The justice bill by which Justice Minister Stelian Ion wants to abolish SIIJ, strengthens prosecutors' control over magistrates

• The draft that the Minister of Justice provides bespoke legislative interventions on the competences of DNA and DIICOT, so that they are allowed to investigate and prosecute judges of the JCC, other judges and prosecutors, including military judges and prosecutors and those who have the status of SCM members, if they commit crimes
• Stelian Ion, Minister of Justice, has removed 2 articles from the previous draft for the abolition of the SIIJ proposed by former Minister Catalin Predoiu, thus strengthening the control that case prosecutors have at the time of the initial investigation/prosecution and during the prosecution of magistrates.
• The Judicial Inspection report on the checks the DNA made shows that, during the time in which it had jurisdiction over the investigation of magistrates, the National Anti-Corruption Directorate opened 2902 criminal cases on magistrates, 1962 judges and 845 prosecutors were targeted, DNA prosecutors obtained  5935 surveillance orders on judges, cases were kept open within the DNA and then closed before the establishment of SIIJ and after 12 years and 6 months, investigagions  were also launched on decisions made by the courts  and  75 BCCJ judges and dozens of judges from 7 Romanian Courts of Appeal were targeted by criminal investigations.

Justice Minister Stelian Ion (USR) sent the draft law on the abolition of the SIIJ to the Superior Council of Magistracy on 31 December 2020.

The draft submitted by Minister Stelian Ion gives the DNA and DIICOT the power to investigate magistrates. The draft provides for the following details:

"Cases pending at the SIIJ shall be transferred, under the supervision of the Prosecutor’s Office of the CCJ within 5 working days from the date of entry of this Law, to the competent prosecutor's offices according to the law, which shall continue seeking to resolve them. (...)

From the date of entry of this Law, offences covered by Law 78/2000 for the prevention, discovery and sanctioning of acts of corruption if, irrespective of the amount of material damage or the amount or property that is the subject of the corruption offence, they are committed by judges of the JCCB, other judges and prosecutors, including military judges and prosecutors and those who are members of the SCM  (...)

From the date of entry of this law, offences provided in Article 11(1) of the Government Emergency Ordinance No 78/2016 for the organisation and functioning of DIICOT, committed by the Judges of the High Court of Cassation and Justice, other judges and prosecutors, including military judges and prosecutors and those who are members of the Superior Council of Magistracy, fall under the jurisdiction of DIICOT, as well as modification and completion of regulatory acts.

The bill sent by Minister Stelian Ion and seen by Mediafax is not the same as the bill on the abolition of SIIJ sent in February 2020 by former Justice Minister Catalin Predoiu. "We note that the current form of the project is similar to that which was submitted to you for approval on 4.02.2020, with two exceptions: Article 4 and 5 from the previous draft of the project have been removed" reads the address sent by the current Minister of Justice on 31 December 2020.

Articles 4 and 5 from the previous draft of the law on the abolition of the SIIJ, released during the mandate of the former Minister of Justice, Catalin Predoiu, referred to the possibility that criminal proceedings against a judge or prosecutor would be made with prior authorisation from the Prosecutor General of the PICCJ and that the prosecution of judges and prosecutors would be granted by the sections responsible for judges and prosecutors of the SCM, just as the sections of the SCM grant permission for searches, detentions, pre-trial detention or house arrest in respect to magistrates, in the event of a flagrant offence.

By removing Articles 4 and 5 of the initial draft for the abolition of the SIIJ, articles amending Article 95 of Law 303/2004 on the Status of Judges and Prosecutors, and Articles 28 and 42 of Law 317/2004 on the Superior Council of Magistracy, the power of case prosecutors is thus strengthened during the investigation and prosecution of magistrates.

The draft law on the abolition of the SIIJ, sent on 4 February 2020 for approval from the SCM by the former Minister, Catalin Predoiu, received a negative vote from the Council on 28 May 2020, it was rejected by 10 votes against, 8 in favour and 1 abstained.

The current draft on the abolition of SIIJ, proposed by the current Minister of Justice, Stelian Ion, states the following in the explanatory memorandum:

- that the 7 prosecutors of the SIIJ have a de facto immunity to criminal jurisdiction in certain situations,

- that the SIIJ has strayed from any kind of hierarchical control,

- that the SIIJ seems rather similar to DNA and DIICOT, that SIIJ prosecutors cannot participate in court hearings in cases initiated by the SIIJ ,

- that on 1 December 2020, 5790 cases were pending at the SIIJ and 212 cases were resolved in the first half of 2020, only 1 by indictment while 211 were filed away,

- and that opinions were also expressed among magistrates ( 85.47% of prosecutors and 72.22% of the respondent judges) on the abolition of the Section.

The explanatory memorandum of the draft law signed by the Minister of Justice, Stelian Ion reads: “From the perspective of opportunity, in relation to the real needs of the judiciary and as a result of the work of the SIIJ from the date that it became operational (23 October 2018) to the present day, relevant conclusions are drawn that reinforce the need to abolish this structure. Thus, since it became operational, the Section has not yielded positive results, on the contrary, its actions have called into question its role in the fight against corruption (e.g. prosecution avenues being inexplicably withdrawn in cases of high level corruption).

Stelian Ion also states that the opinions issued by the Council of Europe- Group of States Against Corruption (GRECO), the Venice Commission, the memorandum adopted by the Government on the abolition of SIIJ and the CVM report from October of 2019, are to be taken into account as arguments for the abolition of SIIJ.

Currently, in the Criminal Investigation Section of the Justice department, 7 prosecutors, 15 judicial police officers and 10 persons working as specialized auxiliary personnel, have jobs. The fact that only 32 of the 43 posts foreseen are filled is cited as another reason for abolition by Stelian Ion.

In a press conference held on 31 December 2020, Justice Minister Stelian Ion announced that he wanted to abolish SIIJ by the end of March 2021: "From the original draft law, we kept only the part relating to the abolition of the SIIJ, eliminating the other articles that related to the so-called immunities of judges and prosecutors, which they had not asked for and which, in my view, had no place in this bill (...). A time frame is difficult to accurately estimate, but my wish is that by the end of March at the latest, we would have adopted such a project that will allow us to enter a state of normality."

A report by the Judicial Inspection adopted by the SCM in October 2019, after checks made within the DNA, shows that for 4 years and 7 months, both the Service for Anti-Corruption in Justice of the DNA as well as the territorial structures, investigated the magistrates.

The Directorate headed at the time by the former Chief Prosecutor, Laura Codruţa Koveşi, opened 1443 criminal cases involving 1962 judges  (351 in criminal matters, 1590 in civil matters- including 1 member of the CCR, 13 judges members/former members of the SCM, 16 judicial inspectors) and in 1459 criminal cases 845 prosecutors were targeted, the number of criminal cases opened against magistrates being 2902.

Furthermore, the report of the judicial inspectors showed:

• that against DNA judges, the SIIJ requested and obtained 5935 surveillance orders,
• that Section I of DNA and 11 territorial services of DNA requested files from the courts in order to assess the decisions made by the judges and also made criminal cases on the decisions given by the courts,
• and that there were case files in the DNA on judges that were kept open for up to 12 years and 6 months, 7 years and 2 months, or at least over 5 years,  and then, before the establishment of the SIIJ, were filed. The report shows that DNA's territorial structures controlled the courts and, in some cases, DNA prosecutors did not even tell the magistrates that they had been monitored or that their criminal case files had been closed.

The report states that more than 75 judges of the BCCJ were targeted by the DNA files, 100 judges of the Bucharest Court of Appeal, 35 judges of the Oradea Court of Appeal, 30 judges of the Ploieşti Court of Appeal, 25 judges of the Brasov Court of Appeal, 20 judges of the Iaşi Court of Appeal, 15 judges of the Constanta Court of Appeal, more than 85 judges of the Bucharest Court, more than 25 of the Arges Court, more than 30 of the Bihor Court and more than 25 judges of the Dolj Court.

Judicial inspectors show that most of the technical surveillance  on magistrates was requested by DNA between 2014 and 2016, 97.08% of these requests were greenlit. After the CCR's 2016 decision the number of surveillance measures on magistrates decreased significantly.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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