Transparency International Romania: A Firm NO to Transferring Information from Judicial Case Files to the Executive Power

Bucharest,

September 3, 2024

Transparency International Romania takes note with concern that the executive power is leaning towards gravely threatening the independence of the judiciary and the confidentiality of court case files. This is being done through an initiative to centralize the transfer of data and information from the courts to the Ministry of Justice's ECRIS IT system. Even in principle, such a concept is unacceptable in a democratic state.

The justification offered by the Ministry of Justice representatives, namely that funding is ensured through the project sheet " Development of the ECRIS V Case Management Electronic System" (cod SMIS 142520/ SIPOCA 871) for developing centralized IT solutions via the ministry's services, cannot hold. Both the reform objective and the funding could be centralized under either the High Court of Cassation and Justice or the Superior Council of Magistracy, as these aspects do not fall into the category of non-negotiable elements under PNRR or POCA.

The Ministry of Justice has the option to modify the project sheet through an agreement and specify the handover of this system to the Superior Council of Magistracy or the High Court of Cassation and Justice. The funding justification can never override the constitutional rule of law and the guarantees of judicial independence as established by the Romanian Constitution, the Constitutional Court's jurisprudence, and the decisions of the Superior Council of Magistracy Plenum.

Moreover, it can be observed that, within the European Union, the IT systems of the courts are under their management, not under the management of governments. This ensures that data and information related to the cases pending before the courts cannot, under any circumstances, fall under the influence or control of the executive power.

We inform the public that the ECRIS IT system encompasses all case files pending before the courts. This includes all documents submitted to the case, all hearing records, the evidence administered, as well as draft documents prepared by the judicial panels regarding proposed rulings.The public must be aware that the ECRIS interface viewed by judges also includes draft rulings that have not yet been approved or discussed for issuance in collegial panels. These drafts represent only the preliminary versions written by the judge tasked with preparing the ruling. In criminal cases, the risks are even more severe, given that decisions are delivered simultaneously with their reasoning. This means that a document intended to become a judicial ruling could potentially be accessed by representatives of the executive power before it is finalized and formally issued as a decision.

Another critical aspect is that the National Anti-Corruption Strategy (SNA) identifies the management of information and informational resources at the level of public authorities and institutions as one of the risk factors for determining sensitive positions. This reasoning unequivocally demonstrates that the administrator of IT systems has the capability to access these systems at any time.

Since 2020, when the Ministry of Justice, through its draft justice laws, requested the Superior Council of Magistracy (CSM) to take on the responsibility for personal data protection at the level of judicial courts, the CSM Plenum debated either rejecting this provision or transferring the IT system's management. Therefore, any security flaws or IT risks regarding the accidental disclosure of personal data must be the responsibility of the entity managing the system.

Such a situation, especially when viewed in the context of sensitive issues that, in Romania's more distant or recent past, have undermined public trust in state institutions,including cooperation protocols with intelligence services, highlights the potential vulnerabilities and their significant gravity. A measure aimed at improving the efficiency and modernization of the judicial system must ultimately enhance citizens' confidence in the Romanian state's ability to function democratically and equitably. It must leave no room for doubt regarding the separation of powers in the state.

It must also be noted that the guarantees communicated by the Ministry of Justice, stating that it "does not intend to access the respective data" and that "the integrity of the personnel within the ministry's specialized directorate cannot be questioned," are irrelevant in the context of discussing risks. This is because risks, by their nature, represent potential situations that could occur.The Ministry of Justice's word of honor cannot stand against the constitutional rule of law, particularly the provisions regarding the separation of powers in the state.

In conclusion, Transparency International Romania supports the initiatives of Romanian institutions aimed at modernizing and digitizing  IT systems and public service platforms. However, this must not come at the expense of the separation of powers, nor should it undermine the operational and functional independence of judicial courts.

Transparency International Romania urges the Ministry of Justice to make public the structure of the ECRIS V interface, enabling the public to directly assess the risks referenced in the arguments above. Additionally, Transparency International Romania requests that the Ministry of Justice publish a firm timeline and the measures undertaken for the complete transfer of the ECRIS V system, including its data and the management of information related to court cases, to the Superior Council of Magistracy or the High Court of Cassation and Justice.