1. Introduction

In Romania, the amendments made to the Criminal Code and Criminal Procedure Code, despite numerous calls of the Romanian magistrates and European and international organisations addressed in all the possible forms, in hundreds of latest actions, seem to leave perplex the entire civilized world.

They were adopted under emergency proceedings, without an actual dialogue with the relevant actors, without serious impact studies or the involvement of all the technical experts that could have provided support during the action, mainly the international ones.

Otherwise, a notice from Venice Commission requested by the Parliamentary Assembly of the Council of Europe is expected during the second fortnight of October 2018, the laws being subject to the control of the Constitutional Court of Romania, which is going to give its ruling within the same period.

We shall provide below the critical aspects concerning the amendments of the Criminal Code and the Criminal Procedure Code adopted by the Romanian Parliament, which are reasoned by the lawmaker as necessary for concordance with the decisions of the Constitutional Court, Directive 2016/343/EU of the European Parliament and Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, but which contravene to the rule of law.

Contrary to the generally undertaken goal, the individual situation of the President of the Romanian Senate criminally charged by the High Court of Cassation and Justice is mentioned in the initial form of the explanatory memorandum of one of the concerned projects: “a concrete case which illustrates these aspects is the one made public, that of the current President of the Senate, former Prime Minister, candidate for the presidency of Romania, who had been intercepted almost all the time from 2008 until 2014 (…), even though he was not charged for any offence resulted from those interceptions, but they were used to prove indirect facts in a file of false testimony”.[1] As a result of numerous public remarks which correlated with the amendment of the laws with the settlement of individual issues of the politicians from the majority coalition in the final form of the explanatory memorandum, all those explanations disappeared.[2]

 

2. Aspects regarding the Law for the amendments and supplementation of Law no. 286/2009 on Criminal Code, and also of Law no. 78/2000 for the prevention, discovery and sanctioning of corruption acts

 

2.1. Amendment of the abuse of office offence

In reality, we are dealing with a de factor decriminalisation of this offence provided at Article 297 of the Criminal Code, and the elements introduced by the lawmaker are not related to the constitutionality of the rule: reduction of the punishment at maximum 5 years of imprisonment (from 7 years in the standard form provided at Article 298 of the Criminal Code, and from 14 years in the aggravated form provided at Article 13, index 2 of Law no. 78/2000), and exclusion of the possibility to prohibit rights, like the one of being elected or of occupying the position which facilitated the perpetration of the offence, an aspect which is not included in any decision of the Constitutional Court and it is not justified in any way by the initiator of the law.

The effects which this amendment is going to cause should be regarded, on the one hand, in relation to the periods of limitation and, on the other hand, by reference to the characteristics of the offence and deployment of the criminal trial and to the incidence of other criminal law institutions, like extended confiscation.

The reduction of the punishment has as immediate effect the calculation of the period of limitation considering a different category of offences regarded by the lawmaker as being less serious, a five year limitation period being applicable and possible to extend to seven years and six months, if the criminal investigation of a person is initiated in the case. By comparison, the aggravated version currently has a limitation period of ten years, which may be extended up to 20 years, in case of a special limitation. The immediate effect of such amendment shall be represented by the ascertainment of the expiry of the limitation period for the offences which were committed prior to 2011, irrespective of the fact that they are in the criminal investigation phase or trial phase. A similar effect which can be statistically analysed was generated by the amendment of the provisions of Article 215, paragraph (5) of 1968 Criminal Code through a reduction of the punishment from 15 years to five years. The reduction of the punishment, having as consequence the reduction of the periods of limitation of the criminal liability, is not in any way substantiated or deducted from acute and current social needs. On the contrary, the frequent number of such offences and the continuous infringement of the law by persons occupying different public offices do not justify such legislative intervention, which, in addition to the fact that it encourages the violation of the criminal law due to the relaxation of the conditions for incrimination, makes possible the occurrence of another type of abuse committed without any unfair material advantage through which the public and private institutions can be practically stripped.

            The proposed incrimination builds the foundation of an autocratic system, because it does not allow the punishment of forms of abuse of office alien to obtaining patrimonial advantages, consolidating organised crime networks engaged in knowingly stealing the public resources or undermining the Romanian State and the general interests of the society, taking advantage of the insufficient general regulatory framework regarding the national safety of Romania.

            Last, but not least, it should be considered that the abuse of office is usually observed after a longer period of time since its perpetration, whether during controls carried out by administrative authorities or as a result of them being found by the new management of the institution. Therefore, there is the possibility for the judicial authorities to find out about the existence of the offence after 1-5 years as of its perpetration. The actual investigation of the crime until indictment often implies the submission of technical evidence, like the expertise, which can take a long period of time, hearing numerous witnesses, reviewing the deeds, preparing letters rotatory when the funds are outsourced, evidence which is impossible to submit within short periods of time, by complying with the rights of the parties.

The introduction of the qualified purpose as specific element by inserting the collocation “for the purpose of obtaining a material patrimonial advantage” as an element which is not invoked in a decision of the Constitutional Court is not in accordance with the value protected by the concerned rule and has no objective justification, causing a damage being sufficient in order to qualify the wilful misconduct of the officer as offence.

The abuse of office was incriminated in order to ensure the defence of the social relations regarding the compliance with the job tasks in the public institutions, the infringement of the legal provisions by the public officer and damage causing being considered sufficiently serious in order to be within the scope of the criminal law. Making the existence of a crime contingent on obtaining the material patrimonial advantage would cause sanctioning of an offence through which, for example, the officer has obtained RON 50,000.00 (approximately EUR 10,000.00) by infringing the legal provisions and failure to punish an offence through which the officer has wilfully caused a damage of RON 1,000,000.00 (approximately EUR 200,000.00), but he has not obtained any benefit for himself. Moreover, there is the possibility for the public officer to intend to obtain a non-patrimonial advantage by committing the offence, a situation which is excluded by the lawmaker based on the adopted amendment. Given the current incrimination conditions, many of the offences with high degree of social danger shall eschewed by the incidence of the criminal law, in cases when the perpetrator does not act for the purpose of obtaining a material benefit.

The modification of the text infringes the provisions of the UN Convention against corruption adopted at New York on 31 October 2003 and ratified by Romania under Law no. 365/2004. The proposed text also departs from the relevant European template, which makes of the existence of the qualified purpose (of obtaining an undue material advantage) a condition for the aggravation of the criminal liability of the perpetrator so that and from a certain perspective the introduced incrimination conditions determine the further departure from the relevant international policy focused on fighting corruption, which endangers precisely the democracy.

Making contingent the acquirement of the advantage for “himself/herself, spouse, relative or in-law up to 2^nd degree, inclusively) and excluding the most frequent form of abuse, which implies to obtain a material advantage (currently incriminated by Law no. 78/2000) for another person or through the agency of intermediaries, represent aspects that were not sanctioned by the Constitutional Court of Romania. Moreover, the provisions of Article 13, index 2 of Law no. 78/2000, in the form which also punishes the acquirement of an advantage for a third party, were declared constitutional.

The introduction of a condition regarding the subjective position of the perpetrator in relation to the beneficiary of the product of the offence is capable of unjustifiably restrict the area of incidence of the offence by excluding any persons who would have relations based on interests with the perpetrator, other than those who have the capacity of spouse, relative or in-law up to the 2^nd degree, inclusively. Such condition is neither imposed through jurisprudence of the Constitutional Court. nor through the explanatory memorandum, therefore, clearly resulting that the proposed legislative solution is randomly promoted, without taking into account that Romania has undertaken at international level the obligation to sanction such offences even for the benefit of a third party and without considering the fact that, currently, the intrusion of persons in the criminal chain, committing offences by using “straw men” and focusing on the interests of criminal groups which are obviously not connected through family relations are frequent modalities of committing not only the abuse of service, but also of other types of offences, like taking bribe, tax evasion, money laundry etc. This leads to the exclusion from the field of enforcing the criminal law those offences which are within the notion of abuse of office, but which were committed for the benefit of distant relatives, in favour of a business partner, an agreed company, a group of interest or within the interest of a person who is going to reward at a certain time the public officer with cash, without being possible to establish the connection with the offence of abuse.

The form adopted by the lawmaker is the same with the provisions of Article 301 of the Criminal Code which prohibit, without being necessary the infringement of a legal provision, for the officer to take decisions or award contracts to the family members also listed at Article 297 of the Criminal Code. Moreover, the punishment for the two offences has an identical maximum level of five years of imprisonment, and, surprisingly, in case the officer does not infringe the law and the provisions of Article 301 of the Criminal Code applies the prohibition of the rights for a period of three years is mandatory.

In a practical explanation, if a public officer awards a contract to the company managed by his daughter, which manufactures the assets and could enforce the contract and participates in the auction without infringing the law, he could be punished in the same way, but without prohibiting any of his rights.

By modifying the material element from “failure to comply with a deed” into “the refusal to comply with a deed”, there shall be excluded all those situations in which the public officer leaves uncovered a deed which should have been complied with, but he does not express his refusal or such attitude is not requested to him, especially in case the public officer is the manager of the institution, a case in which we could imagine that the number of persons who could request him to express his intention of not complying with the deed is very limited.

The reduction of the periods of limitation for the offences for which the law provides more than 10 years of imprisonment, but less than 20 years of imprisonment, from 10 years to 8 years, is capable of affecting the imputation of liability to the offenders who have committed offences against the financial interests of the European Union resulting in extremely serious consequences.

Under Decision no. 619/2016, the Constitutional Court assessed that the lawmaker has the jurisdiction to incriminate offences which are considered a threat for the social values protected by the Constitution, an expression of the character of the rule of law and democracy, or to decriminalise offences when the necessity of using the criminal means is no longer justified, but it is obvious that his assessment margin is not absolute (please, see Decision no. 2 of 15 January 2014).[3]

Also in the same respect, the Court has pointed out that the assessment margin of the lawmaker, when calling into question the limitation of a constitutional right, in this case Article 23 of the Constitution (Decision no. 603 of 6 October 2015, paragraph 23) or not sanctioning the infringement of social relations which would result in a threat with regard to the rule of law institutions, democracy, human rights, social equity and justice, is limited, being subject to a strict control of the Constitutional Court (Decision no. 2 of 15 January 2014).

Under Decision no. 392/2017 whose separate opinion has not been initially published based on the order of the President of the Constitutional Court, Mr. Valer Dorneanu, the Constitutional Court admitted the exception of unconstitutionality and ascertained that the provisions of Article 248 of 1969 Criminal Code are constitutional to the extent that the collocation “defectively complies with” from these provisions refers to “complies by infringing the law”. In the reasoning it was stated that “the lawmaker is bound to regulate the (financial) value threshold of the damage and the intensity of the damage of the legitimate right or interest resulted from the perpetration of the offence in the content of the criminal rules regarding the offence of abuse of service, its passivity being capable of determining the occurrence of situations of incoherence and instability contrary to the principle of security and legal relations, in its structure concerning the clarity and foreseeability of the law.”

The Constitutional Court of Romania has invoked the Report regarding the relation between the political liability and criminal liability of the members of the Government adopted during the 94^th plenary session of Venice Commission of 11 March 2013, but there are indications regarding an erroneous receipt of the recommendations, because the spokesperson of Venice Commission, Mr. Panos Kakaviatos, replied to a request for clarification of essential aspects upon the initiative of Romanian journalist^[4], stating as follows: «The Report regarding the relation between the political and criminal responsibility of the ministers refers, according to its title, only to the situation of the ministers. (…) It provides: (…) Venice Commission considers that the national criminal provisions regarding the abuse of service, excess of authority and other similar expressions should be interpreted in narrow sense and applied with a high threshold so that they can be invoked in cases where the offence is serious, like, for example, serious crimes against the national democratic processes, infringement of fundamental rights, undermining the impartiality of the public administration etc. (paragraph 102). (…) Therefore, the nature of the offence is decisive, and the threshold which it refers to is in no case a financial one. Moreover, this threshold definitely applies only to the general rules from the criminal law on the abuse of office or excess of authority, and not also to other crimes like corruption, money laundry or abuse of trust».

Without conferring capital value to this clarification originating from the spokesperson of Venice Commission, what can be undoubtedly concluded is that the Romanian Parliament should request, for the rigorousness of the legislative process, a viewpoint of Venice Commission prior to attributing to its recommendation the modification of the criminal policy of Romania, starting from an expression used in a certain context that may be assigned different interpretations.

Thus, the “high threshold” appears to refer to the concrete social danger at a high level in terms of damaging the social (patrimonial or non-patrimonial) values, and not at a minimum financial value which to reflect the abstract social danger of the crime.

2.2. Supplementation of the provisions regarding extended confiscation

 

By introducing Article 112¹, paragraph 2¹ – “(2¹) The decision of the court should be based on certain evidence, beyond any doubt, of which to result the involvement of the convicted person in the criminal activities which generate assets and money.” -, a standard is created for extended confiscation similar to that for conviction, i.e. for special confiscation, in this way limiting the scope of Directive 2014/42/EU of the European Parliament and Council of 3 April 2014 on the freezing and confiscation of the instrumentalities and proceeds of the crime in the European Union.

Paragraph 15 of the Preamble of Directive 2014/42/EU imposes the special confiscation in a separate way and under other conditions, in relation to the extended confiscation, stating that “it should be possible, provided that a definitive sentence of conviction for a crime is given” – an institution which corresponds in the national law to the provisions of Article 112 of the Criminal Code and to the similar provisions of the special legislation on the special confiscation. With regard to extended confiscation, paragraph 21 expressly stipulates that it should be possible in case a court considers that the concerned assets are the result of criminal activities. This does not mean that it should be ascertained that the concerned assets are the result of criminal activities. For example, the member states may provide that it is sufficient for the court to evaluate, based on the probabilities, or to reasonably presume that it is significantly more probable for the concerned assets to have been obtained as a result of criminal activities than of other activities. The court should review the specific circumstances of the case, including the available offences and evidences based on which a decision could be taken with regard to confiscation. Moreover, Article 5, paragraph (1) of the directive provides that “the member states adopt the necessary measures in order to allow full or partial confiscation of the assets of a person convicted as a result of committing a crime which is susceptible of directly or indirectly generating economic benefits when, based on the case circumstances, including on de facto elements and available evidence, like the fact that the value of the assets is disproportionate in relation to the legal income of the convicted person, a court considers that the concerned assets resulted from criminal activities.”

2.3. Amendment of the criminal law principle according to which the discontinuation of the course of the limitation should cause effects in relation to all the participants to the committal of a crime. Significant reduction of the duration of the special limitation period

Article 155, paragraph (2) of the Criminal Code was amended in the sense that “[a]fter each discontinuation, a new limitation period starts to elapse in relation to the person in favour of whom the limitation period starts to elapse as of the moment when the procedural document is communicated.”

Thus, this effect shall be limited only to the person in relation to which the a procedural document was communicated, a fact which infringes the principle of equal rights, considering that two persons in similar situations (for example, co-authors of a crime) may be subject to different legal consequences, if the judicial body of criminal investigation or the law court communicated a procedural document only to one of them. In jurisprudence, it was ascertained that there is not always that all the participants in committing a crime are known, especially when they are instigators or final beneficiaries of the benefit of the crime. The proposed provision is capable of favouring precisely these participants who are whether the abettors of the crime or the beneficiaries of the crime, often showing a high degree of social danger in relation to the other partners.

Moreover, the amendment enforced through paragraph (3) of paragraph 155 of the Criminal Code significantly reduces the duration of the special limitation period, at the same time with the reduction of the general limitation periods and the punishment limits for some of the categories of crime. The effect of this amendment consists in the fact that numerous persons who have committed crimes shall not be held criminally liable, in this way affecting the constitutional balance between the rights of the persons suspected of committing crimes and the general interests of the society.

2.4. Obligation to enforce the decision of the Constitutional Court as a more favourable criminal law

Article 173 of the Criminal Code was supplemented with four new paragraphs, i.e. paragraphs (2) – (5), having the following content: “(2) The decisions of the Constitutional Court which have general mandatory character are also assimilated to the law in accordance with paragraph (1). (3) The obligation of enforcing the decisions of the Constitutional Court as a more favourable criminal law, provided at paragraph (2) refers to both their operative part and considerations. (4) The execution of the punishments, educative measures and safety measures established under the law subjected to the control of constitutionality provided at paragraph (2), and also all the criminal consequences of the court decisions regarding these offences are reviewed ex officio, in an urgent manner, within maximum 15 days as of their publishing in the Official Gazette of Romania, Part I. (5) The review provided at paragraph (4) shall be done also at the request of the convicted person, who may submit the request at any time.”

But these provisions infringe Article 147, paragraph (4) of the Romanian Constitution, which, with regard to the decisions of the Constitutional Court, enshrine that “as of the publishing date, the decisions are generally mandatory and they are valid only for the future.” Practically, the decisions of the Constitutional Court are transformed into laws, which can whether retro-activate or ultra-activate, also being possible for them to represent grounds in choosing a decision as a more favourable criminal law in a given case. But the decisions of the Constitutional Court may be assimilated to laws and they may not acquire retroactive character.[5]

 

2.5. Partial decriminalisation of such offences which are provided as crimes of corruption or office when they are committed by a public officer or in relation to such officer

The abrogation of Article 175, paragraph (2) of the Criminal Code (“within the meaning of the criminal law, the person who exercises a service of public interest for which he/she was vested by the public authorities or who is subject to their control or supervision with regard to the compliance of the respective public service is considered public officer”) has as effect the decriminalisation of the offences committed by or towards these persons by the officer, and contravenes to the obligations resulting from Chapter III of UN Convention against corruption by reference to the definition of the “public agent” from Article 2 of the Convention.

Under Decision no. 2/2014, the Constitutional Court of Romania has established that the Romanian legislation on fight against corruption and abuse of office committed by public officers is compliant with the requirements of the relevant international regulations, which, according to the provisions of Article 11, paragraph (2) of the Constitution, upon ratification, they become part of the domestic law. Notions like “public agent”/”member of the national public meetings”/”national officer”/”public officer” have correspondents in the valid Romanian criminal legislation in the notions of “public officer” and “officer”.”

This legislative amendment also contravenes to Directive 1371/2017/EU regarding the fight against frauds directed against the financial interests of the Union by means of criminal law, which, at point 10 of the explanatory memorandum states that “with regard to the crimes of passive corruption and misappropriation, it is necessary to introduce a definition of the public officers which to contain all the relevant officers irrespective of the fact that they occupy an official position in the Union, in the member states or third party countries. The natural persons are increasingly involved in managing EU funds. In order to adequately protect EU funds against corruption and misappropriation, it is necessary for the definition of the “public officer” to include persons who do not occupy an official position, but who were entrusted and similarly exercise a public service function with regard to EU funds, like the contractors involved in the management of such funds.” Moreover, Article 4, paragraph (2), letter b) of the Directive states that “within the meaning of this directive, public officer means: “any other person who was entrusted and exercises a public office function which involves the management of the financial interest of the European Union in member states or third party countries, or taking decisions concerning them.”

2.6. Encouragement of the criminal phenomenon by conditions for not punishing the briber  

According to the newly introduced provisions, Article 290, paragraph (3), shall have the following content: “(3) The briber is not punished, if it denounces the offence prior to the notification of criminal investigation body in this respect, but no later than 1 year as of the date of its committal.”

The valid for imposes a single conditions for not punishing the briber: the circumstance in which the offence is denounced by the briber before the notification of the criminal investigation body with regard to the deed of bribery. There cannot be any reasonable and proportional justification to protect those persons who were bribed by guaranteeing the fact that, after one year, they shall no longer be held criminally liable. The requirement according to which the denunciation should be submitted within one year as of committing the bribery offence infringes the provisions of Article 1, paragraph (3) of the Constitution regarding the rule of law, which impose to the lawmaker to adopt criminal policy measures so as to defend the public order and safety by adopting the necessary instrumentalities for the purpose of decreasing the criminal phenomenon, with the exclusion of any regulations capable of encouraging this phenomenon.

2.7. Trade in influence. Unjustified removal of many activities from the sphere of criminal illegality

Article 291, paragraph (1), was amended as follows: “(1) Claiming, receiving or accepting promise of money or other material favours, whether directly or indirectly, for himself or others, committed by a person who has influence or suggests that has an influence on a public officer and promises that he shall determine him/her, a promise followed by the intervention to that officer in order to determine him/her to comply, not to comply or to expedite or delay the compliance with a deed which falls within his/her job tasks or to comply with a deed contrary to such tasks, shall be punished with 2 to 7 years of imprisonment.”

Therefore, the possibility to obtain non-material favours which could take various forms is legislated, and, therefore, as a result of the new regulation, multiple activities are unjustifiably removed from the sphere of criminal illegality (granting a title or a distinction, promotion in career offering an eligible position on the lists of candidatures of a party in case of local or parliamentary elections etc.). The introduction of the condition for the promise to be followed by the intervention to the public officer contravene to the obligations undertaken based on the ratification of the Criminal Convention of the Council of Europe on corruption with regard to the incrimination of the trade in influence (please, see Article 12 of the Convention – the states should adopt legislative measures in order to provide as offence “irrespective of the fact that the influence is exercised or not, or the alleged influence determines or not the desired result”).

3. Aspects regarding the Law for the amendment and supplementation of the Law no. 135/2010 on the Criminal Procedure Code, and also for the amendment and supplementation of the Law no. 304/2004 on judicial organisation

 

3.1. Right of the defendant to be notified with regard to the date and time of carrying out the criminal investigation or hearing by the justice of the peace. Possibility acknowledged to the suspect or defendant to participate in any criminal investigation or hearing, upon his request

The introduction, in this respect, of letter b¹) in Article 83 of the Criminal Procedure Code implies that all criminal investigation activity – including hearing of the injured parties, civil parties, carrying out searches or other deeds – shall be performed in the presence of the defendant. In this way, all the elementary principles of a criminal investigation prior to the trial are contradicted, transforming the criminal investigation activity in a public activity lacking any confidentiality. For example, the prosecutor shall notify the defendant with regard to the fact that he shall do a search at the domicile of another defendant or person, without any guarantee of keeping the confidentiality.

On October 12, 2018, The Constitutional Court declared only the final formulation unconstitutional, which means the part with the announcement of the conduct of the criminal investigation remained. If the final thesis there is the phrase “absence does not prevent the act”, ”per a contrario we understand that the absence prevents the act from being performed. So the investigator expects the defendant to come and come in for a hearing or research on the spot? Until now, prosecutors have announced the lawyer, not the defendant. Tell him to participate? Or, how can the rapist participate in the hearing of the victim ?!” Some of the constitutionally validated articles might be negative in practice. A recording done by a witness to a conversation carried out by a defendant with another person in a private place cannot be used in the criminal proceedings because the witness is neither a party nor a principal procedural subject”.[6]

At the same time, the amendment of Article 92, paragraph (2) of the Criminal Procedure Code regarding the possibility acknowledged to the suspect or defendant to participate in carrying out any criminal investigation or hearing upon his request is capable of indirectly limiting the right of the injured person/injured party to participate in the judicial proceedings, who, under these conditions, may opt for waiving any procedural right for this consideration, the right of the suspect or defendant to assist, including to listen to it being enshrined without any restriction. Therefore, provided that the parties have no proportionate rights, the principle of equality of arms, a guarantee of the right to a fair trial provided at Article 21, paragraph (3) of the Romanian Constitution, is infringed.

The proposed amendments infringe Directive 2012/29/EU of the European Parliament and Council of 25 October 2012 of establishing minimum rules regarding the rights, support and protection of the victims of criminality, and of replacing the framework Decision no. 2001/220/JAI of the Council. This Directive enforces for the member states the obligation to regulate (an obligation which results from the mandatory character of directive transposition) the criminal proceedings so that “to avoid the contact between the victim and the members of his/her family, on the one hand, and the author of the crime, on the other hand”. An increasing number of measures should be made available to the practitioners in order to prevent the sufferance of the victims during the judicial proceedings, especially as a result of the visual contact with the author of the crime, with the members of his/her family, with his/her partners or the persons from the audience.

Most of the courts and prosecutor’s offices from Romania do not have the infrastructure which to allow the separate circuit of the victims and authors of the crime or of their family members or separate waiting rooms or special premises for hearing the vulnerable victims/witnesses or the necessary equipment for hearing through audio and video means, and also other structure elements of the building in which the prosecutor’s office or the court operates in order to technically equip them so that the enforcement of measures for the protection of the victims not to be illusory in case the presence of the defendant cannot be limited under the decision of the judicial body as compared to the formulation of the criticized text. In its economy, the text practically excludes the decision of the judicial body, the procedure to be followed exclusively depending on the manifestation of will of the procedural parties/subjects, the presence of the defendant being mandatory to the hearing of the victim/witness, even though vulnerable, in case of the expressly manifested option in the case of the defendant/suspect (“request”), while the option of the victim/witness is deducted from the lack of express manifestation of the request to receive a statute of threatened or protected person.

3.2. Adoption of the absolute criterion “beyond any doubt”. Extension of the standard of evaluation of the submitted evidence from a “rational doubt” to an irrational doubt

The amendment of the provisions of Article 103, paragraphs (2) and (3) of the Criminal Code, in the sense that the conviction is ordered only when the court is convinced that the accusation was proven beyond any doubt, infringes Article 124, paragraph (1) of the Romanian Constitution with regard to the application of justice.

The Constitutional Court of Romania has stated that the collocation “beyond any reasonable doubt” confers to the criminal procedure an equitable character, because, beyond the fact that, according to Article 4, paragraph (2) of the Criminal Procedure Code, any doubt in forming the conviction of the judicial bodies is interpreted in favour of the suspect/defendant, the principle of free assessment of the evidence not being absolute, but limited by the existence of compensating means which to ensure a sufficient balance between accusation and defence.

The concept of reasonable doubt is of European-jurisprudence nature, the meaning being found, for example, in the Decision of 11 July 2006 delivered by the European Court of Human Rights in the case Boicenco versus Moldova Republic (paragraph 104), according to which the standard of proof “beyond a reasonable doubt” allows its deduction also from the coexistence of sufficiently grounded, clear and consistent conclusions or similar and incontestable presumptions of fact.”

3.3. Exclusion from evidence of the recordings made by persons, other than those expressly and strictly provided by the law

Article 139, paragraph (3) of the Criminal Procedure Code provides as follows: “The recordings provided in this chapter and made by the parties and the main procedural subjects represent means of evidence when they concern own conversations or communications with third parties.”

Thus, by limiting the recordings made only by parties and main procedural subjects, the recordings made by persons, other than those expressly and strictly provided by the law, are excluded. For example, if a person films the moment when another person receives an undue favour, that video may not be used as evidence, because the video is made by one of the parties to the file.

3.4. Obligation to communicate and allow to all the persons who were incidentally recorded, even though they do not have procedural capacity, to have access to recordings

The new regulation of paragraph (1) and (2) of Article 145 of the Criminal Procedure Code enforces procedural rights for the persons who have no procedural capacity in a judicial proceeding in progress, like the right to listen to his/her own interceptions and to watch the recordings. This provision could become impossible to enforce in case it is not possible to identify third parties, because they use PrePay cards.

3.5. The interceptions obtained based on national safety warrants already submitted as evidence in the files in progress can no longer be used

A new article is introduced in the Criminal Procedure Code, i.e. Article 145¹, which, at paragraph (4), provides as follows: “If, according to the data and information obtained based on the technical monitoring warrants, grounded evidence or indications with regard to the perpetration of a crime other than those provided at paragraph (2), the data and information shall be submitted to the prosecutor who may proceed according to Articles 140 and 141, which shall be adequately applied.”

The rule infringes the constitutional principle of the legal activity, provided that it stipulates that the interceptions obtained based on national safety warrants and already submitted as evidence in the files in progress may no longer be used as a result of enforcing the new law. According to Article 15, paragraph (2) of the Constitution, the law orders only for the future, and the only exception from this principle is the more favourable criminal law. Therefore, a new law can exclude the use of means of evidence submitted by complying with the valid law upon carrying out the procedural deed. On the other hand, the provisions of Article 145¹, paragraph (1) of the Criminal Procedure Code, which restricts the use as evidence of the interceptions obtained based on national safety warrants, could affect the principle of legality of the criminal trial, considering that it excludes the possibility of proving serious crimes, like the offences perpetrated with violence.

3.6. Introduction of a maximum limit of one year during which the criminal investigation bodies are bound to order the initiation of the criminal investigation with regard to a person or to close the case

Under the new regulation, Article 305 of the Criminal Procedure Code is supplemented in the sense that, after paragraph (1), a new paragraph, i.e. paragraph (1¹), is introduced, having the following content: “(1¹) In the other situations, other than those mentioned at paragraph (1), the criminal investigation body orders the initiation of the criminal investigation with regard to the offence. Within maximum one year as of the date of initiating the criminal investigation with regard to the offence, the criminal investigation body is bound whether to proceed with the criminal investigation with regard to the person, if the legal conditions to order such measure are complied with, or to clause the case.”

The introduction of a maximum one year limit, during which the criminal investigation bodies are bound to order “the initiation of the criminal investigation with regard to the person” or to close the case, seriously affects the possibility for the criminal investigation bodies to investigate the serious crimes whose complexity does not allow the collection of all the evidence necessary to prove the guilt during this interval.

There are numerous situations in which the authors of extremely serious crimes were not identified within one year as of the initiation of the investigations. Closing the case in this situation eliminates the possibility of continuing the investigations and, practically, eliminates the fundamental right of the party injured by the crime to obtain the criminal liability of the author and the repair of the prejudice, this being equal to the denial of the obligation of the state to carry out an actual investigation precisely with regard to the crimes which affect the most important social values protected by the law, with the consequence of also infringing the provisions of Article 1, paragraph (3) of the Romanian Constitution.

The new regulation also infringes the provisions of Article 22 of the Romanian Constitution, because the state shall no longer guarantee an actual protection of the right to life, the right of physical and psychical integrity of the person.

 

3.7. Possibility of declaring the appeal in cassation only in favour of the convicted

The provision included in Article 438, paragraph (1¹) of the Criminal Procedure Code contravenes to the provisions of Article 16 of the Romanian Constitution by excluding the possibility of invoking also in favour of the other parties of the regulated motifs, being capable of causing a discrimination between them in the absence of an objective and reasonable justification. On one hand, the provision is capable of defeating the equal rights with regard to the access to justice, and, on the other hand, of transforming the appeal in cassation into ordinary means of appeal, causing an unjustified overlapping with the provisions regarding the appeal.

 

3.8. A new case of revision: not signing the decision of conviction by the judge who participated in solving the case

Article 453, paragraph (1) of the Criminal Procedure Code was supplemented with letter g), which provides as motif for revision “the failure to draw-up and/or sign the decision of conviction by the judge who participated in solving the case.”

The case of revision introduced under Article 453, paragraph (1), letter g) of the Criminal Procedure Code is not equivalent to a “judicial error”, which to justify a derogation from the principle of security of legal relations by denying res judicata authority of a definitive court decision.

The regulation of a case of revision for a reason other than that of correcting the errors in fact or in law and the judicial errors from a definitive court decision is an infringement of the provisions of Article 1, paragraph 5, of the Romanian Constitution, and Article 20 of the Romanian Constitution by reference to Article 6, paragraph 1 of the European Convention of Human Rights, in their content regarding the security of the legal relations, and of Article 124, paragraph 1 of the Romanian Constitution regarding the application of justice.

The definitive character of a court decision determines a positive effect, i.e. res judicata power. Moreover, also as result of delivering a definitive ruling, a negative effect is caused in the sense that a new investigation and trial is hindered for the solved complaints and offences, a fact which has enshrined non bis in idem rule known under the name of res judicata authority.” Therefore, the superior courts should use their right of reformation only to correct the errors in fact and in law, and the judicial errors, and not so as to proceed with a new case review.

The affectation of the case by the national legislation should be limited, being necessary for this principle to be derogated only in required based on substantial and imperious motifs (European Court of Human Rights, the decision of 7 July 2009, case Stanca Popescu versus Romania, paragraph 99, and the decision of 24 July 2003, case Ryabykh versus Russia, paragraph 52).

4. Conclusions

On October 12, the Constitutional Court rejected 64 of the 96 changes to the Criminal Procedure Code. Only 32 of the amendments passed the Constitutional Court’s examination, according to a press release. The decision is not motivated and published.

The rejected amendments include: the annulment of evidence obtained illegally, the disposition that a judge should rule a conviction only when the court believes that the charge has been proven beyond any reasonable doubt, the disposition that a defendant should be convicted exclusively for the charges on which he was sent to court, preventing searches if the investigators don’t mention what or who they are looking for, the obligation to erase the electronic data that are not connected to the investigated crime and the possibility of cancelling a final sentence if one of the judges who issued it didn’t sign it.

Changes that passed the Constitutional Court’s say that: public communication related to criminal cases during the prosecution and judgement phases is forbidden; a person can’t be convicted exclusively based on denouncements, without other evidence; a person can’t be arrested based on general and abstract arguments, the effective threat needs to be proven; denouncers get lower sentences only if they make the denouncement in maximum one year from the moment they found about the crime.[7]

The law for changing the Criminal Procedure Code must now return to the Parliament for review.

The amendments adopted by the Romanian Parliament is at an extraordinary speed[8] exceed the desiderate stated by the representative of the legislative, that of not doing more than an agreement between the legal provisions and the decisions of the Constitutional Court and Directive 2016/343/EU, passing within an area of analyses of opportunity from the viewpoint of the state criminal policy, which means a careful pondering with regard to the necessity of actually protecting the social values considered by the antisocial offence perpetrated by the public officers, i.e. protection of the integrity of the public patrimony.

A radical change of the optics of the lawmaker with regard to the criminal liability of the public officer should be the result of a serious debate in the legal environment and society in order to avoid any possible negative consequences, like making vulnerable the social relations which should be grounded on the faith in the activity of the public officers, in no way determined by infringing he provisions of UN Convention against Corruption adopted at New York on 31 October 2003. 

With regard to the Criminal Code, the modification of the offence of abuse of office or supplementation of the provisions on extended confiscation raises issues related to the compliance with international obligations. The amendment of the criminal law principle, according to which the discontinuation of the course of limitation should cause effects towards all participants in committing a crime, and the significant decrease of the special limitation period, causes the impossibility of holding criminally liable numerous persons who committed crimes, affecting the constitutional balance between the rights of the persons suspected of committing crimes and the general interests of the society.

The obligation to enforce the decisions of the Constitutional Court as a more favourable criminal law, partial decriminalisation of those offences which are provided as crimes of corruption and office when they are perpetrated by a public officer or towards such officer, i.e. encouraging the criminal phenomenon by conditions for not sanctioning the briber or by unjustifiably removing several activities from the sphere of criminal illegality, in case of trade in influence, are harmful aspects included in the regulations newly inserted in the Criminal Code.

With regard to the Criminal Procedure Code, the right of the defendant to be notified with regard to the date and time of the criminal investigation or hearing done by the justice of peace, the possibility acknowledged to the suspect or defendant of participating in any criminal investigation or hearing, upon his/her request, and the extension of the standard of assessment of the submitted evidence from a “rational doubt” to an irrational doubt shall have negative effects on the criminal process the same as the exclusion from the evidence of the recordings made by persons other than those expressly and strictly provided by the law, or the obligation to communicate and to allow to all the persons who were incidentally recorded, even though they do not have a procedural capacity, to have access to recordings,

The interceptions obtained based on national safety warrants and already submitted as evidence in the files in progress shall no longer be used, and the enforcement of a maximum one year limit during which the criminal investigation bodies are bound to order the initiation of the criminal investigation with regard to the person or to close the case, shall determine the closure of millions of cases.[9]

The possibility of declaring the hearing in cassation only in favour of the convicted and the regulation of a new case of revision, i.e. not signing the decision to convict the judge who participating in solving the case, are to be considered with unconstitutional effects.

Therefore, in Romania it shall be possible to misappropriate the funds of the public budget, but also the funds originating from the European Union, without any of such offences to continue to be criminally punished, and the judicial cooperation in criminal field with EU member states shall be affected.

With regard to the public context in which these new provisions were regulated, we remind that, on 9 July 2018, the protest organised by the Social Democratic Party (PSD) called “Stop the judiciary abuses” took place, an occasion when Romanian politicians of first rank (President of the Senate, President of the Chamber of Deputies, Prime Minister) expressed messages expressly focused on judiciary, with the disclosed reasoning that the political power should have precedence over the independence of the “unreformed” institutions, the call for ceasing the so-called “abuses” representing only a form of pressure on the magistrates who work on criminal files, precisely during the deliberation phase, which represents an extremely dangerous precedent.

The harshness of the political speech, starting with the classification of the magistrates in generalizing allegations as “corrupt”, “Stalinist”, “secret police officers”, “torturers”, culminating with the absolutely unacceptable name of “rats”, is an extremely serious deviation from the principles of democracy, and the entire “scenario” of the political protest, the “props” used and the so-called “will of the people” so that “those elected” to be avoided by the legal means of being held criminally liable, associated with the declaration of “street fight” “until the end” shapes the image of a serious threat for the independence of judiciary.

All these aspects are not specific to a rule of law, and they should be regarded together with the amendments to the laws of judiciary (court organisation, statute of judges and prosecutors, operation of the Superior Council of Magistracy) without impact studies and forecasts, ignoring the notices or recommendations from the European or international bodies which that state participates in (Venice Commission, GRECO), but also with the actual dismissal of the magistrates who occupy positions at the top of magistracy (please, see the case of Laura Codruta Kovesi), based on the simple will of a politician, albeit the Minister of Justice.

The notice from Venice Commission of 13 July 218 is clarifying for the compliance with the standards of the rule of law in Romania in many aspects regarding the amendments to the laws of judiciary, and it cannot be endlessly disregarded, the recent public developments seriously endangering the independence of the justice and the evolution of Romania in the European Union and the Council of Europe, as the European Commission and GRECO have previously ascertained.

According to Article 11 of the Romanian Constitution, Romania undertakes to rightfully comply in good faith with its obligations under the treaties which it is part of. The treaties ratified by the Parliament according to the law are part of the domestic law. Romania has accessed the European Council (EC) as a result of the decision of 4 October 1993 enforced under the Resolution no. 37/1993 of EC Committee of Ministers.

Therefore, according to the Notice of Venice Commission of 13 July 2018, the legislative and executive from Romania are bound to immediately rethink the system of appointing/dismissing the prosecutors occupying top management positions in order to provide the conditions for a neutral and objective appointment/dismissal process by maintaining the role of some of the authorities, like the President and the Superior Council of Magistracy, capable of counterbalancing the influence of the Minister of Justice.

The legislative and executive should eliminate the limitations proposed with regard to the freedom of expression of the judges and prosecutors, and review the provisions regarding the material liability of magistrates, modifying the mechanisms of carrying out the regress.

It is necessary for the legislative and executive from Romania to review the establishment of a separate prosecutor’s office structure for the investigation of the crimes committed by judges and prosecutors and to give up the mechanism proposed for anticipated retirement (the Romanian judges and prosecutors shall be allowed to retire even at the age of 42-43, with 20 years of actual seniority on such positions), if it cannot be guaranteed that it shall have no adverse effect on the operation of the judicial system.

Finally, it is also reminded that Romania delays the ratification of Protocol no. 16 to the Convention on the defence of human rights and fundamental freedoms, whose text was adopted by the Committee of the Ministers on 10 July 2013, and it was opened for signing on 2 October 2013 at Strasbourg, providing the possibility for the highest jurisdictions of the contracting parties to request an advisory opinion to the European Court of Human Rights when it assesses that a certain case on their dockets raises a serious issue regarding the interpretation or enforcement of the Convention or its protocols.

Judge Dragoş Călin, Bucharest Court of Appeal, co-president

Judge Anca Codreanu, Brașov Tribunal, co-president

[1] For more details, please see http://media.hotnews.ro/media_server1/document-2018-04-18-22400602-0-expunere-motive-psd-modificare-cpp.pdf [last time consulted on 7 October 2018].

[2] Please, go at http://www.cdep.ro/proiecte/2018/300/70/3/em373.pdf [last time consulted on 7 October 2018].

[3] Thus, the criminal policy measures should be promoted by complying with the values, exigencies and principles enshrined based on the Constitution and expressly and unequivocally undertaken by the Parliament. Therefore, the Constitutional Court continuously emphasizes in its decisions the fact that “incrimination/decriminalisation of offences or reconfiguration of constitutive elements of a crime is related to the lawmaker assessment margin, a margin which is not absolute, being limited by the constitutional principles, values and exigencies” (Decision no. 683 of 19 November 2014 published in the Official Gazette of Romania, Part I, no. 47 of 20 January 2015, paragraph 16, and ad similis, Decision no. 54 of 24 February 2015 published in the Official Gazette of Romania, Part I, no. 257 of 17 April 2015). Also in this respect, the Court has pointed out that the assessment margin of the lawmaker, when calling into question the limitation of a constitutional right, in this case Article 23 of the Constitution (Decision no. 603 of 6 October 2015, paragraph 23) or not sanctioning the infringement of social relations which would allegedly result in a threat with regard to the rule of law institutions, democracy, human rights, social equity and justice, is limited, being subject to a strict control of the Constitutional Court (Decision no. 2 of 15 January 2014.

[4] Liviu Avram, “Adevărul” Newspaper of 24 September 2017, Venice Commission: “In no case there is a financial threshold for the abuse of office”, please, go at http://adevarul.ro/news/politica/comisia-venetia-In-niciun-caz-nu-e-vorba-pragfinanciar-abuzul-serviciu-1_59c7b6035ab6550cb87c4d6d/index.html [last time consulted on 7 October 2018].

[5] With regard to the law non-retroactivity principle, under Decision no. 126/2016, the Constitutional Court established that it is valid for any law irrespective of its field of regulation, the only exception allowed by the Constitution being the more favourable criminal or contravention law.

[6] See Experts: What are the harmful changes to the Code of Criminal Procedure that have passed the Constitutional Court filter, or have not been challenged before the Court,  https://www.g4media.ro/experts-what-are-the-harmful-changes-to-the-code-of-criminal-procedure-that-have-passed-the-constitutional-court-filter-or-have-not-been-challenged-before-the-court.html  [last time consulted on 16 October 2018].

[7] See Experts: What are the harmful changes to the Code of Criminal Procedure that have passed the Constitutional Court filter, or have not been challenged before the Court,  https://www.g4media.ro/experts-what-are-the-harmful-changes-to-the-code-of-criminal-procedure-that-have-passed-the-constitutional-court-filter-or-have-not-been-challenged-before-the-court.html  [last time consulted on 16 October 2018].

[8] By joking a little, Napoleon, Justinian or Hammurabi, the greatest lawmakers of all time, were surpassed by the working pace and efficiency of the Parliamentary Commission.

[9] Bucharest Police communicated to Ziare.com the number of files with unknown author older than one year existing on 1 September 2018 on the dockets of the divisions from Bucharest: 103,931 files for stealing, 109 files for rape, 3,912 files for robbery, 38 files for murder, 25 files for attempt of murder, 6 files for robbery followed by the death of the victim and 6 files for hitting or deadly injuries. All these files are to be automatically closed as a result of enforcing the new legislative amendments. For more details, please, go at http://www.ziare.com/stiri/justitie/exclusiv-cifre-oficiale-sute-de-mii-de-criminali-talhari-hoti-violatori-vor-scapa-ca-urmare-a-deciziei-psd-alde-1528278 [last time consulted on 7 October 2018]. Bucharest population accounts for approximately 10% of the population of Romania.

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