The Senate Plenum adopted on Monday the amendment to Criminal Code and Criminal Procedure Code initiated by Ioan Chelaru, Cristiana Anghel and Ovidiu Dontu, by which preventive measures may be disposed if there are solid clues or proof, thus replacing the expression “reasonable suspicions” found in the present law.
Therefore, the senators returned to the expression used in the old Criminal Code. The decision was adopted with 88 votes for and 22 against. Yet, the final decision is to be taken by the Chamber of Deputies:
The amendment, signed by Senators Cristiana Anghel (PC), Ovidiu Dontu and Ioan Chelaru (PSD) to the project for the change and completion of Law no. 286/2009 on the Criminal Code and of Law no. 135/2010 on the Criminal Procedure Code – L95/2015 was adopted with 88 votes for by the Senate plenum after it had received an admission report from the legal committee last week.
According to amendment, the first paragraph of Article 202 in the present law, stipulating that “preventive measures may be ordered if there are solid proof or clues leading to the reasonable suspicion that a person has committed an offence” was changed, by amendment, to “preventive measures may be ordered if there are solid proof or clues that show that a person has committed an offence stipulated in the criminal law”.
According to the motivation of the Senators who had initiated the amendment, the new expression is closer to the consecrated legal principle that inquiry while the defendant is free is the rule and ordering arrest measures is the exception.
The Senators also consider that in the old Criminal Procedure Code, the measure of preventive arrest of a defendant could only be taken if there were solid proof or clues that he had committed an offence stipulated by the criminal law and in the new Criminal Procedure Code that had come to effect on February 1, 2014, article 233), the condition of solid proof and clues was replaced with reasonable suspicions.
“This is how, since the beginning of last year, arrest has become, from an extraordinary measure, a rule, as the existence of a mere denunciation was enough to take it. This is why the defendants wearing handcuffs in front of the press have become an ordinary appearance, as there were no sanctions for violating the presumption of innocence by damaging the persons’ image”, the motivation shows, as quoted by Mediafax.
Art. 202 in the Criminal Procedure Code stipulates, in the version applicable at this time, that “preventive measures (retaining, release on probation, release on bail and probation, house arrest, preventive arrest and so on may only be ordered if there are solid proof or clues that lead to the reasonable suspicion that a person has committed an offence and if they are necessary in order to grand an efficient evolution of the criminal trial, to prevent the suspect or the defendant from avoiding criminal pursuit, the lawsuit or to prevent him from committing another offence.”
The draft law will be discussed by the Chamber of Deputies, the decision making forum.
Ponta, the first reaction to the change of the Criminal Code, initiated by the Senate: I saw an overwhelming majority.
“I saw only one thing, an overwhelming majority, 88, perhaps against 20. This means that all groups in the Parliament supported the proposals. What happens in the Chamber is to be seen when we get to the Chamber”, PM Ponta declared after the ballot in the Senate.
Predoiu on changes to the Criminal Code: Our brave Senators cast us away from Europe
PNL “shadow Prime Minister” Catalin Predoiu, ex-Justice Minister, criticises Senators who had voted on Monday for changing the Criminal Code, removing the expression “reasonable suspicions” and replacing it with “solid clues”. This change is intended to reduce the easiness of judges in ordering preventive measures.
Predoiu warns that this change casts Romania away from European jurisprudence.
“The Senate decided to change the Criminal Procedure Code”, replacing the concept of “reasonable suspicion” in the case of preventive arrest. I will not discuss Senators as harshly as the former President did, but I will mention in the same direction that:
1) The legal concept of “reasonable suspicion” is overtaken from the jurisprudence of the European Court of Human Rights (by example, the cases of Gusinskiy vs. Russia / 2004, Tuncer and Durmus vs.Turkey / 2004, Jecius vs. Lithuania / 2000, see the New Code of Criminal Procedure Commented, Volonciu and others, Hamangiu Publishing House, 2014, page 500), out of the same reason, we find the same system in other codes of European countries;
2) anyway, the present text (art. no. 223, first paragraph) stipulates that “reasonable suspicion” may only be based on “proof”, so it is not plain suspicion, but a reasonable suspicion, built on solid exhibits.
The conclusion is that, at the time being, we have a Criminal Procedure Code that suits ECHR jurisprudence, an European Criminal Procedure Code. Our brave Senators in the legal committee want to turn it into a code that may suit a country where you can steal in a more relaxed manner. Our brave Senators remove us from European standards with these changes and bring us back to where we were before joining the EU, in this matter; they kick us out of Europe! We are witnessing an attack of legal ignorance on a legislative edifice built with plenty of knowledge and a lot of hard work. The target is to combine regulations so that they could create a legal space of impunity to the corrupted members of the Parliament. If they manage to complete these changes, as well as other similar ones, and the “shield ballots” for protecting Senators investigated for corruption, it will be the sole reason why legal science will memorize two names that are otherwise insignificant for the history of law and of the legal system: Ponta and Sova”, Predoiu wrote on his Facebook page.
Tariceanu: No citizen can be deprived of freedom, based on suspicions
Senate President Calin Popescu Tariceanu declared on Monday for TVR that no citizen can be deprived of freedom based on suspicions. He thinks that the change in the Criminal Code stipulating the ordering of preventive arrests based on solid proof is a suitable idea. “This draft law will stir a lot of controversies. I think it is natural that it would initiate a debate. As long as we are talking about citizens’ freedom, we are talking of all citizens. We cannot restrict the liberty of citizens merely based on suspicions. It is as if I looked at you and I told you that I suspected you were a crook without having any proof of it. By the changes that will be approved or not, this arrest, that has become the rule, not the exception, will be replaced with something more appropriate. Now, this decision will only be reached in the case of consistent elements.
This campaign of struggle against corruption must be completed without excesses and without abuses. Restricting one’s liberty should only be applied if the Court decides to convict the defendant.
We have entered an area of excesses and abuses. The members of the Parliament enjoy no immunity in face of the law. They can be investigated. The Parliament cannot oppose it. If the Court decided that he was guilty, he could be investigated. When we are talking about ex-Ministers, investigated for political decisions, the Prosecutors’ Panel does not investigate political decisions. They are sanctioned by electors. Criminal verdicts cannot the influenced by the Parliament”, Tariceanu declared on Monday evening for TVR.
