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JusMin Toader: OUG for Justice Laws amendment cannot be applied retroactively
Justice Minister Tudorel Toader affirmed Sunday morning that the Emergency Ordinance (OUG) for the amendment of the Justice Laws is a civil law, not a criminal law and that "it cannot be applied retroactively, it does not affect the stability acquired under the law."
"The OUG is a civil law and not a criminal law and consequently it is understood that it cannot be applied retroactively, it doesn't affect the stability acquired under the law! Given that it doesn't affect the stability acquired under the law, the requirement of the 10-year seniority for the PICCJ [the Prosecutor's Office attached to the High Court of Cassation and Justice, ed.n.] prosecutors applies to the tens of prosecutors delegated by he general prosecutor with the PICCJ and in the future will apply to all those who want to become prosecutors with the PICCJ! I consider that a possible new amendment of the justice laws, beside the requirement of seniority in the magistracy for the prosecutors with the PICCJ, DNA [National Anticorruption Directorate, ed.n.] and DIICOT [the Directorate for Investigating Organized Crime and Terrorism, ed.n.] should also provide for the relevant professional rank with the prosecutor's office attached to the Court of Appeal!," Toader wrote on Facebook.
He has also made several clarifications with regard to the OUG for the amendment of the Justice Laws.
"The president of the Republic knows or should have known the following: In the absence of the OUG, Law no. 242/2018 would have entered into force, it would have created the right of the magistrates to early retirement after 20 years of service, contrary to the Venice Commission's recommendation, contrary to 'the presidential concerns', a situation in which over 2000 magistrates would have acquired clearance for early retirement, there being the real risk of creating a staff deficit," the Justice minister further mentioned.
At the same time, Toader wrote that in agreement with the Venice Commission's requirements, the OUG ensures the stability of the members elected by the Superior Council of Magistrates (CSM), namely that they can no longer be revoked on subjective grounds, consisting in the loss of confidence on the part of those who have elected them; explicitly enshrines the fact that representatives of civil society participate with voting rights in the proceedings of the CSM plenum; it is stipulated that prosecutors from DNA and DIICOT can no longer be revoked if the simplest sanction is enforced, with warning, and it also provides for the live transmission of the interview held by the candidates for high-level positions within the Public Ministry.
"Without having examined and endorsed the OUG, the Venice Commission retained the partial resolution of the problem of early retirement of magistrates, declaring itself in favour of the repeal of this legal provision. The OUG will formally be tabled with the Venice Commission for examination and endorsement, an opinion which is to be adopted at the Plenary in December 2018. At the same time, the OUG has evened the magistrates' seniority requirement for the prosecutors with execution functions within the PICCJ, DNA and DIICOT, which must be 10 years. For high-level positions, a 15-year seniority is provided for, unlike the provisions of Law 242/2018, which set a 18-year seniority for prosecutors with the PICCJ. We have repeatedly stressed the need for the necessary distinctions between civil law and criminal law!," Minister Toader further wrote.