a welcome solution that co affirms the crucial role of the SCM as guarantor of the independence of justice, "said the Venice Commission (paragraph 40). Although not the subject of this report, the Venice Commission also indirectly spoke about the secret protocols between the SRI and various institutions / authorities of the judicial authority (ICCJ, Bureau the Attorney General, SCM). The Commission welcomed the introduction of a specific offense aimed at recruiting magistrates for intelligence services.
The Commission also welcomed the provision that all extrajudicial documents influencing court proceedings are in the public interest. We recall that the opponents, including the PNL, opposed this provision
Under these protocols and the interference of the intelligence services, "a thorough analysis of the legal rules on the control of the services of information seems necessary ", said the Venice Commission (paragraph 97), with which we agree
It is worth mentioning the importance of the decisions taken by the Constitutional Court of Romania and the obligation to respect their conclusions
This is the first time when an institution with a significant impact on the development of democracy raises the issue of the protocol of the SRI with the judiciary
] With regard to some specific issues, mentioned in the preliminary opinion, some details are needed:
– In the Report on Standards European Organs of Crime Investigation it of 3.01.2011:
a) its (paragraph 24), giving examples:
– Austria, Denmark, Germany and the Netherlands where prosecution services are subordinate to the Ministry of Justice (para. 26)
(b) it has been argued that "and where the Public Prosecutor's Office is an independent institution, there may be hierarchical control over the decisions and activities of prosecutors other than the Attorney General" (paragraph 28)
c ) the appointment and dismissal of the Attorney General may belong to the President or Parliament (paragraph 35) with the assurance of seeking an opinion on the professional qualification of candidates by the persons concerned
(d) the reasons for revocation must be expressly mentioned in the law; ) the composition of public policy in the field of criminal prosecution belongs to the legislature, the Department of Justice and the Government, (paragraph 87.8)
f) the order of amendment of the opinion of 39: a subordinate prosecutor must be subject to review by the court (paragraph 87.15)
As the texts in force have been amended, all observations have been respected. Thus:
– as regards the appointment of high level prosecutors, the only change made to the current text concerns the restriction of the right of the President of Romania to refuse several appointments. For their appointment, as well as for their dismissal, the texts provide for the obligation to go through stages, the one before the Minister of Justice, the opinion issued by the SCM's public prosecutor's office and the appointment by the president. . Under the current constitutional system, the public prosecutor is a member of the judiciary and is under the authority of the Minister of Justice, who rightly believes that the proposal of the Minister of Justice should be considered with great care. . The President of Romania has often taken into account neither the proposal of the Minister of Justice nor the opinion of the CSM
on the possibility for the superior prosecutor to assess the acts of the hierarchical prosecutors inferior not only in legal terms but and on the merits of a solution, it was envisaged that such an assessment could be challenged in court in order to ensure that the correct legal provisions were applied. Although this measure is part of the amendments to the Code of Criminal Procedure, the drafters of the opinion considered it to be one of the three laws of justice
– concerning the restriction of judges and prosecutors to to publicly express to other powers the Constitutional Court of State declared that by observing the principle underlying the profession, that of the "mandatory reserve" and respecting the presumption of innocence, it is natural that in the public space there is no possibility of degenerate unilateral dialogues [19659006] – it seems that the editors of the opinion not read the last form defining the "miscarriage of justice" in bad faith and gross negligence, nor the decisions of the Constitutional Court, which determined, on the one hand, that it is differentiated the criminal responsibility and disciplinary, and, on the other hand, the last form is precise the extent and the establishment of the filter ensures by the judicial control the existence of clear elements to attract or not the responsibility of the judge or the prosecutor for the repair of the damages
– it should be noted that the section that was created by judges and prosecutors does not self-criticize, but it is only recommended that specialized prosecutors be involved. The conditions of admission to this section are distinguished: 18 years, only as a prosecutor, an unsanctioned activity, the passing of an examination, the selection to be made by the Plenum SCM, so judges, prosecutors and members of civil society
– with regard to the dismissal of SCM members, the change has been determined by a concrete situation in recent years, when the judges meeting in general meetings expressly requested the resignation of their representative , the decisions of these assemblies dismissing the dismissal on the ground that the law contains no such provision
– the proposition that judges and prosecutors may retire at the age of 20 in 39, activity of judge or prosecutor was determined, on the one hand, was already in the law, introduced in 2005 by the former Minister of Justice, the current europarlamen and it n ' There was no "chaos" in the system, and secondly, this request came from the SCM, as a result of court-level discussions
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the commission in Venice
florin iordache
the laws of justice
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