The amendments to the Romanian Criminal Code, the Criminal Procedure Code and the Law on Judicial Organization have been, over the last year, subject to numerous and long controversies both among the authorities involved in the legislative process as well as in the public opinion.
Briefly, in April 2018, the draft bills amending the Criminal Code and the Criminal Procedure Code were submitted for public debate, both projects following a sinuous path.
The draft bill on the amendment of the Criminal Procedure Code, submitted by 182 deputies and senators, received, after plenary debates, an endorsement by the Special Common Committee of the Deputies Chamber and Senate for the systematization, unification and ensuring legal stability in the legal system, and was adopted by the Chamber of Deputies in June 2018 with some amendments to the original form.
Likewise, after public debate and a favorable endorsement the Government, the draft bill on the amendment of the Criminal Code, submitted by 179 deputies and senators in July 2018, was adopted by the Senate and by the Chamber of Deputies in a speedy procedure during the same month.
Although institutions with an important role in the area of criminal law including the General Prosecutor's Office, the National Anticorruption Directorate, the Superior Council of Magistracy and the President of Romania, as well as civil society organizations, have expressed concerns and disapproved the changes, both reached the promulgation phase, being sent to the Romanian President.
The controversy over the two laws has been so fierce at national and EU level that the Monitoring Committee of the Parliamentary Assembly of the Council of Europe has requested, on June 28, 2018, the Venice Commission's opinion on these amendments.
The Commission's report of 20 October 2018 severely criticized the haste with which the amendments were adopted and the negative impact they may have on the quality of the legislative process, noting the existence of uncertainties about the rationale underlying some of the amendments and their contradiction with Romania`s international obligations, especially related to the fight against corruption.
The Venice Commission therefore recommended Romanian authorities to thoroughly review the amending laws as a whole so as to ensure that the reform will not have a negative impact on the functioning of the criminal justice system.
In addition to the assessment made by the European institution, national entities have notified the Constitutional Court of Romania with exceptions of unconstitutionality both regarding the amendments to the Criminal Code as well as the ones brought to the Criminal Procedure Code.
In June and July 2018, exceptions of unconstitutionality of the amendments in the two bills were raised by the High Court of Cassation and Justice, the President of Romania and a number of 110 deputies.
The Romanian Constitutional Court admitted some of the unconstitutionality exceptions, with respect to the Criminal Procedure Code, notably in respect of:
- the provisions limiting the opposability of the judgment regarding the civil action only to the parties of the criminal proceedings in which the judgment was delivered;
- the provisions requiring the public prosecutor to inform the person who has been subject to technical surveillance (e.g. interceptions of his/her telephone) about this activity within 10 days after the measure has ended;
- the provisions requiring the prosecutor to either to proceed with the investigation of a person, if legal conditions are met, or close the case within one year from the commencement of a criminal investigation.
As to the Criminal Code, the Romanian Constitutional Court found unconstitutional the amendments related to:
- the abuse of office and reducing the applicability of this offence by criminalizing only the abusive act committed by the offender in order to acquire an undue benefit for himself or his close family members;
- the newly introduced obligation to submit a prior complaint and the possibility of the parties to reconcile for embezzlement offenses;
- the exclusion of certain subjects of the category of civil servants (such as public notaries and bank officials).
At the same time, the Romanian Constitutional Court found that:
- the amendment to the Criminal Procedure Code which provides that the witness may be assisted by a lawyer in front of the judicial bodies and may consult with him, confidentially, throughout the hearing
- the amendment to the Criminal Code which regulates the possibility of halving the penalty limits in case of offenses such as embezzlement or abuse of office committed by individuals, other than clerks (e.g. directors of private companies), if the damage is fully covered until the end of the criminal trial are in accordance with the Constitution.
Following publication of the Constitutional Court`s Decisions in the Official Gazette, the Romanian Parliament must amend the draft bills regarding the Criminal Code and the Criminal Procedure Code in line with these decisions.