IMPARȚIALITATE·INTEGRITATE·EFICIENȚĂ
January, 18th, 2017
No. 36/VIII/3
Press Release
In connection with the proposed amendments and completions to the Criminal Code and to the Criminal Procedure Code, as well as with the pardoning of some punishments, by passing two Government Emergency ordinances, the stand taken by the National Anticorruption Directorate is that the amendment of the legislative framework following emergency procedures and without conducting objective analysis which could certify a stringent social need, is unjustified.
The criminal legislation must balance the society’s need of holding criminally liable all those who commit offences and the fundamental rights of those under investigation or executing punishments ruled by courts. However, the proposed amendments would alter this balance.
Following an initial analysis of the above mentioned draft bills, we state as follows:
AMENDMENTS TO THE CRIMINAL CODE AND TO THE CRIMINAL PROCEDURE CODE
1. Regarding the offence of abuse of office:
- the offences of abuse of office causing a damage lower than LEI 200,000 (€44,464) are decriminalized. This threshold of LEI 200,000 is not connected in any way with the decision ruled by the Constitutional Court of Romania regarding this offence, even though the explanatory memorandum mentions this aspect. This threshold has been arbitrarily set, without being justified in any way. Hence, it may favour certain people.
Moreover, in practice, there may be a possibility of dividing a public procurement in several contracts under the value of LEI 200,000 and thus preventing the authorities from sanctioning possible abuses of office. At the same time, the offences committed in the framework of direct procurement which do not exceed the amount of € 30,000 would remain unsanctioned.
- the level of punishment is significantly reduced: from 2-7 years to 6 months – 3 years, without providing the reason for such amendments.
Consequently, once the punishment decreases so drastically, the statute of limitations also decreases to 5 years.
- the wording "fulfilling an act contrary to the law" does not clarify in any way the issues raised by the decision of the Constitutional Court no. 405/2016, and it will raise the same interpretation issues as so far.
- the abuse of office offences harming the legal interests of a person are decriminalized, if a material damage is not caused, thus placing outside the criminal liability numerous dangerous offences.
An example of partial decriminalization: the offences of abuse of office which make the object of the case that investigates the non-use of the diving chamber from the burn unit of a hospital will be decriminalized. As a result of not using this equipment, the treatment of the "Colectiv" disaster victims could not be provided, which means that their legal interests were harmed.
- the wording "while performing the service duties" is replaced by "performing the service". This amendment may constitute an issue, since it may be interpreted as involving only the offences committed during working hours.
- requiring a preliminary complaint to be submitted by the injured party, as a condition of triggering criminal proceedings, is totally unsuitable. Consequently, many situations that should be investigated could be left outside the judicial control. If the perpetrator is the head of the public agency in question, he/she should submit a complaint against his/her own person. Furthermore, the possibility of retracting the preliminary complaint will also be provided, which would lead to the expected consequences.
The preliminary complaint can be submitted only within three months since the injured party becomes aware of the perpetration of the offence. For instance, the inspections conducted by the Court of Accounts verifying the activity performed by a state agency in the previous year cannot lead to submitting a preliminary complaint.
These provisions are covered by the principle of the more favourable criminal law and are also applicable for the ongoing cases. Thus, all the files involving offences of abuse of office, for which the trial is ongoing, will be conditioned by submitting the preliminary complaint by the injured party. If such a public agency refuses to submit the complaint, the criminal trial will be closed.
2. Regarding the offence of conflict of interests:
- The draft bill does not clarify the wording "commercial relations" as decided by the Constitutional Court, but it completely eliminates all the references to commercial companies from the legal text. Consequently, a civil servant will be able to grant benefits to commercial companies in which he/she holds or held certain interests, without being impeded in any way.
Moreover, the Constitutional Court had remarked only the lack of predictability of the legal dispositions and not the fact that the incrimination of such categories of offences could not be criminalized.
3. Regarding the amendments of the non-punishment clause of the "denouncer":
- the proposed amendments will extremely hinder the detection of corruption offences committed before July 2016, which means the de facto decriminalization of these offences;
- the explanatory memorandum does not provide any argument which would justify such an amendment.
- In the Romanian legislation, the non-punishment clause of the denouncer for corruption offences is a traditional element, in force since 1936, without interruptions. The obvious question is: what has changed in the meantime? Why does the Romanian state want to eliminate such an effective tool?
Very seldom, the denouncers inform the criminal investigation authorities immediately after the perpetration of an offence, given that at that time, they are satisfied with the benefit received in exchange.
In practice, we have ascertained that denouncements are submitted when there are disputes among the participants to the offence or when they want to take advantage of the legal provisions of mitigating punishment. There is no explanation for the wish to protect those who took bribe and to guarantee the fact that after six months they can no longer be held criminally liable.
DRAFT BILL FOR PARDONING CERTAIN PUNISHMENTS
1. It is worth mentioning that among the pardoned offences there are the abuse of office (in all its forms) and the offences assimilated to those of corruption.
2. In case of tax evasion, only the simplest forms are excluded from pardoning. The really serious ones (article 9 of the Law no. 241/2005) are completely pardoned, which will have a negative effect on investigating corruption offences, because many people who are investigated for corruption offences admit the fact that the money was meant in reality, for giving bribe. If these people are aware of the fact that they can no longer be punished for tax evasion, they will have no reason to denounce the bribe.
3. All the convicted people aged over 60 or who support a child under five will be pardoned for half of the punishment regardless of the seriousness of the committed offence (the list of offences excluded from pardoning regards only the complete pardoning and not the pardoning of the half of the punishment).
THE INFORMATION AND PUBLIC RELATIONS OFFICE