Dragoș Călin (Judge at the Bucharest Court of Appeal and Co-President of the Romanian Judges' Forum Association)
By the decision issued on 24 November 2022, the Pitești Court of Appeal referred two preliminary questions to the Court of Justice of the European Union, the second of which concerns the compatibility of the new system of investigation of offences committed by judges and prosecutors, as a result of the dismantling of the famous Special Section (SIOJ), criticized by all relevant international bodies and regarding which the Court of Justice of the European Union (CJEU) itself expressed serious doubts related to the compatibility with the European Union law.
Thus, by the judgment issued in the joined cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19, Asociația Forumul Judecătorilor din România and Others, the Grand Chamber of the Court of Justice of the European Union established that Article 2 and the second subparagraph of Article 19(1) of the TEU, as well as the Commission Decision 2006/928 of 13 December 2006 establishing a Mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption (CVM) must be interpreted as precluding national regulation that provides for the establishment in the Public Ministry of a specialized section that has exclusive competence to investigate the offences committed by judges and prosecutors without the establishment of such section being justified by objective and verifiable requirements related to the sound administration of justice and without being accompanied by specific guarantees that allow, on the one hand, to remove any risk that this section may be used as an instrument of political control over the activity of those judges and prosecutors likely to affect their independence and, on the other hand, to ensure that such competence can be used in relation to the latter in full compliance with the requirements resulting from Articles 47 and 48 of the Charter of Fundamental Rights of the European Union.
The CJEU clearly notes that: “216. (…) an autonomous structure within the Public Prosecutor’s Office, such as the SIOJ, which is responsible for investigating offences committed by judges and prosecutors, is capable of prejudicing the trust which justice in a democratic society governed by the rule of law must inspire individuals, in so far as that structure could, depending on the rules governing the powers, composition and operation of such a structure, and the relevant national context, be perceived as seeking to establish an instrument of pressure and intimidation with regard to those judges, and thus lead to an appearance of a lack of independence or impartiality on their part.
217. In that regard, it is apparent from the file that the fact that a criminal complaint has been lodged with the SIOJ against a judge or prosecutor is sufficient for the SIOJ to institute proceedings, including where the complaint is lodged in the context of an ongoing criminal investigation concerning a person other than a judge or prosecutor, with that investigation then being transferred to the SIOJ irrespective of the nature of the offence of which the judge or prosecutor is accused and the evidence relied on against him or her. Even if the ongoing investigation relates to an offence falling within the competence of another specialised section of the Public Prosecutor’s Office, such as the National Anticorruption Directorate (DNA), the case is also transferred to the SIOJ when a judge or prosecutor is implicated. Lastly, the SIOJ may appeal against decisions adopted before it was created or withdraw an appeal brought by the DNA, the Directorate for Investigating Organized Crime and Terrorism (DIICOT) or the Prosecutor General before the higher courts.
218. According to the information provided by the referring courts, the system thus established allows complaints to be lodged unreasonably, inter alia for the purposes of interfering in ongoing sensitive cases, in particular complex and high-profile cases linked to high-level corruption or organised crime, since if such a complaint were lodged, the matter would automatically fall within the competence of the SIOJ.
219. It is apparent from the evidence submitted to the Court and from the Report from the Commission to the European Parliament and the Council of 22 October 2019 on Progress in Romania under the Cooperation and Verification Mechanism (COM(2019) 499 final, p. 5) that practical examples taken from the activities of the SIOJ confirm that the risk referred to in paragraph 216 above – namely, that that section is akin to an instrument of political pressure and exercises its powers to alter the course of certain criminal investigations or judicial proceedings concerning, inter alia, acts of high-level corruption in a manner which raises doubts as to its objectivity – has materialised, which it is for the referring courts to assess, in accordance with the case-law referred to in paragraph 201 above.”
For compliance with the CJEU solution, after long delays, the Parliament of Romania adopted Law No. 49/2022 on the dismantling of the Section for Investigating Criminal Offences within the Judiciary, as well as for amending Law no. 135/2010 on the Criminal Procedure Code.
However, this law was severely criticized in the Opinion No. 1079/2022 by the Venice Commission, which listed the advantages of calling on specialized prosecutors to investigate corruption offences, showing that the new mechanism is more vulnerable in terms of its functional independence than the DNA, an efficient, specialized structure of the Public Prosecutor’s Office, which covers the entire territory of Romania, with the necessary technical means and experience in investigating complex corruption cases, and that it was implausible that a structure of non-specialized prosecutors at the level of the Prosecutor’s Office attached to the High Court of Cassation and Justice and the prosecutor’s offices attached to the Courts of Appeal will be better placed to conduct investigations into allegations of corruption by judges and prosecutors than the existing specialized prosecutor’s office. The Venice Commission recommended restoring the competences of these specialized prosecution services to also investigate and prosecute offences within their competence committed by judges and prosecutors.
The Romanian legislator refused to introduce the recommendations of the Venice Commission into the national legislation and, by Order no. 108/03.06.2022, several prosecutors were appointed to the Prosecutor’s Office attached to the High Court of Cassation and Justice who, according to this administrative document, will conduct the criminal investigation according to the provisions of Article 3 of Law no. 49/2022, therefore including in lato sensu corruption cases that are under the competence of the DNA, whose competence is thus limited.
According to Annex IX of the Act of Accession of Romania to the European Union, named “Specific commitments undertaken, and requirements accepted, by Romania at the conclusion of the accession negotiations on 14 December 2004 (referred to in Article 39 of the Act of Accession)”, points I (3), (4) and (5) list a series of requirements regarding: an action plan and a strategy for the reform of the judiciary (3), the considerable stepping up of the fight against corruption, in particular against high-level corruption, by ensuring a rigorous enforcement of the anti-corruption legislation and the effective independence of the National Anti-Corruption Prosecutors’ Office (…); the National Anti-Corruption Prosecutors’ Office must be given the staff, financial and training resources, as well as equipment necessary to fulfil its vital function (4) and the implementation of the anti-corruption strategy and an action plan in this regard (5).
Also, according to the judgment delivered by the Court of Justice of the European Union on 18 May 2021 in the joined cases C-83/19,, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19, Asociația Forumul Judecătorilor din România and Others, repeated in the judgment delivered on 21 December 2021 in the joined cases C-357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, Euro Box Promotion, Romania must comply with the Decision 2006/928 establishing a CVM and the reports adopted by the European Commission on this basis, in order to meet the benchmarks. ”In particular, Romania cannot adopt or maintain measures in the areas covered by the benchmarks which could jeopardise the result prescribed by those requirements and recommendations.” (para. 177).
Thus, one of the commitments undertaken by Romania when joining the European Union is to demonstrate the sustainability and irreversibility of the progress in fighting corruption, which implies the institutional strengthening of the National Anticorruption Directorate, whose results were appreciated and encouraged in numerous reports of the European Commission.
However, the fulfilment of these commitments was severely jeopardized by the existence of the SIOJ. In fact, the CVM Report of 22 October 2019 finds that “Amendments to accelerate the setting up of the Special Section to investigate crimes committed by magistrates and extend its competence, or successive changes to the requirements and procedural rules to appoint prosecutors (including management) in the National Anticorruption Directorate (DNA) further increased the concerns and the lack of trust in these amendments.”
Furthermore, the CVM reports strongly recommended taking into account the recommendations made in the Group of States against Corruption (GRECO) reports and in the opinions of the Venice Commission (both bodies of the Council of Europe), which expressed serious concerns about the changes made to the justice laws in 2018-2019.
The investigation of corruption offences committed by magistrates often requires both people with specialized experience in certain fields and sufficient technical means, which cannot be ensured in the system proposed by Law no. 49/2022, which does not offer potential prosecutors with previous experience in corruption cases any autonomy from the general criminal prosecution service.
Thus, the Venice Commission, in its opinions, supported the establishment of units specialized in the criminal investigation/prosecution of acts of corruption, which would enjoy a certain autonomy from the general criminal investigation system. The model for such units varies. In some cases, the specialized prosecutor’s office formally remains part of the general structure of the prosecutor’s office but as an autonomous unit, so that it does not receive instructions from higher-ranking prosecutors or from the Government. In other cases, the unit is completely independent (see the Final Opinion No. 9/2016 on the revised draft of constitutional amendments on the judicial system of Albania, para. 46 and 47).
By creating special powers to investigate offences committed by magistrates, different from the one applicable to all other citizens, a feeling of mistrust is transmitted towards the prosecution units or the prosecutors who do not deal with cases with magistrates, with negative effects on their activity and which increases the civil society’s mistrust in the judiciary.
The exclusion of the DNA (a prosecution unit where most prosecutors specialized in the investigation of corruption offences work and which has sufficient technical and logistical means, including judicial police) from the investigation of corruption offences committed by magistrates was not sufficiently argued.
In the Opinion no. 1079/2022, the Venice Commission noted the following: “22. Concerns remain also as to whether the SIOJ will only undergo a de jure dismantling and that – other than in respect of the number of prosecutors attached to it and its territorial distribution – the new structure will not be fundamentally different from SIOJ. This would raise questions as to whether the new mechanism will be able to effectively fight corruption in the judiciary. Given that the DNA has built up an effective working structure, covering the whole territory of Romania, with the required technical means and experience in investigating complex corruption cases and in light of the concerns expressed in its 2018, 2019 and 2021 Opinions, the Venice Commission regrets that the competences of DNA (and DIICOT) vis-à-vis offences committed by judges and prosecutors have not been re-established. (…)
37. Dismantling the SIOJ should not be an objective in itself. The objective of dismantling SIOJ should be to ensure more efficacy in investigating and prosecuting offences – most importantly corruption – committed by judges and prosecutors. It is implausible that a structure of non-specialised prosecutors at the level of the prosecutor’s offices attached to the High Court of Cassation and Justice and those attached to the courts of appeal will be better placed to conduct investigations into allegations of corruption by judges and prosecutors than the existing specialised prosecution service DNA. Given DNA and DIICOT’s relative autonomy and functional independence, their specialisation, experience and the technical means at their disposal, the Venice Commission regrets that unlike the draft law it assessed in its 2021 Opinion (which would have returned to the situation to what it was before the 2018 amendments), the legislator has not restored the competences of these specialised prosecution services. Consequently, the Venice Commission recommends restoring the competences of these specialised prosecution services to also investigate and prosecute offences within their remit committed by judges and prosecutors.”
In this context, the CJEU was referred to with a preliminary question by the Pitești Court of Appeal (“Article 2, Article 4(3) of the TEU and the second subparagraph of Article 19(1) of the TEU, Annex IX of the Act of Accession of Romania to the European Union and the Decision 2006/928 oppose a national regulation that limits the competence of the National Anticorruption Directorate by assigning the competence to investigate the corruption offences (lato sensu) committed by judges and prosecutors to the exclusive responsibility of some prosecutors specifically appointed (by the General Prosecutor of Romania, upon the proposal of the Plenary of the Superior Council of Magistracy) within the Prosecutor’s Office attached to the High Court of Cassation and Justice, respectively of the prosecution services attached to the courts of appeal, the latter also having competence over the other categories of offences committed by judges and prosecutors?”).
Even in the absence of any legislative changes regarding the system of investigation of offences committed by judges and prosecutors in Romania, the 2022 CVM report positively notes Romania’s significant efforts to implement the outstanding recommendations through new legislation, policies and tools to develop the judiciary and combat corruption. The Commission concludes that the progress made by Romania is sufficient to meet the CVM commitments made at the time of its accession to the EU and that all benchmarks can be satisfactorily closed.
However, the preliminary question referred by the Pitești Court of Appeal could create an opportunity for this CVM report to be analysed and evaluated, in the context of the other instruments of EU law invoked, even by the CJEU. To be followed!
Picture credits: Duu0161an Cvetanoviu0107 on Pexels.com.