New criminal codes, in force 4 years after approval


Prime Minister said the codes will be amended on Wednesday at the next Cabinet sitting. Clarifications on phone tapping issue are expected.

The Penal Code (CP) and Penal Procedure Code (CPP) came into force on Saturday, four years after they were approved, in the disapproval of judges, lawyers and prosecutors, but also that of opposition parties.

One of the publicly criticized regulations is the one concerning phone tapping. According to some opinions, the regulation no longer gives prosecutors the possibility of tapping the phones of suspected persons without notifying the latter. The coming into force of the two Codes has sparked a new conflict between the Presidency and the Government, the Head of State firmly asking the Premier on Thursday to promote an emergency ordinance that would correct the shortcomings of Article 140 of the CPP. On Friday President Traian Basescu reiterated the request addressed to the Premier, asking him to make the changes to the CPP through emergency ordinance, pointing out that the changes were requested as early as September last year. In this context, Premier Victor Ponta announced on Friday that the government will approve on Wednesday slight adjustments to the CPP, adjustments that would also clarify the phone tapping issue, based on a synopsis presented on Friday on the Justice Ministry’s website, adding that it is “foolishness” to state that the new code is protecting criminals.
According to the draft emergency ordinance for the adoption of implementation measures necessary in order to apply law 135/2010 concerning the Penal Procedure Code, a draft launched by the Justice Ministry for public debate on Friday, phone tapping could take place even if the criminal prosecution is ordered in absentia. On the other hand, the same draft gives prerogatives to the Directorate for the Investigation of Organized Crime and Terrorism (DIICOT) for a series of crimes and irrespective of the position of the persons concerned, “if a material damage higher than the RON-denominated equivalent of EUR 500,000 has taken place in the case, irrespective of the number of concurrent crimes.”
House arrest, days of fine and elimination of punishments for minors
House arrest, the introduction of a system of days of fine, the elimination of punishments for minors and the agreement to admit guilt is among the other changes brought to the judicial system by the new Codes that came into force on February 1. At the same time, repeat offenders will receive harsher punishments. Another change brought by the Penal Procedure Code refers to preventive measures, the interdiction to leave the locality or the country being eliminated and replaced with house arrest for 30 days at most.
In what concerns the minors, they will be punished exclusively on the basis of educational measures that can come both in the form of confinement and non-confinement. The former consists of internment in an educational or detention center. The latter consists of civic education service, supervision or reporting at the end of the week. When it came to punishments applicable to minors, the old Penal Code stipulated jail or fines.
122 detainees, freed on first day
As a result of the new Codes’ coming into force, 122 detainees were released on Saturday, February 1, the National Penitentiary Administration (ANP) informs. Likewise, jail time was replaced with internment in a detention center in the case of 176 detainees, the aforementioned source added.
In Bucharest the first beneficiary of the more favorable law was a minor that was consequently about to be transferred to an educational center, as a result of a decision taken by the Bucharest Court.
The new Penal Code’s more lenient punishments for certain crimes however also bury some famous cases. Former Transportation Minister Miron Mitrea, the Romanian world of football’s heavyweights such as George Copos, Mihai Stoica, Ioan and Victor Becali, and CFR’s former head Mihai Necolaiciuc benefit from the new Code’s write-off terms.
Private life, better protected
According to the new Penal Code, the photographing or recording of persons within their homes is a crime. The same goes for the broadcasting of the said photos or conversations. Breaking-in continues to be a crime, and now so is the breaking-in into a juridical person’s headquarters. Preventing the judicial authority from taking a procedural action or refusal to put at its disposal the paperwork or information requested represents the obstruction of justice and is a novelty that the new Penal Code brings. This felony will be punishable by three months to one year in jail.
Across-the-board criticism from magistrates
The National Anticorruption Directorate (DNA) expressed concern with the stipulations of the new Penal Code and Penal Procedure Code, pointing out that “there is a major risk of having the efficiency of investigations significantly diminished in corruption cases.” DNA Chief Prosecutor Laura Codruta Kovesi explained, according to adevarul.ro, that the main problem is not the way in which phone tapping is regulated, but Article 305, which regulates the way in which the criminal prosecution starts. “The new Penal Procedure Code – when you want to obtain a permit you have to start the criminal prosecution. (…) If the law is in force for just one day the ongoing cases can be written-off,” she pointed out.
Some of the solutions proposed by the new Codes could turn out to be not exactly the most suitable, justifying subsequent legislative interventions, the leadership of the Superior Magistracy Council (CSM) claims too. The members of the Council point to the lowering of punishment thresholds for some crimes and to the problems concerning extended confiscation.
Lawyers consider that the Codes’ coming into force should be postponed because defenders are marginalized and are not given real protection. Ion Iordanescu, the Dean of the Bucharest Bar, states that the implementation of the Codes will cost a lot, over RON 700 M, and the professional training of magistrates and lawyers is insufficient to apply them.
Romanian Attorney General Tiberiu Nitu claims on the other hand that the new Codes are not exempt from criticism and they entail a greater effort of interpretation on the magistrates’ part, but practice will prove, once they come into force, what the problems are and how they can be resolved.
PDL First Vice President Catalin Predoiu stated on Friday that the government should modify the Codes through emergency ordinance or should postpone their coming into force, pointing out that Premier Victor Ponta is proving with his behavior “that from criminal law expert to criminal is but one step.” In her turn, PDL MEP Monica Macovei claims in a communiqué that the Penal Codes should have been modified or postponed on Friday, adding that Premier Victor Ponta should make a “judiciary for the country, not for the corrupt and the thieves.” MP Elena Udrea, who recently joined the Popular Movement, has also criticized the Premier’s refusal to make the changes demanded by the specialists, stating that this demonstrates “a pressure that the USL barons are exerting” on Victor Ponta, and Crin Antonescu is “just as responsible.”

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