Ploiești Court of Appeals halts Cosma family’s corruption case ignoring EU court’s prescription rulings; Romania faces EU Commission sanctions, warns former European Tribunal judge
Rationale for the Final Decision of January 18, 2024 – The Ploiești Court of Appeal ends criminal proceedings against the Cosma Family due to statute of limitations, ignoring EU Court of Justice decisions on prescription in corruption cases.
The definitive decision made on January 18, 2024, by the Ploiești Court of Appeal, which terminated the criminal process due to the statute of limitations in the case of former Prahova County Council President Mircea Cosma and his son, former deputy Vlad Cosma (both from the PSD party), shows that the court did not consider the decisions of the European Union Court of Justice (CJEU) regarding prescription, not even the most recent ruling from January 9, 2024, which refers to corruption cases.
Former PSD baron Mircea Cosma escaped his first-instance conviction of 8 years imprisonment for corruption, and his son avoided a 5-year detention sentence. They were accused of accepting a bribe of one million dollars to award snow removal contracts to favored companies.
What the CJEU said on January 9, 2024, in Case C-131/23
The European Court of Justice confirmed that the decisions of the Constitutional Court of Romania (CCR) regarding prescription apply even in corruption cases. However, it ruled that the decision of the High Court of Cassation and Justice (ÎCCJ) to interpret the CCR decisions, which extends the period in which cases are prescribed more quickly, should not apply.
The CJEU stated that courts can apply the CCR decisions regarding prescription in the period 2018 – 2022, but they cannot apply the ICCJ decision, which extends this period back to February 1, 2014 – the date of the new Penal Code’s enactment – based on the principle of the more favorable penal law.
In other words, the CJEU decided that criminal acts are prescribed more quickly only in the period 2018 – 2022, as a result of the CCR decisions, not in the period 2014 – 2018, as the ICCJ decided.
On July 24, 2023, the CJEU had given a similar verdict in case C-107/23. However, Romanian courts concluded that the CJEU’s decision in case C-107/23 only referred to cases of European funds fraud, tax evasion, and smuggling. Therefore, the CJEU – at the request of the National Anticorruption Directorate (DNA) and the Brașov Court of Appeal – returned with similar clarifications in case C-131/23 regarding corruption cases. The European court’s decision on January 9, 2024, was taken by the Romanian magistrate at the CJEU, Octavia Spineanu Matei.
What the Ploiești Court of Appeal decided a week later, on January 18, 2024
The Ploiești Court of Appeal decided to cease the criminal proceedings against the Cosma family due to the statute of limitations.
This decision was made although the DNA asked the panel of judges to apply the CJEU decisions and explained that the course of the prescription was interrupted by the first-instance High Court’s conviction sentence on November 1, 2016, as stated in the Ploiești Court of Appeal’s rationale. At that time, Cosma Sr. received an 8-year prison sentence, and Cosma Jr. – 5 years of effective detention.
Therefore, the CCR decided – and the CJEU confirmed – that there is no special prescription in the period 2018 – 2022, only a general prescription.
The general prescription means that, if a definitive verdict is not reached within a certain period, the accused escapes due to the intervention of the prescription. The prescription periods for the Cosma case were 8 and 10 years. Therefore, some acts were prescribed in the interval 2013 – 2021, and others in the period 2013 – 2023.
The special prescription is a tool available to prosecutors through which the course of the general prescription can be interrupted by communicating to the investigated person a procedural act – a summons, an act of charging or indictment, or a sentence – any procedural act that shows the accused person has been informed of the accusations. At the moment of communicating such an act, the course of the general prescription is interrupted, and a new term of special prescription begins.
In the Cosma case – the DNA prosecutors argued – a new term of special prescription began on November 1, 2016, the date of the first-instance conviction sentence. Therefore, according to the DNA, the acts would have been prescribed at the earliest on November 1, 2024.
But the CCR said that this tool of special prescription (through which the course of prescription is interrupted) does not exist in the period 2018 – 2022, and the ÎCCJ, in its interpretation decision, extended this period to 2014 – 2022, based on the principle of the most favorable penal law.
Then came the CJEU which ruled that judges must apply the CCR decisions, but not the ÎCCJ’s.
However, the Ploiești Court of Appeal did not consider the CJEU decisions, considered – like the ÎCCJ – that there is no special prescription in the period 2014 – 2022 (not just in the period 2018 – 2022, as decided by the CCR and confirmed by the CJEU). Therefore, the Ploiești Court of Appeal considered that the course of the general prescription was not interrupted by the conviction sentence of November 1, 2016, and the acts of the Cosma family were prescribed in 2021 and 2023.
What Explanations the Ploiești Court of Appeal Offered: „Savonea Did the Same!”
The only explanation provided by the Ploiești Court of Appeal panel for not considering the CJEU decisions is that the High Court did the same in other similar cases.
„The Court finds that the ÎCCJ also pronounced in this sense, through Decisions no. 720 of November 2, 2023, 616 of October 12, 2023, 450 of September 7, 2023, 451 of September 7, 2023, etc… the practice of the ÎCCJ being consistent regarding these aspects,” stated the Ploiești Court of Appeal.
Decision no. 450 of September 7 was made by an ÎCCJ panel that included judge Lia Savonea. See details here.
The Public Information and Relations Office of the Ploiești Court of Appeal told G4media.ro that it cannot explain why the court’s panel did not consider the CJEU decisions, but it communicated the names of the judges who pronounced the decision to cease the criminal proceedings in the Cosma family case.
The judges in the panel were Constantin Niță and Lavinia Nușa Apostu.
According to documents from the Special Section file regarding former prosecutor Mircea Negulescu, also known as Portocală („orange”- translator’s note), published by luju.ro, Cristinel Toader, a former chief at the Local Police Ploiești, investigated by Portocală, stated that prosecutor Negulescu had asked him for information about judge Niță, who was then at the Prahova Tribunal.
„The injured person stated that Negulescu Mircea had begun to ask him for information about the private life of some judges, namely about the private life of the magistrates Niță Constantin, Popa Daniela, Savu Alina, prosecutor Negulescu Mircea aiming to find out details about the entourage with which the judges spent their vacations, the locations where they spent their vacations, as well as the people who might have covered the costs of the vacations.
Toader Cristinel reported that Negulescu Mircea asked him to follow the bank transactions of the previously indicated magistrate judges, considering that the injured person knew an employee at Transilvania Bank – Ploiești branch; to follow the route that the magistrate judges took daily, all this information being necessary for the named Negulescu Mircea, as a prosecutor, in the desire to find compromising aspects that could be used against the magistrates,” the documents of the former Special Section show.
In November 2022, judge Lavinia Nușa Apostu, then at the Prahova Tribunal, found alleged irregularities in the case of the former head of DGA Prahova, Constantin Ispas, a case handled by former DNA Ploiești prosecutors Lucian Onea and Cerasela Răileanu.
Former Judge at the European Tribunal: Decisions of European Courts Are Mandatory
„The primacy of European law makes every national judge, ipso facto, a European judge. The fundamental treaties of the EU and the accession treaties of the member countries are explicit in this regard. From the historic ruling, Van Gent en Loos, to today, the consolidated jurisprudence has reinforced this principle, bringing it to the level of a supreme brocard. It is valid for the supreme courts of the member states and for the constitutional courts. In practice, it is a brocard, a supreme principle, a pillar of European constitutional law. As such, the CJEU decision in case 107/23 must be respected as such. It is a valid decision for all judges in the EU, if they were confronted with a situation similar to the one in our country. The legal grounds of this decision are well specified and are correct,” explained for G4media.ro the former judge at the European Tribunal, Professor Valerius Ciucă from the Faculty of Law at Alexandru Ioan Cuza University of Iași, for G4media.ro.
What risks do national judges face if they do not comply with CJEU Decisions?
„Theoretically, they could face disciplinary sanctions for exercising their function with bad faith or gross negligence, under Article 271 paragraph (1) letter s) of the Law on the Status of Judges and Prosecutors No. 303/2022.
Realistically speaking, such a possibility is illusory. This is because the Judicial Inspection and the Superior Council of Magistracy are dominated by magistrates from the anti-reformist wing for whom the supremacy of EU law over national law is blasphemy, not a constitutional principle that underpinned Romania’s accession to the European Union. It’s about a power network that has captured justice, which has strong connections with the current political power, favoring the closing of important cases, and which has constantly persecuted honest and courageous magistrates. Why would this group make any move towards respecting CJEU decisions, while precisely these decisions create major displeasures for them? I would rather expect from this group all sorts of attempts to argue the inapplicability of CJEU decisions,” explained for G4media.ro the former USR Minister of Justice, Stelian Ion.
What Risks Does Romania Face If Its Judges Do Not Respect CJEU Decisions?
„From the suspension of European projects or projects with European funds to the suspension of voting rights within European institutions, there is a wide range of sanctions that a member state may face in the event of non-compliance with such important decisions from preliminary rulings that are an integral part of European law and, naturally, are mandatory.
In a possible other lawsuit, penalties per day of delay can be established, with serious financial consequences for any member state,” explained Professor Valerius Ciucă for G4media.ro.
„We could hope for a reaction from the European Commission, in case of violation of these CJEU decisions in a significant number of cases. The Commission can act in crescendo, starting, in the first phase, a dialogue with the Romanian authorities on this issue; after which, it could trigger the infringement procedure, in the final phase before the CJEU, requesting the application of significant financial sanctions against Romania.
This variant depends very much on the number and severity of cases in which these CJEU decisions are violated.
However, if we look at how the European Commission has positioned itself lately regarding the justice issue in Romania, it could continue to be indulgent. I remind you that the justice laws voted in 2022 bearing the Iohannis-Predoiu, PSD, PNL brand made it possible to put justice on its knees, the capture of justice by a handful of people with obvious connections to political power, weak, vulnerable people, with skeletons in the closet, even allowed the diversion of the fight against corruption.
Yet, the European Commission turned a blind eye when these laws were discussed and adopted, even though it had on the table many arguments presented by important professional associations of magistrates who have been advocating for many years for independent and correct justice.
Why the European Commission pretended not to see these dangers and why it received these new laws with so much optimism is another discussion, the geopolitical context being an explanation. The problem is that all the significant progress made over a long period in the field of justice has been compromised in a very short time after the adoption of the new laws. An entire generation of magistrates is decimated, the honest ones are pushed to leave the system or to silently endure the filth they see daily. Others, caught in acts of corruption, enjoy protection and impunity. How many cases of corruption among magistrates have you noticed in recent years? Zero. This does not mean that the phenomenon has suddenly disappeared, but that corrupt magistrates no longer answer to anyone because the reinstated and strengthened System protects them.
Even if we have the same geopolitical context that led the European Commission to be indulgent with the justice sector’s missteps, I still hope that within the rule of law mechanism, through which all EU states are monitored, some irregularities will be observed, and they will not be tolerated indefinitely. If this does not happen, the problem in Romania and in other states where the principles of the rule of law are systematically trampled underfoot will become a major problem for the entire European Union. It’s hard to maintain the unity and cohesion of the European Union without the uniform application of a common set of rules,” declared for G4media.ro the former USR Minister of Justice Stelian Ion.
What can be done so that national judges respect the mandatory decisions of European courts
„There is no disciplinary sanction specially tailored for this situation, but we have the broader disciplinary offense of exercising the function with bad faith or serious negligence when the magistrate violates material or procedural legal norms. We have internal and European legal provisions that impose the obligation to respect CJEU decisions. Therefore, theoretically, there is the possibility of filing disciplinary complaints against magistrates who violate these CJEU decisions.
Otherwise, it is important to ensure that we have an overview of this phenomenon and that these aspects are known at the level of the European Commission. We, from USR, have had a constant dialogue with the European Commission regarding these problems, a dialogue that we will continue in the future. However, it is important that alarm signals are also sent by the professional associations of magistrates who observe the irregularities, as well as by civil society. I am convinced that the time will come when the European Commission will again put its foot down because otherwise, the risk of weakening the Union is major.
Internally, the legislation in the field of justice should be quickly corrected. Some changes regarding the organization and functioning of the Constitutional Court would also be helpful. However, we must be aware that everything that has been damaged in justice in the last two years will be repairable, with visible effects, over a much longer period.
The major stake of the next elections in 2024 represents the direction we will choose for the next years: a pro-European direction, in which the European Union will be strengthened, and its institutions will be made more efficient, or a eurosceptic direction, in which the so-called „sovereignist” discourse, which we find mainly in AUR and PSD, will make more and more room in vital areas, including in justice, to the delight of the threatening East,” explained for G4media.ro the former USR Minister of Justice Stelian Ion.
„The first consequence of the non-respect of European law by judges is, of course, the disavowal of their sentences, their annulment, through the known recourse or appeal procedures. If bad faith or corruption are proven, of course, the paths of common law remain open in the matter.
The statutes of judges and prosecutors do not provide specific sanctions, so as not to be interpreted as levers of malevolent interference in the act of justice. The Code of Ethics for Judges and Prosecutors, approved by Decision No. 328 of August 24, 2005 (Official Gazette No. 818/8 Sept. 2005) does not provide an exact framework for sanctioning such attitudes.
Neither the European Parliament resolution of July 9, 2008, on the role of the national judge in the European judicial system (2007/2027 (INI) contains such provisions. The same is true for the Bangalore Principles on Judicial Conduct, from 2002, which have become a part of the Code of Judicial Conduct adopted at The Hague, in the Peace Palace, on November 26, 2002.
It is known how principled the European judges within the Luxembourg courts (Court and Tribunal) are. The same goes for European prosecutors. There is also an active Code of Conduct (which came into force on October 1, 2007), which specifies general principles, the definition of integrity, impartiality, the content of financial interest statements, discretion obligations (including after the end of mandates, not being able to plead in cases in which they have judged), etc.
No sanctions are provided expressis verbis, but deontological decisions that can be taken by the President of the Court, assisted by a consultative committee composed of the three members of the Court with the longest tenure in office, can be considered, and in case of doubt, the Tribunal is consulted,” also explained Professor Valerius Ciucă.
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