The Ministry of Justice has issued a press release on the Supreme Court of Justice (SCJ) rulings of 1 August on the annulment of decisions of the Pre-Vetting Commission, in which it draws attention to several “worrying aspects”, including the fact that the legal powers of the special court panel only refer to admitting appeals and ordering re-evaluation, not to annulling decisions.

Thus, the Ministry’s representatives claim that the decisions on the 21 appeals filed by persons who did not pass the extraordinary assessment, which annulled the acts of the Pre-Vetting Commission, “were issued practically in a package, on the same day, at short intervals”.

At the same time, according to the source cited, the legal deadlines were violated (within 10 days of the submission of the appeal), “some decisions were issued even months after the fact”.

“Coincidentally or not, the decisions were taken after the Parliament adopted, in final reading, the Law on external evaluation of judges and prosecutors, but also before the General Assembly of Prosecutors, scheduled for 23 August 2023.

We fully support that, in cases where the Pre-Vetting Commission has violated the evaluation procedure provided for by the Law on Pre-Vetting (No. 26/2022), the appeals should be admitted and new re-evaluations of the candidates should be ordered, in order to remove possible shortcomings,” the Ministry of Justice’s statement reads.

The Ministry also notes “with concern, that the decisions (with minor exceptions) contain a set of generic, over-drawn arguments, which raises doubts”.

“It shows that the special panel, instead of confining itself to reviewing the legality of the decisions of the pre-vetting committee, also gave extensive assessments of the appropriateness of the evaluation procedure. In this way, the disagreement with the pre-vetting mechanism that the legislator has established to verify the integrity of candidates for judges and prosecutors to the positions of members of the SCM and SCP was expressed,” the source also notes.

The “worrying aspects” noted by the Ministry of Justice are:

• “Avoidance of the application of several provisions of Law No. 26/2022 as well as Law No. 180/2023 (for the interpretation of some provisions of Law No. 26/2022), which would mean ignoring the legislative power and the mission of the integrity verification mechanism developed.
• Apparently, ignoring the special legal provisions on the limits of judicial review of the SJC against the decisions of the Commission. However, Article 14 para. (8) of the Law on pre-vetting contains clear and precise provisions on the grounds for admitting the appeals of candidates who did not pass the assessment, namely the cumulative presence of two circumstances. These are the admission of serious procedural errors affecting the fairness of the assessment procedure and the existence of circumstances that could have led to the candidate passing the assessment. The decisions of the SCJ, for the most part, do not seem to contain arguments on these two cases, but other arguments without concrete circumstances that could have led to the promotion of the assessment, ordering the annulment, although the legal powers of the special panel only refer to the admission of appeals and ordering the re-evaluation. This sets a dangerous precedent in the fight against corruption and casts doubt on any intention to check integrity.
• Ignoring the law relating to the Commission’s statute and the application of special law in favour of the Administrative Code. A re-interpretation of Law No 26/2022 is observed, invoking that the Commission is a public authority within the meaning of the Administrative Code, without taking into account the amendments introduced by the legislator by Law No 180/2023.
• Substitution of the discretionary right of the pre-vetting Commission for the evaluation criteria and rules stipulated in the Law on pre-vetting.
• Uneven interpretation of the law, disregard of judicial precedent and of the European Court of Human Rights (ECtHR) standards on uniform jurisprudence. Previously, another similar special court panel issued two decisions with reference to other candidates, rejecting their appeals, the reasoning being completely different from the decisions taken on 1 August 2023.”

According to Justice Minister Veronica Mihailov-Moraru, “there are still signals” in the justice system that the extraordinary evaluation mechanism is not accepted.

“I have always respected the decisions of the courts and the inner conviction of the judges. However, based on the above-mentioned issues, there are reasonable suspicions that there are still signs of non-acceptance of the extraordinary evaluation mechanism in the justice system, even though it is a country commitment. Similarly, the practice of uneven application and ambiguous interpretation of the law continues. Efforts on the justice reform segment continue. Professional, honest and incorruptible judges and prosecutors must remain in the system. Thus, the recent legislative initiatives adopted by the Parliament, which will allow the evaluation of the ethical and financial integrity of the Supreme Court of Justice magistrates, as well as judges and prosecutors in key positions in the justice system, are an essential step in this direction and their implementation must be accelerated”, says Minister of Justice Veronica Mihailov-Moraru.

In a statement issued following critical statements in the public space, the Supreme Court of Justice recommended “politicians, the government, interest groups, the media and anyone else to refrain from humiliating labelling, public lynching and televised justice”.”

The Supreme Court states in the press release that it found “serious questions of legality regarding the decisions of the Pre-Vetting Commission, both in terms of substantive and procedural legality”.

Earlier, the Supreme Court of Justice set up a special panel to examine appeals against the decisions of the Independent Commission for the evaluation of the integrity of candidates for membership in the self-administration bodies of judges and prosecutors, composed as follows: Tamara Chisca-Doneva – chairperson, Mariana Pitic, Ion Guzun.

On 1 August 2023, the SJC annulled 21 decisions not to promote candidates to positions in the Superior Council of Magistracy (SCM) and the Superior Council of Prosecutors (SCP): Angela Popil, Vladislav Holban, Alexei Panis, Anatolie Gîrbu, Veronica Cupcea, Alexandru Rotari, Stanislav Sorbalo, Valentin Caisin, Ion Chirtoaca, Vitalie Codreanu, Vitalie Stratan, Angela Bostan, Aureliu Postică, Victor Sandu, Nicolae Șova, Aliona Miron, Cristina Gladcov, Tatiana Chiriac, Ecaterina Buzu, Mihail Bușuleac and Sergiu Osoianu, and ordered their re-evaluation by the Pre-Vetting Commission.