In an Opinion adopted on Friday, the Council of Europe’s Venice Commission expresses concern that many draft amendments to the Criminal Code and the Criminal Procedure Code in Romania seriously weaken the effectiveness of its criminal justice system to fight corruption offences, violent crimes and organised criminality.
The Venice Commission recommends that the Romanian authorities conduct an overall re-assessment of the amendments in both codes through a comprehensive and effective consultation process in order to come up with a solid and coherent legislative proposal benefiting from a broad support within the Romanian society and taking fully into account the applicable standards, and to follow the guidance of the Constitutional Court. On 12 October the Constitutional Court of Romania established that over 60 articles of the draft law amending the Criminal Law Procedure were unconstitutional and is expected to examine the constitutionality of the draft amendments to the Criminal Code later this month.
The Commission also adopted with some amendments the preliminary opinion issued in July on three drafts laws amending existing legislation on the statute of judges and prosecutors, judicial organisation and the Superior Council of Magistracy. This opinion criticises that these laws would adversely affect the efficiency, quality and independence of the judiciary, with negative consequences for the fight against corruption. The three laws have already been promulgated and entered into force.
The Opinion notes that the two government emergency ordinances just recently adopted by the Romanian government address issues covered in this opinion. Whilst the Commission welcomes as a positive step the postponement of the entry into force of the early retirement scheme for magistrates, which will provide Parliament time to reconsider this scheme, it did not examine other parts of this ordinance and reserves its position in this respect.
With regard to the draft amendments to the Criminal Code and the Criminal Procedure Code, the opinion underlines that although the public debate has focused on the risk that they may undermine the fight against corruption, their impact is much wider. According to the Commission, the reform could significantly affect the criminal justice system and its effective and efficient operation, in particular the investigation, prosecution and adjudication of other serious and complex forms of crime.
The opinion criticises the excessive speed and the insufficient transparency of the reform process, especially because there were more than 300 amendments, many of them radically reforming criminal policy. The haste in their adoption had a negative impact on the quality of the legislation, which contains contradictions that could cause legal uncertainty in the future.
The Commission also stresses that a more comprehensive process of discussion with legal practitioners and society at large would have been necessary, in particular taking into account that the amendments were questioned by actors such as the High Court of Cassation and that they were very divisive in Romanian society and institutions. In addition, considering the clashes between institutions (for example, the President of the Republic, the High Court of Cassation and the Prosecutor General versus the Parliament), the Commission highlights the need for more time to search for a broader support for the legislative package.
The opinion does not provide a detailed analysis of all amendments to the Criminal Code and the Criminal Procedure Code, but only those which raise the most serious concerns.
The Commission in particular recommends to the Romanian authorities:
Criminal Procedure Code
- to thoroughly review the amending law as a whole to ensure that the reform will not have a negative impact on the functioning of the criminal justice system.
- While all the amendments should be thoroughly reviewed, to amend in substance the rules on communication on on-going criminal investigations (Article 4), starting a criminal investigation (Article 305), evidentiary thresholds and inability to use certain forms of evidence (Articles 139, 143, 153, 168), and the right to be informed of and participate in all prosecution acts (Articles 83 and 92)
- to reconsider the final and transitional provisions.
- to reconsider and amend the provisions regulating corruption-related offences, in particular bribery (Article 290) – the Opinion stresses that the draft amendment would discourage bribe givers from co-operating with law enforcement -, influence trading and buying (Articles 291 and 292), embezzlement (Article 295) and abuse of service (Article 297);
- to reconsider and amend some other provisions with a more general impact, such as those on the statute of limitations (Articles 154-155) – according to the Opinion, the proposed amendment creates a high risk that in complex cases the crimes at issue be time–barred before the investigation and trial can be carried out-, false testimony (Article 273) and compromising the interests of justice (Article 277 CC);
- to reconsider and amend the provisions on extended confiscation measures (Art. 1121) and the definition of public servant (Art. 175), ancillary penalties (Article 65), in order to bring them in line with the country’s international obligations.
The as-adopted opinion will be made available electronically on the Venice Commission website by Monday afternoon 22 October.
President Iohannis requests Parliament to take account of Venice Commission’s opinions, reevaluate amendments to Justice laws
President Klaus Iohannis calls for Parliament to take into account the Venice Commission’s opinions and reevaluate the amendments brought to the Justice laws but also to the Criminal and Criminal Procedure Code, because “the negative impact on Justice and the rule of law must cease.”
According to the Presidential Administration, President Klaus Iohannis believes that the very serious aspects shown by the Venice Commission regarding the amendments to the laws of justice and the criminal codes represent an absolute signal the current government and the parliamentary majority have to take into account so that they don’t push Romania in a direction incompatible with the European Union’s values.
“The two opinions of this European forum are extremely critical and prove, predictably, all the irregularities shown for more than a year by the President of Romania, the parliamentary opposition, the civil society, the Superior Council of Magistrates, the justices and prosecutors,” a release issued on Friday by the Presidential Administration reads.
According to the source, the endangering of the prosecutors’ and justices’ independence, the harming of the trust in the judiciary, the negative impact upon the efficiency of the deed of justice in criminal matter in combating various infractions, the corruption crimes included, those committed with violence or those of the organized crime, are essential aspects upon which the Venice Commission is drawing attention in its analysis.
Iohannis emphasizes that through the publicly presented conclusions, “the Venice Commission finds that the amendments brought to the laws of justice and the criminal legislation overturns the entire judiciary system and generates negative effects and a series of newly introduced provisions will have direct consequences upon certain procedures and criminal files wherein political people are involved.
Likewise, the President believes that “it is unacceptable that the entire legislation of this paramount field for any authentic democracy be dramatically altered, only to protect certain political leaders having issues with the law.”
The Presidential Administration says that as regards the amendments to the criminal legislation, many of the aspects targeted by the Venice Commission were also pointed out in the objection of unconstitutionality raised by President Iohannis.
“The flimsy speed of the adoption, the absence of the real consultations and the lack of transparency are elements that negatively affect the quality of the legislation and generate uncertainty. Moreover, certain amendments ignore international conventions Romania is a party to or exceed by far some Constitutional Court’s decisions,” the Presidential Administration stresses.
Moreover, the President believes that “out of the wish to favour those persons who have certain issues with the law, the PSD-ALDE coalition is forever harming not only the rule of law and the citizen’s confidence that nobody is above the law, regardless of their position or job in society, but all of the efforts of an entire nation for which the European fundamental values are undeniable.”
Klaus Iohannis strongly condemns “the irresponsible behavior of the Justice Minister who under the pretext of implementing the Venice Commission’s recommendations within the Emergency Ordinance 92/2018, has included provisions with no connection whatsoever with the recommendations, but contrary to them, of a nature to increase the European partners’ concern.”
The president mentions that this is a new episode in a long row of “controversial decisions” by minister Tudorel Toader the long of the latter’s mandate.
“This way, the Minister of Justice has completely compromised his credibility, a strong reason to tender his resignation from office,” the release says.
President Iohannis calls for Parliament to consider the opinions included in the Venice Commission’s report and “reassess with maximum swiftness the amendments brought to the laws of justice, and to the Criminal Code and the Criminal Procedure Codes, too, so that the negative impact upon the judiciary and the rule of law cease.”
“The President of Romania deems that the entire reevaluation of the modifications in discussion must be carried out through a broad, real consultation process so that results in an improved legislation that will benefit from the large support of the Romanian society and at the same time will guarantee the observance of the rule of law and of all of the international standards in this matter,” the source adds.
Iohannis says Justice Minister compromises credibility and needs to tender resignation
President Klaus Iohannis “firmly condemns the irresponsible behavior” of the Minister of Justice, Tudorel Toader, specifying that he “has permanently compromised his credibility, a good reason to tender his resignation.”
“President Klaus Iohannis firmly condemns the irresponsible behavior of the Minister of Justice, who, under the pretext of implementing the recommendations that came from the Venice Commission within Emergency Ordinance 92/2018, included provisions that had no connection to it, but even against them, of a nature to increase the concern of the European partners,” a press release of the Presidential Administration issued on Friday shows.
Furthermore, the head of state mentions that this is a new episode in a long line of controversial decisions made by this minister during his term.
“In this way, the Minister of Justice has permanently compromised his credibility, a good reason to tender his resignation,” the press release further mentions.
JusMin Toader: Unacceptable for president to await resignation for draft laws not initiated by Justice Ministry
Justice Minister Tudorel Toader declares it is unacceptable for the president to expect the resignation of the Justice minister for draft laws that were not initiated, elaborated or promoted by the Ministry he is in charge of.
“In a normal world, it is unacceptable for the president of the Republic to expect the resignation of the Justice minister of for draft laws that were not initiated, elaborated or promoted by the Ministry of Justice – I am referring to the amendments brought to the Criminal Code and the Criminal Procedure Code! What I was saying yesterday is still valid – it is preferable to do some research first, and then to speak!,” Tudorel Toader says in a Facebook post on Friday.
PNL requests Parliament to reject in emergency procedure Ordinance on Justice laws
The National Liberal Party (PNL) is requesting an emergency procedure for debating in Parliament the Ordinance regarding the Justice laws and calls for the MPs to reject this ordinance of the Dancila Government, PNL deputy chairperson Raluca Turcan announced on Friday, in Sibiu.
“PNL is requesting an emergency procedure for the debate in Parliament of the Ordinance regarding the Justice laws. The situation is extremely dire and urgent because of the toxicity of this ordinance and its effects on the Justice system and the Prosecutor’s Offices functioning. (…) The Government issued this emergency ordinance over night, without any debate, without justifying in any way the urgency that would have imposed the adoption of this ordinance,” Raluca Turcan explained.
“PNL will call for a vote against this ordinance during the parliamentary debates and we consider that it is extremely important for Parliament to reject this ordinance of the Dancila Government,” Raluca Turcan declared.
Orban, about Iohannis’ request: Tudorel Toader’s resignation is much too little
National Liberal Party (PNL) Chairman Ludovic Orban stated on Sunday in Craiova that the party supports the request of the head of state Klaus Iohannis, who asked for Tudrel Toader’s resignation, but this is not enough, given the criticism of the Venice Commission on the Laws on Justice and Criminal Codes.
“For sure (we will support Klaus Iohannis’ request – e.n.). We’ve already announced our intention to file a motion in Parliament against the Justice Minister, but Justice Minister’s resignation is much too little. I remind that when the parliamentary majority and the Government refused to ask for the Venice Commission’s opinion, PNL did not renounce to the objective of having an analysis performed by the most redoubtable specialists in democracy and rights, and in the matter of organizing the judiciary. We managed to notify the Venice Commission convincing our colleagues in PACE, and for this we congratulate Mr. Ionut Stroe, who is our representative in PACE and who was involved into this lobby along with our colleagues, which we conducted in circumstances of maximum hostility”, Ludovic Orban stated on Sunday at a press conference held at the PNL Dolj headquarter.
He added that Florin Iordache asked for assistance provided by the Venice Commission in order to transpose the recommendations of the European body into our national legislation, but the experts answered to him that only the Government or the Parliament’s leadership can make such a request.
“Mister Iordache asked the Venice Commission, in the plenary session of this body, to provide assistance in elaborating the amendments to the law in order to transpose the recommendations of the Venice Commission into our legislation. Obviously, the officials of the Venice Commission answered to Mister Iordache that he is not the one who can institutionally ask the Venice Commission to assist the elaboration process and told him they are waiting for the Government or the Chambers’ leadership to request such a thing. We are in great danger if these guys who have legal problems, who are against democracy, will not wake up in the last moment”, Ludovic Orban stated at a press conference held on Sunday at the PNL Dolj headquarter.