The draft emergency ordinance on the amending of the Penal Code and Penal Procedure Code and the draft emergency ordinance on the granting of pardons, put up for public consultation, are continuing to stir heated reactions and controversies.
The Government’s draft on the granting of pardons has compelled people to take to the streets. Three thousand people protested in Bucharest’s University Square on Wednesday evening, but there were protests in Cluj, Brasov, Timisoara, Iasi and Sibiu too. The protesters, organised through social networks, asked the Government not to adopt the ordinance amending the Penal Code and encouraged the DNA not to give up the fight against corruption.
The draft government emergency ordinance on the amending of the Penal Code and Penal Procedure Code stipulates the decriminalisation of abuse of office if the damage caused falls below RON 200,000, the offence being investigated only as a result of a complaint. Likewise, the denunciation can be filed at least six months since the guilty acts are committed and neglect of duty has been abrogated.
The ordinance on the granting of pardons stipulates, among other things, the full pardoning of sentences up to five years in prison and the cutting in half of the sentences served by convicts 60 years of age, pregnant women and women who have children up to 5 years of age.
The Superior Council of Magistracy (CSM) announced on Thursday that they will analyse, by January 27, the Justice Ministry’s request to issue an opinion on the draft emergency ordinances regarding the granting of pardons and the amending of the Penal Code.
“The Superior Council of Magistracy will analyse, until no later than 27 January, the Justice Ministry’s request to issue an opinion on the draft emergency ordinance on changing and supplementing the Penal Code and Penal Procedure Code, and the draft emergency ordinance on pardoning some sentences, communicated to the Council yesterday, January 18”, a press release of the CSM sent to Agerpres on Thursday shows.
The quoted source specifies that the draft legislative acts were communicated for analysis and consultation to all the courts and prosecutor’s offices in Romania, as well as to the professional associations of magistrates.
“The points of view of the mentioned entities will be sent to the Council by January 25, to be tallied and synthesized, and then these, together with the stance of the Council’s Directorate on Legislation and Documentation, will be analysed within a meeting of the Committee no.1 – ‘Legislation and inter-institutional cooperation’, foregoing the debate of the Council’s plenary meeting”, the CSM press release shows.
Prosecutor General on granting of pardons: We encourage citizens’ correct conduct, but someone comes and shifts direction
Romania’s Prosecutor General Augustin Lazar told Agerpres on Thursday that there is a feeling of concern among prosecutors in respect to the pardon draft, and in the Superior Council of Magistrates (CSM) the general view on this topic is negative.
“There is a feeling of concern, because since we joined the European Union we have been preparing to consolidate the rule of law through correct public conduct, encouraging correct conduct on the part of the citizens, and now someone comes along and, surprisingly, shifts the direction and would want us to adopt another position, one of clemency,” Augustin Lazar said.
He said that within the Superior Council of Magistrates the general view was negative in respect to the pardon draft.
“I couldn’t tell you right now what kind of opinion there will be, there is a debate in the CSM, however the general idea was negative in respect to this draft, which isn’t meant to encourage Justice and magistrates nor a correct public conduct in Romania. Our position has been blunt, of rejection. We don’t need clemency acts, we need acts consolidating the Romanian institutions fighting against crime, corruption, conflict of interest. Unfortunately, we see that the text of the law criminalising conflict of interest has also been modified. It is practically a decriminalisation. We will no longer be able to prove that someone has been in conflict of interest if the text remains as it is now. (…) In a few days’ time, we shall have a new point of view and we shall explain that it is wrong to place above the public interest the special interest of a group of persons interested in benefiting from this draft,” Augustin Lazar explained.
The Prosecutor General also said that at the meeting he recently had with Justice Minister Florin Iordache the latter did not tell him about the pardon draft or the modifications to the Criminal Code.
“We received the draft while at the CSM, yesterday. We hadn’t seen the draft beforehand. It was ready, ready to come out this way. There has been no transparency and no previous consultation with the CSM. Only now are the Council members going to study it and present a point of view,” Augustin Lazar pointed out.
On Wednesday, the Prosecutor General’s Office (PG) said that the urgency of passing the legislative acts on pardons, conflict of interest and abuse of office is not justified, because “the entities involved in their implementation were not preliminarily consulted in a transparent manner”.
“Bearing in mind the constitutional provisions, as well the consequences of adopting these regulations, we assess that the urgency of passing these legislative acts through a government ordinance is not justified, the more so as the entities involved in their enforcement were not preliminarily consulted in a transparent manner”, the General Prosecutor’s Office specified in a press release on Wednesday.
DNA: Changing the legislative framework as a matter of urgency, given lack of objective analyses, is unjustified
“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 serving their sentences, but the proposed modifications would alter this balance,” reads a communique issued by the DNA on Wednesday.
The statements were made regarding the draft ordinances on the granting of pardons and on the amending of the Penal Code, pointing out that the offences pardoned include abuse of office – in all its forms – and offences assimilated to corruption crimes, as well as the worst forms of tax evasion. According to the DNA, the guilty acts in the case concerning the failure to use the hyperbaric chamber at the Floreasca Hospital’s burns unit will be partially decriminalised.
“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 serving their sentences, but the proposed modifications would alter this balance,” the DNA representatives pointed out.
Concerning the modifications brought to the Penal Code and Penal Procedure Code, the DNA points out that abuse of office offences which cause damage lower than RON 200,000 are decriminalised, pointing out that the ceiling established has nothing to do with the Constitutional Court’s decision.
“The RON 200,000 cap has nothing to do with the decision of the Constitutional Court of Romania in what concerns this crime, even though the explanatory note invokes this aspect. This cap is established arbitrarily, without being justified in any way, with there being the possibility that certain specific persons are being favoured,” DNA points out.
In what concerns the draft on the granting of pardons, the DNA points out that the pardoned offences include abuse of office – in all its forms – and offences assimilated to corruption crimes.
“In the case of tax evasion, only the simplest forms of tax evasion are excepted from pardon. The really serious ones (Article 9 of law no.241/2005) are completely pardoned, which will have a negative effect for the investigation of corruption crimes, because many persons investigated for tax evasion crimes admit that the money were in fact used for bribes. If these persons know they will no longer be held accountable for tax evasion, they have no reason to denounce the briber. All convicts older than 60 years of age or who have children younger than 5 will have half their sentence pardoned, regardless of the severity of the crime committed (the list of crimes excluded from pardoning concerns only full pardons, not the pardoning of half the sentence),” the anticorruption prosecutors added.
Justice Minister Florin Iordache: Pardon is not tailored for one person. It’s an alternative solution
Justice Minister Florin Iordache stated on Thursday morning, at the ministry’s headquarters, that the emergency ordinance on the granting of pardons is not tailored for one person, the attempt made being to remedy a situation “that has been persisting for longer in Romania,” referring to overcrowded prisons.
“Firstly, those who are now jailed there. It [the emergency ordinance on pardons] is not tailored for one person. It’s a system we noticed it doesn’t work. It’s an alternative solution. Penitentiaries will continue to be built, but this takes time. And we are trying to remedy a situation that has been persisting for longer in Romania,” the Justice Minister stated.
The statement came against the backdrop in which the heads of prosecutor’s offices and courts stated that the ordinances on the granting of pardons and on the amending of the Codes are being done with clear beneficiaries in mind.
JusMin Iordache on protests against pardon: People are not correctly informed
Previously, on Wednesday evening, the Justice Minister said that the people who protested in Bucharest against the draft ordinance regarding the pardoning of some sentences are not correctly informed, and, considering the situation created, a State Secretary would go out and talk with the protestors.
“I have sent tonight a State Secretary, I have talked with the Government’s Secretary General and a State Secretary will go and talk with the people, because it looks to me that these people are not correctly informed. In our view, it is a legal prerogative of the Government to be able to do this. I believe that people came out and protested because of lack of information,” Florin Iordache stated on Antena 3 private television broadcaster.
When asked about the negative reactions on this subject, Iordache stated that the reason for which they appeared could be related to “misinformation” in respect to the content of the draft ordinance regarding the granting of pardons.
“We expect opposite points of view, not everybody has to agree, but I have seen that there are certain anomalies and malfunctions and this is why we are trying to straighten them out. There are many more issues that have to be amended in the upcoming period,” the Minister added.
The Justice Minister explained that pardons were also granted in 1998 and in 2001, and Romania currently has detention units that can accommodate 19,000 inmates, but has 28,000 inmates.
When asked if Chairman of the Social Democratic Party (PSD) Liviu Dragnea could be one of the people benefiting from the draft regarding the granting of pardons, Iordache responded as follows: “Certainly not. In his case the execution of the sentence is suspended. Laws and ordinances are not made for people. We are talking about offenses. If you take a clear look at the offenses which are stipulated, he has no benefit from it.”
PM Sorin Grindeanu defends pardoning: At this moment in Romania there isn’t a balance between branches of government
On Wednesday evening, Premier Sorin Grindeanu defended the draft ordinances on the granting of pardons and on the amending of the Penal Code and Penal Procedure Code, stating that in his view at this moment in Romania there is not a balance between branches of government.
“These two proposals, concerning pardons and the amending of the Codes, were not on the order of the day. Constitutionally and legally, the Government is allowed to pass emergency ordinances. The Grindeanu Government was not the one which invented these things. The previous great technocratic Government issued, a few months ago, an ordinance amending the Penal Code. I didn’t see similar scandals,” Sorin Grindeanu stated on Antena 3.
“We’ll see what the best option is. It may be through government emergency ordinance, it may be through Parliament, we’ll see what the best solution is. Both options are legal,” he emphasised.
In the Premier’s opinion, at this moment there is no balance between branches of government in Romania.
“Everyone wants rule of law, everyone wants to reduce corruption as much as possible, all things that make a just Romania, a normal Romania, as I said in my inauguration speech. But a normal Romania also means respecting each citizen’s right to fair trial without abuses. (…) Normal Romania doesn’t mean abuses, it doesn’t mean mixing the branches of government, it doesn’t even mean for one branch of government to be stronger than another, it means balance. This is what a normal Romania means. In my view, this balance does not exist at this moment,” the Premier said.
Dacian Ciolos on pardons: Everything for a handful of individuals to evade the law. Simple and cynical
Ex-Premier Dacian Ciolos claims that the pardon/amnesty overture, in any form it will take or moment it will be promoted, “only shows contempt for citizens, because PSD-ALDE’s main objective was and remains evading the effects of criminal law.”
“Given the manner it was made today, the pardon/amnesty overture, in any form or moment it will be promoted, creates the suspicion that the PSD-ALDE Government’s central objective is something else: not the Romanians’ well-being, as they claimed before and after the elections, not the public interest, the citizens or the economic sector, not Romania’s interest in a very difficult geostrategic context. The main objective was and continues to be evading the effects of criminal law,” Ciolos wrote on Facebook.
He also claimed that “nothing else matters,” no sacrifice is too great: the citizens who respect the law, the country, its credibility, Romania’s European status.”
“They all can be sacrificed overnight for a handful of individuals to evade the law. Simple and cynical. The regulations introduced on the hush only show contempt for citizens. The duplicitous manner in which the issue of penitentiary overcrowding is being used, as pretext to discredit anticorruption policies in Romania, is unacceptable. Mr. Dragnea, Mr. Grindeanu, don’t take Romania back to the 1990s. A normal Romania is the Romania in which the law rules, not arbitrariness, not forceful blows or occult arrangements,” Dacian Ciolos concluded.
Alina Bica: Pardon is not granted to anyone, it’s a formal act. OUG on abuse does not respect CCR decision
Alina Bica, former Chief Prosecutor of the Directorate for the Combating of Organised Crime and Terrorism (DIICOT), stated on Sunday evening that the government emergency ordinance (OUG) on the granting of pardons “is not applied to anyone,” believing that it is “a formal document.” The former DIICOT Chief Prosecutor pointed out that the ordinance on abuse of office does not respect the CCR decision.
“I’ve seen the ordinance on pardons. I find it very interesting. I think it’s not applied to anyone. I believe it’s only a formal document. I find it strange to exclude fraud, which is a crime punishable by 1 to 5 years in prison and the sides reaching a settlement is allowed, and to pardon hit and run and serious offences.”
In what concerns abuse of office, Bica claims it does not respect the CCR decision.
“The ministry’s people should have read the Court’s decision again. The Court issued some very clear criteria on individualising the offence, which are not related to the size of the damage but to the content of the guilty act. I believe the Court’s decision should be rendered efficient through the correct regulation of the offence,” Bica added.
Centre for Judicial Resources requests Government to withdraw pardon projects, criminal legislation modifications
The Centre for Judicial Resources (CRJ) requests the Government to withdraw the emergency ordinance (OUG) drafts regarding the Criminal Code and the Criminal Procedure Code’s amendment and pardon, and claims that these measures cannot be “secretly” promoted through emergency ordinances without a public debate.
The representatives of CRJ declared, in a press release sent to AGERPRES on Thursday, that the criminal laws’ amendment and granting pardon cannot be done through emergency ordinances.
“The measures proposed by the Government do not justify their promotion through emergency ordinances, as we are not facing extraordinary situations whose regulation cannot suffer postponement, the conditions imposed by the Constitution for the adoption of an emergency ordinance not being fulfilled. Even if the proposed measures were appropriate, they need to be promoted in observance of the Constitution, through some laws adopted in Parliament, transparently and by ensuring the possibility of a real public debate, not in secret, through emergency ordinances. The importance of these proposals, as well as the high level of public interest for the case rule out their adoption by an emergency procedure without any debate,” maintains CRJ.
CRJ representatives consider that pardon, amnesty or redefinition of some crimes represent legitimate tools of criminal policy that can have positive effects when they are promoted transparently and in good faith.
“Although in the public space these notions have come to be associated with undermining the fight against corruption, in reality they represent an important part of the state’s criminal policy, a policy that can be relaxed in certain situations, its purpose not being that of maximizing repression. Pardon could represent a solution to the degrading conditions in Romanian penitentiaries, as far as it is considered rationally and in good faith and corroborated with other measures of criminal policy, with strengthening the probation system but also with building new detention spaces. In the absence of mixed measures, the penitentiaries will be just as crowded in the near future, and CEDO will notice the same violations of human rights,” says CRJ.
The Centre for Judicial Resources explains that several norms in the Criminal Code and in the Criminal Procedure Code must be modified, either in view of harmonizing them with the decisions of the Constitutional Court, or in order to enhance the clarity of legal texts.
“Notwithstanding, the way the Government chose to promote the measures, as well as the content of some of them (for example the pardon of suspended sentences, which does not correspond to the declared purpose of easing overcrowding of penitentiaries) affect the legitimacy of these proposals and do not allow their adoption in the current form. Moreover, the Government’s modus operandi will contribute to the consolidation of public perception on pardon and amnesty, reinforcing the idea that these measures are inherently flawed, no matter their content or context. Consequently, we request the Government to withdraw the two emergency ordinance drafts and to submit them for debate in the framework of parliamentary procedure, through ensuring transparency and the possibility to express points of view by all interested parties,” mentions CRJ.
USR tables simple motion against Justice Minister
The Save Romania Union (USR) announced on Thursday it will table a simple motion against Justice Minister Florin Iordache, for the ordinances concerning the granting of pardons and amnesty.
“USR will table a simple motion against Justice Minister Florin Iordache. Likewise, USR will forward a memo to the Justice Ministry, the Supreme Magistracy Council and the High Court of Justice’s Prosecutor’s Office, pointing out in it why the two draft emergency ordinances concern the interests of some persons who held or are holding public offices and not the interests of society, which needs the limiting of the corruption phenomenon. USR considers it unacceptable for the Justice Ministry to promote the two draft emergency ordinances which legislate in domains that are fundamental for the rule of law, and considers that the Justice Ministry has failed in its attempt to justify the urgency of the regulation included in the two drafts,” reads an USR communique remitted to Mediafax.
USR invokes law no.546/2002 and the Constitution.
“Both the Constitution and law no.546/2002 establish Parliament as the competent forum for the discussion of aspects concerning the granting of a collective pardon. It’s clear that so far all legislatures considered this clemency overture as falling among the prerogatives of Parliament, the Romanian people’s supreme representative body. Concerning the urgency, the imminence of an ECHR overture does not exist. We point out that PSD held the majority previously too, ever since the dramatic situation in the penitentiaries has been dragging on – to whose improvement USR plans to contribute – and did not see fit to solve it, hypocritically stating now that a hasty solution would be imperative,” USR says.
According to the aforementioned source, there is no justification for the pardoning of criminal fines ordered by courts, for the pardoning of half the sentences received by persons who are 60 years of age or older. Likewise, the political party considers that the granting of pardons should be conditioned, in all cases, by the payment of the damages established through final court decisions, within a period of one year after the persons concerned are released from prison.
“We deem that establishing a deadline for the filing of the denunciation will have particularly serious effects in society, especially in the case of “white-collar” crimes, where there is a specificity and a difficulty in administering evidence, and it will in the end lead to a principle of impunity taking root. We consider one of the worst modifications the one eliminating the ban on holding public office in case the crime of abuse of office was committed. It’s difficult to accept that someone who committed such a crime, while in office, would continue to hold the same office. By introducing a deadline within which the criminal denunciation and, in some cases, the act of apprehension can be filed, the goal is basically the de facto lowering of the statute of limitations for some crimes and impunity for the crimes committed. USR cannot accept such an overture and considers it completely against the principles that should govern a mature society,” the communique adds.
Raluca Turcan: PNL mulls tabling censure motion following judiciary bills
PNL is considering tabling a censure motion, PNL President Raluca Turcan told Mediafax on Thursday, pointing out that PSD’s ordinances in the judicial domain are “attacks on Romania’s European project.”
“PNL is considering tabling a censure motion. We are in the midst of the parliamentary majority’s powerful assault against the idea of law. PSD’s ordinances are attacks on Romania’s European project. They affect the Romanians’ dream of having a European country in which there aren’t two categories of citizens, in which political thievery is not tolerated,” Raluca Turcan told Mediafax.
She argued that “a country as abroad” does not mean solely prosperity but also equality before the law.
“PSD is estranging Romanians from their own country! Who still wants to return to the country when politicians help each other evade justice? It’s a gesture of highway robbery!” Turcan concluded.
The PNL President’s stance comes against the backdrop in which USR announced its intention to table a simple motion against Justice Minister Florin Iordache.
The signatures of at least 50 Lower Chamber lawmakers or a quarter of all Senators (136) are needed to table a simple motion, numbers that USR cannot secure on its own. The censure motion can be tabled by at least a quarter of the total number of lawmakers (465). The Liberals have only 99 lawmakers.
In the Lower Chamber, PSD has 154 seats, UDMR 21, ALDE 20, PNL 69, USR 30 and PMP 18. 17 seats were distributed to the representatives of ethnic minorities. In the Senate, PSD has 67 seats, ALDE 9, UDMR 9, PNL 30, USR 13 and PMP 8.