PUBLIC MINISTRY
Prosecutor’s Office attached to the High Court of Cassation and Justice

Statement by the General Prosecutor of the Prosecutor’s Office attached to the High Court of Cassation and Justice - ECHR decision in the case of Kovesi vs. Romania

                                                                             

May 5, 2020

 

 

In the context of the ruling, on 5 May 2020, by the European Court of Human Rights (ECHR) of the Judgment in the case of Kovesi vs. Romania, the  General Prosecutor of the Prosecutor's Office attached to the High Court of Cassation and Justice transmits the following:

The ECHR decision confirms the previous positions expressed at the level of the Public Ministry in the sense that the ad-hoc revocation procedure initiated against prosecutors who hold management positions at the top of the prosecutor's offices hierarchy is not in accordance with the laws of judicial organization, and by the way in which it’s conducted it is likely to infringe the status of independence, as well as the fundamental guarantees, mainly the right of defense.

The ECHR judgment also reaffirms the right of prosecutors to freely express their opinion in the context of public debates that must characterize in a state governed by the rule of law the process of adopting or amending the normative framework governing their status, as well as that of amendment of criminal law. Such public positions may not, in any form, constitute a pretext for initiating proceedings seeking dismissal.

The ECHR decision creates the premises for rethinking the procedures for dismissal of prosecutors, in light of the recommendations made by European bodies with expertise, by strengthening the role of the Superior Council of Magistracy as a guarantor of the independence of justice and representative body for the judiciary.

Only inter-institutional dialogue can lead to the generation of unanimously accepted legal mechanisms to ensure that members of the judicial authority enjoy protection against arbitrariness, and the exercise of this right is effective. Strengthening the considerations retained by the ECHR, the absence of judicial control over the political decision of dismissal is not in the interest of the functioning of the state in general, in a constitutional context, nor for the benefit of citizens.

Assuming and exercising in good faith and in conditions of loyalty, in the spirit of the Constitution, the attributions conferred by law must characterize the public climate, and the other powers of the state must act in order to defend the independence of justice.

The General Prosecutor of the Prosecutor's Office attached to the High Court of Cassation and Justice supports the independence of justice, as a constitutional principle, and reaffirms its openness to constructive dialogue to identify legislative solutions to strengthen this principle.