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November 27, 2021

CCR receives wave of complaints against Penal Codes in 2015

The Penal Procedure Code was thoroughly verified by the Constitutional Court (CCR) in 2015. Dissatisfied with court decisions, Romanians appealed against dozens of articles included in the law that came into force in February 2014. Many of the suspicions turned out to be legitimate. CCR judges have cancelled more than 15 articles of the Penal Procedure Code. It is one of the laws most challenged at the Constitutional Court and, at the same time, one of the laws with the highest number of invalidated articles.

The wave of complaints rose gradually, month by month, reaching a level of 237 complaints at the end of the year. Since February 2014, almost 40 exceptions that concerned the Penal Codes have been accepted. The paradox is that the Codes were prepared in four years, period in which studies and analyses worth millions of Euros were carried out, according to digi24.ro.

Augustin Zegrean, CCR President: “People believe the old laws were better and there is an explanation: they knew those. So coming up now with new institutions, different approaches, especially in the penal domain, people believe there are a lot of constitutionality problems. Articles from the Penal Procedure Code were declared unconstitutional, many of them however have not been replaced and someone will have to take a look at these problems, to solve them, because otherwise it will be very difficult for prosecutors and judges to work with a Code from which 15 articles are already missing.”

Some of the worst irregularities discovered within the Penal Procedure Code were those concerning the lack of a maximum term for house arrest and conditional bail.
The government fixed the errors through emergency ordinances.

The Court also established that during the prosecution the number of days spent under house arrest could not be taken into account when calculating the length of pre-trial arrest.
The articles invalidated by the Court also included those that ruled out some parts of the criminal trial. This is also the case of the decisions adopted by preliminary court judges to restart the prosecution. The Court decided that these decisions could not be taken in the absence of the prosecutor and of the suspect or defendant, contrary to what the Code was stipulating.
Daniel Caraman, lawyer: “Usually a piece of legislation of this level is discussed in the legislative branch area, not in the executive branch area. Namely, Parliament should insist more through its juridical commissions, special commission, it should have more links with society, with specialists, there should be more dialogue.”
Unconstitutional stipulations have been discovered in the new Penal Code too. Through a decision taken in October, judges disincriminated conflict of interest in the private sector.

Constitutional Court judges say that punishing it would have meant violating economic freedom and the right to work.

Augustin Zegrean: “These articles, once the CCR decision is published, are suspended for 45 days, their implementation is suspended. In the meantime, the Parliament, or the Government if we are talking about ordinances, is forced to set the legislation in line with the Court’s decision. If that does not happen during those 45 days, the law is set aside, is null, is no longer applied, so a void remains there.”

The applicability of the new Codes was discussed when the new Justice Minister was heard in Parliament too, before she was sworn in.
PSD Lower Chamber MP Ciprian Nica: “35 Penal Code and Penal Procedure Code articles have been declared unconstitutional. Considering this, will you collaborate on one hand, first of all, with Parliament, and on the other hand with civil society, with other institutions related to the juridical act that concerns the devising of juridical norms.”

Justice Minister Raluca Pruna: “The expectation is that, once adopted, these Codes, these legislative constructs, would be there in order to last, not to last 100 years, but at least for a while; I will collaborate with Parliament, but I believe this is a professional obligation that nobody should state, it goes without saying.”

The Constitutional Court intervened in 2015 also in order to eliminate stipulations that were contrary to the Constitution, stipulations on whose basis the Senators extended the period one of their Social-Democrat colleagues avoided jail.

In March, the Senate voted on the request to lift Dan Sova’s immunity. Although the request to approve the pre-trial arrest received favourable votes from most Senators present, the lawmakers rejected the National Anti-corruption Directorate (DNA) request on the basis of calculations linked to unconstitutional stipulations included in the Regulations. The Constitutional Court intervened following the Superior Magistracy Council’s notification.

Laurentiu Coca: “The votes from the majority of Senators requirement was not met. The Senate does not approve the pre-trial arrest of Senator Dan Sova.”

Augustin Zegrean: “The Court forced the Senate to draft and publish in the Official Gazette this decision and to communicate it to the Prosecutor’s Office.”

In June, the Senate rejected a new request to lift the Senator’s immunity. It eventually gave up on protecting the Senator in November.

Another former lawmaker, appointed judge at the Constitutional Court in 2013, suddenly ended his tenure following outrageous corruption charges. It was the first time a member of the Court was suspected of criminal offences.

Augustin Zegrean: “If he chooses to resign it’s his choice. We can’t ask for his resignation.”

Investigators claim Toni Grebla allegedly supported illegal exports from the Russian Federation in the midst of an embargo imposed by Moscow, in order to help his godson. In exchange, he allegedly received a luxury car and two dresses worth RON 1,200 each. He also helped his godson obtain contracts in Gorj County where Toni Grebla was elected Senator. This time, he allegedly received money for his ostrich farm in exchange.

Toni Grebla: “In my opinion, everything has to do with that famous income obtained from raising goats and ostriches.”

Augustin Zegrean: “He is dumbfounded and tells me he didn’t do that.”

Toni Grebla: “From a penal standpoint I actually don’t understand what is happening to me. The charges brought against me are phantasmagorical interpretations.”

Toni Grebla resigned on February 4, invoking pressures placed on the Constitutional Court. Prior to that, the DNA asked the Senate to lift his immunity in order to investigate him. The former judge was detained for 24 hours on March 10.The DNA arraigned him on September 9.

CSM: Penal Code adopted hastily, has over 200 problems that have to be corrected

The Penal Code was adopted hastily and has over 200 problems that have to be corrected, Bogdan Gabor, Vice President of the Superior Magistracy Council (CSM), recently stated. The decision however belongs to lawmakers, who in 2015 kept trying to modify the law in order to suit their own interests. Sanctioning corruption was the domain most concerned.

Lawmakers ignored much of the judges’ and prosecutors’ advice. The Penal Code underwent a lot of changes. The Constitutional Court cancelled dozens of articles, one by one. Among them were the ones regulating house arrest and conditional bail.

“We were convinced that our point of view will be listened to before the new Codes came into force, but that didn’t happen. CSM, the Justice Ministry and the Public Ministry forwarded to Parliament points of view that contained legislative changes that were absolutely necessary. Grammatical errors were also spotted in these new Codes,” CSM Vice President Bogdan Gabor stated.
The Penal Code is important for lawmakers, especially since it concerns them. Some tried to ban the use of handcuffs on those charged with corruption or to limit pre-trial arrest.

“This measure has to be taken solely as an exception. Handcuffing can be a manner of humiliating the person concerned,” PSD Senator Serban Nicolae had stated.

“Depriving someone of a minute of freedom based on reasonable suspicion can never be evaluated by anyone, not even by God,” PSD Senator Ioan Chelaru had stated.

“The Parliament’s roll call has more than 20 amendments to the Penal Code. Of these, the judiciary endorses only one. Magistrates know better the way the judiciary works. Some of them are really absurd,” CSM Vice President Bogdan Gabor added.

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