The new law on judicial organization combined with Tudorel Toader’s Government Emergency Plan Risks to Blow Up DNA Activity / A little detail slipped into the law has a potentially destructive effect of corruption files / The SCM is expected to make an interpretive decision

Law 304 on Judicial Organization, promulgated by President Klaus Iohannis on July 20, contains a provision that could send home all the 140 prosecutors working in the Anticorruption Directorate (DNA), not just those delegated and who do not meet the conditions of 10 years of seniority, said several magistrates consulted by G4Media.ro. Thus, the law on judicial organization stipulates that, in order to be appointed to the DNA, prosecutors must be declared admitted following a competition. Until now, prosecutors were admitted following a DNA interview, backed by a commission formed by prosecutors and a psychologist appointed by the head of the institution.

The big problem is that in the recent Emergency Decree pushed by Tudorel Toader Article VII was introduced, stipulating that prosecutors may remain in office „only if they meet the conditions provided by Law no. 303/2004, republished, with the subsequent amendments and completions, and Law no. 304/2004, republished, as subsequently amended and supplemented”. In other words, prosecutors who did not compete within the Prosecutors Section of the SCM could not remain in office since the Emergency Decree entered into force, since all prosecutors who work today in DNA have arrived there on the basis of the interview. None have competed within the SCM Prosecutor’s Section.

Tudorel Toader’s Emergency Decree was published on Tuesday afternoon in the Official Gazette, and is already producing its effects. In other words, from the moment that the Emergency Decree enters into force, DNA prosecutors who are not hired on a competitive basis should, according to some interpretations, drop their pens or, in other words, stop prosecution.

This provision, coupled with Tudorel Toader’s Emergency Decree, bears the risk of totally disrupting the DNA’s activity, as competitions for all 140 prosecutor positions should be organized. Until the reconfirmation of the prosecutors in office or the employment of new ones, since the entry into force of the Emergency Decree, there is the risk that DNA activity will be totally paralyzed. Any prosecutor who continues to work endangers their case files, explained to G4Media.ro specialists in criminal law. Defendants may request at any time the invalidity of acts after the entry into force of the Emergency Decree if the prosecutors in the case file did not fill the post in the competition, as required by the new regulations.

According to other interpretations, all of the above-mentioned provisions would not apply to DNA prosecutors. In Law 207 entered into force in July 2018, which amends the law on judicial organization (304/2004), there is an express provision which states in Article V: „Prosecutors who at the date of entry into force of this law are appointed in a position within the Directorate for the Investigation of Organized Crime and Terrorism and the National Anticorruption Directorate remain in the positions they perform within these structures. „According to these interpretations, the subsequent general law does not repeal the previous special law, unless expressly provided.

How the new rules will be applied will be determined by the SCM prosecutors’ section. The decision taken by the prosecutor’s office may then be appealed in the SCM plenum, and the plenum’s decision may be challenged in the administrative courts. In other words, it will take a while to address the problem. On the other hand, the competition rules, the commissions, their composition, the bibliography, a process that will last for at least two months, will have to be elaborated. During this time, the DNA activity will be virtually paralyzed, experienced magistrates explained to G4Media.ro.

What is provided by Law 304 on Judicial Organization, Article 87

(2) In order to be appointed within the National Anticorruption Directorate, the prosecutors must have not had disciplinary sentences, have good professional training, a perfect moral conduct, at least 10 years old as prosecutor or judge, and have been declared admitted following a competition organized by the commission set up for this purpose.
(3)The contest provided in paragraph (2) consists of: a) a live live interview held in front of the Prosecutor’s Section of the Superior Council of Magistracy, b) a test for the assessment of at least 5 randomly chosen indictments, as well as other acts drawn up by the candidates, and considered relevant by them during the last 5 years of activity.
(4) The interview consists of checking professional training, decision-making and accountability, stress resistance, and other specific qualities.
(5) At the evaluation of the candidates, the activity of the prosecutors, the knowledge of a foreign language and the knowledge of computer operation shall also be taken into consideration.
(6) The assessment provided for in paragraph (3) lit. b) is carried out by a commission appointed by the Prosecutor’s Section of the Superior Council of Magistracy, consisting of 2 prosecutors from the National Anticorruption Directorate proposed by the Chief Prosecutor of the Directorate, 2 prosecutors from the Prosecutor’s Office attached to the High Court of Cassation and Justice the Prosecutor General and a trainer proposed by the National Institute of Magistracy.

What Tudorel Toader’s Emergency Decree provides in Article VII

Article VII – Prosecutors who, at the date of entry into force of this Emergency Ordinance, operate within the Prosecutor’s Office attached to the High Court of Cassation and Justice, the Directorate for the Investigation of Organized Crime and Terrorism, and the National Anticorruption Directorate, as well as and within the other prosecutor’s offices, shall remain in office only if they meet the conditions provided by Law no. 303/2004, republished, with the subsequent amendments and completions and Law no. 304/2004, republished, as subsequently amended and supplemented.

Traducerea: Ruxandra Stoicescu