Judge Gîrbovan: The Romanian Government Accepts Erroneous Recommendations from the European Institutions Due to Its Submissive Attitude

The main statements of Dana Gîrbovan, president of the National Union of Romanian Judges (NURJ):

“The hierarchical subordination of SIIJ to the General Prosecutor of the Prosecutor’s Office attached to the High Court of Cassation and Justice (POHCCJ) is obvious and results clearly from the legal provisions cited above, some of which are mentioned, but paradoxically ignored in the very observations formulated by the European Commission”.

“The problem with the reports of the European institutions – GRECO, CVM, the European Commission – consists not only in the false and unfounded arguments against SIIJ, but also in the clearly partisan, unprofessional and subjective manner in which they present the facts pertaining to the justice system in Romania and then evaluate them in order to draw conclusions”.

“The Section for the Investigation Crimes within Judiciary (SIIJ) has been the object of a prolonged and continued disinformation campaign, internally and externally, and the assertion that SIIJ is not under the authority of the General Prosecutor was one of the false arguments used in this campaign”.

Presented below is the full interview with judge Dana Gîrbovan, president of NURJ:

MEDIAFAX: In the point of view expressed by the European Commission and sent to the Court of Justice of the European Union (CJEU) it is shown, as you specified in the letter, that SIIJ is not under the authority of the General Prosecutor of POHCCJ. Why do you consider this error occurred? What information has the Commission received to that effect and from whom?  

Dana Gîrbovan: This false argument, that SIIJ is not under the authority of the General Prosecutor, which was promoted by some professional associations and institutionally by the Ministry of Justice and by the Government, proves that we find ourselves in the post-truth era, in which facts and arguments do not matter anymore, but if a lie is repeated frequently enough and by many people, it becomes accepted as truth and the real state of fact, including by the European Commission. The Section for Investigating Crimes within Judiciary (SIIJ) has been the object of a prolonged and continued disinformation campaign, internally and externally, and the assertion that SIIJ is not under the authority of the General Prosecutor was one of the false arguments used in this disinformation campaign.  

The hierarchical control of the General Prosecutor of the Prosecutor’s Office attached to the High Court of Cassation and Justice (POHCCJ) over SIIJ results clearly from the Constitution and from the provisions of Law no. 304/2004.

I present for reference a series of articles from Law no. 304/2004 on judicial organization, which prove without a doubt that SIIJ is part of the Public Ministry, that it is a section part of the POHCCJ and that the prosecutors belonging to SIIJ are subordinated to the General Prosecutor of POHCCJ.

“Article 62 paragraph (1) - The Public Ministry exercises its powers according to law and is headed by the General Prosecutor of the Prosecutor’s Office attached to the High Court of Cassation and Justice. 

Article 65 paragraph (1) - Prosecutors from each prosecutor’s office are subordinated to the chief prosecutor of that office.

Article 70 paragraph (2) - The Prosecutor’s Office attached to the High Court of Cassation and Justice is headed by the General Prosecutor of the Prosecutor’s Office attached to the High Court of Cassation and Justice, assisted by a first deputy and a deputy.

Article 72 - The General Prosecutor of the Prosecutor’s Office attached to the High Court of Cassation and Justice exercises, directly or through designated prosecutors, the control over all prosecutor’s offices. 

Article 75 - The Prosecutor’s Office attached to the High Court of Cassation and Justice is structured into sections headed by chief prosecutors, which can be assisted by deputies. Within the sections can function services and bureaus, headed by chief prosecutors.

Article 88^1 paragraph (1) – Within the Prosecutor’s Office attached to the High Court of Cassation and Justice is established and will operate the Section for Investigating Crimes within Judiciary.

(5) The General Prosecutor of the Prosecutor’s Office attached to the High Court of Cassation and Justice resolves the conflicts of jurisdiction arising between the Section for the Investigating Crimes within Judiciary and other structures or unites within the Public Ministry.

Article 88^2 paragraph (1) - The Section for Investigating Crimes within Judiciary operates according to the principle of legality, impartiality and hierarchical control.”

After SIIJ started to operate, cases involving magistrates from all prosecutor’s offices, including from the National Anticorruption Directorate (NDA) and from the Directorate for Investigating Organized Crime and Terrorism (DIOCT), were sent to SIIJ. NDA, however, is the structure legally distinct and autonomous within the POHCCJ, hierarchically situated above sections within the POHCCJ.

Because of this, the situation had got to the point where the solutions or the measures taken before the existence of SIIJ by NDA prosecutors, some of them having leadership positions, could not be censored by anyone because the prosecutors from SIIJ were not “hierarchically superior” to them, whereas other prosecutors no longer had jurisdiction to investigate magistrates. Therefore, a blockage was created, which required urgent legislative intervention in order to clarify these aspects. 

This is how the amendments to article 88^1 adopted by Emergency Ordinance no. 7/2019 appeared, which introduced paragraph (6) stating that: “Whenever the Criminal Procedure Code or other special laws refer to «the hierarchically superior prosecutor» in case of offences belonging to the jurisdiction of the Section for Investigating Crimes within Judiciary, the aforementioned term refers to the chief prosecutor of the section, including in regard to solutions adopted before the section started to operate”. 

This legal provision must be interpreted in conjunction with the other norms previously mentioned. To take out of context this legal provision and present it individually, without the other accompanying legal provisions, with the aim of arguing that SIIJ is not under the control of the General Prosecutor is proof of the completely distorted manner in which the Section was presented to the European institutions.  

The hierarchical subordination of the SIIJ to the General Prosecutor of the POHCCJ is obvious and results clearly from the legal provisions cited above, some of which are mentioned, but paradoxically ignored in the very observations formulated by the European Commission.

MEDIAFAX: Is keeping SIIJ likely to create the impression of a corruption phenomenon in the judiciary, as the European Commission points out? What are the arguments which refute these statements? 

Dana Gîrbovan: Legal arguments cannot be based on “impressions”; they must be based on data and facts.

Data and facts prove the following aspects:

- In 2014, through a secret order, the chief prosecutor of NDA established the “Service for Combating Corruption in the Justice System”.

- However, the investigations regarding magistrates were not carried out only by this service, but also by other services and subunits within NDA, across all territorial structures. 

- In the period 2014-2018, according to a report of the Judicial Inspection, at the level of all the structures within the NDA there were 1.443 cases regarding 1.962 judges and 1.459 cases regarding prosecutors. Of these cases, some were kept open for years. In one situation, a case with a judge was kept opened for 12 years and 6 months and was closed by the NDA right before SIIJ started to operate. 

- Before SIIJ started to operate, NDA closed numerous cases – including a case initiated ex officio in 2013 which concerned former members of the Superior Council of Magistracy (SCM) -, which proves that the establishment of the Section was necessary to put an end to this abusive practice.

- In the period 2014-2018, 276 cases against magistrates were initiated ex officio (163 cases initiated ex officio against prosecutors and 113 cases initiated ex officio against judges). This means that every month 5 or 6 cases against magistrates were initiated ex officio.

- If the number of cases against judges from a court are compared to the total number of judges from that court, we find out that approximately 70% judges from the High Court of Cassation and Justice, 60% of the judges from the Court of Appeal Ploieşti, over 80% of the judges from the Court of Appeal Oradea, 45% of the judges from the Court of Appeal Bucharest, 40% of the judges from the Court of Appeal Iaşi etc. had open cases by NDA.

These facts and data prove that for the NDA the magistrates represented a real criminal segment, kept under surveillance for years. It is important to note that from the thousands of cases opened, only a few magistrates per year were sent to trial for corruption. Instead, however, many cases were kept inactive for long periods of time, even in cases in which it was obvious from the beginning that they had to be closed, the complaints against the magistrates being manifestly ill-founded or even not complying with minimum formal requirements to be considered valid to even open a case.    

The phrase used by the European Commission that the creation of SIIJ “gives the impression of a corruption and criminal phenomenon well-spread within the judiciary” can also be identified in other reports of European institutions, such as the GRECO report. This phrase was also taken from the manipulative arguments used against SIIJ.  

This pseudo-argument of the European Commission demonstrates not only its open partisanship, but also its obvious ignorance of statistical and factual data. Furthermore, this pseudo-argument disregards the conclusions of the Superior Council of Magistracy’s Plenum which stated, after the verification performed by the Judicial Inspection at NDA, that: “The practices of the NDA prosecutors who investigated cases with judges in the manners specified in the Judicial Inspection’s report represented forms of pressure on them, with direct consequences in terms of the administration of justice”.    

It results, thus, that for the European Commission the subjective impressions weighed more than concrete data and facts.

MEDIAFAX: Has the establishment of SIIJ affected the trust in the justice system? 

Dana Gîrbovan: Trust/confidence in the justice system was negatively affected by the abuses of the NDA and by the interference of the secret services in the justice system, after they were made public starting with 2015, and the opinion surveys prove this fact.

Regarding SIIJ, if we take into consideration that after its establishment and operationalization, at the beginning of 2019, trust in the justice system started to slowly grow, it can be concluded that the creation of SIIJ positively influenced the trust in the justice system.

According to the Eurobarometer survey done by the European Commission across the EU, between 2015 and 2016, trust in the justice system in Romania decreased abruptly by 13%. It was the biggest decrease of trust in an institution across the entire EU in a single year. 

Trust in the justice system must however also be correlated with trust in the NDA, given the fact that the Romanian justice system was publicly identified with the fight against corruption. Surveys from Romania show that in 2015 trust in the NDA was at 63%, whereas in 2018 trust in the NDA collapsed at 30%. 

Therefore, citizens’ trust in the justice system and especially in prosecutor’s offices, at the time when SIIJ was established, in mid-2018, was already declining dramatically. Surveys from recent months show a slight increase of trust in the justice system.

Regarding SIIJ, it is important to note that a recent opinion survey shows that citizens do not support the abolition of SIIJ. Thus, 64% of the respondents to the CURS survey said that SIIJ should not be abolished. This survey confirms that citizens perceive SIIJ as a guarantee of judicial independence, as was also stated by the Romanian Constitutional Court.    

MEDIAFAX: How do you explain the criticism expressed by the European institutions against SIIJ and how can the reputation of this structure be repaired?

Dana Gîrbovan: The problem with the reports of the European institutions – GRECO, CVM, the European Commission – consists not only in the false and unfounded arguments against SIIJ, but also in the clearly partisan, unprofessional and subjective manner in which they present the facts pertaining to the justice system in Romania and then evaluate them in order to draw conclusions. A comparative analysis of the positions of these institutions reveals fundamental common errors which are found in all these reports. At least part of these are based on the erroneous information given by the Romanian authorities. Taking this fact into consideration, in July 2019, we asked the Ministry of Justice to communicate to us copies of all the reports, briefings or observations sent to European experts in order to verify their accuracy. We received no answer, the Romanian authorities demonstrating a complete lack of transparency regarding this subject.  

Secondly, the European Commission stated in the CVM report that the “European experts” met with representatives of the professional associations of magistrates, emphasizing that the 2019 CVM report is the result of an extensive consultation.

In reality, this “extensive” consultation did not include the professional associations and the NGO’s which had a more nuanced approach regarding the amendments to the laws concerning the justice system, the “European experts” consulting only the professional associations and the NGO’s which have severely criticized the amendments in question. 

Thus, professional associations such as the Association of Romanian Magistrates (ARM) – the oldest and largest association of magistrates, member of the International Union of Magistrates -, the National Union of Romanian Judges – member of MEDEL and traditional discussion partner with the European experts –, the Association of Judges for the Defense of Human Rights (AJDHR) or the Association of Romanian Prosecutors (ARP) have not been invited to meetings with the representatives of the European Commission, since they started to talk about the abuses in the justice system and the involvement of the secret services in the justice system. 

The European Commission has thus founded its considerations and recommendations from the 2018 and 2019 CVM reports only on the opinions of some professional associations which confirm unreservedly its theses and prejudgments, ignoring the professional associations of judges and prosecutors which express, where it is necessary, clear and well-founded criticism regarding the justice system in Romania.  

Thirdly, the European reports quote each other, which leads to a circular argument, given the fact that the primary information is false or flawed. 

The most serious issue is, however, that the Romanian Government and the Ministry of Justice accept, due to their submissive attitude, even obvious erroneous recommendations. This has negative consequences not only for the justice system in Romania, but also at the national level, because of the position assumed by Romania in the European Union.

Eventually, CVM is, above all, a cooperation mechanism, not only a verification one, and Romania should assume more firmly the role of a partner who cooperates with another partner within the framework of a mechanism, role which obliges the Government to explain each time in an honest, open and well-argued manner the errors encountered in the CVM reports.

If these attitudes do not change, if the reports are not elaborated objectively and professionally, if the Romanian Government does not renounce to this auto-induced position of a simple doer and does not have a firm and dignified attitude to ask for the rectification of errors, when it is necessary, the effect will not only be the further decline of confidence in the justice system, but also the decline of confidence in the European institutions, with consequences whose gravity it appears very few are fully aware of. 

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