The Initiative for a Clean Justice, a Romanian Alliance of NGOs, warns that the official anticorruption agency of Romania, the National Anticorruption Directorate (NAD), faces serious intimidation and even the threat of dismantle.
NAD was set up by reorganizing a previous ineffective agency in fall 2005 by the then Minister of Justice Monica Macovei.
When independent Ms. Monica Macovei was replaced with National Liberal Party (NLP) member Tudor Chiuariu in March 2007, Romanian media rumored that NLP politicians will try to influence investigations concerning their party.
· On April 15, 2007, Minister Chiuariu in fact asked the head of NAD, Mr. Daniel Morar to put on hold criminal investigations until the political struggle against the President of Romania, Traian Basescu, is finalized (he was then under an impeachment procedure initiated by MPs, and he was meanwhile reinstated by voters into office). The phone conversation had a witness, an official from the Directorate for the Relation with the Public Ministry and the Prevention of Criminality and Corruption within the Ministry of Justice[1].
· On May 8, 2007, Minister Chiuariu attempted to dismiss the chief prosecutor of Criminal Section II of NAD, prosecutor Doru ?ulu?, who was in charge of the most politically sensitive files. Mr. Tulus had already indicted 8 MPs and was working on several cases involving top governmental or opposition politicians.
· Several months later, it turned out that Minister Chiuariu himself was investigated in a file of NAD. According to media reports, the case regarded a plot of land located in the heart of Bucharest which was the public property of the state, administered by the Postal Office (as stated in a 2001 Government Decision). In 2005, the Postal Office together with a private investor set-up a private company, and the land was brought, as in-kind contribution to the capital, in breach of the law that forbids any type of transfer of public property[2]. In addition, suspicions are that the land was under-evaluated, thus diminishing the number of shares held by the Postal Office in the newly set-up company. In 2007, in order to give an appearance of legality to the 2005 transaction, the Government passed a Decision simply erasing the word “public” from the 2001 Government Decision, claiming that this was merely a correction of an error. Needless to say that no such mechanism exists under Romanian law. Public property can be transformed into private property through a Government Decision, but this would only generate effects for the future, thus not legitimizing the 2005 transfer. The Minister of Justice approved the decision, despite the fact that he received a negative opinion from the Ministry’s specialized department[3]. This is why the investigations were extended to the Minister of Justice and to the initiator of the Government Decision, the Minister of Communications.
Following public outrage at his dismissal tentative of prosecutor Doru Tulus, Minister Chiuariu postponed his decision, asking Romania’s Superior Council of Magistracy (SCM) to organize a control of NAD in order to find some grounds to his already announced decision.
Several investigated politicians (such as Senator Verestoy Attila, investigated on several counts) supported this publicly. Deputy Prime Minister and Democratic Alliance of Hungarians in Romania (DAHR) leader, Marko Bela, himself under investigation, threatened that he would resign from Government unless measures were taken against NAD. Ministers were officially encouraged to compile a complaint of harassment from NAD[4]. The NLP President of Chamber of Deputies tried to summon prosecutors at Parliament to report on the state of investigations on MPs, but SCM ruled that this would be a breach of separation of powers. The President of the Senate, the Social Democrat Nicolae V?c?roiu, violently attacked prosecutor Doru ?ulu? because of a routine NAD legal request for information in a preliminary inquiry concerning DAHR senator Verestoy Attila[5]. Prime Minister C?lin Popescu-T?riceanu declared that the liberals are personally ‘hunted’ by NAD, warning of those who “act as the former communist secret police[6]”
The fight of politicians against NAD breached the law and is threatening current investigations. Leaks were made to the media from files of pending investigations which had been shared only with the Minister of Justice only, on his express request, and the public, as well as those investigated, read in the tabloids about the secret tapped conversations[7]. These conversations were legally tapped, in accordance with articles 911 – 916 of the Code of Criminal Procedure. Also, the report of SCM controllers ordered by the ministers was leaked to tabloids even prior to its being finalized, again including important parts from files under investigation. The prosecutors section of SCM issued a protest, implying that the leak originated with the Ministry of Justice, not SCM.
Politicians have also constantly tried to obstruct NAD’s activity by modifying the legislation. In 2006, the Parliament attempted to reject the Emergency Ordinance, which was setting up the National Anticorruption Directorate as specialized structure for the investigation of crimes perpetrated by MPs. In view of the risks of activating the safeguarding clauses, the senators passed the ordinance. However, the procedure of nominating and revoking the chief prosecutors within NAD remained for politicians a favorite subject of constant return. On September 26, 2007, two simultaneous proposals were made: i) the Greater Romania Party MPs handed over to the Senate a legislative proposal, which modified Law 115/1999 regarding the ministerial responsibility. According to this proposal, “only the Chamber of Deputies and the Senate have the right to ask for the criminal investigation of the Government’s members” despite the constitutional provision giving the President this power as well; and ii) the Minister of Justice, Tudor Chiuariu, requested that the chief prosecutors be nominated by SCM at the minister’s proposal.
The most worrying legislative revision against NAD’s activity was initiated on October 4, 2007: the Government adopted in a total secrecy and without any previous public debate the Emergency Ordinance 95/2007 for the modifying of the Law regarding the ministerial responsibility, ensuring for the Government’s members another form of protection against their indicting. During the same night, the Ordinance came into force, being published in the Official Journal of Romania. According to the provision of this ordinance:
a. the chief prosecutor of NAD can no longer ask for the criminal investigation of a minister. The only ones who are allowed to ask for the start of criminal investigation are the prime minister or the Chief Prosecutor of The Public Prosecutor’s Office attached to the High Court of Cassation and Justice, but not before informing the prime minister;
b. the current commission, which was analyzing NAD’s requests for the approval to the start of criminal investigation against former and current ministers, was dismantled;
c. the future members of this commission will be nominated by SCM;
d. the approval to start criminal investigation against Government’s members who are also MPs must be given also by the Parliament.
As immediate follow up, criminal investigation of the anticorruption prosecutors against current and former ministers will be brought to an end for an unspecified period. In addition, and questioning the real motives behind this normative act, the Government was not able to point out the extraordinary grounds for adopting this Emergency Ordinance, breaching the constitutional provisions and the Constitutional Court’s jurisprudence.
For the first time public reactions arose in favor of NAD. 35 prosecutors from the central structure of NAD, 27 prosecutors and 4 criminal investigation officers from the regional branches of NAD, the National Union of Judges and 4 other associations of the legal profession expressed their disapproval with the brutal and inappropriate way in which the Minister of Justice asked that NAD prosecutors be removed from office. Following the request to dismiss Doru ?ulu?, the Secretary of State for European Affairs, the head of the Directorate for the Relation with the Ministry of Justice and the Prevention of Criminality and Corruption, and an advisor to the minister tendered their resignations as a sign of protest against Mr. Chiuariu’s request. Many NGOs and mainstream media outlets were very critical towards the Minister. Also, the National Institute of Magistracy (NIM) sent a letter to the Minister of Justice, calling off an invitation to take part in a meeting with justice auditors. As a result, the Government adopted on October 4, 2007, another Emergency Ordinance by which the procedure for the nomination of the NIM director was changed.
The Minister himself counterattacked, criticizing Reuters News Agency for its critical comments. SCM, itself criticized by World Bank, one of their main donors, reacted by claiming WB has no authority over their activity.
We, the undersigned NGOs who have been the main members of the main Romanian anticorruption coalitions, notably the Romanian Coalition for a Clean Parliament, warn that pressures are currently being made on SCM to produce a report on NAD which would allow the minister to dismiss prosecutors. Attacks on NAD from ministers, top politicians and the Minister of Justice have already created a work environment of intimidation and reluctance to handle sensitive files. The current situation threatens to cancel Romania’s advances in the field of anticorruption of recent years. While Romanian public opinion strongly supports anticorruption, many MPs feel under threat and unless some international reaction also occurs in support of NAD it may well be that the agency’s efforts are cut after just two years for lack of political support.
The Initiative for a Clean Justice
ICJ is a project of the Advocacy Academy, Freedom House Romania, the Group for Social Dialogue, the Romanian Academic Society, Timi?oara Society and the Association “Society for Justice”
October 9, 2007
Appendix 1
Politicians under criminal investigations of the National Anticorruption Directorate
The violent reaction of the almost entire political class, the attempts to hinder NAD’s activity, through either public pressure or legal means, are to be explained by the scale of criminal investigations that cover the whole political sphere. Practically, prominent politicians under criminal investigation are present in every important political party:
The Social Democratic Party – Adrian Nastase (former president of SDP and former Prime Minister) sent on trial for having perpetrated the crimes of taking bribery, of blackmail and for the crime provided in Article 13 of the Law 78/2000, concerning the use of influence or authority by a person holding a high position in a party, with the aim of obtaining for himself or for another advantages that are not due to them; Serban Mihailescu (MP, former Minister Secretary General of the Romanian Government) sent on trial for having perpetrated the crimes of taking bribery and disrespecting the norms concerning ammunition; Ion Dumitru (MP), under investigation for abuse of power with serious consequences; Mihail Sireteanu (MP) involved in an inquiry into his ownership of shares issued by the Mizil gun factory; Ioan Stan (MP) under investigation for exercising undue influence as a party leader in order to obtain funds, goods and other undue advantages; Miron Mitrea (MP and former Minister of Transport) for the crimes of taking bribery and other corruption related crimes.
The Democratic Party – Gheorghe Falca (mayor of Arad and godson of the President of Romania) under investigation for the crimes of taking bribery and abuse of office against public interests; Ionel Mantog (former Secretary of State, former Director of National Society of Lignite Oltenia) sent on trial for having perpetrated more crimes, among which taking bribery, false declarations and abuse of office; Mircia Gutau (mayor of Valcea) and Nicolae Dicu (deputy mayor of Valcea) sent on trial for the crimes of taking bribery and complicity to taking bribery; Stelian Dutu (MP) sent on trial for abuse of office against public interests; Cosmin Popescu (former secretary of state) sent on trial for intellectual forgery and for favoring the criminal; Victor Babiuc (former Minister of Defense) under investigation for abuse of office against public interests with serious consequences.
The National Liberal Party – Tudor Chiuariu (current Minister of Justice) and Paul Pacuraru (current Minister of Labor) under investigation (currently the case is is analized by a presidential commission which, according to the law, has to approve or not the start of the criminal investigation); Decebal Traian Remes (current Minister of Agriculture) under investigation (currently the case is is analized by a presidential commission which, according to the law, has to approve or not the start of the criminal investigation); Ilie Morega, (head of the National Liberal Party – Gorj County) under criminal investigation for exercising undue influence as a party leader in order to obtain funds, goods and other undue advantages; Cristian Anghel (mayor of Baia Mare) sent on trial for abuse of office against public interests
The Conservative Party – George Copos (former Deputy Prime Minister) under criminal investigation for tax evasion; Dan Voiculescu (former MP and president of the party) under criminal investigation for money laundry; Codrut Seres (MP and former Minister of Industries) for supporting organized crime
The Democratic Alliance of Hungarians in Romania – Stefan Szabo (president of Satu-Mare County Council), Rudolf Riedl (the deputy prefect of the same county), Istvan Erdei (MP) and Attila Cseke (secretary of state) under investigation for abuse of office against public interests; Marko Bela (MP and president of the party) under preliminary investigation; Verestoy Attila (MP) under preliminary investigation.
Appendix 2
Chronology of events
March 26, 2007 – Parliament passed Law 69/2007 amending Law 78/2000 on the prevention, discovery and punishment of acts of corruption, thereby decriminalizing the granting of illegal credit facilities, previously punishable by a term of imprisonment of 5 to 15 years. As a consequence, the National Anticorruption Directorate (NAD) had to close down over 50 cases, some of which involved prejudices of hundreds of millions EUR. Possible beneficiaries of this amendment include a former member of the Superior Council of Magistracy (SCM), bankers and important business people. In an interview to BBC, the chief prosecutor of NAD said that “prosecutors investigated such cases – by no means few, scores of them, even hundreds, I don’t know for sure, but anyway a great number – and prosecuted accordingly. For some of these offences, known under the generic name of granting of illegal credit facilities, sentences have been given, including final sentences and the obligation to pay damages. What is going to happen from now on is that all of the accused will be acquitted, since the legislator, specifically the Parliament, has decriminalized such acts.”
April 13, 2007 – For the first time after his appointment as Minister of Justice, Mr. Tudor Chiuariu attended a plenary session of the Superior Council of Magistracy. He said that he wanted an independent justice, which should not be used as a political tool. At the same time, he said about the former Minister of Justice, Ms. Monica Macovei: “I’d like to make it very clear that I didn’t come here to play Robin Hood. I think it would spell disaster for the Romanian judiciary to have a Robin Hood after a Joan of Arc.” Judge Dan Lupa?cu, a SCM member, said: “For anyone who knows the true state of affairs in courts and prosecution offices, there can be but one conclusion: what was wanted was a forced reform, moreover a reform that would not be understood, a reform enforced almost exclusively by legal means, considered to be some sort of all-healing solutions, but these solutions were not subject to debate and the legal profession was not really consulted.”
April 15, 2007 – Minister of Justice Tudor Chiuariu and the chief prosecutor of NAD, Mr. Daniel Morar, had a telephone conversation in the presence of the head of the Directorate for the Relation with the Ministry of Justice and the Prevention of Criminality and Corruption. During this discussion the minister stated his disapproval of the fact that chief prosecutor Daniel Marius Morar had made public the decriminalization of certain acts dealt with by Law 78/2000, and his concern that European partners would learn of this measure. The discussion was “loud and evidently tense”, and the minister repeatedly threatened the chief of NAD: “unless we’re on the same side, you no longer have my support”.
May 6, 2007 – The president of Satu-Mare County Council, Stefan Szabo, the deputy prefect of the same county, Rudolf Riedl, MP Istvan Erdei and secretary of state Attila Cseke, all members of the Democratic Alliance of Hungarians in Romania (DAHR), were informed by the National Anticorruption Directorate that they were charged with the criminal offence of abuse of power. According to the media, during a meeting with the President of the Chamber of Deputies, Mr. Bogdan Olteanu, DAHR MP Verestoy Attila imperiously requested the removal from office of prosecutor Doru ?ulu?, head of Criminal Section II of NAD, which at the time was investigating the case of the four DAHR members.
Some of the cases prosecuted by ?ulu? led to the arraignment of several MPs: Social Democratic Party (SDP) representative Ion Dumitru, MP, under investigation for abuse of power with serious consequences; SDP MP Mihail Sireteanu, involved in an inquiry into his ownership of shares issued by the Mizil arms factory; SDP MP Ioan Stan, for exercising undue influence as a party leader in order to obtain funds, goods and other undue advantages; former vice prime-minister George Copos, for tax evasion. Section II of NAD is also working on the cases of Dan Voiculescu, former senator, Ilie Morega, head of the National Liberal Party – Gorj County, Cristian Anghel, NLP member and mayor of Baia Mare, Marko Bela (head of DAHR), Verestoy Attila (DAHR senator) etc.
May 8, 2007 – Around 11 pm, Minister of Justice Tudor Chiuariu asked the Superior Council of Magistracy to remove Doru ?ulu? from the office, as chief of Criminal Section II of the NAD:
Ø Shortly before asking for the removal from office, the Minister of Justice had expressed his satisfaction with and support for the work of NAD, during talks with EU experts carrying out an evaluation mission in Romania in April 2007, by request of the European Commission.
Ø The decision to ask for prosecutor Doru ?ulu? to be removed from office was made in haste, without a proper review of his work as head of a NAD section and without credible justification.
Ø When asked about the arguments for his request for dismissal, the Minister of Justice said that he was under no obligation to justify such a request. This is a blatant breach of the law and clear failure to meet the requirements concerning the removal from office of prosecutors holding key positions within the Public Ministry.
Ø The procedure resorted to was unusual, unprofessional and devoid of transparency, which raises numerous questions regarding the true reasons for this request. Another relevant fact is that the department led by prosecutor ?ulu? was working on several cases involving politicians. Note also that the request for dismissal was made while the suspension of the President of Romania was under way.
May 9, 2007 – The judiciary and the community at large reacted to the untimely and inappropriate request that a prosecutor and head of NAD section be removed from office:
Ø 35 prosecutors from the central structure of NAD, 27 prosecutors and 4 criminal investigation officers from the regional branches of NAD, the National Union of Judges and 4 other associations of the legal profession expressed their disapproval with the brutal and inappropriate way in which the Minister of Justice asked that the NAD prosecutor be removed from office. This was one of the first public reactions of the judiciary against political interference.
Ø Following the ungrounded request to dismiss Doru ?ulu?, the National Institute of Magistracy sent a letter to the Minister of Justice, calling off an invitation to take part in a meeting with justice auditors.
Ø The Secretary of State for European Affairs, the head of the Directorate for the Relation with the Ministry of Justice and the Prevention of Criminality and Corruption, and an advisor to the minister tendered their resignations as a sign of protest against Mr. Chiuariu’s request.
May 9, 2007 – The chief prosecutor of NAD, Daniel Morar, publicly stated that the Minister of Justice, Tudor Chiuariu, asked during a telephone conversation that anticorruption prosecutors “should not come out with any cases this month” – the interval in question being the month when the President of Romania was suspended and a referendum was being prepared to settle this issue.
May 9, 2007 – According to the media, the head of the directorate that approves legislation within the Ministry of Justice, Ms. Alina Vrabie, resigned in April after the Minister of Justice, Tudor Chiuariu, had pressed her to approve Governmental Decision HG 377/2007. Ms. Alina Vrabie refused to approve the decision, which had already been passed by government, and tendered her resignation. With respect to this case, in September 2007 NAD required permission to prosecute the Minister of Justice, Tudor Chiuariu, and the former Minister of Communications, Zsolt Nagy, for abuse of office against public interests.
May 10, 2007 – The President of the Chamber of Deputies, Liberal Party member Bogdan Olteanu, summons several prosecutors to explain their actions to Parliament. Chief Prosecutor Laura Codru?a Kovesi and the chief of NAD, Daniel Morar, flatly denied and complained to the SCM against political interference with the judiciary.
May 16, 2007 – For the first time, international community representatives (embassies of EU member states, the US Embassy, European Commission representatives etc.) took part in the plenary session of SCM discussing the request to remove Doru ?ulu? from office. This unprecedented gesture shows that the international community was worried about the abusive request of the Minister of Justice, which could set a dangerous precedent of political interference with the judiciary.
The position of the Superior Council of Magistracy was remarkably devoid of firmness: although it did not give an answer to the request for dismissal, SCM decided that a general review of the work of NAD be carried out following the request of the Minister of Justice. However, none of the SCM members asked the Minister of Justice to withdraw his request for the prosecutor’s removal from office pending the completion of the review. Therefore, it is debatable whether SCM inspectors are carrying out an unbiased review of NAD, while a request for the removal of a NAD prosecutor is being processed. This was a crucial time for SCM. Its stance on this matter will have a significant influence on the way in which the Council sees fit to perform its main task, that of guaranteeing that the judiciary is independent from political power.
May 25, 2007 – Prime Minister C?lin Popescu T?riceanu launched a public attack on the chief of the General Prosecutor’s Office for “not bothering” to inform the Government about a case of violence in schools, taking advantage of a populist issue to give yet another warning to Chief Prosecutor Kovesi.
May 25, 2007 – Yet another ominous warning for prosecutors: several ministers complained against the unjustified involvement of NAD prosecutors in the activity of their respective ministries, claiming that the prosecutors “censored the political decision-making process.” Deputy Prime Minister and DAHR leader Marko Bela, himself under investigation, threatened that he would resign from Government unless measures were taken against NAD. There are no official statements to this effect, but the information made public by various media sources increased political pressure on the prosecutors.
May 29, 2007 – Two weeks after the law on the National Integrity Agency had been promulgated, Chiuariu proposed that it should be amended.
May 29, 2007 – The President of the Senate, Nicolae V?c?roiu, made violent statements against prosecutor Doru ?ulu? because of a routine and perfectly legal request for information in a preliminary inquiry concerning DAHR senator Verestoy Attila. The accusations made by V?c?roiu were out of all proportion compared to the harmless content of the document, which requested on-the-record data (the minutes of a parliamentary session and information about the senator’s presence) for a preliminary inquiry, which NAD was compelled to carry out following a denounce.
May 30, 2007 – Senior members of the Chamber of Deputies joined the Senate’s attack against NAD prosecutors, accusing them of having the “impudence” to ask for information about the voting of a law. The DAHR senator under inquiry is suspected of using inside information to obtain substantial gains on the stock exchange.
June 12, 2007 – In a meeting with the president of the European Commission, the Romanian Prime Minister complained that prosecutors do not inform him about cases involving ministers, yet they inform the president of the country. There is no legal requirement that the prime minister be informed about criminal inquiries, even when ministers are concerned. It is the minister involved in the investigation that should notify the prime minister. As far as the President is concerned, he is not notified by the prosecutors, either; they notify the committee governed by Law 115/1996, and the committee must make a recommendation concerning the criminal prosecution of the ministers being investigated. Notifications to this committee were made public in every case, so that the Prime Minister, the President and the public all learned at the same time that one minister or another was involved in such inquiries. Therefore, we fail to see why the prime minister wants to receive distinct notifications from the prosecution office.
June 13, 2007 – In a press release published on the web page of the Hungarian Ministry of Foreign Affairs and sent to the Romanian Embassy in Budapest, Hungarian Secretary of State Laszlo Szoke voiced concern about the criminal inquiries carried out in Romania which involved top representatives of DAHR: the minister of communications, Zsolt Nagy, and four other members of the administration. Leaving aside the fact that it is highly unusual for an EU Member State to question investigations carried out by the judiciary of another member state, particularly when corruption may be involved, as well as the implied suggestion that justice might take into account ethnic factors, the press release only served to increase the political pressure put on Romanian prosecutors working on high-level corruption cases.
June 18, 2007 – In total contradiction with all his previous public statements, after the release of the Freedom House Nations in Transit report, the Minister of Justice gave a press release remarking on NAD’s effort to fight corruption.
June 22, 2007 – Reuters published an analysis showing the extent of corruption in Romania and the lack of efficiency of the Minister of Justice. The minister concerned, Tudor Chiuariu, made the unprecedented gesture of asking Reuters to apologize for the conclusions of their analysis.
June 24, 2007 – Following media accounts of repeated violations of the prosecutors’ independence at the highest level, attempts to influence the approval of laws within the Ministry of Justice, the attacks of various MPs and government officials against the activity of NAD, and frequent cases of abuse in the human resource policy of the Ministry of Justice and National Administration of Penitentiaries, 6 major NGOs (Advocacy Academy, Freedom House Romania, the Group for Social Dialogue, the Romanian Academic Society, Timi?oara Society, Society for Justice Association) decided to create the Initiative for a Clean Justice, which published a report on the state of the justice in Romania.
June 25, 2007 – In an address to Parliament, the Minister of Justice, Tudor Chiuariu, accused the former Minister of Justice, Monica Macovei, of acting against the interests of the country by writing critical reports via the Initiative for a Clean Justice.
June 29, 2007 – The Romanian media give detailed account of a document in which the Minister of Justice expressly asked European experts to modify the European Commission Report on accompanying measures after Romania’s accession, so as to remove all positive references to the work of NAD, references to the attempted removal of prosecutor Doru ?ulu? from office, and the request for the dismissal of the director of the National Institute of Magistrates, Mihai Selegean. The Minister of Justice blamed his own advisors for the request for modification.
July 12, 2007 – Violent attacks on NAD. Information was published in the media concerning phone tapping by NAD during criminal inquiries, and NAD was accused of wasting money and making unjustified use of such methods. In a press release given on the same day, NAD showed that this information was made available to the Minister of Justice only, on his express request, and that the tapping authorization and the use of the information obtained were in accordance with articles 911 – 916 of the Code of Criminal Procedure.
July 13, 2007 – Following an investigation into the penitentiary system, the Initiative for a Clean Justice revealed to the public the fraudulent recruitment practices and the illegal appointment of prison governors, condoned by the National Administration of Penitentiaries and the Ministry of Justice. The Minister of Justice threatened to sue the NGOs that make up the Initiative for a Clean Justice and to complain to SCM about the members of the legal profession who are also members of the Initiative. However, after the investigations the Minister of Justice cancelled a recruitment process and gradually removed from office two general directors of the National Administration of Penitentiaries.
July 24, 2007 – According to the media, Tudor Chiuariu sent inaccurate information to the European Anti-Fraud Office (OLAF) when he was head of the Government’s Anti-fraud Department.
August 25, 2007 – The World Bank audited the way in which funds granted for the reform of the judiciary were spent and complained that the reform of the judiciary has slowed down and that certain initiatives agreed upon with EU and the World Bank were stalled altogether. The World Bank report mentions controversies related to the National Integrity Agency, the unsatisfactory progress made in the reform of the Criminal Code, and the political pressure exerted on magistrates, in particular on NAD prosecutors. True to their traditional way of complaining against “meddling”, the Ministry of Justice and SCM protested against “a body that interferes with Romanian justice, while having no professional competence to perform assessments in this field”.
September 6, 2007 – A note of the judicial review of SCM concludes that “the wish of the Minister of Justice to obtain information about the activity of NAD in ways that give rise to the suspicion of illegality is liable to put pressure on law enforcement agents”. SCM review documents also state that “given the political appointment of the Minister of Justice, any intervention on his part concerning any of the fields of activity of prosecutors can be deemed as a political message, a fact which requires caution and thorough justification.” At the same time, SCM showed that “the request made by the Minister of Justice that Florin Doru ?ulu?, chief prosecutor of the section for corruption-related crime, be removed from office, is totally inconsistent with the stated objective of stepping up the fight against corruption”.
September 7, 2007 – The minister submitted for approval by SCM a draft law amending justice-related legislation, falsely stating that the magistrates had been consulted. SCM sent the draft law to the courts, for comments.
September 9, 2007 – Cosmin Gu??, MP, made it public that the Minister of Justice is involved in a NAD inquiry concerning the approval of a Governmental Decision given in April 2007. Minister Tudor Chiuariu denied such involvement.
September 10, 2007 – The National Anticorruption Directorate confirmed that a file was being prepared, concerning the approval of Governmental Decision 377/2007 on the transfer of state-owned real property (building and land located at 133-135 Calea Victoriei, Bucharest) from Bucharest City Council to “Po?ta Roman? S.A.”, the national mail company. Tudor Chiuariu had two lines of defense: first he claimed that the approval was legal, then he made one of his advisors responsible for the approval, although the head of the competent directorate had resigned precisely because of the insistence of the Minister of Justice that the decision of transfer be approved.
September 17, 2007 – Media sources give accounts of the SCM review report on the performance of NAD, carried out after the minister’s request that prosecutor Doru ?ulu? be dismissed. The report contains confidential information, such as data concerning phone tapping in a case in which the criminal inquiry had not been finished yet, and the persons whose phones were tapped had not been notified of this fact. Moreover, the documents made public by the media indicate that the Judicial Review acted as controller of solutions given by NAD, both as concerns content and as concerns legality.
On September 17 and 18, NAD was the object of a concerted media attack, coming both from politicians and from media trusts controlled by politicians. NAD reacted on the same day, publishing a press release in which it protests against information leaks that may jeopardize ongoing investigations.
September 18, 2007 – The Initiative for a Clean Justice and 3 other NGOs drew attention to the unfair publication of confidential information taken from a draft report, to the legal consequences of information disclosure related to ongoing investigations, and to the illegitimate review of NAD case content made by SCM inspectors. According to ICJ experts, the SCM report on the performance of NAD and the disclosure of information previous to the release of the report prove that:
Ø The publication by unauthorized media sources of a draft document is an attempt to impose a certain point of view, in the absence of other opinions, and obviously an attempt to bring discredit on the activity of NAD. Such actions subvert the credibility of an institution which should act as guarantor of the independence of justice;
Ø Articles 278 and 279 of the Code of Criminal Procedure were breached; according to these provisions, the resolution given in a case can be reviewed only by a senior prosecutor and by courts, if a party appeals against it. SCM is a public authority; it is neither a court of law nor a senior prosecuting authority;
Ø The inspectors failed to comply with the SCM Guide provisions specifying the powers and responsibilities of the Judicial Review: control actions “shall not be concerned with the measures taken by a prosecutor during prosecution, or with the solutions given”, and “the SCM Judicial Review does not have the competence to question court sentences, cannot disprove the solutions given by prosecutors and cannot review their legality and justification, as this would cause prejudice to the independence of judges, to their sole duty towards the law and the authority of res judicata, as well as to the independence of prosecutors”;
Ø SCM inspectors are subject to criminal liability. The fact that the review report makes direct reference to a case that involves phone tapping, while the criminal investigation is still under way and the persons in question have not been notified, falls within the scope of Article 264 of the Criminal Code – aiding and abetting.
September 18, 2007 – According to legal procedure, NAD requested the presidential committee to approve the start of criminal proceedings against the Minister of Justice for approving Governmental Decision HG 377/2007.
As a counterattack, the Minister of Justice informed that he asked that prosecutor Doru ?ulu? be disbarred, based on the SCM review report, although the report was not completed yet. While at the JIA Council in Brussels, Minister Chiuariu complained to Commissioner Frattini of being prosecuted by NAD, which has allegedly turned into a political weapon, and said that the performance of NAD does not fit the description found in European Commission reports. He gave an interview to Deutsche Welle on the same topic.
September 19, 2007 – In a press conference and other public statements, Minister Chiuariu:
Ø Publicly defended two politicians involved in criminal inquiries: Marko Bela, president of DAHR, and Dan Voiculescu;
Ø Disclosed a resolution to not prosecute, although such decisions are notified only to the person concerned, thus breaking the law;
Ø Discussed the SCM review report on the performance of NAD, ignoring the objections raised by NAD prosecutors and the confidential and incomplete status of the report;
Ø Gave details about the content of criminal cases currently investigated by NAD, in blatant breach of the law.
September 20, 2007 – The European Commission answered Minister Chiuariu’s accusations, showing that positive EC reports on NAD are based on official statements made by the Romanian Government and on independent sources.
SCM expressed disapproval towards Minister Chiuariu’s public statements disclosing information from the SCM review report.
September 26, 2007 – Two simultaneous proposals are publicly stated: i) the Greater Romania Party MPs hand over to the Senate a legislative proposal, which modifies Law 115/1999 regarding the ministerial responsibility. According to this proposal, “only the Chamber of Deputies and the Senate have the right to ask for the criminal investigation of the Government’s members”; and ii) the Minister of Justice, Tudor Chiuariu, requests that the chief prosecutors be nominated by SCM at the minister’s proposal.
Although the European Commission warned in the last Report that it does not agree with the changing of the nomination procedures, other politicians expressed publicly their satisfaction with these two initiatives (e.g. the social democrat Victor Ponta or the DHAR’s MP Eckstein Kovacs).
October 4, 2007 – The Government adopts in a total secrecy and without any previous public debate the Emergency Ordinance 95/2007 for the modifying of the Law regarding the ministerial responsibility, ensuring for the Government’s members another form of protection against their indicting. During the same night, the Ordinance came into force, being published in the Official Journal of Romania.
According to the provision of this ordinance:
a. the chief prosecutor of NAD can no longer ask for the criminal investigation of a minister. The only ones who are allowed to ask for the start of criminal investigation are the prime minister or the Chief Prosecutor of The Public Prosecutor’s Office attached to the High Court of Cassation and Justice, but not before informing the prime minister;
b. the current commission, which was analyzing NAD’s requests for the approval to the start of criminal investigation against former and current ministers, was dismantled;
c. the future members of this commission will be nominated by SCM;
d. the approval to start criminal investigation against Government’s members who are also MPs must be given also by the Parliament.
In order that this new commission is effective, SCM has to propose the new members within 30 days to the President of Romania. Afterwards, it will take additional time for the setting up of the commission (internal regulations, meeting place etc) and also for the analyzing of the current requests of NAD. Taking into account this long period, it is incomprehensible why the law maker has decided that the existing commission halt its activity. The general practice is that the activity of the institutions will continue until the setting up of the new institutions.
As immediate follow up, criminal investigation of the anticorruption prosecutors against current and former ministers will be brought to an end for an unspecified period. In addition, and questioning the real motives behind this normative act, the Government was not able to point out the extraordinary grounds for adopting this Emergency Ordinance, breaching the constitutional provisions and the Constitutional Court’s jurisprudence.
October 8, 2007 – The Chief Prosecutor of The Public Prosecutor’s Office attached to the High Court of Cassation and Justice asks for the approval to start the criminal investigation against the Minister of Agriculture, Decebal Traian Reme?, for corruption related crimes.
October 8, 2007 – SCM discussed the inspection report on NAD. Mr. Morar raised objections on the report and the SCM members had the opportunity to ask questions. In general terms the SCM members had a positive attitude towards NAD, emphasizing the importance of the institution and underlining that the concerns raised by the inspectors should not be seen as specific to the NAD, rather they regard the various interpretations of the law and are relevant for prosecutors around the country. Twelve objections of the NAD were deemed valid by the SCM members, and the inspection report was approved with those amendments. The final report of the SCM will be posted on the website after the references to concrete cases will be eliminated. At the end of the SCM meeting, though the overall evaluation of the NAD seemed to be positive, the Minister of Justice announced that he will request again the revocation of Mr. Tulus, chief prosecutor within NAD.
[1] Media reported that the conversation took place on April 15, 2007, in the presence of Ms. Laura Stefan, director of the Directorate for the Relation with the Public Ministry and the Prevention of Criminality and Corruption within the Ministry of Justice
[2] According to the Romanian Constitution, the public property is non-transferable.
[3] The Director of the Department was forced to resign because she refused to issue a positive opinion on this matter.
[4] Media reports on May 25,2007
[5] Media reports on May 29, 2007
[6] Official statement of the Prime Minister on September 26, 2007
[7] Information published in the media on July 12, 2007
