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December 1, 2022

CCR postpones debate on PNL, USR and ICCJ challenges on Criminal Procedure Code

On Wednesday, the Constitutional Court of Romania (CCR) postponed, for September 25, the debate on the challenges that the PNL, USR and High Court of Justice (ICCJ) have lodged against the bill amending the Criminal Procedure Code, CCR President Valer Dorneanu announced. On the same date, the Court’s plenum will also debate the challenge that President Klaus Iohannis lodged against the same bill.

On June 21, PNL and USR notified the Constitutional Court about the bill amending the provisions of the Criminal Procedure Code. The Opposition argues that it primarily infringes upon the principle of bicameralism, and approximately 100 contradictory articles are unconstitutional.

In the notification lodged with the Constitutional Court, PNL and USR point out that the bill infringes upon the principle of bicameralism, consecrated by Article 61, Section (2), and Article 75 of the Romanian Constitution.

“The significant quantitative but also qualitative contribution that the law brings in the form sent for promulgation is obvious, in contrast to the form subjected to the debate of the Chamber of reflection. As shown also in the relevant jurisprudence of the Constitutional Court, the principle of bicameralism must conciliate the bicameral structure of our Parliament – bicameral in both an institutional and functional sense –, meaning it should allow each Chamber to express its political will on a certain issue subjected to legislation, in observance of the provisions of Article 75 of the Constitution, regarding the order in which the two Chambers are to be notified based on the category under which each legislative proposal or bill falls, but also in observance of Article 61 of the Constitution, according to which legislation is the work of the entire Parliament, as a unique and sovereign entity. That is why it is contrary to the principle of bicameralism for regulations of substance, that stray away from the original conception of the law and that impart a different configuration on it, to be adopted by the decisional body without them having been debated by the first Chamber too. Such a procedure is equivalent to eliminating the first Chamber in its capacity as first-lawmaker or “first reader” of the law, and to transforming Parliament into a unicameral Parliament, at least from a functional standpoint,” reads the notification lodged by the Opposition parties.

Article 4, which stipulates that authorities cannot offer information on the status of criminal probes, is among the articles challenged as being unconstitutional.

“According to Article 4, Section (3), of Directive (EU) 2016/343 on consolidating certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, the Directive does not prevent the authorities from making public information regarding criminal proceedings when doing so is strictly necessary due to reasons related to the criminal probe or to the public interest, with the observance of the principle of presumption of innocence. Hence, the Directive does not introduce an absolute interdiction of the right of authorities to offer information concerning ongoing criminal proceedings, but puts it in context, in the sense that they ‘should not refer to the person concerned as being guilty,’” reads the challenge lodged with the CCR.

On June 19, High Court of Cassation and Justice (ICCJ) judges convened in Joint Sections “to notify the Constitutional Court in order for it to exercise its constitutional oversight, before promulgation, of the Law amending and supplementing Law no.135/2010 on the Criminal Procedure Code,” reads an ICCJ press release.

On June 18, the House adopted, as the Chamber with the last say on the issue, the bill on the Criminal Procedure Code, which does not allow prosecutors to offer information during the criminal probe, after the committee on the judicial laws issued a favourable report on this bill on the same day.

The bill amending and supplementing Law no.135/2010 on the Criminal Procedure Code was adopted by the House with 175 votes in favour, 78 against and one abstention.

President Klaus Iohannis also notified the CCR about the unconstitutional character of the amendments brought to Criminal Procedure Code provisions. The Constitutional Court of Romania has decided that this challenge will be debated on September 25.


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