In order to implement the relevant Constitutional Court decisions and EU Directives, a reform of the Romanian criminal codes is required.
In this context, on 20 October 2018 the Venice Commission published a report on the proposed amendments to the Criminal Code and the Criminal Procedure Code in which it criticised a number of the proposals as being in conflict with Romania’s international obligations (especially regarding the fight against corruption) and going far beyond the requirements resulting from the case law of the Constitutional Court.
The Venice Commission also indicated that the reform was inadequate, and did not constitute a comprehensive review of two of the most important and sensitive codes; the amendments under review were adopted in a legislative process which was excessively fast and lacking in transparency.
As far as the Criminal Code is concerned, the following provisions, among others, have been the focus of criticism and are now subject to possible re-assessment by the legislature:
– Extended confiscation measures – this proposed amendment would require the court to use the ‘beyond any reasonable doubt’ standard when determining whether to order the extended confiscation of assets. The Venice Commission indicated that courts will rarely rule in favour of extended confiscation as in most cases, the prosecution will be unable to prove beyond any reasonable doubt that the value of assets held by the accused clearly exceeds the revenue obtained lawfully by them, therefore casting doubt on whether the assets originate from criminal activities.
– Statute of limitations – the Venice Commission noted that the envisaged amendment referring to the reduction of the statute of limitations periods will in particular affect corruption offences and that such limitation raises serious concerns both with respect to the rule of law in general and the country’s respect for its international obligations in particular.
– Bribery – this amendment proposes that a briber will be ‘forgiven’ if he/she reports the crime within one year of the action being carried out. The Venice Commission held that this amendment will discourage bribers from cooperating with law enforcement agencies post the one year mark and make it much harder to uncover (and consequently to prosecute and to prove) corruption offences.
– Embezzlement – the proposed modification is that ex officio investigations will no longer be possible for this offence. As a result: (i) the criminal proceedings in cases of embezzlement should be initiated only following a criminal complaint and (ii) the reconciliation between the involved parties should result in the removal of criminal liability. The Venice Commission recommended the removal of such modification.
As far as the Criminal Procedure Code is concerned, the Venice Commission has criticised, among others, the following provisions:
– Initiation of criminal investigations – the proposed amendment introduces a maximum period of one year from the beginning of an in rem criminal investigation during which the criminal investigation in personam must commence, or the case has to be closed. The Venice Commission held that a one-year time limit for investigating alleged crimes, regardless of the nature of the offence and the degree of complexity of the case, appears to be too a short period of time, especially with regard to large and complex cases involving serious crimes. The key concern is that this new time bar may lead to a large number of criminal cases being closed.
In light of the above, the Venice Commission recommended that the Romanian authorities conduct an overall re-assessment of the amendments to the two codes, through a comprehensive and effective consultation process, in order to devise a solid and coherent legislative proposal benefiting from broad support within Romanian society and fully taking into account the applicable international and constitutional standards.