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Direcția Națională Anticorupție

MINISTERUL PUBLIC

PARCHETUL

DE PE LÂNGĂ

ÎNALTA CURTE DE CASAȚIE ȘI JUSTIȚIE

 
IMPARȚIALITATE·INTEGRITATE·EFICIENȚĂ

December, 14th, 2017
No. 1182/VIII/3

Press Release


On December 14th 2017, according to the agenda of the session organized by the Common Special Committee of the Chamber of Deputies and of the Senate for the systematization, unification and ensuring of the legislative stability in the field of justice,
There are debates regarding the proposals for amending and supplementing the provisions of the Criminal Procedure Code and of the Criminal Code taking into consideration the EU Directive 2016/343 of the European Parliament and Council from March 9th 2016, a Directive regarding the strengthening of certain issues of the presumption of innocence and of the right to be present at the trial within the criminal proceedings.
These amendments will have a devastating effect on the criminal investigations, since they eliminate the legal indispensable tools which the criminal investigation bodies use when they investigate crimes.
In reality all the guarantees provided by the EU Directive 2016/343 of the European Parliament and Council from March 9th 2016 are already stipulated in the internal legislation.

Therefore, the Directive is used only as a pretext to eliminate the capacity of the criminal investigation bodies to discover and prove the offences and the purpose of this amendment had no connection with the presumption of innocence.
Thus,
- according to the amendment of article 307 paragraph 2 of the Criminal Procedure Code, it will be mandatory for the prosecutors as soon as a notification regarding a certain person is registered, to inform the person in question about it and allow him/her to assist to the conducted criminal proceedings. As a consequence, it will become impossible to collect evidence resulted from activities which involve confidentiality, such as wiretapping, home or IT searches or sting operations;
- the amendment of article 83 of the Criminal Procedure Code which gives the suspect or the defendant the right to attend the hearings of witnesses, will impede the carrying out of the criminal investigation, given that in numerous situations, the witnesses will be intimidated by the presence of the author of the crime, especially when the witnesses in question are subordinated to him/her, as it happens in the situation of the abuse of office and corruption. Currently, the law in force allows the lawyer to attend these hearings, which represents an absolutely sufficient guarantee for the right to a defence of the person under investigation;
- as a result of the amendment of article 267 paragraph 2 of the Criminal Procedure Code, the prosecutors will be deprived of an indispensable tool in investigating offenses, i.e. the quick access to information in order to act efficiently to discover the facts. It is worth mentioning that it is mandatory for all the institutions to communicate to the criminal investigation bodies all the necessary information within an investigation and that the access to the databases only increases the reaction speed in order to identify as soon as possible the authors of a crime. The prosecutor’s and the police officer’s access to investigative tools cannot be conditioned by granting the same right to the authors of the crime. The right to a defence implies guarantees for the investigated person, not cutting the tools to which the criminal investigation body has access in order to prevent the latter from discovering the committed crimes;
- the amendment of article 273 of the Criminal Procedure Code decriminalizes in fact the offence of perjury, thus having also an effect on all the ongoing cases which contain this offence, by enforcing the more favourable law. It will be extremely difficult, impossible even, to find out the truth, considering that the witnesses will know that they can lie without any consequence, benefiting from impunity;
- the amendment of article 542 of the Criminal Procedure Code introduces an objective responsibility for the magistrate, in all situations, because the action of the state to recover the damage from the magistrate is no longer conditioned by proving the bad faith or serious negligence of the magistrate in question, as it is regulated by the current law;
- as a result of introducing article 542 paragraph 11 of the Criminal Procedure Code, a new form of the offence of the abuse of office is regulated, only for magistrates, incriminating also the perpetration of the offence without direct intention, regardless of the nature of the violated obligation. This form of the offence of abuse of office represents an obvious discrimination compared to all the other social categories which are sanctioned only if they act with intention and only if they violate the provisions of a law ;
- as a result of amending article 364 of the Criminal Procedure Code it becomes actually impossible to convict a person in absentia;
- as a result of amending article 335 of the Criminal Procedure Code, an initial decision to close a case could no longer be cancelled after six months, even though new evidence is found, proving that the person in question actually committed the offence for which he/she was under investigation. There are many situations when new means of evidence are discovered after ruling a decision of closing a case which involves very serious crimes, but the authors of such offences would no longer be held criminally accountable. ;
- as a result of amending article 223 paragraph 2 of the Criminal Procedure Code, the authors of corruption offences, tax evasion, money laundering will no longer be taken under pre-trial detention, even though, their release may present a danger for the public order. Moreover, the authors of offences such as: crimes against Romania’s defence capacity, crimes of genocide, crimes against humanity and crimes of war will no longer be taken under pre-trial detention, if they commit these offences without violence. This amendment leads to an obvious discrimination between the authors of these crimes and those of less serious offences (forgery of currency) and thus, a state of insecurity may appear within the society.
- the amendment of article 139 of the Criminal Procedure Code, will eliminate the wiretappings carried out according to the law from the means of evidence, thus being more difficult to prove the offences;
- the amendment of article 168 of the Criminal Procedure Code will lead to the impossibility of using the results of an IT search in another case, and it will make it more difficult to prove an offence, without any objective argument. It cannot be justified that some pieces of evidence are excluded, since these pieces of evidence were collected according to the law and based on a judge’s authorization;
- as a result of introducing article 4 paragraphs 3, 4 of the Criminal Procedure Code, there is an obvious discrimination between the authors of some crimes and the public’s right to access the information of public interest. These regulations contradict the constant jurisprudence of the European Court of Human Rights (ECHR), the Recommendation 13 (2003) of the Committee of Ministers of the Council of Europe, the Resolution no. 428/1970 adopted by the Parliamentary Assembly of the Council of Europe regarding the obligation of the States to ensure the access of any interested person and of the media to information of public interest. The investigations carried out in cases of corruption, money laundering, tax evasion, cases of violence, etc. represent information of public interest, therefore, restricting them means in fact violating the public’s right to access public information.




THE INFORMATION AND PUBLIC RELATIONS OFFICE