Romanian answers to the Questionnaire for the preparation of Opinion no. 11 of CCPE “Quality and efficiency of the work of prosecutors, including as regards the fight against organized crime and terrorism”
1. The Public Ministry organizes work meetings, conferences, seminars on a regular basis, prosecutors being invited to participate in training courses. The Prosecutor’s Office attached to the High Court of Cassation and Justice (POHCCJ) elaborates, with the support and involvement of prosecutors at all levels guides, manuals, syntheses of legal issues, study notes, guidance lines etc. They are subsequently disseminated to all prosecution units, including by publication on the website of the Public Ministry. Work groups are also set up which should monitor essential issues linked to the activity of prosecutors or draft proposals in relation to aspects they are interested in.
There is a section of Human Resources and Documentation within the POHCCJ and, by means of the new Internal Regulations for public prosecutor’s offices, published in August 2014, a new structure under the subordination of the prosecutor general was set up and became operational: the Service of Guidance and Control. Among its responsibilities you’ll also find centralization, analysis of data and information resulted from coordination and control actions, identification of deficiencies, issuance of recommendations meant to remedy them.
2. In Romania, prosecutors have a statute of magistrates and they are part of the judicial power. According to the Law on the statute of judges and prosecutors, prosecutors shall be appointed by the President of Romania, they enjoy stability and they are independent, under the law. The guarantor of the independence of justice is the Superior Council of Magistracy.
The judge or prosecutor who considers that his/her independence, impartiality or professional reputation is in any way affected can address to the Superior Council of Magistracy which, as the case may be, may order verification of the questions raised, publication of its results, it may notify the competent authority to decide as to the required measures or may order any other kind of adequate measure, according to the law. On the other hand, the Deontological code of judges and prosecutors stipulates that judges and prosecutors are bound to defend the independence of justice, to exercise their function objectively and impartially, abiding solely by the law, without acceding to pressures or influences of any kind.
In the month of July 2015, a work group was set up within the POHCCJ so as to analyze and identify solutions for enhancing the efficiency and performance in the activity of the Public Ministry, the opportunity to modify the system of organization and substantiation of the lines of action to this end.
Also, in compliance with the Judicial system development strategy 2015-2020, a series of measures are taken into consideration for the creation and implementation of a unitary system for strategic management of the judicial system, optimization of the organization and functioning of courts of law and prosecutor’s offices, strengthening of the administrative capacity of courts of law and prosecutor’s offices (by improvement of the infrastructure, finalization of the computerization process, development of the electronic documents management system, revision of the judicial map, development of a policy of human resources for the judicial system), consolidation of integrity within the judicial system by promotion of anticorruption measures and professional and ethical standards, improvement of the quality of the judicial process by reducing the duration of judicial proceedings, unification of judicial practice, interdisciplinary professional training of those involved in accomplishing the judicial process etc.
3. The evaluation of the professional performances of prosecutors is conducted according to the efficiency and quality of their activity, their integrity and manner of compliance with the obligations to undergo professional training and graduate from specialization courses.
The efficiency of the activity shall be assessed taking into account:
§ the performance of the criminal investigation within a reasonable span of time, considering the complexity of the case (difficulty in gathering the evidence, number of parties and witnesses, number of offenses under investigation, their nature, difficulty of the legal and factual issues which must be settled, joinder of several cases, other relevant specific elements) and the workload of the prosecutor – in case of prosecutors who conduct their own criminal investigations;
§ the control and guidance of police authorities in their activity of criminal investigation, reflected in the periodic and rhythmical verification of the stage and quality of the criminal investigation actions performed by police and complying with the due dates, as well as in taking the legal measures in case of failure to accomplish or faulty accomplishment by the criminal investigation authority of the orders issued by the prosecutor, the drafting of the procedural documents and settlement of cases within a reasonable span of time, depending on the complexity of the case and the workload of the prosecutor – in case of prosecutors who supervise the criminal investigation activity;
§ effectiveness in motivating the legal remedies one filed for, with the observance of the legal and administrative periods and effectiveness in solving other tasks, specific to the judicial activity – in case of prosecutors who sit in court sessions;
§ effectiveness in solving the tasks, with the observance of the legal and administrative periods taking into consideration the workload of the prosecutor for the period under evaluation and the workload of the sector in which he/she carries out his/her activity - in case of prosecutors who conduct other activities than criminal investigation, supervising the investigations or sitting in court sessions.
The quality of the activity shall be assessed according to:
§ the measures and solutions imputable to the prosecutor, for reasons of unlawfulness existent when the prosecutor took the measure or issued the order;
§ the quality of the redaction and motivation of the solutions or of the legal remedies, capacity to interpret the evidence, quality of wording, spirit of synthesis, accuracy of judicial reasoning, rigour in laying out the facts, legal remedies the parties were allowed to on grounds of unlawfulness in the cases in which the prosecutor didn’t resort to legal remedies, remedies not filed for for reasons imputable to the prosecutor, withdrawn or dismissed for reasons of unlawfulness imputable to the prosecutor.
4. The evaluation of the Romanian magistrates is laid down under the Law on the statute of judges and prosecutors and it is regulated by decisions of the Superior Council of Magistracy for the approval of the Regulations and the Professional Activity Evaluation Guide for Magistrates.
The evaluation of prosecutors is conducted by commissions established by decision of the Superior Council of Magistracy, made up of the head of the unit, 2 prosecutors appointed by the steering college and one or two substitute members.
In order to verify the compliance with the professional competence and performance criteria, prosecutors are subject, every 3 years, to an evaluation in relation to their efficiency, quality of activity and integrity, obligation to undergo continuous professional training and graduation from specialized courses. In case of prosecutors appointed to management positions, the evaluation shall also take into account the manner in which they accomplished their managerial tasks.
The evaluation commission compiles an evaluation dossier for each prosecutor, a dossier which comprises statistical data on their workload and efficiency indicators which are filed on a yearly basis, the self-assessment report, the evaluation report, the observations and objections of the person subject to evaluation, together with any other documents, data or information the evaluation is based upon. As the case may be, the evaluation dossier will also enclose the individual plan for professional development as well.
Prosecutors shall have access to their own evaluation dossier at any point.
The president of the evaluation commission shall take the measures necessary to store the evaluation dossier, so that its confidentiality be assured.
During the period subject to evaluation, the evaluation commission, if they deem as necessary to remove certain deficiencies found in the performed activity, they can issue recommendations to the evaluated prosecutor, with a view to improving his/her activity, and draw up a minutes of proceedings to this end. The minutes of proceedings shall be brought to the knowledge of the evaluated prosecutor who, under his/her own signature, can issue observations as to the aspects revealed.
Prosecutors are invited to fill in a self-assessment sheet in which they can issue their own opinions as to the activity performed throughout the period subject to evaluation, giving motivated points to each indicator, this having the role of allowing the prosecutor to have a position in relation to his/her activity, including from the viewpoint of the need for professional training.
Upon request of the evaluated prosecutor or in case the evaluation commission deems it as necessary, an evaluation interview will be organized.
The evaluation report shall be done every 3 years, it is confidential, it shall be drafted separately for every prosecutor, on account of the documents enclosed to the evaluation dossier, after which it shall be communicated to the person concerned.
If unhappy with the grade they received, prosecutors can challenge the report before the Section for prosecutors within the Superior Council of Magistracy no later than 30 days from the date they were notified.
The decision delivered by the Section can be challenged before the Plenum of the Superior Council of Magistracy no later than 5 days from its receipt.
The decision of the Plenum is final and irrevocable.
5. In the organization of the Prosecutor’s Office attached to the High Court of Cassation and Justice there is the Directorate for the Investigation of Organized Crime and Terrorism (DIICOT), set up in 2004 as an autonomous structure, with its own judicial personality and its own budget. The DIICOT is the sole structure of the Public Ministry competent and specialized in the fight against and investigation of the offences of organized crime and terrorism, and it aims at dismantling the organized, border and cross-border criminal groups.
Prosecutors who carry out their activity within this directorate are appointed by order of the prosecutor general of the Prosecutor’s Office attached to the High Court of Cassation and Justice, after receiving the approval of the Superior Council of Magistracy, without exceeding the number of positions set in the staff establishment and approved under the law.
In order to be appointed to the Directorate for the Investigation of Organized Crime and Terrorism, prosecutors must show good professional training, an irreproachable moral conduct, a tenure of at least 6 years of service in the position of prosecutor or judge and they should have been accepted by the interviewing commission.
All prosecutors who meet the conditions abovementioned can take part in the interview.
The interview consists in checking the professional training, the capacity to make decisions and take responsibility, resistance to stressful conditions, as well as other specific qualities.
In evaluating the applicants the commission takes into consideration the activities carried out by the prosecutor, knowledge of a foreign language, computer literacy.
The commission is appointed by order of the prosecutor general of the Prosecutor’s Office attached to the High Court of Cassation and Justice and it is made up of 3 prosecutors working for the Directorate for the Investigation of Organized Crime and Terrorism. Specialists in psychology, human resources and others fields can also be members of the commission.
The prosecutor general of the Prosecutor’s Office attached to the High Court of Cassation and Justice evaluates, on a yearly basis, the results achieved by the prosecutors working for the Directorate for the Investigation of Organized Crime and Terrorism.
Prosecutors appointed to the Directorate for the Investigation of Organized Crime and Terrorism can be revoked by order of the prosecutor general of the Prosecutor’s Office attached to the High Court of Cassation and Justice, after receipt of the approval from the Superior Council of Magistracy, for inappropriate fulfilling of the tasks specific to their position or as result of a disciplinary sanction being enforced.
For financing its current and capital expenses, the DIICOT has its own budget, the funds which it benefits from being distinctly outlined in the budget of the Prosecutor’s Office attached to the High Court of Cassation and Justice.
By virtue of its law on organization and functioning, a yearly deposit amounting to 1,000,000 lei (the equivalent of approximately 220,000 euros) is made for actions meant to organize and detect offenses in flagrante delicto or which are triggered by the use of under cover investigators, of informants or their collaborators; it’s the head prosecutor of the Directorate for the Investigation of Organized Crime and Terrorism the one who decides, by way of an order he/she issues, of the manner in which the money is managed and used.
As regards the organization of the directorate, it has, beside its central structure seated in Bucharest, a number of 15 territorial services and 27 territorial bureaus, covering all the counties the country is divided into. The central structure has services specialized in investigating the main types of offenses the organized criminal phenomenon consists of.
In order to clarify few aspects pertaining to technical or specialized aspects linked to the activity of criminal investigation, the DIICOT has a corps of specialists, experts in processing and turning to account information from fields such as economy, banking, customs, information technology, and other fields as well. They are appointed, by order of the head prosecutor of the Directorate for the Investigation of Organized Crime and Terrorism, after receiving the approval of the line ministers.
The criminal investigation in the cases falling under the competence of the DIICOT is mandatorily, under the law in accordance with which the directorate functions, conducted by the prosecutor. The judicial police officers and agents, specially appointed under the provisions of the same law, conduct only actions of criminal investigation ordered by the DIICOT prosecutors, under their close coordination and direct control. The judicial police officers and agents who carry out their activity under the coordination of DIICOT prosecutors are nominally appointed by the Ministry of Administration and Interior, after receiving the analogous approval of the prosecutor general of the Prosecutor’s Office attached to the High Court of Cassation and Justice.
As regards the evaluation of the activity of the DIICOT prosecutors, it is not conducted in accordance with specific procedures, but by taking into consideration the general evaluation criteria applicable to all prosecutors working for the Public Ministry. There aren’t any distinct indicators for the DIICOT prosecutors, although this aspect might be subject to an analysis considering the peculiarities of the investigations against organized crime.
Starting from March 2015, the central structure of the DIICOT has its own headquarters.
6. The tasks, competence, structure, organization and functioning of the
Directorate for the Investigation of Organized Crime and Terrorism are established by a special law, adopted in 2004 and modified several times, the last modification dating back to 2014.
On the other hand, the new Criminal Code and the new Code of Criminal Procedure came into effect on February the 1st 2014. As it dealt with a reform of the entire criminal justice system, it goes without saying that essential modifications were operated in the field of the fight against organized crime and terrorism as well.
The recital of the draft law drawn up for enforcing the new Criminal Code, details the goals pursued by adopting this normative documents:
- setting up a coherent legislative framework in criminal matter, by avoiding the overlapping of norms in force existent in the previous Criminal code and in the special laws,
- simplifying the regulations on substantive law,
- providing compliance with the requirements which derive from the fundamental principles of criminal law enshrined in the Constitution and in the agreements and treaties on fundamental human rights to which Romania adhered,
- transposing the EU regulations in the national criminal legislative framework,
- harmonizing the Romanian material criminal law with the systems of the other EU Member States, as a premise for judicial cooperation in criminal matter based on mutual recognition and trust.
In a similar manner, with regard to the new Code of criminal procedure, the legislator states the following objectives:
- setting up a legislative framework in which the criminal trial should be quicker and more effective,
- unitary protection of the human rights and liberties enshrined in the Constitution and the international judicial instruments,
- conceptual harmonization with the provisions of the new Criminal code,
- adequate regulation of international obligations our country adhered to,
- establishing an appropriate balance between the requirements for an effective criminal procedure, protection of elementary procedural rights and also of fundamental human rights for the parties involved in the criminal trial and unitary observance of the principles related to a fair trial.
The objectives pursued were partially attained; but after the two codes became effective a series of issues unanticipated in the preliminary studies also came to light. There are certain provisions in the two normative documents which were subject to decisions delivered by the Constitutional Court, namely they were declared as being incongruous with the fundamental law.
7. Both international conventions and international organizations are useful, even indispensable, in the fight against organized crime and terrorism. A thorough analysis of the current instruments may be required so as to avoid their overlapping and/or to adopt documents containing more specific provisions that should facilitate the work of practitioners.
Their better dissemination for practitioners to get better acquainted with the possibilities to use them is also essential.
Eurojust, Europol and Interpol are extremely efficient institutions, set up so as to facilitate international cooperation of judicial authorities and police in the fight against serious crime. Materialization of the project for an Office of the European Prosecutor is also necessary, as it would be more capable of concentrating, at a supranational level, the efforts of the judicial authorities of the EU Member States in fighting the crimes against the Community budget, as well as other very serious offenses.
In order to efficiently fight organized crime and terrorism it would be necessary for all States to agree upon performing systematic strategic analyses of the phenomena, that should be made available to the relevant national authorities.
8. The main challenges are linked to the workload and the frequency of the legislative modifications.
In relation to the fight against organized crime, it would be necessary to set up a national mechanism for the evaluation of risks and menaces.
It would also be extremely useful, for increasing reaction efficiency, that DIICOT should have its own judicial police, following the pattern of the prosecutor’s office specialized in the fight against corruption (DNA).
Financial investigations, especially in the process of identification and seizure of the proceeds of crime with a view to confiscation, are still a field in which capacity of action needs improvement.