By Dragoș Călin
In the recent judgment in the case Kövesi v. Romania (application no. 3594/19) the European Court of Human Rights held, unanimously, that there had been a violation of Article 6 § 1 (right to a fair trial) and Article 10 (right to freedom of expression) of the European Convention on Human Rights regarding the former anti-corruption directorate chief prosecutor Laura Codruța Kövesi, now the first European Public Prosecutor.
In fact, in February 2018, the Minister of Justice, Mr. Tudorel Toader, proposed that Kövesi be removed from office, referring, among other things, to three Constitutional Court decisions adopted in connection with the activity of the National Anti-Corruption Directorate (DNA) and to public statements she had made. The Section for prosecutors of the Superior Council of Magistracy (SCM) refused by a majority to endorse her dismissal, largely rejecting the Minister’s criticisms of the prosecutor and finding no evidence that her management had been inadequate. In April 2018 the President of Romania, Mr. Klaus Iohannis, refused in turn to sign the dismissal decree, which prompted a complaint to the Constitutional Court (CCR) by the Prime Minister. In May 2018, in a special procedure regarding legal conflicts of a constitutional nature between constitutional organs, by Decision No 358/2018, without summoning Mrs. Kövesi, who could not defend herself, the CCR ordered the President to sign the decree for the dismissal, finding, among other things, that neither the President nor the CCR were authorised to assess the reasons put forward by the Minister of Justice in his proposal. The CCR clarified that ”the administrative courts could only examine the external lawfulness of the administrative decision issued in the case, more specifically the lawfulness of the procedure but not its utility”.
Analyzing the Decision of the Constitutional Court No 358/2018, professor Vlad Perju said that “the judges of the CCR are determined to unbalance the already fragile balance of Romanian institutional system and intervene decisively in the most important political issue in Romania, namely the fight against corruption and the situation of the chief prosecutor of DNA (…) Prosecutors are transformed in agents of the Government, the Minister of Justice having full competences (in other words, not only administrative powers) in terms of authority over prosecutors”. However, in accordance with a parliamentary report by two French deputies (Mr. Vincent Bru and Mrs. Coralie Dubost), Mrs. Simina-Elena Tănăsescu, currently a judge of the Constitutional Court, categorized the CCR decision as ”signalling the capture of the Constitutional Court by the parliamentary majority”.
Regarding Article 6 of the European Convention on Human Rights, ECtHR noted that ”is not convinced that the applicant had an available domestic remedy for effectively attacking in court what she really intended to challenge, namely the reasons of her removal from the position of chief prosecutor of the DNA by the presidential decree of 9 July 2018” in accordance with the Decision of the Constitutional Court No 358/2018 (para.154). In fact, all possibility of judicial review was limited by the CCR to the formal review of the removal decree, while any examination of the appropriateness of the reasons, the relevance of the alleged facts on which the removal had been based or the fulfilment of the legal conditions for its validity, especially the endorsement of the proposal of the Minister of Justice by the SCM in accordance with Article 54(4) of Law no. 303/2004 was specifically excluded.
However, concerning Article 10 of the European Convention on Human Rights, the ECtHR noted that ”the applicant expressed her views and criticisms on legislative reforms affecting the judiciary, on issues related to the functioning and reform of the judicial system and the prosecutor’s competence to investigate corruption offences, all of which are questions of public interest.” (para.207) The ECtHR ruled that ”the proceedings for the applicant’s removal from the office of chief prosecutor of the DNA were initiated by the Minister of Justice on 23 February 2018, a little more than one year and two months before the end of the fixed term of her mandate applicable under the legislation in force at the time of her appointment (May 16, 2019). Although the applicant remained on as a prosecutor, she was ultimately removed from her position as chief prosecutor on 9 July 2018 before the end of her mandate. This removal and the reasons justifying it can hardly be reconciled with the particular consideration to be given to the nature of the judicial function as an independent branch of State power and to the principle of the independence of prosecutors, which – according to Council of Europe and other international instruments – is a key element for the maintenance of judicial independence. Against this background, it appears that the premature removal of the applicant from her position as chief prosecutor of the DNA defeated the very purpose of maintaining the independence of the judiciary.” (para.208) The ECtHR concluded that ”the premature termination of the applicant’s mandate was a particularly severe sanction, which undoubtedly had a “chilling effect” in that it must have discouraged not only her but also other prosecutors and judges in future from participating in public debate on legislative reforms affecting the judiciary and more generally on issues concerning the independence of the judiciary. (para.209)
Reactions of some Romanian authorities
The President of Romania, Mr. Klaus Iohannis, said on May 5, 2020, that the ECtHR ruling “could not remain without consequences. The CCR judges must review immediately not only the decision to dismiss Ms. Kövesi, but also any other decisions taken in the light of simple statements, whether political or not. The credibility of CCR, already affected by some controversial decisions over the past few years, is now even more seriously shaken”.
On the same day, Tudorel Toader, the former minister of justice, who requested the dismissal of Kövesi, said that the CCR decision prompted the President of Romania to sign the act of dismissal: “not my proposal”.
On May 6, 2020, by a majority of votes, the Romanian Constitutional Court reacted in response to numerous public comments, showing that ”ECtHR did not carry out a review in relation to the legal reasoning and the solution adopted by the Constitutional Court Decision No 358/2018”, who did not violate the right to a fair trial of an individual. Recently, in a concurrent opinion on Decision No 152/2020, two other CCR judges (Mrs. Simina-Elena Tănăsescu and Mrs. Livia-Doina Stanciu) argue that ECtHR has ruled that the limitation of the applicant’s access to justice resulted from Decision no. 358/2018.
After the implications of the ECtHR ruling in the case Kövesi, regarding the credibility of the Romanian Government’s commitment towards the independence of prosecutors and respect for the rule of law, the Romanian Government asked the Venice Commission to release Mr. Tudorel Toader from the position of member in the Council of Europe’s advisory body on constitutional matters.
Some measures necessary for the implementation of the ECtHR judgment
From my point of view and having regard to the consecutive opinions of the Venice Commission, some measures must be taken urgently to enable the judgment of the European Court of Human Rights in Kövesi case to be enforced in Romania, after it becomes final, which shall involve legislative or constitutional revisions, respectively:
- Abolition of the limitations on the judges and prosecutors’ freedom of expression (Article 9, paragraph 3, Law No 303/2004, introduced by Law No 242/2018 – ”Judges and prosecutors are obliged, in the exercise of their duties, to refrain from any defamatory manifestation or expression, in any way, against the other powers of the state – legislative and executive”). These provisions have been previous criticized by the Venice Commission (see Opinion No. 934/20 October 2018). It is also necessary to prohibit by law the possibility of revoking prosecutors or judges from their offices held in magistracy for critical opinions on public policy issues of interest to the judiciary.
- Regulating the principle of independence between the principles governing the work of prosecutors. According to ECtHR judgment in Kövesi case (para.208), the need to ensure the independence of the prosecutor is a key element in maintaining the independence of the judiciary. Six years earlier, the Venice Commission (see Opinion No. 731/24 March 2014) suggested that, in the context of a broader reform, the principle of independence should be added to the list of principles governing the prosecutors. Article 126 of the Constitution provides that public prosecutors shall carry out their activity in accordance with the principle of legality, impartiality and hierarchical control, “under the authority of the Minister of Justice”. It is necessary to explain the term ”under the authority”, together with regulating certain safeguards, including the possibility of challenging before an independent court the measures taken by the Minister of Justice in relation with the career of prosecutors following the principles which apply in adversarial proceedings and ensuring the right of the defense.
- Rethinking the system for appointing/removing high-ranking prosecutors in management positions, including by reviewing the relevant provisions of the Constitution, in order to ensure the conditions for a neutral and objective appointment/removal process, by maintaining the role of authorities such as the President of Romania and the SCM, able to counterbalance the influence of the Minister of Justice (for example, compliance with negative opinion of the SCM). This emerges by combining the ECtHR ruling in the case Kövesi and the Opinion No. 924/20 October 2018 of the Venice Commission, which recommended the effective involvement of the prosecutorial council in the procedures for appointing top prosecutors, a guarantee of neutrality and professional, non-political expertise. As long as a chief prosecutor can be dismissed at the discretionary assessment of a Minister of Justice, there cannot be no question of independence, being created an excessive political influence.
- Carrying out legislative amendments and/or constitutional revision regarding the Constitutional Court. The special procedure concerning legal conflicts of a constitutional nature between constitutional organs is not intended to call into question civil rights or civil rights specific to a particular person, nor to allow third-party intervention in the trial, with the peculiarity that individual appeal before the constitutional court is not provided for by law. It is therefore necessary to lay down a prohibition so that these special procedure of is not transformed into a common law judicial procedure, interfering with the jurisdiction of an ordinary administrative court. The possibility of reviewing a decision of the CCR should also be regulated if the ECtHR finds a violation of fundamental rights or freedoms due to that decision of CCR, and the serious consequences of such a violation continue to occur and as a result of violation of the principle of priority of EU law, regulated by Article 148 paragraph (2) of the Romanian Constitution, if the serious consequences of this violation continue to occur.
The ruling of this historical judgment is undoubtedly likely to strengthen the independence of the judiciary, the independence of the prosecutors, but also to encourage the participation of judges and prosecutors in debates on the independence and modernization of the justice system in Romania. However, ECtHR judgment Kövesi v. Romania emphasized the potential negative impact that such an involvement of a Constitutional Court would have on individual human rights.
The Constitutional Court, a political-judicial organism, is undergoing a strong crisis of mistrust from the public opinion in Romania, determined by the controversial decisions that were passed lately and widely discussed in the society and the academic environment. From a doctrinal point of view, one of the CCR decisions determined even a change in the political regime of the country from a semi-presidential republic to a hybrid parliamentary republic, without any form of referendum, this situation being an exception from the rules of a functioning democracy.
Among other things, this crisis of mistrust is determined by the fact that the President of the Constitutional Court expressed an institutional wish „of not being involved anymore in the schedule of European Commission delegations on occasion of Cooperation and Verification Mechanism (CVM) group working visits“. However, the Constitutional Court of Romania imposed strict limits for the contents of separate opinions. In the Report on Separate Opinions of Constitutional Courts, the Venice Commission noted that ”a solution, as had been adopted in Romania for instance by a decision of the Constitutional Court in June 2017 (…), allowing the President of this Court to prevent the publication of separate opinions that are considered to bring criticism to the Court, or are considered to be judgmental or ostentatious or political in nature – is problematic and should be avoided”. (para.46)
The High Court of Cassation and Justice in Romania also sent seven requests for a preliminary ruling to the Court of Justice of the European Union, in response to decisions of the Constitutional Court, regarding the Rule of law in Romania (cases C-357/19, Euro Box Promotion and Others; C-547/19, Asociaţia “Forumul Judecătorilor din România”; C-811/19, Ministerul Public; C-840/19, Ministerul Public; C-859/19, Parchetul de pe lângă Înalta Curte de Casaţie şi Justiţie – Direcţia Naţională Anticorupţie; C-926/19, Parchetul de pe lângă Înalta Curte de Casaţie şi Justiţie – Direcţia Naţională Anticorupţie and Others; C-929/19, CD). The pleadings in these cases will be held on September 8, 2020 in Luxembourg.
These are just a few arguments to conclude that the recent judgment Kövesi v. Romania represents a good opportunity for a necessary reform in the judiciary in Romania, requested by both the European Commission and the Romanian judges and prosecutors who have fought the last 3 years for the European values. I would even include in this reform the reviewing of constitutional and infra-constitutional legislation concerning the appointment of judges of the Constitutional Court and some procedures within the competence of the CCR.
Dragoș Călin is a Judge at the Bucharest Court of Appeal, writing in personal capacity