The Constitutional Court partially or totally rejected over 60 amendments to the Criminal Procedure Code and accepted about 30 / Some of the most important changes for Dragnea, declared unconstitutional
According to a press release issued by the institution, at the end of two days of debates the Constitutional Court unanimously rejected 64 of the 96 contested amendments to the Code of Criminal Procedure. 32 of the notified amendments passed the judges’ filter.
The most important changes desired by Liviu Dragnea were declared unconstitutional:
- replacing the phrase „reasonable suspicion” with „solid indications”
- the nullity of the evidence obtained illegally
- the sentencing by the judge only when the court has the conviction that the
- allegation has been proven beyond reasonable doubt
- ordering the conviction solely for the acts for which the defendant was brought to trial
- the impossibility of using evidence obtained outside the interception order
- preventing searches without indicating objects or people searched
- the obligation to permanently delete data obtained from a computer system or from a computer data storage system that is not related to the offense for which the criminal prosecution is carried out
- the introduction of a new ground for the annulment of final sentences: the failure to sign the final sentence by one of the judges participating in the decision
- the provision that the amendments made shall also apply to the case files under investigation: „the provisions of this law shall apply to all cases pending at the date of entry into force and judgments delivered up to that date”.
On the other hand, as G4Media.ro wrote on Thursday, the Constitutional Court rejected the allegations made against one of the key amendments made by SDP-ALDE-UDMR to the Code of Criminal Procedure, namely a lethal legislative change with implication for corruption cases, which could spill over, affecting large corruption files, including Liviu Dragnea’s. This is the provision in Article 145, index 1, which eliminates the possibility of using evidence resulting from national security oversight (MSN) in cases other than the offenses provided by the national security law for which the warrant was issued.
The Constitutional Court gave a green light to some changes made by SDP-ALDE-UDMR to the Code of Criminal Procedure, such as:
- prohibiting public communications from files during criminal prosecution and trial
- a person can not be convicted solely on the basis of denunciations, without evidence in favor of the conviction
- recordings from surveillance cameras as well as those made in public places may constitute evidence
- the obligation to hand over, on request, all the evidentiary material to the defendant
- a person can not be arrested on the basis of general and abstract arguments, and it is necessary to indicate the real and personal circumstances that would result in the actual, real and imminent threat to public policy
- the prosecutors’ obligation to send the indictment electronically to the court
- in order for a person to benefit from the provisions on the reduction of the penalty limits, the denunciation must be filed within a maximum of 1 year from the date when the person was informed of the offense
The law is about to return to parliament to be reconciled with the Constitutional Court decision.
The most important changes that were declared unconstitutional:
The criminal proceedings are put into motion and are exercised when there is evidence that there are solid indications that a person has committed an offense, and there are no cases that prevent it from being put into motion or exercised.
(4) The provisions of the criminal court with respect to the civil party are only opposable to the parties in the criminal proceedings in which the judgment was delivered. ”
(5) The judge who participated in the settlement of the complaint against non-prosecution or non-adjudication, or who has solved the request for confirmation of the waiver of the criminal prosecution, or the request for confiscation, or the dissolution of a document can not participate in the same case in substance or in appeal procedures. ”
The person in respect to which, the evidence or solid evidence in the case in question, shows he/she has committed an act under criminal law, is to be known as a suspect.
(2) The suspect’s or defendant’s advocate may request to be informed of the date and time of the criminal investigation or hearing of the judge of rights and freedoms. The notification shall be made by telephone, fax, e-mail, or by other means. The suspect or defendant may participate in any criminal investigation or any hearing at his request. If the witnesses or procedural subjects consider that they have concerns about these circumstances, they may, according to the law, require the prosecutor or the judge to grant them the status of a person threatened or protected, as the case may be, both during the criminal investigation and the trial stage.
(7) In order to prepare the defense, the attorney of the defendant has the right to acquaint him/herself with the entire material of the criminal investigation file in the proceedings before the judge of rights and freedoms regarding the deprivation or restrictive measures, in which the lawyer participates. Judgment of requests for preventive measures can not begin until the lawyer is given the necessary time to prepare the defense and only after the judge ensures that he/she has had enough time to go through all the material of the prosecution file but not less than 4 hours. The violation of this right leads to the absolute nullity of the disposition of the preventive measure.
(4) In order to be able to provide a solution for referral, renunciation of the punishment, or postponement of the punishment, the evidence provided in par. (2) lit. f) must be verifiable in terms of the lawfulness of its obtention, and be examined in order to establish its reality or veracity
(2) Unlawfully obtained evidence can not be used in the criminal proceedings, being punished by absolute nullity
(2) In deciding on the existence of the offense and guilt of the defendant, the court shall give a reasoned decision, referring to all the assessed evidence. The conviction is only ordered when the court is convinced that the allegation has been proven beyond any doubt
(4) Sentencing, giving up punishment, or postponing the punishment may not be ordered for deeds other than those for which the trial was ordered. The extension of the criminal trial at the trial stage can not be ordered for other deeds or circumstances other than those for which the trial was ordered. Changes in legal classification may be made only if the factual situation can be legally inferior to that retained in the act of referral.
(1) The statements of the suspect or defendant shall be recorded in writing, faithfully and literally. The statement shall state the questions asked during the hearing and the answers to them, mentioning who made them, and mentioning each hour of the beginning and time of the end of the hearing. Rejected questions shall be recorded, as appropriate, in minutes or at the close of the meeting, mentioning who has asked the question and the reasons for the rejection.
(11) The suspect or defendant’s statements shall be recorded, upon request, by audio technical means and made fully available to the defense.
(5) During the criminal prosecution, the hearing of the suspect or the defendant by the prosecutor shall be recorded by audio or audiovisual means
(2 index 1) A witness may refuse to testify about those facts or circumstances that may entail his liability for the commission of a criminal offense
(2) The request made by the prosecutor shall include: indication of the technical supervision measures requested, the name or other identification data of the person against whom the measure is ordered, if known, the indication of the evidence or the data resulting therefrom committing an offense for which the measure may be ordered, an indication of the deed and legal classification, and, in the case of video, audio or video surveillance, if the consent of the criminal investigating authorities to enter the private areas indicated to activate or to disable the technical means to be used for the implementation of the technical surveillance measure, to justify the proportionality and subsidiary nature of the measure. The prosecutor must transmit the file to the judge of rights and freedoms.
(4 index 1) Intercepted, recorded conversations, communications or conversations that do not relate to the object of the research or persons under investigation or which do not contribute to the identification or localization of persons may not be used or attached to the criminal investigation file. They are archived at the headquarters of the prosecutor’s office in special places with confidentiality and can be made available to the defendant at his / her request. When the case is finally settled, they will be erased or, as the case may be, destroyed by the prosecutor, and the minutes will be terminated if no interception order has been obtained for the rest of the talks. If, during the course of the interception or recording of conversations or conversations, the indications of committing and other offenses are revealed, the mandate may be requested for those offenses as well. Intercepted and recorded conversations, communications or exchanges can only be used to substantiate the deed that is the object of the investigation or trial, or to help identify or locate the persons for whom authorization has been sought from the judge of rights and freedoms.
(1) Upon the termination of the technical supervision measure, the prosecutor shall inform in writing in maximum 10 days, on each subject of a warrant, all persons who have been technically supervised in relation to the subject of the warrant and who have not had any the quality in the criminal investigation, and any person independent of the quality of the prosecution in the criminal prosecution, of the technical supervision measure which has been taken in respect thereof.
(8 index 1) The failure to identify the objects or persons sought hinders the search by the judicial body. The refusal of the person being searched to hand over the precisely identified persons or objects sought must be mentioned in the search report. The absence of this mention in the search report, as well as the continuation of the searches without it being requested or without evidence being handed in, shall be sanctioned with absolute nullity. Samples obtained on the basis of a blank record for these reasons may not be used in criminal proceedings.
„(15 index 1) Data obtained from a computerized system or from a computer data storage system unrelated to the criminal offense for which the search was authorized shall be permanently deleted from the copies carried out in accordance with paragraph (9) and can not be used in other criminal cases and to prove other facts for which there is no search warrant. If, during the search of the data storage system, evidence is found indicating suspicions of other criminal offenses, a search warrant may also be required in relation to those facts or persons. ”
(1) The objects, documents or computer data handed over or raised by force, according to art. 170 and 171 may only be used as evidence to prove the offenses covered by the file in which they were requested. If, during the search, there are indications that there are suspicions of other criminal offenses, a search warrant may also be required in relation to those facts or persons.
(2) Objects, documents or computer data which have not been used for the purpose of par. shall be returned to the owner or destroyed, as the case may be, within 30 days of the date when it is found that they are not useful for proving the criminal offense for which they have been surrendered, or lifted or for which then a search warrant was issued or was legally forced.
(4) Expertise is carried out by authorized or recognized experts in the country or abroad.
(1) The expert has the right to refuse to carry out the expertise if he/she does not have the necessary scientific competence and facilities or for the same reasons why the witness may refuse to testify.
(5) Where the expertise has been carried out in the absence of the parties or of the main proceedings, they or their lawyer shall be advised of the drawing up of the expert report and of the right to study and challenge the report, as well as the selection of an expert party to make objections to the report of the judicial bodies. ”
(2) The court may, in the course of the trial, order the taking of the measure of judicial control against the defendant, if the conditions stipulated in paragraph (1) for a period of up to 30 days which may be extended by a maximum of 150 days.
(1) The court before which the case is located may order, through a report, the arrest at the defendant’s domicile, at the motivated request of the prosecutor or ex officio, if there are new grounds that make the deprivation of liberty necessary.
(4) The precautionary measures with a view to special confiscation or extended confiscation may be taken over the property of the suspect or defendant, or other persons in the possession or possession of the goods to be confiscated if there is evidence or solid evidence that the goods in question were obtained from criminal activities. The precautionary measures may not exceed a reasonable duration and shall be revoked if this duration is exceeded or if the reasons for the taking of the precautionary measures are no longer present.
(51) In the event of acquittal, the State will be required to pay to the defendant the judicial costs incurred by him.
(2) Upon automatic notification, the criminal prosecution body shall record the minutes in its records and randomly assign the file thus formed to a prosecutor.
(11) In the other situations, other than those mentioned in paragraph (1), the criminal investigative body shall order the commencement of criminal prosecution of the deed. Within one year from the commencement of the criminal prosecution of the offense, the criminal investigative body shall be obliged to proceed either with the initiation of criminal prosecution in respect of the person, if the legal conditions for ordering such measure are met or the case is closed.
(1)If the hierarchically superior prosecutor finds that new facts or circumstances have arisen showing that the circumstance on which the subsequent classification was based, but no later than 6 months from the date on which he/she became aware of the appearance of the new deed or circumstance, invalidate the order, and order the reopening of the criminal prosecution. The provisions of art. 317 shall apply accordingly. The reopening is subject to confirmation, according to par. (4).
(3)The change in the legal classification of the deed can not be called into question in respect of any factual situation other than that in the indictment. If it is found that the factual situation is different from the one detained at the trial, it may be ordered to reopen the prosecution of those deeds if they can constitute another offense.
(2) The conviction or, as the case may be, the enforcement of an educational measure shall determine whether the court finds that the deed exists, constitutes an offense and was committed by the defendant. (3) The renunciation to implement the punishment shall be pronounced if the court finds that the deed exists, constitutes an offense and was committed by the defendant, under art. 80 to 82 of the Criminal Code. (4) Postponement of the punishment shall be pronounced if the court finds that the deed exists, constitutes an offense and has been committed by the defendant, under art. 83-90 of the Criminal Code.
(2) The judgment shall be drafted by one of the judges who participated in the resolution of the case and shall be signed by the members of the panel who participated in the administration of the evidence and the substantive proceedings, as well as by the Registrar.
(1) Against the decision by which the court of appeal makes the special confiscation measure or the extended confiscation order directly in the appeal, the defendant, the prosecutor or the persons whose legitimate rights or interests may be affected may appeal only in respect of the security measure.
(1) The provisions of this law shall apply to all cases pending at the date of entry into force and judgments delivered up to that date. (2) The judgments delivered up to the date of entry into force of the present law shall be subject to the remedies provided by the present law and shall be analyzed also in the light of the grounds regulated by this law. (3) The time limits for the enforcement of appeals against judgments given up to the date of entry into force of this law and for the reasons provided for it shall start to run on the date of its entry into force. (4) The competent courts to resolve the remedies declared according to this law and for the reasons regulated by it are those competent according to the Law no. 135/2010, as amended and supplemented.
Traducerea: Ruxandra Stoicescu
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