IMPARȚIALITATE·INTEGRITATE·EFICIENȚĂ
July, 6th, 2018
No. 558/VIII/3
Press Release
Following the fact that the Romanian Parliament passed the amendments to the Criminal Code, the prosecutors of the National Anticorruption Directorate have conducted an analysis of the impact these legal changes will have on the criminal investigations, if they come into force.
Following the same pattern used in the adoption of the amendments to the Criminal Procedure Code, the amendments to the Criminal Code, brought by the Parliament, were also adopted without taking into account the observations, proposals or comments made by the Superior Council of Magistracy and by the professional associations of judges and prosecutors and without having a real consultation or collaboration with the judicial authorities which apply the criminal law.
If the amendments to the Criminal Code come into force, the following consequences will result:
- the decriminalization of some wide categories of offences which are currently sanctioned by the criminal law and which have a significant effect on the social values protected by law,
- reduced limits of punishments for certain offences which leads to reaching the statute of limitations for some offences,
- additional conditions for a certain deed to fall within the scope of the offenses (if these conditions are not met, the ongoing files both at the prosecutor’s offices and at the courts will be closed),
- additional conditions in order to actually apply certain legal measures imposed by European Directives, such as the extended confiscation, which will make the recovery of the proceeds of crime more difficult,
- increasing unjustifiably the standard of evidence, which will make it more difficult to prove illicit deeds.
1.In terms of the offence of giving bribe, if the proposed amendments come into force, it will be very difficult to discover the corruption offences that had been committed, but for which the denouncement was not submitted within a year after the perpetration of the offence, which is the equivalent with the de facto decriminalization of these offences;
Paragraph (3) of article 290 is amended and will have the following content:
“(3) The person giving the bribe is not punished if he/she denounces the offence before the criminal investigation body is notified about it, but no later than 1 year since the perpetration of the offence.”
Thus, the constitutional provisions on equal rights are violated, in the sense that, people in the same legal situation may suffer different consequences, depending on the moment the denouncement is made, even though, in terms of the social danger and the attitude of regret of the deed, there is no distinction that would justify this difference in treatment.
There is no argument to justify such an amendment.
According to the Romanian legislation, the non-punishment clause of a denouncer for corruption crimes is a traditional concept which has been in force, uninterruptedly, since 1936.
In very few cases, the denouncers inform the criminal investigation body about the offence immediately after it is committed, because, at the time, they are content with the benefit received in exchange.
The practice has shown that denouncements are submitted when there are misunderstandings among the participants to the crime or when they want to take advantage of the clauses for reducing their punishments. There is no explanation for why it is intended to protect those who take bribe and to guarantee them that after a year, they can no longer be held criminally liable.
2.In terms of the offence of traffic of influence, the additional condition for the offence to be committed strictly for the purpose of obtaining a material benefit and the requirement for the promise to be followed by the intervention greatly restrict the scope of the offense.
Article 291, paragraph (1) is amended and will have the following content:
(1) Soliciting, receiving or accepting the promise of money or other material benefits, directly or indirectly, for oneself or for another, committed by a person who has influence or who alleges that they have influence over a civil servant and who promises they will persuade the latter, a promise followed by an intervention to that civil servant, to perform, fail to perform, speed up or delay the performance of an act that falls under the latter’s professional duties or to perform an act contrary to such duties, shall be punishable with imprisonment from 2 to 7 years.
In the current form, the object of the offence of traffic of influence may also be of a non-material nature (for instance, the intervention for someone to pass an exam), and it is considered that the offence was committed even if the intervention for which the benefit was claimed has not been carried out.
Such an important amendment completely changes the constant vision of the Criminal Code in terms of the civil servants’ accountability and it does not correspond to any observation made by the Constitutional Court.
3.The abuse of office, as provided by article 297 is actually decriminalized and the abuse resulted in obtaining benefits for oneself or for another, as provided by article 132 of the Law no. 78/2000 (on preventing, discovering and sanctioning corruption offences) is repealed (see details in the press release no. 546/VIII/3 from July 2nd 2018 -DNA’s point of view on the amendments to the abuse of office Criminal Code)
The paragraph 1 of Article 297 is amended and will read as follows:
The act of a public official who is in the exercise of his office duties expressly regulated by the laws, government ordinances or emergency ordinances, who refuses to carry out an act or carries it out in violation of such regulated duties, of provisions expressely stiplated by a law, government ordinance or emergency ordinance, in order to receive an undue material benefit to himself, his/her spouse, relative, or son, up to the second degree, and thereby cause a certain and effective damage greater than the equivalent of a minimum gross salary in the economy or an injury of the rights or legitimate interests of a natural or legal person, shall be punished by imprisonment from 2 to 5 years or a fine.
The Law No. 78/2000 on the prevention, detection and sanction of corruption, is amended as follows: Sole Article: Article 132 is repealed.
3. By the amendament of art. 309, the abuse of office was unjustifiably excluded from the list of offences with particularly aggravated consequences (for which the special limits of the punishment provided by the law were increased) with the consequence of the reduction of the term of statute of limitation, which means that the perpetrators of the acts can no longer be held criminally liable.
4.Although apparently the area of extended confiscation is widened and it will include all the offences with punishments higher than four years, additional conditions are introduced that hinder the enforcement of the extended confiscation measure. For example, the followings are required:
a. certain evidence, beyond any doubt, that demonstrates the involvement of the convicted person in the criminal activities producing goods and money
In the articole 1121 after the paragraph (2) a new item is introduced, item (21) with the following content:
„(21) The decision of the court must be grounded on certain evidence, beyond any doubt, that demonstrates the involvement of the convicted person in the criminal activities producing goods and money.”
This article violates the art. (5) of the Directive 2014/42/EU of April 3rd, 2014 on the freezing, seizing and confiscation of instrumentalities and the proceeds from the offences perpetrated in the European Union, which provides that the extended confiscation can be ordered when a court considers that the goods in question were received as result of the perpetration of criminal activities, based on the the circumstances of the case, including the matter of fact and evidence available, such as the fact that the value of the goods is disproportionate to the legal income of the convicted person.
The concept of certain evidence, beyond any doubt, is a standard of proof that cannot be reached in th framework of a rational judicial trial.
b.The goods transferred to a family member or to a third party will not be subject to extended confiscation if he/she did not know that the purpose of the transfer was to avoid confiscation.
In Article 1121, after paragraph (8), two new items are introduced, items (9) and (10), with the following content:
(9) They are subject to confiscation under the terms of this Article and:
a) the goods transferred by the convicted person to a family member, if her/she knew or ought to have known that the purpose of the transfer was to avoid confiscation or if the transfer was conducted free of charge;
b) the goods transferred by the convicted person to a legal person over which he/she has control;
c) the goods transferred by the convicted person to a third party if it is clear from certain circumstances that he/she knew or ought to have known that the purpose of the transfer was to avoid confiscation.
(10) The confiscation ordered under this article can not damage the rights of third party acquirers for consideration of good faith.
6. The scope of public officials is restricted, eliminating an entire category of persons delivering public interest services (notaries, judicial experts, etc.).
The art. 175 paragraph 2 regarding the definition of the public official is repealed: "Also, a public official, within the meaning of the criminal law, is considered to be a person who has been entrusted by the public authorities to deliver a public interest service or who is the subject of their control or supervision regarding the fulfillment of that specific public service."
7. The scope of information not intended for publicity is unjustifiedly restricted, which will influence the content of all the offences containing this phrase, which has the effect of decriminalizing a wide range of acts that critically damage the values protected by law.
For example, one of the effects will be that the disclosure of information during a public procurement procedure, to one of the participants, in order to favor him in relation to others, will no longer be sanctioned:
"Art. 1871 - Information not intended for publicity
The information not intended for publicity means that category of classified information, according to the law, as State or office secrecy, and which is contained in a document bearing such a specification, unless it has not been legally declassified. "
8. The amendments to the offence of favoring the perpetrator make it more difficult to punish the corruption in the judiciary system, meaning those actions aimed at buying the ordered solutions of the prosecutor/judge and the trafficking of influence for this purpose. It creates discretionary immunities before the law.
In art. 269, after paragraph (3) a new item is included, item (4), with the following content:
"(4) The following acts do not constitute the offence provided in paragraph (1)
a) the issuing, the approval or the adoption of normative acts;
b) the ruling and the ordering of the solutions or the measures by the judicial bodies in the cases with which they are assigned,
c) the testimony made in the framework of the court proceedings or the manner of conducting the expertises in the judicial cases. "
The exclusion of the judicial bodies from those who may commit the offence of favoring the defendant violates the principle of legality in rights.
There is no justification for the other public servants who, through their official acts, are aiming to favor a perpetrator that is to be punished, and instead a magistrate acting in the same manner benefits of immunity, although his/her act appears to be more serious with regards to its obligations.
There is no decision of the Constitutional Court of Romania or EU directive requiring such an amendment, as the text is not justified by a genuine need of the society.
9. The offence of false testimony is practically decriminalized and the application of justice is hampered.
Article 273, after par. (3) a new paragraph is introduced, par. (4), providing, among others, that the following do not constitute false testimony:
c) amending and retracting the previously statement which was made under pressure of any kind exercised over the witness;
d) the simple divergence between testimonies given during the proceedings, when there is no direct evidence indicating the falsehood and bad faith of the respective testimonies.
These amendments encourage the mystification of the statements. The witness can change or retract anytime his/her own statements by invoking an alleged pressure exercised over him/her, a pressure he/she is not held to prove it.
10. The unjustified restriction of the penalty increase up to 3 years results in the punishments that can be established in the case of concurrent offences encouraging the multiple criminality, the concurrence of offences, repeated offences. The unjustified restriction of the penalty increase up to 3 years deprives the criminal law of its predictability, opening the way to challenges on enforcement, the stability of legal relationship being affected.
The amendment brought to article 39, par.(1) regarding the concurrence of offences provides that, in this circumstance, the most severe punishment shall be enforced to which a penalty increase of at most three years is to be applied.
„b) when only punishments with imprisonment are established, the most severe punishment is enforced, to which an increase up to three years can be added.
In the current provision, the enforced penalty increase can be a third of the total of the other established penalties.
In the case of the punishments with a fine, there is a similar situation, the increase can go up to a third of the highest fine, while, in the current provision, the increase can go up to a third of the total of the other punishments with a fine.
11. The corruption offences and those assimilated to corruption, as well as the offences of defrauding European funds come within the scope of those for which the full cover of the material damage caused by the offence, during the criminal investigation or the trial, becomes a mitigating circumstance.
A milder criminal approach is enshrined for the most serious offences.
Unfairness is created between the defendants: for example, the authors of the offences of aggravated theft do not enjoy mitigating circumstances, but those who commit fraud against the budget of the European Union yes, they do. Moreover, those who sell children, launder money, and commit organ trafficking benefit of these mitigating circumstance.
There is no decision of the Constitutional Court of Romania, European directive justifying the amendment.
The amendments brought to article 75, par.(1) let.d) stipulate that a mitigating circumstance becomes “the full cover of the material damage caused by the perpetration of the offence, during the criminal investigation or the trial, until a final court decision, when the perpetrator did not benefit of this circumstance within a period of 5 years prior to the perpetration of the offence. The mitigating circumstance is not applied in the case of the following offences, if they caused a material prejudice: robbery, piracy, aggravated theft, frauds committed through information systems and means of electronic payment.
12. When establishing the punishment with imprisonment with suspension of the execution of the punishment under surveillance, the conditions imposed become optional, weakening the coercive power of this type of punishment, rendering it less efficient and dissuasive
Paragraph (2) of art, 93 stipulates that
„(2) The Court can order a defendant to comply with one or several of the following obligations to:
a) take classes in school or a vocational training;
b) attend one or more social reintegration programs operated by the Probation Service or given in cooperation with community entities;
c) comply with medical check-ups, treatment or care;
d) not leave Romanian territory without securing agreement from the Court
13. Conditional Release in the case of punishment with imprisonment would be much easier to be achieved
An act of clemency is unjustifiably chosen depriving the trial of its efficiency and cancelling the discouraging role of the punishment.
The text refers to the substantiation of some negative acts, an impossible activity depriving the regulation of its finality, violating the standards of quality of the law.
The amendments to art. 100 unjustifiably limit the time-limits for conditional release.
For example, conditional release can be ordered:
- a convict has served at least half of the penalty, in case of a term of imprisonment no longer than 10 years (in the current provision the convict who has served two-thirds of the penalty)
- there is no evidence enabling the court to consider that the convicted person has not reformed himself and is not able to reintegrate into society. (in the current provision the court is convinced that the convicted person has reformed and is able to reintegrate into society)
- If a convicted person turned 60, conditional release may be ordered after the effective serving of at least one-third of the penalty, in case of a term of imprisonment not exceeding 10 years (in the current provision the convict who has effectively served half of the penalty).
The current evaluation was transmitted on July 6th, 2018 to the Prosecutor’s Office attached to the High Court of Cassation and Justice.
THE INFORMATION AND PUBLIC RELATIONS OFFICE