National Anticorruption Directorate (DNA) Chief Prosecutor Laura Codruta Kovesi states that the amendments that parliamentarians want to bring to the Criminal Codes eliminate very many of the efficient instruments of investigation that prosecutors have at their disposal and that, if approved, “the DNA will shut up shop.” “These modifications will not only affect the activity of all prosecutors, but will also endanger all Romanians,” Kovesi stated on Thursday for Digi24.
She said that, for instance, there is a modification that will force prosecutors to notify a person once a notification for corruption crimes is lodged with the DNA on the said person’s name.
“If we, at the DNA, receive a notification that a mayor asked for a bribe to award a contract, we will have to immediately announce that person, to call the mayor and tell him ‘you know, we have a notification that you will receive a bribe and from this moment on you have the right to attend all acts we carry out in order to apprehend you when you receive the bribe.’ If such a text comes into force, we can say the DNA shuts up shop,” Kovesi stated.
She stated prosecutors might never end up indicting suspects if forced to inform them before carrying out any kind of investigation.
“What accounts could you still verify, what investigation could you still carry out, what evidence could you still bring, when that person knows you want to investigate him/her for a certain illegal act?” Kovesi said.
The DNA Chief Prosecutor also stated that another modification that would severely affect the activity of prosecutors refers to the impossibility of using the results of computer forensics in another case.
“If we seize a computer and, apart from the documents we are looking for and the emails we are interested in, we find video files showing a murder or child pornography, we cannot do anything with those files, on the contrary, they must be destroyed,” the DNA Chief Prosecutor pointed out.
The DNA Chief Prosecutor also gave the example of the amendment concerning the investigative bodies’ access to databases, pointing out that if a person is run over by a car police officers and prosecutors will be unable to verify who owns the car.
Thus, “investigators will be deprived of efficient and simple instruments when we are talking about grave crimes,” Kovesi said, pointing out that the amendments to the Criminal Code “have absolutely nothing to do with the presumption of innocence,” against the backdrop in which PSD claimed they were tabling the amendments in order to align the legislation with the European directive in this field.
“It’s just a pretext to eliminate the police officers’ and prosecutors’ ability to discover and investigate these crimes,” the DNA Chief Prosecutor said, adding that the presumption of innocence is already stipulated and consolidated in Romanian legislation.
“These modifications will not only affect the activity of all prosecutors, but will also endanger all Romanians,” the Chief Prosecutor of the National Anticorruption Directorate added.
DNA: Devastating impact on criminal probes
Earlier on Thursday, the National Anticorruption Directorate (DNA) sounded the alarm over the proposed amendments to the Criminal Code and Criminal Procedure Code: “They will have a devastating effect on criminal probes.”
The DNA claims that the amendments and additions expected to be brought to the Criminal Code and Criminal Procedure Code will have a “devastating” effect on criminal probes, eliminating the “indispensable” legal instruments with which investigative bodies can probe crimes.
According to a DNA communique remitted to Agerpres, the House and Senate’s special joint committee on judicial laws will host debates on the proposed amendments and additions to the Criminal Procedure Code and the Criminal Code, by relating to the transposition of Directive (EU) 2016/343 of the European Parliament and Council, dated 9 March 2016, regarding the consolidation of certain aspects of the presumption of innocence and of the right to be present in court during criminal proceedings.
“These amendments will have a devastating impact on criminal probes, because they eliminate the indispensable legal instruments with which investigative bodies can probe crimes. In reality, all guarantees entailed by Directive (EU) 2016/343 of the European Parliament and Council, dated 09.03.2016, are already stipulated by internal legislation,” the DNA points out.
Hence, the source points out, the directive is only used as a pretext to eliminate the criminal prosecution bodies’ ability to discover and prove crimes, and the purpose of these modifications has nothing to do with the presumption of innocence.
Thus, anticorruption prosecutors claim that the modification of Article 307, Paragraph 2, of the Criminal Procedure Code will force prosecutors to inform the person concerned as soon as a notification is registered on the person’s name, and to allow the said person to attend the acts carried out. Thus, it will no longer be possible to produce means of evidence that entail confidentiality, such as phone or wire taps, house searches, computer forensics or sting operations.
Likewise, the DNA points out that the modification of Article 83 of the Criminal Procedure Code, which gives the suspect and defendant the right to attend the hearing of witnesses, will make it harder to carry out the criminal probe, considering that in numerous situations witnesses can be intimidated by the presence of the author of the crime, especially in situations in which they are subordinated to the said author, as happens in the case of abuse of office and corruption crimes. At present, the law gives the prosecuted person’s lawyer the right to attend these hearings, an absolutely sufficient guarantee for the prosecuted person’s right to defence.
Moreover, the Directorate deems that the modifications to Article 267, Paragraph 2, of the Criminal Procedure Code will deprive prosecutors of an indispensable instrument in probing crimes, namely rapid access to information, needed to act efficiently in order to establish the facts.
“It has to be pointed out that any institution is obligated to provide criminal prosecution bodies with any information that is necessary for an investigation, and having access to databases only boosts the reaction speed needed to rapidly identify the authors of a crime. The prosecutor’s and police officer’s access to investigative instruments cannot be conditioned by offering the same right to the authors of the crimes. The right to defence entails guarantees for the person investigated, not cutting off the instruments to which the criminal prosecution body has access in order to prevent it from discovering the crimes committed,” the communique reads.
The DNA also claims that the modification of Article 223, Paragraph 3, of the Criminal Procedure Code means that the authors of corruption crimes, tax evasion and money laundering can no longer be placed under pre-trial arrest, even if allowing them to walk represents a danger for public order.
The anticorruption institution also states that the modification of Article 273 of the Criminal Procedure Code basically decriminalises perjury, having an effect also on all the perjury cases currently on the dockets, due to the principle of applying the most lenient criminal law. Thus, finding out of truth becomes extremely difficult if not even impossible, given the fact that witnesses will know they could lie without any consequences, with impunity.
At the same time, the DNA adds, the modification of Article 542 of the Criminal Procedure Code introduces the magistrate’s objective accountability, in all cases, because the recourse action is no longer conditioned by proving bad faith or grave negligence as stipulated by the current regulation.
Another example given by the DNA is the introduction of Article 542, Paragraph 11, of the Criminal Procedure Code, which regulates a new form of abuse of office, solely for magistrates, and also incriminates the committal of the said guilty act out of negligence too, regardless of the nature of the obligation infringed.
“This form of abuse of office represents obvious discrimination, considering that all the other social categories are censured only if they act with intent and only if they infringe the provisions of a law,” anticorruption prosecutors warn.
The National Anticorruption Directorate also notes that the modification of Article 364 of the Criminal Procedure Code basically make it impossible to convict a person in absentia.
“By modifying Article 335 of the Criminal Procedure Code, an initial ruling of dismissal could no longer be invalidated after 6 months, even if new evidence proving that the person did commit the crime for which he/she was probed were to appear. There are numerous situations in which new evidence is discovered after a dismissal is ruled in cases that concern the most serious of crimes, however it will no longer be possible to hold the authors of these crimes criminally accountable,” the DNA goes on to say.
Moreover, the DNA points out that the authors of crimes against Romania’s defence capability, crimes of genocide, crimes against humanity and war crimes could no longer be placed under pre-trial arrest if they commit these crimes without violence. This modification generates obvious discrimination between the authors of such crimes and those of less serious crimes (counterfeiting of money) and can generate a state of insecurity in society.
The DNA also points out that the modification of Article 139 of the Criminal Procedure Code will lead to legal wiretaps being eliminated from the means of evidence, which will make it harder to prove the committal of crimes.
The institution also warns that the modification of Article 168 of the Criminal Procedure Code will lead to the impossibility of using, in a different case, the results of computer forensics, and will make it harder to prove some crimes, without any objective argument, being impossible to justify the exclusion of evidence brought in observance of the law and on the basis of an authorisation issued by a judge.
“The introduction of Article, Paragraphs 3 and 4, of the Criminal Procedure Code generates obvious discrimination between the authors of a crime and the public’s right to have access to information of public interest. These regulations contravene the constant jurisprudence of the European Court of Human Rights (ECHR), Recommendation no.13 (2003) of the Committee of Ministers and of the Council of Europe, Resolution no.428/1970, adopted by the Parliamentary Assembly of the Council of Europe, concerning the states’ obligation to ensure access to information of public interest to any person interested and to the media. Investigations carried out in cases of corruption, money laundering, tax evasion, violence, etc., represent information of public interest, so the restriction is equivalent to the infringement of the public’s right to have access to public information,” the anticorruption prosecutors point out.
DIICOT: Excessive regulations which amputate tactical possibilities to investigate crimes
The Directorate for the Investigation of Organised Crime and Terrorism (DIICOT) says that the modifications to the Criminal Code and the Criminal Procedure Code are “excessive regulations” which “amputate the tactical possibilities to investigate crimes.” DIICOT prosecutors express their concern about the way in which the process of amending the judicial laws is proceeding, without transparency and without the consultation of specialists in this field.
DIICOT states that it took note, unofficially, of a significant number of amendments to the Criminal Code and the Criminal Procedure Code, tabled against the backdrop of the ongoing proceedings of the House and Senate’s special committee, amendments which represent, in DIICOT’s opinion, “excessive regulations that go beyond the standards established by the Directive and which will result in a new amputation of the tactical possibilities to investigate crimes in order to hold accountable the persons who committed them.”
DIICOT prosecutors express their surprise with and concern about the way the process of amending the judicial laws is taking place, without transparency and without the consultation of specialists in criminal law, explaining that the drafting and adoption of the Criminal Code and Criminal Procedure Code took place over a period of several years, as part of a complex process of professional consultations and debates involving experts, practitioners, university professors and professional associations, and even so the results were not perfect and featured significant errors that generated criticism, a non-unitary judicial praxis, as well as unconstitutionality rulings from the Constitutional Court.
“The observance of fundamental rights and freedoms is a constitutional imperative for prosecutors too, who are equally interested in setting national legislation in line with European standards in this field. At the same time, in order to exercise their constitutionally-consecrated social function, prosecutors must have at their disposal, in their judicial activity – in which they represent the general interests of society and defend the rule of law as well as the rights and freedoms of citizens –, adjective law instruments without which the unveiling of truth in a criminal case would become illusory,” DIICOT prosecutors claim.
They consider essential the observance of the right to defence and the fair character of procedures, the persons’ right to remain silent or to avoid self-incrimination, the judicial bodies’ responsibility to search for both incriminatory and non-incriminatory evidence, as well as the judicial bodies’ public communication regarding suspects or defendants in criminal cases.
Prosecutors also point out that the provisions of Directive 2016/343 on the presumption of innocence are already implemented by Romanian criminal law. Likewise, they state that, even though they have not received an official version of the amendments tabled within the Committee, they are aware of the fact that they are important, and express their availability to take part in consultations in order to draft the necessary modifications to the criminal law, modifications that would consolidate the presumption of innocence guarantees for suspects or defendants, the fair trail guarantees, as well as the guarantees necessary to defend the rule of law and the general interests of society.
“The DIICOT prosecutors’ judicial experience represents, in our opinion, a resource that should not be ignored in the process of drafting and adopting the modifications to criminal law, to the extent that such a modification is made while observing the general interest of society and for the defence of the rule of law. Even more so since in its activity of combating grave criminal phenomena, DIICOT is in a close relationship of international judicial cooperation, in the states’ joint effort to ensure a climate of security, to respect the rule of law and freedom. Without the necessary adjective law procedures, DIICOT will not be able to carry out its role as an efficient and credible partner in international judicial cooperation in this field,” the prosecutors state.
They point out that the request to eliminate the fact-finding report from the means of evidence stipulated under Article 97 of the Criminal Procedure Code has a grave impact on the activity of DIICOT, because this report is sometimes the only criminal prosecution act that certifies the existence or non-existence of banned substances in the materials subjected to verifications.
“Leaving aside the fact that there are frequent situations in which there are no experts in certain fields or no laboratories that would ensure conditions for the carrying out of forensics assessments, in cases concerning the illegal trafficking of drugs of any kind the technical-scientific report is the only act of criminal prosecution that certifies the existence or non-existence of banned substances in the materials subjected to verifications. Without this instrument, the activity of DIICOT, which handles approximately 1,200 anti-drug dossiers each month, will be blocked from the first post-amendment moment,” DIICOT explains.
Likewise, prosecutors express their concern about the modification of Article 267 of the Criminal Procedure Code, which restricts the criminal prosecution bodies’ ability to process information contained in electronic databases owned by the state administration.
“The arguments invoked in backing such a modification reflect a completely erroneous understanding of the nature of criminal investigations and of the criminal investigation bodies’ role. The databases offer information, not evidence. The principle of proportionality refers to evidence and their administration, the only elements on whose basis the presumption of innocence can eventually be defeated,” prosecutors claim.
Referring to the proposed modifications to Article 83 of the Criminal Procedure Code, which stipulate the defendant’s presence at the hearing of witnesses, DIICOT states that “the defendants’ rights should not injure the rights of witnesses or victims.”
General Prosecutor’s Office: Amendments to criminal codes to slow down, even clog investigations in certain situations
The General Prosecutor’s Office says that the recent amendments brought to the criminal codes at the special parliamentary Committee will slow down or even clog the investigations in certain situations, and the amendments proposed are seriously deviating from the EU Directive’s meaning.
“The amendments proposed with a view to transpose (EU) Directive 2016/343 of the European Parliament and the Council of 09.03.2016 regarding the enhancement of certain aspects of the presumption of innocence and the right to be present at one’s trial within the criminal procedures are seriously deviating from the Directive’s meaning, having negative consequences upon the criminal proceedings. The obligation to transpose the Directive is a pretext to alter the criminal process’s architecture, in the sense of making it more difficult for the criminal prosecution to be ineffective. Only this the introduction of certain texts that are in contradiction with both the relevant European standards and the internal provisions, validated by the Constitutional Court, could be explained,” says the release by the General Prosecutor’s Office issued on Thursday.
“The adoption of these amendments will also lead to a limitation of the prosecutor’s in fulfilling their priority attributions in criminal matter, as well as in accomplishing their constitutional role to represent, in the judicial activity, the general interests of the society and defend the rule of law, the citizens’ fundamental rights and freedoms,” the GPO release adds.
In the opinion of the General Prosecutor’s Office, some amendments to the criminal legislation: the limitation of the evidence pool; the removal of corruption, tax evasion, money laundering from the criminal offenses for which the preventive arrest could be disposed as well as of the crimes for which the law provides a up to 5-year or more in jail sentence (id est, the set up of an organised criminal group); the restriction of the prosecutors’ quick access to information so that they could act efficiently to discover deeds, all this will wind up into slowing down or clogging the criminal prosecution activity in certain situations.
Moreover, says the General Prosecutor’s Office, the meaning of the amendments under debate “indicates an exclusive preoccupation to observing the procedural rights of the defendants and less those of the injured persons,” an aspect that violates the principle of an equitable trial.