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Draft legislative acts on pardoning and on setting Penal Codes in line with CCR decision, sent to CSM, ICCJ and Prosecutor General’s Office. Protest in Central Bucharest against adoption of draft pardon ordinance

Justice Minister Florin Iordache announced that on Wednesday morning the Justice Ministry sent two legislative acts to the Superior Magistracy Council (CSM), High Court of Justice (ICCJ) and Prosecutor General’s Office, one concerning pardons, not amnesty, and the other concerning the Constitutional Court of Romania’s (CCR) decisions. The ICCJ President announced that the institution received the drafts by email, and its point of view must be made known by January 23.

“The Justice Ministry has drafted two legislative acts which are up for public consultation. They were finalised yesterday and were sent for consultation to the Superior Magistracy Council, High Court of Justice and Prosecutor General’s Office. The two legislative acts are the legislative act on pardoning, which does not concern corruption crimes, serious crimes and crimes whose proceeds must be recovered, and the legislative act on the Constitutional Court’s decisions which establish that certain offences should be better stipulated,” Justice Minister Florin Iordache stated after the Government’s meeting on Wednesday.

The Justice Minister also pointed out that the legislative acts were sent to all those concerned, that the moment all reports on them are received the drafts will be tabled within the Government and that the drafts were about to be published on the Public Ministry’s website later on Wednesday.

Asked whether the second legislative act refers to malfeasance in office, the Justice Minister pointed out that “the amendment is made in line with the Constitutional Court’s decision.”

 

OUG draft: Full pardon for sentences up to 5 years in prison

 

The draft government emergency ordinance (OUG) on pardoning some sentences, which the Ministry of Justice released for public debate on Wednesday, stipulates that sentences up to 5 years in prison as well as fines and penalties ordered by court are to be fully pardoned.

According to the quoted source, habitual offenders and those who committed a series of crimes provided by the Penal Code or other special law, enumerated in the draft, will not be granted pardon.

“Will be fully pardoned sentences up to 5 years in prison, as well as fines and penalties ordered by the court. The provisions of paragraph (1) are applied regardless of the way the prison sentence ordered by the court is to be served,” stipulates the first article of the emergency ordinance draft.

The second article stipulates that the prison sentences received by people who have reached 60 years of age, by pregnant women or people who have dependent minors aged up to five years old will be partly pardoned and reduced by half. People who are diagnosed with incurable illnesses in terminal stages will also benefit from halved sentences, or, depending on the case, will have the rest of their sentences annulled.

The third article stipulates that the provisions of the first two articles do not apply to defendants convicted for crimes while being habitual offenders and to those who are repeat offenders through previous convictions, and pardoning “is conditioned by payment of the compensations to which the sentenced person was ordered by final decision, within one year of release”.

The same article of the bill states that people who have committed a series of crimes as provided by Penal Code will not benefit from full pardoning of the sentences of up to five years in prison. These include crimes against state security, murder, serious injury, blows causing death, deprivation of liberty, breaking and entering, blackmail, sexual crimes, robbery, piracy or jailbreaking.

People convicted of crimes such as passive or active bribery, passive or active influence peddling, human trafficking, drug trafficking, human trafficking or computer fraud are also denied pardoning.

People convicted of several offenses covered by special laws, among which law no.78/2000 on preventing, discovering and sanctioning of corruption acts, do not benefit from pardoning either.

The draft ordinance also stipulates that a pardon “does not apply to those who did not begin serving their prison sentence because they eluded arrest, as well as those who started serving their sentence but subsequently eluded it.”

At the same time, “people who are pardoned and within three years intentionally commit a crime will serve, on top of the penalty established for that crime, the remainder of the sentence for the crime pardoned as a result of the application of the present law.”

 

Draft OUG: Abuse of office only for over 200,000 lei in damages, maximum 3yrs in jail

 

Abuse of office is to be taken as a crime if only the damages go over 200,000 lei, while the punishment maximum edge is cut to 3 years in jail, from 7 years now, according to a draft Emergency Ordinance (OUG) on the modification and completion of the Criminal Code and the Criminal Procedure Code, on Wednesday put under public scan by the Justice Ministry.

The same article mentions that the criminal action is set in motion upon the complaint of the damaged person.

Currently, the relevant article of the Criminal Code foresees no bottom limitation of the damage, and the abuse of office is punished with jail from 2 to 7 years and the deprivation of the right to occupy a public job.

The OUG draft also envisages the abrogation of the Criminal Code’s article stipulating the negligence of office.

Another proposal targets the modification of the first paragraph of Art. 301, that is to sound like: “The deed of the public servant who in exercising their prerogatives of service have fulfilled an act or participated in a decision-making through which directly or indirectly ill-gotten gains were got, for them, for their spouse, for a relative or a 2nd degree relative included, is punished with 1 to 5 years in jail and the deprivation of the right to occupy a public job.”

Other proposals refer to alterations of the Criminal Procedure Code, among which the limitation to six months of the term a denouncement could be submitted.

 

 President Klaus Iohannis presides Gov’t meeting for first time: Premier has promised me there would be no ordinances on pardoning and amending penal codes without consultation

 

President Klaus Iohannis presided the Government meeting on Wednesday, a meeting whose agenda included the adoption of important decisions concerning the state budget law. Before the meeting, there was information that an emergency ordinance on pardoning would be on the agenda, however the ordinance was not included on the official agenda of the Government meeting.

Prime Minister Sorin Grindeanu announced that the Government meeting on Wednesday would debate legislative acts on the agenda, among which the Government Emergency Ordinance on elements connected to the budget construction, as well the Government resolution to declare January 23 a public holiday.

The Head of State’s presence at the Government meeting was a first in Klaus Iohannis’s term.

Before the meeting started, the Head of State had a talk with Premier Sorin Grindeanu and with Justice Minister Florin Iordache. The three also talked about the emergency ordinance on pardoning and agreed that it should be sent for consultations to all competent entities before it is adopted.

 

“There are two elephants in the room, pardon ordinance and code amendment”

 

President Klaus Iohannis told the Ministers on Wednesday, in the opening of the Government meeting he chaired, that “there are two elephants in the room” – the ordinance on pardoning and the one on amending the penal codes.

“You know the story of an elephant in the room, but it is invisible. There are two elephants – the ordinance on pardoning and the one on amending the penal codes. Obviously, we also talked about these with the Prime Minister earlier in the morning, but he told me that the discussion had already taken place with some Government colleagues and these two aspects regarding the ordinance on pardoning and the one on amending the penal codes will not be put on the additional agenda”, Iohannis stated.

He specified that the Prime Minister made the commitment for these two legislative acts not to be tucked “overnight” during any Government meeting.

“He (Prime Minister – e.n.) made the commitment for these two legislative acts not to be tucked “overnight” in any Government meeting, but immediately after the documents are clarified, obviously, under the leadership of the Justice Minister, Interior Minister, and the Minister delegate for European Affairs to be made transparent, namely clearer, to be handed for consultation to all the entities provided by the law: the Superior Council of Magistracy, professional organizations, judges’ organizations, and, of course, the public opinion”, the President stated.

According to him, it is “mandatory” that these procedures be respected.

“Before arriving at the Government, the Prime Minister analysed with maximum responsibility these matters and so it was possible to reach a consensus in 20 minutes’ time or so, because we and, obviously, all the members of the Government want to consolidate the rule of law and then an important part is observing the norms and, not the least, respecting Romanians and the civil society; all of us, I ensure you, are very interested in these cases”, the Head of State added.

Klaus Iohannis stated the decision to take part in the Government meeting was taken by him on Wednesday morning. “I am pleased with the way you are doing your job and it’s a pleasure and an honour to be here with you,” Klaus Iohannis told the ministers at the start of the Government meeting.

According to Article 87 of the Romanian Constitution, the President presides the Government meetings he takes part in. “The President of Romania may participate in the meetings of the Government debating upon matters of national interest with regard to foreign policy, the defence of the country, public order, and, at the Prime Minister’s request, in other instances as well,” reads the first paragraph.

Premier Sorin Grindeanu stated on Tuesday that he disagrees with starting a debate on issues related to amnesty, but did not rule out a debate on pardoning, but not for serious offences that concern corruption, tax evasion and other major crimes. “I don’t agree with debating issues tied to amnesty, but I’m not ruling out a debate on pardoning, however not the pardoning of serious crimes that concern corruption, tax evasion, other major crimes,” Premier Grindeanu told Mediafax.

The Head of Government emphasised that that is his principled position in the debates and overtures concerning these issues.

The decision on a pardoning law must belong to the Government, Justice Minister Florin Iordache stated on Tuesday, pointing out that later that day he was set to have a talk on this topic with Premier Sorin Grindeanu and that in his opinion amnesty should not be considered, but pardoning should, “except for corruption crimes and serious crimes against persons.” Iordache also said one should not deny the fact that the penitentiary’s occupancy level is very high, namely 150 percent, pointing out that penitentiaries have a capacity for 19,000 inmates but house 27,000 inmates.

“We must make a decision in the Government. Upon leaving from the CSM [Superior Council of Magistrates] I will meet the Prime Minister and, depending on the decision we shall make in the Government, I shall inform you. I shall discuss [with Sorin Grindeanu], I find it a very important topic, and the decision (…) must belong to the Government. I have the technical arguments and I am saying what it is going on,” Florin Iordache pointed out at the CSM seat on Monday morning.

He recalled he had discussions with the representatives of penitentiaries and professional associations, pointing out that “humane conditions” are attempted to be created in penitentiaries.

“We had discussions with penitentiary representatives and with professional associations. We mustn’t deny that at the moment the occupancy level in penitentiaries is very high, around 150 percent. These people, if they have done something wrong, should serve their sentence, but we are trying to create some humane conditions. At the same time, we must say a very clear thing, that we have international conventions, we have from the ECHR (…) the sanction of paying several million euro because of the conditions existing in penitentiaries,” the Justice Minister explained.

In his opinion, the occupancy level could not be diminished by 2021, considering that if the construction of a 500-600-bed penitentiary began now it would take at least five years to complete.

Florin Iordache added that, in his opinion, amnesty should not be considered, and pardoning should not include corruption offenses. “In my view, amnesty should not be considered, but pardoning is a phenomenon. The professional associations have supported pardoning, because it is an attribute of each state in the criminal area for such an act of clemency. (…) But, certainly, with the elimination of corruption offenses, with the elimination of serious crimes against a person,” Iordache also said.

 

Grindeanu: Malfeasance in office and conflict of interest won’t be decriminalised

 

Premier Sorin Grindeanu stated that malfeasance in office and conflict of interest are not decriminalised by the drafts promoted by the Justice Ministry.

“Neither conflict of interest nor malfeasance in office are decriminalised, but these things are clarified, from the Justice Ministry’s point of view, these things are clarified in line with Constitutional Court decisions,” Premier Sorin Grindeanu stated.

He  stated on Wednesday that he does not rule out the option for the Government to promote the pardoning and the amending of the Penal Code through bills, the option of using emergency ordinances being the “Justice Minister’s view,” and that a decision will be taken after public consultations.

“The Justice Minister came with his view on these two issues (the pardoning and the amending of the Penal Code – editor’s note). Based on what I know, these things can be made in two ways: through emergency ordinance or through Parliament,” Sorin Grindeanu said when asked why the Government did not prefer the option of tabling bills instead of issuing emergency ordinances.

He pointed out that “the Grindeanu Government was not the one to invent emergency ordinances on the Penal Code” and that even the technocratic Government issued emergency ordinances amending the Penal Code in the last year.

“There are these two possibilities offered by the law. From the start, the Justice Minister stated his view on what justice means. It’s a first step, it’s a proposal, at this moment we are moving toward what we discussed so far, toward consulting the other institutions and not only them, and we will see afterward what decision we’ll take,” the Premier concluded.

 

” Does Constitution allow pardon and amnesty? Yes, therefore they don’t contradict law”

 

Prime Minister Sorin Grindeanu on Wednesday said that in the Government meeting “the things communicated in due time” were discussed, pointing out that, according to the Constitution, “we are allowed to grant pardon and amnesty,” therefore these things “aren’t against the law.”

However, he added that these topics were not discussed “regardless of President Iohannis’s presence,” as they were not on the meeting’s agenda.

“According to the Constitution, are we allowed to grant pardon and amnesty? Does the Constitution say we are allowed (…) to do this? Yes. Therefore, they aren’t against the law. (…) I believe that it is as constitutional as President Klaus Iohannis coming to chair the Government meeting, it is constitutional, with the observance of the law, to issue an emergency ordinance in all the areas the law allows us to. As it wasn’t on the agenda communicated in time to you (…) which we had yesterday in the working folder, we couldn’t adopt matters on additional points,” the PM told journalists.

He pointed out that neither conflict of interest nor malfeasance in office will be decriminalized, but “these things will be clarified from the perspective of the Justice Ministry, in accordance with the Constitutional Court decisions.”

“Any decision of the Constitutional Court is mandatory. We cannot pretend we don’t have it. This clarification which the Justice Ministry is making now and sending to public consultation is the Justice Ministry’s perspective,” Grindeanu said.

The PM explained that it concerns two proposals of the Justice Ministry – one regarding pardon, “which doesn’t include corruption offenses, violence or organised crime offenses,” and the other one – the transposition of a European directive on the citizens’ rights to fair trial.

The Prime Minister maintained that the discussion he had with Klaus Iohannis was not related to pardon and the modification of the penal codes, but that it was only a question of the head of state referring this topic.

“The discussion [with Klaus Iohannis] wasn’t regarding what you are saying. It was the President’s question whether these drafts are on the agenda. I assured him that these drafts are not on the agenda and that all things I have mentioned earlier will be covered, namely (…) these proposals of the Justice Ministry were sent this morning to the Superior Council of Magistrates and all the other institutions,” the PM told journalists.

Referring to pardoning and the amending of the codes, he pointed out that these things can be done either by emergency ordinance or in Parliament.

“There are these two possibilities offered by the law. From the start, the Justice Minister stated his view on what justice means. It’s a first step, it’s a proposal, at this moment we are moving toward what we discussed so far, toward consulting the other institutions and not only them, and we will see afterward what decision we’ll take,” the Premier concluded.

 

 ICCJ President: Amnesty and pardon are institutions stipulated by criminal law, all aspects must be carefully analysed

 

High Court of Justice (ICCJ) President Cristina Tarcea stated that the draft ordinance on pardoning and the one amending the penal codes were received by the Supreme Court on Wednesday at noon, by email, its point of view being requested by January 23.

“So far this aspect hasn’t been discussed with the magistrates’ professional associations and the courts either. While I was on my way to the Supreme Magistracy Council, I received a phone call from the office. I was told we have received by email the draft emergency ordinance on amnesty and pardon and on amending the Penal Procedure Code and that we are being asked for a point of view by January 23. I’m convinced we will discuss this aspect today, at the Supreme Magistracy Council, because, as you know, the Supreme Magistracy Council’s approval is required in the procedure of adopting any legislative act that concerns the judiciary. Amnesty and pardon are institutions stipulated by the penal legislation, but such bills should not be approved without the prior consulting of all circumstances. I didn’t have the chance to read the emergency ordinances because I just received them by email. Everything must be carefully analysed because pardoning does not have effect solely on executory sentences, all these aspects must be analysed. I’ve seen some pardon decrees in the past. They concerned minor offences,” the ICCJ President stated when arriving at the Supreme Magistracy Council (CSM) headquarters.

 

Supreme Court’s Tarcea on draft pardon ordinance: Looks to be dedicated

 

ICCJ President  Cristina Tarcea also said on Wednesday that considering the talk in the public space on the Emergency Ordinance (OUG) draft on pardon, it seems to be “dedicated.”

“If I take notice of all the talk in the public space, that is how it seems to be,” specified Cristina Tarcea at exiting the Superior Council of Magistracy (CSM) Hqs. when asked whether the said draft OUG looks like being “dedicated.”

Also asked why an emergency ordinance, what would be the rush, Tarcea replied: “This is what I wish I knew myself. The Constitutional Court of Romania (CCR)’s decisions are not from last week, some are from one year and a half. (…) The files already in the court of law will benefit from these laws’ decisions. I’ve asked myself what would happen if the contents of these emergency ordinances will not be a perfect match with the parliamentary procedure, therefore what if they change. This is not without importance, because it is about enforcing the criminal law the most favourable. (…) Proper would be to go to the Parliament, through a draft law, much more proper and a way more predictable, clearer legal solution.”

Cristina Tarcea also said a specialist opinion should be necessary. “Don’t you find it normal to consider the specialists notice? Yes, I find it normal, it is an advisory opinion, and yet an opinion given by law specialists. I doubt that the Government has a lot of Law graduates,” the ICCJ president concluded

CSM President Madalin Ghena stated on Wednesday, at the start of CSM’s plenum meeting, that the Council received the draft emergency ordinances at 11 a.m. In line with the procedure, CSM must issue its approval on the two drafts.

“Today, 18 January 2017, the Supreme Magistracy Council received from the Justice Ministry the Government’s draft emergency ordinance that amends and supplements the Penal Code and the Penal Procedure Code, and the draft emergency ordinance that grants pardons for some crimes. The draft legislative acts are subjected, at this moment, to the analysis of the special directorate, under the coordination of the Council’s Commission no.1 – ‘Legislation and inter-institutional collaboration.’ Considering that the drafts authored by the Justice Ministry concern legislative amendments and supplements that refer to the activity of the judiciary, namely to the carrying out of the act of justice, the Supreme Magistracy Council (CSM) deems it necessary to consult the corps of magistrates in view of approving it. Depending on the timetable that will be established by the Government for the adoption of the aforementioned legislative acts, the Supreme Magistracy Council considers planning a plenum meeting in order to approve them, in line with the stipulations of Article 38, Paragraph 3 of law no.317/2004 on the Supreme Magistracy Council. The date of the meeting will be announced as soon as decided,” reads a CSM communique.

 

Prosecutor General’s Office: Promoting pardon and amnesty without transparency would prove state’s weakness to crime

 

The Prosecutor General’s Office maintains that promoting some clemency acts such as pardon and amnesty, without transparency and without consulting the Superior Council of Magistrates, would prove lack of will and the state authorities’ weakness to crime.

The Prosecutor General’s Office on Wednesday issued a press release voicing its opinion on the public debates on the adoption of some legislative amendments on pardon and amnesty.

“The priority of the Prosecutor’s Office attached to the High Court of Cassation and Justice at the moment is represented by the consolidation of institutional capabilities in the fight against crime in general and corruption and conflict of interest in particular. In this context, the promotion of some clemency acts such as pardon and amnesty, without transparency and the prior consultation of the Superior Council of Magistrates, as provided by the law in force, would not only contradict the objectives of the Public Ministry, but would also prove lack of will and the weakness of the state authorities to crime,” the General Prosecutor’s Office says.

 

DNA: Changing the legislative framework as a matter of urgency, given lack of objective analyses, is unjustified

 

The National Anticorruption Directorate (DNA) considers, in relation to ordinances projects regarding the change of the Criminal Code and the pardoning of some sentences, that the modification of the legislative framework as a matter of urgency and in the absence of objective analyses is not justifiable.

“The National Anticorruption Directorate considers that the modification of the legislative framework as a matter of urgency and in the absence of objective analyses that certify an imperious social need is unjustified. Criminal legislation must accomplish a balance between the need of the society to hold responsible people who committed crimes and the fundamental rights of people under investigation or during the execution of applied penalties, but the proposed modifications would alter this balance,” reads a press release of DNA sent on Wednesday

 

Turcan: An amnesty and pardon law stealthily issued – an attack; we’ll not open the door for the corrupt persons’ rescue

 

PNL Interim President Raluca Turcan stated on Wednesday that an amnesty and pardon law “stealthily” issued would represent an attack on the people, underlining that Liberals will not “open the door for the corrupt persons’ rescue, not even one millimeter”.

“While Mr. Dragnea goes to the U.S., Grindeanu-Dragnea Government was prepared to issue GEOs for pardon and to amend the criminal laws. We draw Dragnea government’s attention on the fact that an amnesty and pardon law stealthily issued would be a breach of trust, an act of favoring the perpetrator, an attack on the people, who wish to see justice, not decision for the perpetrators’ rescue” Raluca Turcan stated in a press conference.

She claimed that in order to solve the situation in the penitentiaries, which she labeled as “inhuman”, more money must be allocated and penitentiaries must be built.

“The decision to issue GEOs would have many outrageous consequences for the Romanian people, for instance the responsible persons for the fire at Colectiv would also escape”, Turcan appreciates.

She pointed out that PNL asks the Government “not to govern with priority for those in PSD and for those having criminal problems, but for the many, for the honest people in this country”.

PNL President stated that the information related to the Government’s intention to issue these ordinances appeared in the first phase at PSD members.

“We know this project was prepared. It’s just a matter of time, the decision seems to be already taken, publicly covered in different ways, to rescue those having criminal problems with a pardon law and with amending the Criminal Code” Raluca Turcan said.

The Liberal leader claimed that there was no discussion with President Klaus Iohannis on this subject.

“PNL has a priority objective: the respect for human rights. We are sure that, at this moment, there are violations of human rights and inhuman conditions in penitentiaries, but from here to rescue the corrupt persons is a big difference. PNL will not open the door for the corrupt persons’ rescue, for the rescue of those who harmed Romanian people through corruption deeds, not even one millimetre” Raluca Turcan also stated, asked if PNL will be definitely against any form of the pardon law.

 

Senate Speaker on pardoning: There is no political discussion in Parliament, which can however decide in this matter

 

On the other hand, on Tuesday evening, Senate Speaker Calin Popescu Tariceanu said that in Parliament, for now, there is no political discussion on pardoning, but the Legislature is entirely entitled to discuss and decide including in this respect.

“At present, there is no consistent, aggregated, political discussion in Parliament, but I believe that Parliament, as a democratic legislative body, is entirely entitled to discuss and decide including in this respect. We can eventually, if Parliament doesn’t assume this role by itself, because it doesn’t have all necessary analysis instruments, do this together with the Government, namely with the Justice Ministry,” Tariceanu said on Antena 3 private television broadcaster on Tuesday evening.

He showed that there are humiliating living conditions in penitentiaries.

“We cannot break their dignity, we cannot mock these people. Because they have done wrong, they are deprived of liberty, but we mustn’t punish them in addition (…). Society must still think about these people and not condemn them several times for the same thing. We must discuss this calmly and responsibly,” Tariceanu explained, who maintains that the discussion on pardoning “should not generate panic.”

The Senate Speaker mentioned that pardons have taken place over time.

“It is an instrument that is periodically used. It was used in antiquity, and in modern times. During the communist period there was also pardoning. After 1990 there were pardons, amnesties – in 1998, during the Democratic Convention Government, and in 2002, when the Social Democratic Party was at rule. The sky didn’t fall. On the contrary, these are measures periodically taken both for humanitarian reasons and for reasons related to the penitentiary occupancy level,” Tariceanu added.

 

Protest in Central Bucharest against adoption of draft pardon ordinance

 

More people are protesting on Wednesday evening in University Square in Bucharest against the adoption of the draft pardon ordinance.

The protesters, carrying red cards, shouted: “Dragnea, don’t forget, Romania is not yours!”, “Corruption kills!”, “Colectiv!”, “Down with the criminals!”, “The Anticorruption Department should come and get you!”, “In jail not governing!”.

More protesters had banners with messages such as: “No to amnesty!”, “Please excuse us, we don’t produce as much as you steal”, “Depoliticization in schools and hospitals”, “We want a health system not sins forgiven”, “Down with the Mafia Government”, “Prison yes, amnesty no”, “Hands off of the Criminal Code”, “Wake up Romania, your democracy is dying!”.

One of the protesters, Mircea Dinita, declared that he doesn’t find it normal for those who did something wrong or stole to be forgiven through such a law. “Democracy mustn’t be taken to an extreme through measures that are made just for some and are very restrictive and are directed at some in a way,” said Dinita.

In his turn, Ciprian Necula, another protester, expressed his dissatisfaction: “They just want to cover some criminal activities right now. We are basically back a year ago, the Colectiv episode, when we went out into the streets and asked for normality. (…) Through what they wanted to do today they are throwing us back by 20 years.”

The leader of Save Romania Union, Nicusor Dan, present in University Square, specified that he is not making any public statements on the subject so as to not be interpreted that politicians came in the Square to confiscate a protest of the civil society.

 

 

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