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The Chamber of Deputies, the decision forum, adopted the amendments to the Criminal…

The Chamber of Deputies, the decision forum, adopted the amendments to the Criminal Codes / The Minister for Development stood among the members of the UDMR party during to voting procedure, without the votes of which the changes would not have passed

The amendments to the Criminal Code and the Criminal Procedure Code were adopted on Wednesday by the Chamber of Deputies, the decision-making body in this case. There were 181 votes in favor, 83 against and one abstention in the case of the Code of Criminal Procedure and 180 votes in favor, 81 against and two abstentions.

The amendments to the two laws passed with the support of UDMR deputies and other parties, because the PSD-ALDE coalition no longer has a majority in the Chamber of Deputies since last year. During the voting on articles, the PSD’s  Minister for Development, Daniel Suciu, sat in the same bench with the leader of UDMR deputies, Attila Korodi, who pointed out to him how each of the parliamentarians in its party voted. UDMR also voted in the Iordache commission for the amendments to the two criminal codes made by the PSD and ALDE coalition.

In favor of the amendments to the Code of Criminal Procedure, besides the PSD and ALDE deputies, voted 13 UDMR deputies, 8 deputies from the ethnic minorities, 3 non-affiliated, and one from the PMP.

For the Criminal Code voted, besides PSD and ALDE, there were 13 UDMR deputies, 7 deputies from the minorities, 3 non-affiliated and one from the PMP who voted for the amendments.

The main amendments to the Criminal Code:

The term limits for prescription of criminal liability (Article 154) are reduced as follows:

  • From 10 years to 8 years (when the law provides for the offense a prison sentence of more than than 10 years, but not exceeding 20 years);

  • From 8 years to 6 years (when the law stipulates for the offense a prison sentence of more than 5 years but not exceeding 10 years).

The issuance, approval or adoption of normative acts have been exempted as an offense of favoring the offender  (provision in GEO 13) – art. 269.

The offenses of bribery (Article 290) and purchase of influence (Article 292) have been partially decriminalized: offenders are no longer punished if they denounce the crime within one year at the most, provided that prosecutors have not already begun an investigation. There is currently no time limit that the offenses can be denounced.

The offense of negligence in office has been decriminalized entirely (Article 298 is abolished).

The penalties for offenses of misappropriation (Article 295) and abuse of office (Article 297) have been halved if the perpetrators pay the damages until the sentence remains final.

Article 13, index 2 of Law 78/2000 on the prevention of corruption has been repealed: „In the case of abuse of office or of usurpation of the function, if the civil servant has obtained an undue advantage for himself or another, the special limits of the punishment increases by a third „.

The Venice Commission’s recommendations on the amendments to the Criminal Code:

  • to reconsider and amend  the provisions regulating corruption-related offenses, in particular, bribery (Article 290), –In the modified form, the provision discourages bribe-makers from cooperating with the investigators–  influence trading and buying (Articles 291 and 292), embezzlement (Article 295) and abuse of service (Article 297) ;

  • to reconsider and amend some other provisions with a more general impact, such as those on the statute of limitations (Articles 154-155), –the form in which they have been modified poses a huge risk that many offenses will be prescribed before they can be investigated and judged– false testimony (Article 273) and compromising the interests of justice (Article 277 CC);

  • to reconsider and amend the provisions on extended confiscation measures (Art. 1121 ) and the definition of a public servant (Art. 175), ancillary penalties (Article 65), in order to bring them in line with the country’s international obligations.

The main amendments to the Criminal Procedure Code:

The prohibition of public communications and statements, as well as providing information, directly or indirectly, on a person subject to prosecution or trial (Article 4) has been maintained. The article was introduced on the proposal of the PSD and UDMR and was considered constitutional by the Constitutional Court of Romania (CCR).

The witness, like the defendant, can consult with the lawyer throughout the hearing and may thus interrupt the interrogation, although the law says he swears on the Bible to tell the truth and only the truth. This makes the hearing unnecessary since it can be interrupted at any time, and the essence of the hearing is to be spontaneous. A hostile or a false witness can now pause the hearing whenever questions are not to his liking.

Investigators cannot hear persons who have had relations of cohabitation with the defendant (Article 117). This basically allows anyone who had relationships similar to that of a family with the defendant, to refuse to testify against he or she, regardless of the subject of the hearing, allowing anyone with prior relationships to refuse thus the hearing by invoking previous relations (the law does not specify  what is the length of time that people can be considered to have established family-friendly relationships) with the suspect, whether or not they indeed existed.

Recording by a witness of a conversation carried out by a defendant with another person in a private place cannot be used in the criminal proceedings because the witness is neither a party nor a principal procedural subject (Article 139).

Warrants on National Security (MSN) can no longer be used for other offenses. In other words, if while monitoring a person suspected of terrorism offenses, the Romanian Information Service (SRI) finds out that that person or others committed and a crime of corruption, tax evasion or rape, for example, the service can no longer send evidence to the Prosecutor’s Office for this facts be prosecuted in criminal cases of corruption, tax evasion or rape. Only the evidence related to terrorism remains admissible evidence.

The phrase „reasonable suspicion” has been replaced by the phrase „sound evidence or clues”.

The prohibition has been maintained for prosecutors to gather evidence while executing a search warrant of offenses other than the one for which the search was authorized  (Article 162).

The period to denounce a crime was limited to a maximum of one year after the act was committed for a person to benefit from the provisions relating to the reduction of the penalty limits.

The recommendations of the Venice Commission on the amendments to the Criminal Procedure Code:

  • to thoroughly review the amending law as a whole, taking into account the specific comments made in this opinion, so as to ensure that the reform will not have a negative impact on the functioning of the criminal justice system.

  • While the whole set of amendments should be thoroughly reviewed, in particular the rules on communication on on-going criminal investigations (Article 4), starting a criminal investigation (Article 305), evidentiary thresholds and inability to use certain forms of evidence (Articles 139, 143, 153, 168), and the right to be informed of and participate in all prosecution acts (Articles 83 and 92) should be amended in substance,

  • and the final and transitional provisions reconsidered.

Traducerea: Ovidiu Harfas

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