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April 12, 2021
POLITICS

Proposals to change Constitution: DNA, CSM suggest the increase of the retaining time from 24 to 48 or 72 hours

* The amendments by CSM, DNA to be discussed by Constitution Review Committee

 

The National Anti-Corruption Directorate (DNA) and the Superior Council of Magistracy (CSM) had initiated, both by official documents and public presentations, intense campaigns aimed to change the Constitution, or, more precisely, the chapters that regulate the immunity of the members of the Parliament and the maximum time for the retaining of a person accused by Anti-Corruption prosecutors.

Thus, DNA suggests a change of the retaining time from 24 hours to 72 hours, mentioning the practice of most European states, where the period of retaining is 48 or 72 hours.

Moreover, in the document sent to the Commission for Constitution review by the new Head Prosecutor of DNA, Laura Codruta Kovesi, presented by stiripesurse.ro, DNA suggests the change of the Constitution, so that “Parliament immunity should be limited strictly to political statements”.

DNA consider that the change of the fundamental law is crucial in the matter of criminal Ministers as well.

Thus, the document sent to the Parliament shows, it is crucial to “eliminate the condition of a request submitted by the executive or legislative authority  in order to legally pursue a Minister suspected of having committed an offence.”

“This attribution should remain in the exclusive field of Court authority”, DNA mentioned.

Also CSM, in the proposals transmitted by the end of March to the Joint Committee of the Chamber of Deputies and of the Senate for the review of Romania’s Constitution, says that the time of retaining should be increased from 24 to 48 hours, an amount of time considered reasonable, that would allow a minimum interference in a person’s freedom.

The proposal made by CSM is one of the recommendations to change and develop the legal initiative for the review of the Romanian Constitution, gained by Mediafax.

The CSM plenum claims that the period of retaining should not be included in the Constitution, but in the Criminal Procedure Code, as “it would allow a greater flexibility in an eventual change procedure, in case practice demonstrates the inefficiency of the established term.”

“This maximum period of 48 hours would not generate issues from the perspective of the European Convention of Human Rights, as European states often have maximum times of retaining that last over 24 hours, and that reach 48, if not 72 hours. Therefore, the stipulations of article no. 5, paragraph 4 in the Convention mention that bringing someone in front of the judge or in front of another magistrate empowered by the law to exercise legal attributions should be done as soon as one person is deprived of freedom, in order to avoid ordering an arbitrary or unjustified measure and in order to protect that person against the poor treatment that might be applied during detention”, according to CSM.

Thus, the Superior Council of Magistrates shows that, in principle, bringing one person in front of the judge in a deadline of 48 hours since that person was deprived of freedom is reasonable and it must be considered as satisfactory for the exigencies of the notion “immediately”, the expression stipulated by the ECHR.

On the other hand, CSM members have pointed out that a similar proposal of increasing the maximum duration of retaining, was expressed in the draft law for the revision of Romania’s Constitution, initiated by the President of Romania, at the proposal of the Government, while the Constitutional Court, examining the the constitutionality of these dispositions, appreciated that the stipulated term was “one that would allow minimum interference in the freedom of the person, would respect the exigencies of the Convention for the Defence of Human Rights and Fundamental Freedoms, of the International Pact regarding civil and political rights and of article no. 21, paragraph 3. in the Romanian Constitution and cannot be interpreted as causing the suppression of guarantees related to a fundamental right, in the direction of article no. 152, paragraph no. 2 in the Constitution. The proposed change answers the obligation of the state to grant a fair balance between the interest of defending the fundamental rights of the individual and the interest of defending the rule of law, taking into account the issues caused in practice by the present duration of the retaining period in the activity of the institutions of legal pursuit, with direct consequences on the manner the general interests of society and the defence of the rule of law are achieved. The retaining with a maximum duration of 48 hours is justified for the efficiency of the measure and its effectiveness.

 

Ponta: Amendments will be analyzed by the Commission and accepted if they meet requirements of CCR recommendations and those of the Venice Committee.

 

‘The amendments submitted byCSM and DNA at the Commission for Constitution Revision will be discussed by the members of this Committee’, Prime Minister Victor Ponta declared on Monday, as quoted by media reports.

Asked what his opinion was regarding the amendments sent by CSM and DNA to the Constitution Review Committee, the Prime Minister replied that all of these would be analyzed by the members of the Committee and accepted, if they met the requirements of the Romanian Constitutional Court and those of the Venice Committee.

The Head of the Government declared: “Let us see the proposals first; as you know, we have a Constitution Revision Committee. Otherwise, we will just argue like peasants in a market. Let the Committee say what proposals they received, who had made these proposals, who supports them and, afterwards, we will discuss them”.

 

 

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