BREAKING Venice Commission recommends that the DNA and the DIICOT investigate crimes committed by magistrates; it regrets that the draft law on the abolition of the the special Section for the investigation of criminal offences in the judiciary was hastily adopted before the Commission’s opinion

The Venice Commission recommends that the prosecutors’ offices specialized in investigating corruption offenses, namely the National Anti-Corruption Directorate (DNA) and the Directorate for Investigation of Organised Crime and Terrorism (DIICOT), investigate offenses committed by magistrates and regrets that the draft law on the abolition of the special section was hastily adopted before the Commission’s opinion, the opinion published on Monday by the Commission states.

Below are the Comisson’s conclusions:

„The Venice Commission regrets the haste with which this law got adopted: It will mean that any improvements to the Law it may recommend will not be possible without further amendments to the legislation in force. In addition, this haste has made it difficult to assess the various amendments introduced at different stages of the legislative process on their merits.

In view of the Venice Commission, the dismantling of SIOJ cannot be an end in itself but should primarily be a means to ensure a more effective investigation into offenses – most importantly corruption – committed by judges and prosecutors.

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It is implausible that a structure of non-specialized 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 specialized prosecution service DNA.

Given DNA and DIICOT’s relative autonomy and functional independence, their specialization, 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 specialized 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.”

Other relevant observations made by the Venice Commission specialists in their analysis of the draft law:

„It is furthermore regrettable that the Law does not provide for a competitive procedure” for the selection of prosecutors to investigate magistrates. „Many prosecutors are likely to meet the eligibility criteria and it is unclear how the plenary of the Supreme Council of Magistracy (SCM) is to select the candidates to be proposed to the Prosecutor General. This would need to be clarified. Furthermore, the appointment for a period of four years is relatively short to guarantee sufficient independence of individual prosecutors, in particular as it would be possible that these prosecutors are to investigate complex offences committed – for example – by SCM members involved in their selection procedure.” ( Read the Commission’s full opinion here)

Context

In the version adopted by Parliament on 28 February and proposed by the Ministry of Justice, led by Cătălin Predoiu, offences committed by magistrates will be investigated by specific prosecutors appointed by the Prosecutor General of the High Court of Cassation and Justice, at the proposal of the plenary of the Superior Council of Magistracy, for a period of four years.

The draft law provides for the abolition of the Special Section, without the corruption cases of magistrates returning to the DNA or the DIICOT.

The Constitutional Court on Wednesday unanimously rejected the USR and AUR petitions on the law on the abolition of the Special Section.

The law was promulgated by President Klaus Iohannis, who did not wait for the opinion of the European experts.

Earlier, the USR asked the Constitutional Court to postpone its decision until after the publication of the Venice Commission’s opinion.