On Monday, Parliament entered an extraordinary session to adopt the controversial amendments to the Criminal Code. Likewise, the Administrative Code would also be adopted, stipulating, among other things, special pensions for local elected officials. The extraordinary session will last until July 19.
According to the legal provisions, Parliament’s ordinary session ended on June 30. The decision to convene the House for an extraordinary session on July 2-19 was taken by the Standing Bureau. According to the regulations, the House also convenes in extraordinary sessions, at the request of the Romanian President, the Standing Bureau, or at least one third of House lawmakers.
The Senate has also been convened for the July 2-19 extraordinary session. The bill amending the Criminal Code was already on the Senate’s agenda for Tuesday, “under the reservation of the lodging of the report.”
“The legislative proposal to set in line the provisions of Law no.286/2009 on the Criminal Code, with subsequent amendments and supplementations, with the decisions of the Constitutional Court, with Directive 2016/343/EU (9 March 2016) of the European Parliament and Council on the consolidation of certain aspects of the presumption of innocence and of the right to be present at the trial during the criminal proceedings, with Directive 2014/42/EU (3 April 2014) of the European Parliament and Council on the freezing and confiscation of the instruments and proceedings of crimes committed in the European Union,” is on the Senate’s order of the day. Likewise, it is mentioned that the bill will be put up for vote under an urgent procedure.
A week ago, PSD President Liviu Dragnea stated that adopting the amendments to the Criminal Code via government emergency ordinance is out of the question, but that the amendments “must be closed once and for all” by the committee so that they would enter the voting procedure. “We will hold an extraordinary session, but we can’t hold an extraordinary session all summer. So then, today, both Mr Tariceanu and I will ask the members of the committee to close the Criminal Code once and for all, for it to enter the final vote, after which it would enter the regular circuit,” Dragnea said.
Iordache Cttee adopts report on amendments to Penal Code. Senate to vote on bill on Tuesday
The special committee on the amending of the judicial laws adopted on Monday, in a 115-7 vote, its report on the bill amending the Criminal Code, a bill that will be put up for vote within the Senate on Tuesday.
The committee adopted the amending of Article 297 on abuse of office, so that the offence will not be punishable if the damage caused does not exceed the gross minimum salary – RON 1,900. Moreover, a guilty act is considered abuse of office if the purpose is to obtain undue material benefits for self, spouse, or relatives up to the second degree. During the debates, House lawmaker Oana Florea (PSD) proposed the abrogation of abuse of office. Likewise, the special committee has eliminated from the sphere of the abuse of office offence the Parliament and Government’s act of drafting, issuing, or approving legislative acts, and Article 298 on negligence resulting in breach of duty was abrogated. At the same time, the committee decided to modify the Criminal Code’s definition of crime ring, in the sense that the group that is formed occasionally to immediately commit one or several offences, and that has no continuity, does not represent a crime ring.
Alina Gorghiu demands JusMin’s presence at Iordache Cttee, House lawmaker Stelian Ion (USR) asks for proceedings to be stopped until Venice Commission’s opinion is received
The special parliamentary committee on the amending of the judicial laws, chaired by House lawmaker Florin Iordache, convened again on Monday to continue its debates and vote on the amendments to the Criminal Codes, the most awaited of them being Article 297 which defines abuse of office.
Senator Alina Gorghiu (PNL) demanded on Monday that the proceedings of the special committee be suspended for one hour so that Justice Minister Tudorel Toader could be present. Committee Chairman Florin Iordache replied by saying the minister is on vacation and his prerogatives were delegated to secretary of state Sofia Mot.
“We should suspend the proceedings for one hour, one hour and a half, so that Mr Toader would come and state what this sentence is about,” Alina Gorghiu said.
In response, Iordache said: “At this time he is on vacation. (…) We’ve exhausted this topic.”
Likewise, House lawmaker Stelian Ion (USR) asked that the committee’s proceedings be suspended until the Venice Commission issues an opinion on the amendments to the Criminal Code. The request was rejected by vote.
House lawmaker Marton Arpad (UDMR) said that the members of the Venice Commission did issue their opinion on abuse of office.
Tudorel Toader: I proposed that the threshold for abuse of office be the equivalent of a gross minimum salary
Justice Minister Tudorel Toader stated on Sunday evening for RomaniaTV that the Justice Ministry proposes that there be a threshold for abuse of office, a threshold whose value should be the equivalent of a gross minimum salary.
“I have opined, and this is our proposal, that the threshold be equivalent to one gross minimum salary, not a net salary but a gross one. We have already transmitted this proposal, If the value of the damage exceeds one minimum salary, then of course the issue of criminal liability is raised, but the judge has instruments to individualise the punishment,” Tudorel Toader told RomaniaTV.
The gross minimum salary is RON 1,900.
Also on Sunday, House lawmaker Florin Iordache (PSD), chairman of the special parliamentary committee on the amending of the judicial laws, told Antena3 that the Justice Ministry has proposed “a minimum threshold for abuse of office,” claiming that “if there is damage it doesn’t mean there must be a criminal case.”
“We want to close once and for all this definition of abuse of office, because too many abuses have taken place lately and they were food for thought. We will discuss, I understand there is a minimal threshold proposal from the Justice Ministry but, I repeat, it’s very important for abuses to no longer exist. If there is damage that doesn’t mean there must be a criminal case. There will be a civil case, the money is recovered and that’s it,” Iordache said.
Iordache said that the committee’s debates and voting on the amendments to the Criminal Code could be concluded on Monday: “I believe tomorrow we will forward the committee’s report to the Senate, which is the first Chamber notified,” Iordache said.
Stelian Ion (USR) on JusMin’s proposal on threshold for abuse of office: We find it fair, it’s just that we don’t have an argumentation from the ministry
Justice Minister Tudorel Toader’s proposal on a threshold equivalent to one gross minimum salary for abuse of office is fair, Save Romania Union (USR) lawmaker Stelian Ion told RFI.
The deputy chairman of the Iordache Committee nevertheless warns that other proposals, which will radically change the situation, might lie behind this proposal.
Stelian Ion is sceptical about the Justice Minister’s proposal on a threshold for abuse of office: “We find it fair, it’s just that we don’t have an argumentation from the ministry. It’s very important to see what are the arguments that formed the basis of this choice.”
“On the other hand, the Justice Minister did not tell us whether this is the only modification he wants to bring to this text that incriminates abuse of office, because it’s possible he would want to introduce a threshold and, at the same time, to make other modifications in what concerns the conditions for the engagement of criminal liability for abuse of office. For example, if it is said that, to be a criminal offence, the guilty act must be committed to obtain a material benefit for self, then things will radically change, regardless of whether there is a threshold or not. So, we must be very careful so that there isn’t a much worse variant than the one we imagined at first, that of a high threshold,” he said.
Redefinition of abuse of office. PSD’s proposal similar to the Justice Ministry’s
The Social Democratic Party (PSD) has appropriated most of the variant that the Justice Ministry proposed for abuse of office, which stipulates the introduction of a threshold equivalent to one gross minimum salary, namely RON 1,900.
“The guilty act committed by the civil servant, while exercising his/her duties expressly regulated by laws, government ordinances or emergency ordinances, by refusing to carry out an action or by carrying it out by infringing upon the prerogatives thus regulated, upon the clear stipulations of a law, government ordinance or emergency ordinance, in order to obtain a patrimonial material benefit for self, his/her spouse, a relative or an in-law up to and including an in-law of the second degree, and by doing so causes certain and effective damage that exceeds one minimum salary or the harming of the non-patrimonial and legitimate rights and interests of a natural or legal person, is punishable by 2 to 5 years in prison or by fine,” reads the ad-hoc amendment tabled by the PSD.
“Abuse of office – Article 297, Section (1): The guilty act committed by the civil servant, while exercising his/her duties, by refusing to carry out an action or by carrying it out by infringing upon the express stipulations of a law, emergency ordinance or government ordinance, in order to obtain for self, his/her spouse, a relative or an in-law up to and including an in-law of the second degree, a patrimonial material benefit that exceeds the equivalent of one minimum salary, or the harming of the non-patrimonial legitimate rights and interests of a natural or legal person, harming ascertained definitively by the action of a competent body, is punishable by 2 to 5 years in prison or by fine,” reads the document that contains the proposal that the Justice Ministry sent to the special committee, a document obtained by MEDIAFAX.
A difference between the PSD variant and the text proposed by Tudorel Toader consists of the following wording: “a patrimonial benefit and by doing so causes certain and effective damage exceeding the equivalent of one minimum salary.”
The current provisions of the Criminal Code regarding abuse of office read: “the guilty act committed by the civil servant who, while exercising his/her prerogatives, fails to carry out an action or carries it out deficiently and thus causes damage or harms the legitimate rights or interests of a natural or legal person is punishable by 2-7 years in prison and the interdiction of the right to hold public office.”
Gorghiu: Dragnea, just a bit longer and you’ll open the champagne for this covert amnesty
Alina Gorghiu stated on Monday, after the PSD tabled a proposal concerning a threshold of RON 1,900 for abuse of office, that PSD’s definition means the closing of most cases and that Liviu Dragnea is moments away from opening “the champagne for covert amnesty.”
“Abuse of office! What a slaughter! The PSD’s definition means the closing of most cases on this offence! They have removed third parties from among the beneficiaries of this offence! Even though third parties are the beneficiaries in most cases. Not to mention the reduction of the punishment, 2-5 years in prison, so the statute of limitations are also lowered. Meaning that the guilty acts committed prior to 2012 will expire. Great legislation! Dragnea, just a bit longer and you’ll open the champagne for this covert amnesty!!!” Senator Alina Gorghiu (PNL) wrote on Facebook on Monday.
PNL asks Parliament Speakers and Constitutional Court to postpone debates on Penal Code and on the notification on the CPC until Venice Commission issues opinion
The leadership of the National Liberal Party (PNL) decided on Monday to send letters to the Speakers of the Senate and the House, demanding the suspension of the debates on the Criminal Code until the Venice Commission issues an opinion on the amendments. The Liberals will also send a letter to the Constitutional Court, demanding the postponement of the debate on the Opposition’s notification on the Criminal Procedure Code (CPC) until the Venice Commission issues an opinion.
At the end of PNL’s Executive Bureau meeting, Ludovic Orban reminded that, last week, the Monitoring Committee of the Parliamentary Assembly of the Council of Europe (PACE) took, at PNL’s request, the decision to notify the Venice Commission about all the amendments to the Criminal Code and Criminal Procedure Code.
“PNL’s Executive Bureau took the decision to send the Speakers of the two Chambers a letter in which we request the suspension of the debates on the Criminal Code until the Venice Commission has a say on the proposed modifications. Likewise, we took the decision to send a letter to the Constitutional Court, [asking it] to postpone the debate on the unconstitutionality notification tabled by the Opposition against the bill amending the Criminal Procedure Code, until the Venice Commission adopts a point of view,” Orban pointed out.
According to him, the Venice Commission is set to convene a plenary meeting in early September.
“We don’t believe there are serious grounds for urgency in what concerns both the debate on and adoption of the Criminal Code and in what concerns the analysis of our notification against the Criminal Procedure Code and the judicial laws,” the PNL leader said.
DNA criticizes JusMin’s proposal on the abuse of office: Many cases will be closed due to limitation period
National Anticorruption Directorate (DNA) criticizes the proposal related to the abuse of office, mentioning that its adoption would lead to decriminalizing certain large categories of deeds which are currently sanctioned by the criminal law, and the prosecutors will have to close many cases due to the limitation period.
Thus, the offense of abuse of office will be defined as “the deed committed by a public servant exercising his duties, who refuses to perform an action or performs it by breaching express provisions of a law, emergency ordinance or Government’s ordinance, in order to obtain, for himself or for his spouse, relative or in-law up to the 2nd degree inclusively, a patrimonial benefit and thus causes a certain and effective damage that is higher than the minimum wage or an injury of the legitimate non-patrimonial rights or interests of an individual or legal person, which injury is definitively established by an act issued by the competent body, is punished by 2 to 5 years in prison or by fine”.
Today, the offense of abuse of office is defined as “the deed committed by a public servant who, while exercising his duties, doesn’t perform an action or performs it in a defective way (meaning by breaching the law – acc. to the CCR Decision no.405/2016), and thus causes a damage or an injury to the legitimate rights or interests of an individual or legal person, is punished by 2 to 7 years in prison and the prohibition of exercising the right to hold a public position”.
According to the analysis performed by DNA, imposing the condition that the deed must be committed in order to obtain a benefit by the public servant or by a person close to him, limits the scope of the offense to a great extent.
DNA mentions that, for instance, during the year of 2017, they sent to judgement defendants who committed 215 offenses of abuse of office against public interests.
“From the preliminary analysis of these cases that we made until now, no cases in which the perpetrator pursued to obtain a personal benefit were identified, therefore including the supplementary requirement could lead to acquittal decisions in all the cases in which the court was notified for this offense, including the situations in which final convictions have been already ordered. Similarly, closing solutions will be adopted in the cases pending at the criminal prosecution bodies, related to offenses of abuse of office. Thus, regardless of the seriousness of the breach of the law or of the amount of the damage, the deeds committed by public servants will not lead to criminal liability anymore”, DNA claims.
For example, the deed committed by a public servant who illegally assigns an overvalued public procurement contract, or who decides the illegal restitution of a real estate to a friend or a party colleague, will not be criminalized anymore, even if the public servant acts in order to breach the law, and even if these deeds may cause damages of dozens or hundreds of millions of euros to the budget, as there are many examples in the court practice, according to the prosecutors.
DNA announces that such an amendment is not opportune, taking into account the need to protect important social values, such as the integrity of the public patrimony that can be affected by the action of the public servants by breaching the law.
DNA claims that such an important amendment, which “overturns the constant view of the Criminal Code on the public servants’ liability, and which does not correspond to any remark of the Constitutional Court”, should be the result of a large-scaled debate in society.
As for the request that the damage should be finally established by an act of the competent body, it prosecutors say that it limits even more the potential scope of the offense and violates several constitutional provisions.
“By introducing such a requirement in the content of the offense, the prerequisites are created for people outside the judiciary to prevent the act of justice. For instance, if the criminal prosecution body is informed that a minister has committed an act of abuse of office, sending him or her to judgement would be conditioned by the existence of a document certifying the damage, issued by a body which can be subordinated to this minister or influenced by him or her. The only body that is competent to establish the factual elements that are included in the content of an offense is the court. Only the judge can finally establish if a certain deed caused a damage or not, by analyzing the evidence and applying the law, and this reasoning cannot be conditioned by the existence of an administrative act which is previous to the court decision” mentions the National Anticorruption Directorate.
Prosecutors say that the provision is contrary to the Constitution, which states that judges are independent, and they obey only to the law.
“If the law sanctions a certain deed, the judge’s decision cannot depend on the will of an administrative body. Also, the proposed text doesn’t observe the constitutional requirements related to the predictability of the law, given that it doesn’t indicate the bodies that would be competent to establish the existence of the damages”, according to DNA.
Regarding the reduction of the punishment limits provided for this offense, it will lead to significantly reducing the limitation periods of the criminal liability, from 8 years to 5 years.
“Given that these deeds are usually discovered after a long time since they were committed, usually after the management of the public institutions is changed, and the evidence in the case is very complex, in order to prove the offense of abuse of office, there will be many situations in which establishing the criminal liability will be prevented as a result of the limitation period, bot in cases with ongoing criminal prosecution, and in cases which are before the court, therefore many closing solutions and solutions consisting of the termination of the criminal trial, will be issued”, DNA claims.
The DNA analysis was sent on Monday also to the Prosecutor’s Office attached to the High Court of Cassation and Justice.