Laura Codruța Kövesi v. Romania

Chief Anti-Corruption Prosecutor of Romania Removed

In July 2018, Laura Codruța Kövesi was dismissed from her position as chief prosecutor of the National Anticorruption Directorate (Direcția Națională Anticorupție, or DNA), a role that she had held since 2013, at the request of Romania’s Minister of Justice. She had previously been renominated for a three-year term in February 2016 due to her strong performance. The Justice Minister justified his request on the basis Kövesi’s performance suffered from poor management. Kövesi had also opposed the government’s 2018 amendments to three basic laws of the Romanian justice system, reforms that were widely criticized in Romania and internationally for weakening judicial independence and efforts to fight corruption.

In an opinion issued on February 27, 2018, the Romanian Superior Council of Magistracy (CSM) opposed Kövesi’s removal, noting that the Justice Minister’s order was not founded on any allegation of legal wrongdoing on the part of Kövesi and did not specify the managerial criteria that Kövesi failed to meet that would justify her dismissal. In light of the CSM’s opinion, the President of Romania refused to remove Kövesi, a decision that was then challenged by the Prime Minister before the Constitutional Court. On May 30, 2018, the Constitutional Court ruled that the President could only refuse the Justice Minister’s order to dismiss Kövesi on legal grounds and not on the merits of the order. As a result, despite the negative opinion issued by the CSM, the President issued a decree to remove Kövesi as chief prosecutor of the DNA on July 9, 2018. Kövesi was unable to challenge this decision before national courts.

Background

On December 28, 2018, Kövesi lodged a complaint with the European Court of Human Rights (ECtHR), claiming that her right to a fair trial under article 6 of the European Convention on Human Rights (ECHR) and her right to freedom of expression under article 10 of the ECHR had been violated. On May 5, 2020, the ECHR issued a unanimous ruling against Romania in Kövesi v. Romania.

Open Society Justice Initiative Involvement

The Justice Initiative submitted an amicus brief, emphasizing the international and European standards that require states to protect prosecutorial independence, especially in the event of prosecutors’ removal from office.

Arguments

The independence of prosecutors is a key element of the rule of law. UN and European bodies have reached a broad consensus about the need to guarantee the independence of prosecutors as a fundamental component of the administration of justice. Independent prosecutors, willing to investigate and prosecute individuals, even those who may hold considerable power, play a key role in strengthening the rule of law. In addition, the independence of prosecutors is largely accepted as a safeguard closely linked with the independence of judges.

Transparent and accountable appointment and dismissal process of chief prosecutors are essential to secure independent prosecution services. International and regional bodies unanimously agree that processes for appointing and dismissing chief prosecutors should be robust to ensure the independence of these officials. The independence of prosecution services is intrinsically linked with the existence of processes governing the appointment and dismissal of chief prosecutors that are merit-based, transparent, and accountable. This process should avoid politically influenced nominations and prevent dismissals that could be retaliatory as a result of withstanding political pressure or influence.

The removal of a chief prosecutor falls under the scope of article 6 of the ECHR guaranteeing the right to a fair trial. The ECtHR has previously stated that employment disputes concerning public servants, including about their dismissal, constitute disputes about civil rights and obligations that fall, in principle, within the scope of article 6 of the ECHR. The court added that civil servants can only be excluded from protections to the right of a fair trial if the state both passes a law expressly barring legal challenges to employment disputes for the post or category of staff in question and is able to justify that exclusion on objective grounds of state interest. In light of this case law, a chief prosecutor’s inability to challenge their dismissal in court would contravene international standards by failing to meet the second criteria of state interest. In sum, a chief prosecutor subject to removal should benefit from fair trial guarantees enshrined in article 6 of the ECHR, as these protections secure the independence of prosecution services and safeguard against abuse of power.

Guarantees under article 6 of the ECHR must include access to a court and a fair trial. In order to protect their independence, the right to a fair trial has been widely recognized by international and European bodies as applicable to decisions affecting the career of prosecutors. During dismissal proceedings, a chief prosecutor should always benefit from a fair hearing before a competent, independent, and impartial judge. In addition to the right to a fair hearing, the right to a fair trial also encompasses the right to access to court, the right to adversarial proceedings, and equality of arms.

Chief prosecutors have the right to an effective remedy under article 13 of the ECHR. Article 13 grants any individual the right to claim an effective remedy before a national authority for arguable claims that one or more of their rights set out in the convention have been violated. The remedy must be accessible, capable of providing redress in respect of the applicant’s complaint, and offer reasonable prospects of success. According to international standards governing prosecutorial independence, disciplinary and dismissal proceedings against public prosecutors should be governed by law and guarantee a fair and objective evaluation of the case. Any decision to discipline or dismiss should be subject to independent and impartial review.