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The ECHR ruled that the dismissal of Kovesi was illegal

George Marinescu (Translated by Cosmin Ghidoveanu)
English Section /

The ECHR ruled that the dismissal of Kovesi was illegal

Laura Codruţa Kovesi, chief-prosecutor of the European Prosecutor's Office, has won in the European Court of Human Rights the lawsuit brought against the European Court of Human Rights, in the case of her illegal dismissal from the position of the National Anti-corruption Department ruled by the Constitutional Court through the ruling 358 of May 30, 2018 and enacted by president Klaus Iohannis on July 9th, 2018.

The unanimous ruling and the argumentation of the ECHR make the Constitutional Court of Romania look like a court that analyses certain cases politically, rather than in accordance with the legislation in effect, with the separation of state powers, with the independence of the judicial system and of the universal norms concerning human and citizens' rights and the right to defense in a trial. That same right has been denied to Laura Codruţa Kovesi by Social-Democrat Valer Dorneanu, president of the Romanian Constitutional Court.

In the argumentation for their ruling, European magistrates state that the ECHR is of the opinion that the report based on which Laura Codruţa Kovesi has been dismissed, was drafted by the minister of Justice, but that the arguments invoked by former minister Tudorel Toader concern opinions which the former head of the National Anti-corruption Department (DNA) expressed officially on various occasions.

Paragraph 186 of the argumentation of the ECHR decision states that the reasons presented by the ruling of the Constitutional Court pertained to the investigations opened under the supervision of the plaintiff in connection with a potential act of corruption committed by members of the Government and with the disclosure in the media of the details of said investigations. In addition, the plaintiff's public statements concerning the legislative reforms proposed by the Government and the criminal investigations into those reforms were listed as specific reasons for her dismissal and were quoted at length and commented on twelve pages of the report drawn up by the Minister of Justice. The other arguments in favor of dismissing Laura Codruţa Kovesi, presented by Minister Tudorel Toader, were reviewed by the Supreme Council of Magistrates which established that they had no factual or legal basis or were related to pending disciplinary investigations.

The ECHR states in paragraph 189: "In the present case, the grounds invoked by the Government to justify the measure (ed. note: - the dismissal) are not backed by specific evidence and therefore cannot be considered convincing as part of the whole context of the case."

Moreover, on the aforementioned grounds, the European magistrates conclude that the dismissal of the plaintiff from the position of Chief DNA Prosecutor was linked to the right to freedom of expression, which includes the freedom to communicate opinions and information. The ECHR states in paragraph 190: "The premature termination of the plaintiff's term of office therefore interfered with the exercise of her right to freedom of expression, as guaranteed by Article 10 of the Convention."

ECHR: The government had no legitimate purpose for dismissing Kovesi

The ECHR notes that in the drafted report, former Justice Minister Tudorel Toader, claimed that the dismissal of the plaintiff from her position was intended to protect the rule of law. The Court also notes that the dismissal, which was contested, was submitted by the Minister of Justice, following the plaintiff's criticism of the legislative proposals submitted by the same minister and the mounting by Kovesi of criminal investigations into the initiation of certain statutory instruments involving the same minister. The Court also notes, based on the materials submitted by the plaintiff that, on the contrary, concern has been expressed at national, European and international level regarding the dismissal of Laura Codruţa Kovesi.

In the argumentation of the decision, the ECHR states: "In this context, the Court says that no evidence has been produced to show that the disputed measure was intended to protect the rule of law or for any other legitimate purpose. The measure was a consequence of the previous exercising of the right to freedom of expression by the plaintiff, who was the head of the Anticorruption Department in the judiciary ".

The Court also notes that the Government did not present any legitimate goal for the interference alleged by Laura Codruţa Kovesi. European magistrates point out that if an issue under debate has political implications, that is not in itself sufficient to prevent, for example, a judge from making a statement in that regard. The ECHR states that in a democratic system," acts or omissions of the government must be carefully controlled not only by the legislature and the judiciary, but also by the press and public opinion."

The ECHR notes, in paragraph 204, that the interference that was challenged in court was caused by the views and criticisms expressed publicly by the plaintiff in exercising her right to freedom of expression, and notes that Laura Codruţa Kovesi expressed her views on the legislative reforms in question in her professional role as chief prosecutor of the NAD. European magistrates also claim that the former head of the NAD used her legal powers to launch investigations into suspected corruption offenses committed by members of the government in connection with the highly contested legislation and to inform the public about those investigations and took the opportunity to express her opinion directly in the media or in professional meetings.

Regarding Kovesi's statements made in public and in professional assemblies, the ECHR states that Recommendation (2000) 19 of the Council of Ministers of the Council of Europe recognizes that prosecutors should have the right to engage in public discussions on matters of law, the meting out of justice and the promotion and protection of human rights, and they should be able to prosecute, without obstruction, civil servants for crimes committed, in particular for acts of corruption.

ECHR: The dismissal of Kovesi has defeated the preservation of the independence of the judicial system

The ECHR finds that Laura Codruţa Kovesi has expressed her views and criticisms on legislative reforms affecting the judiciary, on issues pertaining to the functioning and reform of the judiciary and the prosecutor's competence to investigate corruption offenses, all of which are matters of public interest. Her statements did not go beyond mere criticism from a strictly professional perspective. Consequently, the Court considers that the plaintiff's position and statements, which clearly fall within the context of a debate on matters of high public interest, called for a high degree of protection of the freedom of expression.

The ECHR claims that Kovesi's untimely removal from the post of DNA chief prosecutor has defeated the actual goal of maintaining the independence of the judiciary.

The European magistrates state in paragraph 209: "The premature termination of the plaintiff's term of office was a particularly harsh sanction, which undoubtedly had a serious effect, in that it must have discouraged not just her, but also other prosecutors and judges, in the future, from taking part in the public debate on legislative reforms affecting the judiciary and, in general, on issues related to the independence of the judiciary".

In conclusion, in paragraph 211, the ECHR states: "Based on the above arguments and taking into account the paramount importance of freedom of expression in matters of general interest, the Court is of the opinion that the removal of the plaintiff from the position of Chief NAD Prosecutor did not seek to achieve any legitimate objective and, moreover, it was not a necessary measure in a democratic society."

And the unanimous ruling favored Laura Codruţa Kovesi. The ECHR found that the Government violated Articles 6 and 10 of the European Convention.

We remind that the process of dismissal of Laura Codruţa Kovesi was started by former Minister of Justice Tudorel Toader, in mid-February 2018, after returning from a visit to Japan, and at the request of the former Secretary General of PSD, Codrin Ştefănescu, who asked him, "Tudorel, do something!"

On February 22, 2018, based on a hasty report that contained only the public statements of Laura Codruţa Kovesi, summarized in 20 points, Tudorel Toader asked President Klaus Iohannis to dismiss the former head of the NAD. On March 16, 2018, the Supreme Council of Magistrates did not approve the request of Tudorel Toader, but the latter forwarded it to the President. On April 16, 2018, Klaus Iohannis refused to dismiss Kovesi, and thus, as a result, the Dăncilă government, at the request of the Minister of Justice, Tudorel Toader, notified the Constitutional Court regarding a constitutional conflict between state authorities as stipulated in the Constitution.

Through ruling 358 of May 30, 2018, the CCR decided, under the leadership of Valer Dorneanu, with a majority of 6 votes in favor and 3 against, but with three opinions against and two competing opinions, the dismissal of Laura Codruţa Kovesi. The argumentation of the ruling was published on June 7, 2018, and on July 9, 2018, President Klaus Iohannis issued the decree dismissing Kovesi from office.

The ruling of the ECHR shows that the report by minister Tudorel Toader, the decision of the Dăncilă government, the ruling no. 358 of May 30, 2018 of the Romanian Constitutional Court and the dismissal decree issued by president Klaus Iohannis have all been mistaken.

Neither Valer Dorneanu, nor Klaus Iohannis and any of the other actors who contributed to the dismissal Kovesi of July 9, 2018 show any intention to resign.

Immediately after the ECHR decision, Laura Codruţa Kovesi sent a statement stating that the decision of European magistrates "strengthens the status of all magistrates in Europe and protects them from discretionary political interference by representatives of other powers."

Laura Codruţa Kovesi states: "This decision clarifies, first of all, a matter of principle related to the independence of prosecutors and, implicitly, of the judiciary, but there are other things that it clarifies as well. The ruling of the Romanian Constitutional Court regarding the dismissal from the position of Chief Prosecutor of the NAD assigned a discretionary power to the Minister of Justice to dismiss a prosecutor from a leadership position, thus nullifying any protection of magistrates had against the arbitrariness of political decisions, and, on the other hand, removed the possibility of challenging such a dismissal decision, even though that removal affects a fundamental individual right (...) In its judgment, the ECHR ruled that a violation of the right to a fair trial has occurred, as the ruling of the Constitutional Court restricted the ability to challenge the dismissal decision in court, even though it affected my right to a career.

People should not be a subject to the rulings of the Constitutional Court, only principles. hat the ECHR states is that individuals must always have the right and the real opportunity to challenge a revocation decision before a court.

The ECHR judgment finds that the ad hoc procedure by which my revocation was decided was devoid of legitimacy. (...)

I hope that this decision will be a symbolic reparation for all the magistrates harassed in recent years! I hope that this decision will give courage to the Romanian magistrates! (...) I am convinced that it was worth it, which is why I say again: DO NOT give up! "

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Orban emphasizes that questioning the rulings of the Constitutional Court has been a taboo subject at the political level, implying that politicians have felt required to abide by those decisions even when they deemed them unfair, in order to avoid affecting the credibility of a fundamental institution of the Romanian state.

Prime Minister Ludovic Orban thinks that the decision by which the ECHR validates the former head of the NAD, Laura Codruţa Kovesi, is a confirmation of the fact that the rulings of the Romanian Constitutional Court were based on other considerations than the ones which should pertain to the fundamental law of the nation.

"The actual Constitutional Court has compromised itself, through its own decisions that violate the European Convention on Human Rights. This fact seriously affects the credibility of one of the most important institutions of the Romanian state, and RCC judges who decided that they can overrule the President of Romania are responsible for that", Ludovic Orban said.

"The decision to dismiss Laura Codruţa Kovesi was made by the CCR based on rumors and subjective reports, dominated by the influence of Liviu Dragnea and the PSD at that time," the PM said in a press release.

----------------------------

In a Facebook posting, former Minister of Justice, Ana Birchall, said that the ECHR decision in favor of former NAD Chief Prosecutor Laura Codruţa Kovesi, in the lawsuit against Romania, represents a devastating rebuke for CCR president Valer Dorneanu, and for all the judges who endorsed and voted in favor of the Court's 2018 decision.

"It is clear from the ECHR decision that the report of Mr. Tudorel Toader and the decision of the RCC represented a serious interference in the career of a prosecutor. I request that all those who supported and voted for this decision - Dorneanu (who is also a rapporteur) Varga, Pivniceru and Lăzăroiu resign and present the appropriate apologies to Romanian citizens. It is the only gesture that can wipe away the shame of the CCR, a decision that is a very heavy slap and just as shameful for the former Minister of Justice, Mr. Tudorel Toader, who was also a RCC judge for over 10 years. I believe that Mr. Tudorel Toader should also hand in his resignation of honor together with the apologies he owes to the Romanians and the judiciary!", the former justice minister claims.

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Former Justice Minister, Tudorel Toader, the one who fully contributed to the illegal dismissal of Kovesi is shifting the blame to Cotroceni Palace. Toader said: "Over the course of this dismissal process there have been three entities that have fulfilled their role. I drew up the report and proposed the dismissal. After that the RCC was notified, the minister is not the one entitled to notify the Constitutional Court, it is up to the Government or to the presidents of the chambers of the Parliament to do so... The RCC rendered a ruling and the president issued the dismissal decree based on that ruling. The president did not dismiss her based on my proposal. The RCC decision is to be carried out. That's about all I can say".

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In a joint statement, the two professional magistrates' associations said: "It is unacceptable for the effects of a majority decision of a constitutional court of a so-called democratic state to violate the rights and legitimate interests of a prosecutor, but also the independence of the judiciary, with both facts having been acknowledged today by the ECHR, especially in the context wherein all relevant European and international bodies have noted in recent years the decline of the rule of law in Romania. (...) The solution of the European Court of Human Rights calls into question the need to revise the legislation on the appointment of the judges of the Constitutional Court of Romania, but also of some of its powers and procedures, given also the numerous preliminary cases on the docket of the Court of Justice of the European Union. Also necessary is the immediate modification of the legislation concerning the appointment and dismissal of high-ranking prosecutors, in order to limit the powers of the executive branch and to strengthen the role of the Prosecutors Section of the Supreme Council of Magistrates, as requested successively in recent years by the Venice Commission, the European Commission or GRECO".

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President Klaus Iohannis declared, after the ECHR decision regarding the dismissal of Laura Codruţa Kovesi, that the Romanian Constitutional Court which made the decision in question in violation of the procedural and human rights of the former head of the NAD has to be reformed.

Klaus Iohannis said: "Unrestricted access to justice and freedom of expression are essential values all over the world, in a democratic society. Ignoring all the arguments I made then, the RCC decided to dismiss her, at the proposal of an infamous minister of justice. Such an unprecedented ECHR decision cannot remain without consequences. The credibility of the Romanian Constitutional Court, which has been affected by controversial decisions anyway, is even more affected. The RCC is also required to follow the Constitution. The RCC has the obligation to review immediately not just its decision to dismiss Mrs. Kovesi, but also any other rulings rendered concerning the statements made by any person while practicing their profession. The ECHR decision shows us how necessary a reform of the RCC is".

The president also said that the current parliamentary configuration dominated by the PSD has proved that it is incapable to make decisions that would protect citizens.

The president also said that the current parliamentary configuration dominated by PSD has proved that it is not able to take decisions to protect citizens.

"The PSD is the party that has drafted penal legislation designed to protect criminals rather than citizens. The PSD has set up one inquiry commission after another, all of them designed to discredit those opposed to changes in criminal law and laws concerning the judicial system. I do not expect the PSD will be in any hurry to set up a parliamentary commission to investigate how the dismissal of Mrs. Kovesi, in violation of her procedural and human rights, was possible", Klaus Iohannis said.

He expressed his hope that the citizens would vote against the Social Democrats in the local and parliamentary elections, as punishment for their antidemocratic behavior in the recent years.

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