Raport - October 2007 - Comments on the Action plan for fulfilling the objectives set up by the Mechanism of Cooperation and Verification, developed by the Ministry of Justice - letter to the experts of the European Commission

10 Noiembrie 2008

The Initiative for a Clean Justice considers that Romania should have an anticorruption and judiciary reform strategy that comprises both the internationally assumed obligations and the self-imposed commitments, necessary for solving the previously identified problems.

Unfortunately, the action plan that was presented to us is a mere image and PR effort, which is lacking fundamental sectorial analyses and, most important, a strategic approach. The seriousness of the enterprise is missing as long as the representatives of the Ministry of Justice, in charge with the developing of the Action Plan, fail to differentiate, willingly or not, the detailed assessments of the benchmarks with simple explanatory notes. The detailed assessments are mandatory, not optional, as the representatives of MJ thought.

Benchmark 1
The due action plan to BM 1 does not meet the most important objectives set up by the European Commission Decision 928 (December) and the observations of the June Report of the European Commission, especially with respect to the accountability of the Superior Council of Magistracy (SCM) and the human resources policy within the judiciary. Consequently, we consider that the Action Plan, as proposed, will not bring any substantial progress in the reform of the judiciary. For example:

• Chapter VII, Strengthening the Accountability of SCM and Addressing the Ethical Issues, presents only one specific objective and 2 activities:
a) Meetings between SCM and magistrates, without specifying their topic and purpose;
b) The presenting of a plan by the candidates for the position of president and vice president of SCM, without specifying its timing.

Obviously, these two activities do not solve the accountability problems of SCM: no accountability mechanism is presented or proposed by the Action Plan. Moreover, the infringement of ethical norms by members of SCM is not addressed in any way: no mechanism for observing ethical standards, mandatory and necessary for the highest body of magistracy, is proposed or presented by the Action Plan. On the whole, the two proposed activities do not relate to the chapter's goal.

• Regarding the developing of a coherent human resources policy for the judiciary (the developing and implementing of a realistic and adequate personnel scheme), we believe that the proposed measures of chapter II are not conceived coherently and, consequently, even if they were implemented, they would not create a personnel scheme adequate to real necessities. For example, activity 2.3. (of chapter II), Filling in the vacancies in a progressive way (execution and management) in the courts and prosecutors' offices, is a permanent activity, although it should logically follow the analyses provided by the specific objective 1 regarding the necessary number of judges/prosecutors, the optimum load and, especially, the revising of the personnel schemes, that have as deadlines 2008/2009. Concretely, activity 2.3. must follow the implementing of the specific objective 1, and not precede it. Likewise, there is no correlation, as should be, between chapter II and chapter IV Restructuring the Public Ministry; activity 1.4. (of Chapter IV) Hiring supplementary auxiliary staff according to the need of the prosecutors' office is not preceded by an analysis of the necessary auxiliary personnel in prosecutors' offices, similar to that provided for prosecutors.

• The aforementioned comments are to be even more taken into consideration provided that the plan does not advance any solution for solving one of the most important problems of the personnel schemes (as stated also in the June Report of the EC): the impossibility or the refusal to reallocate the already filled in positions (even though the personnel scheme of some instances/prosecutors' offices is evidently disproportionate with cu work load) due to rigid and out-dated interpretation of the principle of immovability/stability, thus harming the principle of efficiency. Accordingly, it is not clear how the measures regarding the revising of the court personnel charts (1.8. chapter II) will be implemented; the evaluation indicator speaks for itself: "Drafted document"!!!

• Some activities are not clear; e.g. 2.1. Chapter II (Analysis of the dynamics of the filled in vacancies). We can assume that the activity refers to the vacancies that came into the competition for permanent filling in according to the recent modifying of Law 304/2004. However, to the extent that the Plan is not accompanied by a strategy, the proposed measures/activities should be sufficiently clear in order to show their intention and finality.

• The evaluation indicators are not properly constructed, and, therefore, will not correctly assess the implementation progress. For example, instead of the number of filled in position, there should be used a qualitative indicator: the percentage (or the percentage's increase) of filled in positions in comparison to vacancies. Similarly, the number of sentences published on the court's website is not relevant for assessing the degree of meeting the court's obligation to publish relevant jurisprudence (actually, „relevant" itself is a term that causes evaluation difficulties), but the percentage from sentences pronounced by the court. Similarly, the number of the recruited inspectors cannot point out by itself if the objective to recruit on basis of objective criteria (regional representation, origin) was achieved.

• The due plan to BM 1 is out of proportion - 1/3 is destined to the continuing of the automation process. Even if this section comprises coherent and needful measures, the reason for developing this Action Plan is the solving of essential problems for the judiciary reform (SCM accountability, a coherent human resources policy, codes of procedure etc). Currently, although important, the continuation of the automation process is still a secondary problem of the judiciary. Thus, there is no justification for this proportion, to the extent that the aforementioned problems still remain to be solved.

• Chapter VI, Strengthening the capacity of SCM, is not relevant for BM 1. Is not the shortage of auxiliary personnel and computers at SCM headquarters that caused the negative aspects in meeting the obligations assumed by Romania.

• The deadlines for finalizing the codes of procedure seem to be unrealistic (January 2008), taking into account their current status and the necessity of some adequate consultations before being approved by the Government

Benchmark 2
The basic provisions of benchmark 2, with respect to NIA functioning, are „effective", „independent" and „dissuasive sanctions". However, the plan does not provide a mechanism for this agency to perform, but only measures for improving the NIA image, organization and management. All these are not sufficient for meeting the main provision: establishing an effective and independent integrity agency with responsibilities for verifying assets, potential incompatibilities and conflicts of interest, as well as issuing mandatory decisions on the basis of which dissuasive sanctions can be taken.
The due plan to BM 2 should comprise a measure aiming at setting up a NIA track-record concerning the verifying of assets, potential incompatibilities and conflicts of interests. Also, the due plan to BM 2 should provide measures concerning the sanctions applied on the basis of NIA decisions.
As a conclusion, we consider that the plan does not meet the basic demands of BM 2, while also some deadlines are not realistic (I 2.1, II 2.1, II 2.2).

Benchmark 3
The basic provisions of BM 3 are not being met by the proposed plan: legal and institutional stability, in particular by maintaining the current nomination and revocation procedure for the General Prosecutor of Romania, the Chief prosecutor of NAD and other leading positions in the general prosecutor's office.
We are deeply worried with respect to due plan to BM 3, as long as the political will to fight corruption has started to fade away. The Minister of Justice himself proposed on September 26 the changing of this procedure (in blatant contradiction with the EC position and the BM 3 provisions), while on October 4, by means of Emergency Ordinance 95/2007 that modified the Law regarding the ministerial responsibility, the Government blocked for an unspecified period the criminal investigations of former and current ministers for corruption and corruption related crimes.
From our point of view, NAD's institutional stability is not guaranteed by this plan, lacking concrete measures to solve this problem. Another major worry, and a major deficiency of the plan, is the absence of any measure securing the continuation of the fight against corruption at high level (the core of benchmark 3).

Benchmark 4
This benchmark regards two components: prevention and fighting corruption

a) Prevention
The due plan to BM4 brings forward for discussion the vulnerable sectors and the local administration, but it does not include measures for any of these aspects, proving that the plans' authors did not consult the local, the central or the deconcentrated authorities.
Aspects regarding GAD are present in both of the BM4's components: prevention and fighting corruption. Also, the prevention campaigns need evaluation and new measures must be taken, instead of just recalling the already financed ones. The due plan to BM4 is rather retrospective than future-oriented.

b) Fighting corruption
This component is entirely missing from the plan. We consider that concrete measures concerning the active structures in fighting corruption must be specified: prosecutors' offices attached to tribunals, GAD, police and also competent information structures: financial guard, court of accounts etc.

As a conclusion, we consider that the measures proposed in the plan do not meet the basic provisions of BM4.

The Initiative for a Clean Justice
(Advocacy Academy, Freedom House Romania, The Group for the Social Dialog, The Romanian Academic Society, Timisoara Society and SoJust Association)

 

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