The Venice Commission states, in regard to the amending of the Criminal Codes, that they were adopted through a rapid and non-transparent legislative process. In what concerns the Criminal Code, the most important observation is that it decriminalises guilty acts in connection with abuse of office, which makes it almost impossible to convict the culprits. In what concerns the Criminal Procedure Code, it considers that the amendments must be revised as a whole, with an emphasis on certain provisions.
“The proposed changes to Article 297 appear indeed to create, without a convincing justification, the premises for a de facto decriminalisation of many facts amounting to the offence of abuse of office; as stressed by most interlocutors of the Venice Commission in Romania, this will make it much harder/quite impossible to prosecute and convict people for this offence,” reads the Venice Commission opinion on the Criminal Code and Criminal Procedure Code.
According to the document, this is in contradiction both with Romania’s international obligations under the anti-corruption instruments and the country’s own efforts in this direction, as well as with the requirements of the rule of law.
The Venice Commission demands that, in light of these observations, the proposed changes to Article 297, Paragraph 1, should be revised, including from the standpoint of Romania’s obligations under international anti-corruption instruments.
Also in what concerns the Criminal Code, the Commission recommends to reconsider and amend, in light of the comments made in its opinion, the provisions regulating corruption (Articles 291 and 292), embezzlement (Article 295), other provisions with a more general impact, such as those on the statute of limitations (Articles 154-155), false testimony (Article 273) and compromising the interests of justice (Article 277), and the definition of the civil servant (Article 175), ancillary penalties (Article 65), to bring them in line with the country’s international obligations.
Regarding the Criminal Procedure Code, the Venice Commission’s recommendation is that the law amending it be revised overall, while taking into account the specific observations presented in its opinion, in order to make sure that the reform will not have a negative impact on the functioning of the criminal justice system.
Although the entire set of amendments should be revised in detail, the Commission points especially toward the norms regarding 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), as well as the right to be notified about and take part to any criminal prosecution act (Articles 83 and 92), but also to final and transitory provisions.
Likewise, according to the Commission, the amendments to the Criminal Codes were adopted through an excessively fast and non-transparent process, even though there were more than 300 amendments, many of them introducing radical changes.
“During their adoption, frequent changes were brought to the texts, making consultations impossible,” the document shows.
PSD’s Iordache: We won’t consider all recommendations from Venice Commission, CCR’s decisions have priority
The chairman of the Select Parliamentary Committee for the Justice laws’ package, PSD (Social Democratic Party, major at rule, ed. n.) deputy Florin Iordache, declared on Monday for RFI that the recommendations from the Venice Commission will not be entirely considered and said he is disappointed that this European forum “prejudged, without waiting for CCR (Constitutional Court of Romania, ed. n.) decision.”
According to Iordache, “the Venice Commission basically has two opinions: one opinion on the Justice laws and one opinion on the Criminal Code and the Criminal Procedure Code.”
“We are waiting in the following days for the two reports to be published, because in the report on the laws of Justice there were made some amendments, after discussions, and in the other we are to wait the CCR’s decisions with priority. (…) I was disappointed, because they prejudged and we only asked for one thing: let us wait for the CCR’s decisions too, we can not only listen to one point, yours, let us see what the Court has to say, and between the two, because for us the CCR’s decisions are of priority, we will choose the best solution. It was seen in the first report as well, the one for the Justice laws, that there were many mistakes, which were then recognized and amendments were made,” he added.
Asked if all the recommendations from the Venice Commission will be taken over, Florin Iordache replied: “No, of course not. I said it there too, for example, that a recommendation the Venice Commission insisted on was the one with the special section and I said that this recommendation cannot, under any circumstance, be taken over, especially now since it has been proven that over half of the Romanian magistrates had case files, this section proves its usefulness.”
Iordache said that the Romanian authorities did not request the assistance of the Venice Commission. According to Iordache, the CCR’s decisions are priority.
“For us, the CCR’s decisions are priority. That is what I said there and this is what I’m saying to you, because, in the end, among the CCR’s objectives are that of putting in accordance the Romanian legislation with the European legislation and with the treaties which Romania is a party to,” the PSD deputy added.
Iordache also says that the Parliament is the only authority in Romania that can amend a law.
“I have not seen until now a communication or a desire to communicate from the president. All I saw were criticism from the president. It’s not normal to criticize your own country, in Brussels, of all places,” Florin Iordache said.
RO+ movement: Felons’ puppets lost all legitimacy to amend justice package, criminal codes
The Romania Together Movement (RO+) considers that following the recent verdict of the Venice Commission “the felons’ puppets have lost all legitimacy to amend the justice package and the criminal codes.”
In a Monday release, RO+ says the promoters of the changes to the justice package and the criminal codes “have lamentably failed the test before the Venice Commission professionals.”
“With the verdict of the Venice Commission, the PSD – ALDE coalition has lost the last shred of legitimacy to credibly lead the debates on the organization of justice and criminal policy in Romania,” the release states, and goes on to note that the conclusions of the Venice Commission “are devastating” for the PSD – ALDE coalition.
“PSD, ALDE and UDMR have lied to us: despite the leaders of the ruling coalition cynically assuring the Romanians in ill-faith that the adopted amendments were purportedly intended to meet the requirements of the Venice Commission, the recently released conclusions prove the opposite. According to the Commission, which is unanimously accepted as the top-important European body of justice professionals, the changes adopted by Romania’s ruling majority undermine the independence of the judiciary and seriously affect the Romanian state’s ability to fight corruption, organized crime and violent crimes,” the release said.
According to RO+, the ruling coalition is doubly discredited: from a legal point of view “for the regulatory chaos created and for the lack of professionalism in imposing legislative changes”; and from a political point of view, “for the lawmaking method used to serve criminal interests and for ignoring the magistrates’ and the society’s opposition to these changes.”
RO+ underscores that the public debate on justice and the rule of law must be restarted on new bases, “but not by those who have taken Romania 15 years back, through the attempted restoration of the party-state, and by setting mechanisms in place to protect public money embezzlement,” the release states.
RO+ also considers that the immediate repeal of the amendments to the justice laws is necessary (the repeal of Law No. 207/2018 amending the Law on judicial organization, of Law No. 234/2018 amending the rules on the Superior Council of the Magistrates, and Law No. 242/2018 amending the statutes of magistrates, as well as Emergency Ordinances 90/2018 and 92/2018).
RO+ states that a fresh start is needed, based on the completed draft to reform the judiciary package put up for public debate in 2016, and that all proposed amendments to the Criminal Code and the Code of Criminal Procedure which were found by the Venice Commission to “undermine the state’s ability to combat serious forms of crime, including crimes of corruption and organized crime” must be dropped.
“Any proposal to amend the Criminal Code and the Criminal Procedure Code should start from a previous public debate with magistracy experts and academics to identify criminal policy solutions that are compatible with Romania’s international commitments and with the European directives,” the cited source concludes.
Tudorel Toader takes four-day vacation after Venice Commission’s plenary meeting and after President asked him to resign
Tudorel Toader is on vacation on Monday and Tuesday, shortly after the Venice Commission’s plenary meeting and after the President asked him to resign. According to his agenda, on Wednesday the minister will carry out “internal coordination activities” at the Justice Ministry and will go on vacation again on Thursday and Friday.
Justice Minister Tudorel Toader is on vacation on Monday and Tuesday, shortly after the Venice Commission’s plenary meeting, according to the agenda published on the Ministry’s website. Toader will return at the Ministry on Wednesday, for “Internal coordination activities at the Justice Ministry,” and will go again on vacation on Thursday and Friday.
Last week, Toader took part in the Venice Commission’s plenary meeting where the criminal codes were debated. Shortly thereafter, President Klaus Iohannis asked him to resign, saying that the ordinance’s provisions are “a new episode in a long line of controversial decisions” taken by Minister Tudorel Toader.
After President Iohannis asked him to resign, Tudorel Toader stated for MEDIAFAX that the amendments to the Codes were brought in Parliament, the Justice Ministry drafting only the bills for these amendments. Toader added that the President should know these aspects.
“Venice Commission did not discuss GEO amending the judicial laws”
Justice Minister Tudorel Toader points out in a Facebook posting that the Government emergency ordinance on the judicial laws, issued by the Government a week ago, was not discussed by the Venice Commission, which is expected to issue an opinion on this topic in December. The minister’s message ends with the warning that his posting will be deleted in one hour.
“Answer for those unwilling to understand: the Venice Commission did not discuss the amendments brought via GEO to amend the judicial laws,” Toader states.
He points out that “such an opinion is expected to be adopted at the plenary meeting in December 2018.”
The posting also has a post scriptum: “the message will be deleted in one hour.”
On the other hand, in a message posted on Sunday morning, Tudorel Toader pointed out that the GEO amending the judicial laws is a civil law, not a criminal law, so consequently “it cannot work retroactively.” He stated that the seniority requirement for the Prosecutor’s Office attached to the High Court of Justice (PICCJ) is point of law for prosecutors on secondment, and in the future it will apply to all those who want to work within the PICCJ.
Likewise, Toader announced that the GEO will be formally sent to the Venice Commission, for examination, and the Commission’s opinion on it is set to be adopted at the plenary meeting in December 2018.
On Friday, the Venice Commission adopted, with some amendments, the preliminary opinion it issued in July on the judicial laws.
PNL’s Orban and USR to file simple motion against JusMin Toader
The Executive Bureau of the National Liberal Party (PNL) alongside the Save Romania Union (USR) decided on Monday to lodge a simple motion against Justice Minister Tudorel Toader, Chairman of the PNL Ludovic Orban announced on Monday.
“We decided to lodge the motion against Justice Minister Tudorel Toader. Of course that I saw towards the end of last week a partner party of the Opposition also wanting to initiate a motion against Tudorel Toader and we decided not to file two motions, but one single motion in which we put together the reasons which the motion is based on, both from the PNL and the USR, and lodge a single motion against Minister Toader,” Orban stated at the end of the PNL’s Executive Bureau meeting.
According to the PNL Chairman, the simple motion against Justice Minister Tudorel Toader will be lodged this week at the Deputies’ Chamber.