The Romanian Judges Forum Professional Association, having taken note of the new proposals to amend the Criminal Code and the Code of Criminal Proceedings, hereby expresses its disagreement to, and deep concern about the legislative draft pending public debate, the content of which amounts to a retrograde step in building a modern and adapted to the new social realities system of justice, as well as a misrepresentation of the very purpose of the criminal proceedings and criminal policy of the State, and which shows a manifest change of paradigm from a criminal justice which protects the victims of crime to a new concept which places the defendant in a privileged position.
As captured in the public statements, the legislative amendments are exclusively aimed at transposing into the domestic legislation a number of European directives intended to strengthen the presumption of innocence, the right to be present in and attend criminal proceedings, and aspects concerning freezing and forfeiture of criminal assets and proceeds of crimes committed in the European Union, as well as at aligning this legislation to the binding instruments enshrined under the case law of the Constitutional Court of Romania.
Nevertheless, the Romanian Judges Forum Professional Association regretfully notes that many of the amendments envisaged under the legislative draft pending public debate have no connection whatsoever with the purpose stated by the lawmaker, and moreover depart from the objectives considered, because the explanatory memorandum and the legislative interventions actually propose solutions which are inadequate for the legal realities and Romania and the standards put in place to safeguard fundamental values embraces at European and international level, and risk compromising the very pursuance of justice and the smooth operation of the national judicial system.
Having reviewed the amendment proposals, we note with great concern that these are replete with unrealistic solutions by reference to the technological development and the social context, and that the lawmaker manifestly misrepresents the content of European rules contained in the respective European directives by the countless mismatches with provisions already available in the legislation on criminal proceedings, by departing from the ECHR case-law and by unpredictable innovative solutions which are introduced without mechanisms are able to support expeditious settlement of the cases and getting at the truth.
We point to the fact that most of the proposed amendments are solutions intended to hinder the work of courts and prosecutor’s offices, considering that no impact assessment whatsoever has been conducted on these amendments despite the fact that their adoption is likely to genuinely overturn operation of the judicial bodies and, unavoidably and irreversibly weaken the rule of law.
These legislative amendments cannot be called into question in absence of reliable and in-depth strategies in terms of management of the human and logistic resources; they cannot be adopted in disregard of the law predictability and accessibility standards; and institution of different standards as to the rights of the participants in the criminal proceedings, by enshrining a privileged status for suspects and defendants in the criminal proceedings, or by relying on principles which are not that close to the Romanian criminal legislation and which don’t afford the same benefits to other participants, is incompatible with the principles of the rule of law.
Having grasped the importance of smooth operation of criminal justice for any European state, the Romanian Judges Forum Professional Association has conducted a thorough review of the envisaged amendments to be submitted to the representatives of legislative power, and found the following main problems: the case-law of the Constitutional Court and the legislation and the case-law of the ECHR and the CJEU have been all disregarded and distorted; the balance between the participants in the criminal proceedings has been disrupted; the criminal regulation principles have been disregarded; there is a lack of knowledge of the dynamics of the criminal proceedings; and there is no possibility whatsoever to link the new provisions put in place to regulate criminal proceedings with the other existing rules of the Code of Criminal Proceedings.
For instance, considering the amendments to the Criminal Code, we note that, while the initiator of such amendments does try to render mandatory the judgments of the Constitutional Court and their underlying arguments and reasoning, according to the case-law of the Court and the common rules published on the website of the constitutional appeal court, the authority of res judicata which accompanies all judicial instruments, and therefore also the judgments of the Constitutional Court, are to be enclosed to the operative part and the underlying reasoning thereof. Consequently, both the Parliament and the Government, as well as the public authorities and institutions are bound to comply as such with both the reasoning and the operative part thereof, however considering this important distinction highlighted in the Decision of the Plenum of the Constitutional Court no. 1/1995 and the Judgments of the Constitutional Court nos. 1415/2010, 414/2010 and 415/2010. The res judicata authority specific only to the underlying considerations of the operative part of the Court’s judgments is rooted in article 430 para. 2 of the Code of Civil Proceedings, reading that the res judicata authority concerns the operative part, as well as the underlying considerations thereof, including those applied to settle a matter of dispute, the provisions of this Code being applicable also to the proceedings developed before the Court.
As to the disregard for the international obligations assumed, we believe that the repeal of article 175 para. 2 of the Criminal Code is not justified, because the capacity of public official cannot be rendered conditional upon that person belonging to one of the entities or offices at para. 1, but also upon performance of public services the provision of which ensured by a diversified number of persons which are subject to a form of control by the public authorities. This amendment benefits a number of professional groups which act in the private sector, or self-employed capacities which would thus be applied an unreasonable preferential treatment. This legislative proposal is liable to impair Directive 1371/2017 on the fight against fraud to the Union’s financial interests by means of criminal law which, at Recitals 10, explicitly states that “As regards the criminal offences of passive corruption and misappropriation, there is a need to include a definition of public officials covering all relevant officials, whether holding a formal office in the Union, in the Member States or in third countries.
In the same way, the disregard for the national rules of law is obvious that when we speak about the repeal of the offence of neglect of duties. Besides the fact that it finds no objective justification, this amendment, added to re-arrangement of the offence of abuse of office, shall leave unsanctioned many offences committed by persons holding public offices in the exercise of their duties, in absence of any means intended to render these officials more accountable for performance of their duties, and, eventually, lead to dissolution of the rule of law by removing any type of criminal reaction against a conduct noted in performance of such duties. An objective justification can neither be found for proceeding to re-arrangement of art. 309 of the Criminal Code which regulates an aggravating cause for criminal liability, when the office-related offences have particularly serious consequences, especially because the legislative draft proposes no amendments whatsoever also to art. 297 of the Criminal Code. Of even greater concern is the argument used in support of such repeal, meaning overlapping of the offence of neglect of duties to the legal text which criminalizes the abuse of office, the essential difference as to the form of guilt demanded under the law for each of the offences being manifest.
As regards the burden thus placed on the shoulders of the judicial authorities, we note that introduction of a new case of incompatibility, such as that involving the preliminary chamber judge, who shall no longer be able to rule on the substance of the case, shall bring about many shortcomings, considering that neither at the entry into force of the Code of Criminal Proceedings, nor afterwards the newly-regulated judicial offices have been accompanied by measures intended to resize the establishment plan; this is liable to cause a deadlock in operation of the criminal divisions of the courts, and an excessive burden being imposed to judges specialized on a particular matter, the number of whom is reduced anyway. To the same end, when it comes to objection, the possibility of appealing the order of the higher-ranked prosecutor can lead to delays in criminal prosecution, in particular in complex cases with many defendants, further to lodging of repeated objections. Additionally, this amendment is neither justified as long as no other similar step of the proceedings a judge rules on, such as a court’s resolution, is subject to any appeal, and a potential incompatibility, along the actual harm thus caused, could be claimed in the preliminary proceedings. Consequently, this amendment is liable to unnecessarily burden courts with a new category of cases the settlement of which is insufficiently articulated in terms of proceedings.
The absence of an impact assessment is highlighted in the taking of evidence, where proposals are made to automatically exclude the statements of the suspect or those of the defendant due to just not recording them by any video or audio means anymore, as long as technical obstacles can sometimes render impossible such recording, and such a shortcoming is not liable to cause any harm insofar as the statement is documented in written form. The legislative proposal provides for no transitory rules whatsoever in this respect, and the entry into force of the new procedural provisions, in absence of suitable recording equipment, virtually compromises the work of the criminal prosecution bodies. Likewise, while institution of this safeguard is aimed at aligning the Romanian criminal justice to certain European standards in the field, it would be just natural that these recordings be given a general applicability and afford the evidence thus collected even more evidential value, while discouraging the persons heard from retracting their initial statements before the judge on grounds of alleged pressures put on them by the criminal prosecution bodies.
As regards separation of powers, we warn about the unacceptable intrusion in the work of the judicial authorities by de plano enforcing elimination of the fact-finding report when no expert assessment is conducted, despite the fact that the principles of general applicability under art. 100 paras. (3) and (4) of the Code of Criminal Proceedings state that the power to either uphold or dismiss a piece of evidence belongs to the judicial body. In the opinion of the initiator, the mere challenge of the fact-finding report obliges the judicial body to conduct such an expert assessment, but such a solution is liable to prejudice the principle of independence of judges which has been enshrined by the very new provisions of art. 8 para. (2). This new legislative solution contains even a wording flaw because, as long as the judicial body rules on the need for such expert assessment, this means of evidence cannot be rendered binding and left to their discretion at the same time. Imposing performance of an expert report to the judge further to the mere challenging of the fact-finding report, added to the sanction of removing the fact-finding report when an expert assessment is not conducted, is even more questionable as art. 172 para. 91 of the Code of Criminal Proceedings stated the requirement to have the fact-finding report drawn up by certain court experts specialized on particular matters, so that, once an expert opinion is issued, non-performance of a new expert assessment cannot justify such a harsh sanction, like removal of the evidence.
As regards the fundamental rights of the parties and the balance between the particular interests and the general interest, we see that the obligation to commence criminal prosecution further to just indication of a person not only that prejudices from the very beginning the principle of the presumption of innocence, but is further liable to artificially shift the powers of the criminal prosecution body, as per the purpose and the interests of the initiator of such indication, which can prove of bad faith. Commencement of criminal prosecution implies not only the existence of a particular person, but also of evidence in support of the criminal charge; but, in the envisaged legislative solution, a mere and freely expressed indication by the initiator is sufficient to cause determination of the criminal prosecution body of jurisdiction and the commencement of the criminal prosecution, which can cause serious moral and professional prejudices to the person affected by such a measure. This legislative solution glaringly comes against the principle of finding the truth in the criminal proceedings, provided under art. 5 of the Code of Criminal Proceedings which makes it mandatory for the judicial bodies to see, relying on evidence and not just on mere allegations, that truth is found about the facts and circumstances of the case, as well as about the suspect or the defendant. In fact, further to such a mere and freely expressed indication by an initiator, any person might become a suspect because criminal prosecution shall be commenced in personam, in absence of any situations that would prevent the exercise of the criminal action.
In what the injured persons and the purpose of the criminal proceedings are concerned, it can be noted that setting of a 1-year term for any of the solutions at art. 3051 of the Code of Criminal Proceedings is not sufficient in very complex cases, and the fact that, in absence of thorough investigations able to support finding the whole truth, a solution to commence prosecution in personam or close the case would be imposed by the mere lapse of time comes against any principles whatsoever. In fact, this solution too infringes the principle of finding the truth provided under art. 5 of the Code of Criminal Proceedings, as well as the principle of a fair trial provided by the Convention and enshrined under art. 8 of the Code of Criminal Proceedings because the reasonable time should be assessed, pursuant to the ECHR’s case-law, on a case-by-case basis, taking into account also the conduct of the parties and other criteria, in particular the complexity and the difficulties encountered in production of evidence. Such a provision cannot be soundly argued in favour against the other amendments proposed under the draft item of legislation which introduces, inter alia, also the obligation of the judicial bodies to proceed to an expert assessment of certain means of evidence, such as those at art. 97 para. 2 letter f of the Code of Criminal Proceedings, or to proceed to taking up new expert assessments to counter certain fact-finding reports. But, it is obvious that, insofar as the particulars of the case would not support a certain conclusion about one of the solutions, namely to commence criminal prosecution or to close the case, the lapse of a 1-year term appears excessive for the a solution to be rendered as envisaged by the lawmaker, simply to conclude a criminal investigation in process, ignoring the finding of the truth.
In the light of the abovementioned considerations, introduction of the sanction of absolute nullity for violation of the provisions of art. 307 para. 1 of the Code of Criminal Proceedings is manifestly contrary to the principles at art. 281 of the Code of Criminal Proceedings because such a legal provision is not intended to afford protection to a general interest, but to a particular one. While the party might not claim such harm and could even expressly waive it, undermining the other subsequent steps of the proceedings is void of any reasoning whatsoever, in particular when, having taken note of the potential omission occurred in the report issued to inform one of their capacity of suspect, the interested would not claim such a harm. In this case, there is no indication whatsoever of any interest that the court of law, the prosecutor or the other parties subsequently claim violation of a provision put in place to safeguard a particular interest and which, as envisaged by the lawmaker, is liable to cause termination of the criminal prosecution in absence of a freely expressed indication of the injured party in this respect.
The legislative solution which concerns application of the statements of a defendant who admits to the charges conflicts with the principle of free assessment of evidence enshrined under art. 103 para. 1 of the Code of Criminal Proceedings, as well as with the principle of the independence of the judge provided in the Constitution of Romania and in the rules applicable to administration of justice, which are impaired by the countless limitations imposed to free assessment of evidence in decision-making. Moreover, such a legislative solution comes even against the newly-amended provisions of art. 103 para. 3 of the Code of Criminal Proceedings which permit the use of the statements of those who enjoy favourable legal provisions for statements made before the judicial bodies as evidence in support of a judgment of conviction, no sanctioning or delayed sanctioning, insofar as this evidence is collated with other items of evidence which have been legally produced in the case. On another note, there is no justification whatsoever either for not using the statements of a defendant who admits to the charge in the simplified court proceedings against other defendants who don’t make use of these proceedings in the same case, or are investigated in other cases. In fact, such acknowledgement, but in a different form, can also take place when the defendant does not use these proceedings, as well as when these proceedings would not be permitted under the law, or the use thereof has been rejected by the judge. Unless such a prohibition operated in these cases, we see no reason for such an acknowledgement expressed in the proceedings regulated under art. 375 of the Code of Criminal Proceedings not to be used as means of evidence, so much the more that this statement needs, in its turn, to be collated with other evidence in order to lead establishing the guilt of the other defendants.
Another unreasonable interference in the powers of the judiciary is also introduction of the ground for review at art. 453 para. 1 letter g of the Code of Criminal Proceedings, which infringes the authority of res judicata because this amounts neither to misjudgement due to circumstances not known to courts ruling on cases, nor to a procedural errors which cannot be otherwise addressed. On the other hand, insofar as a court judgment needs to be review on this ground, the ground for review should concern all categories of judgments, and not just the conviction ones, for the prosecutor and the parties to enjoy the same legal treatment, and the principle of legal certainty and finality should be not sacrificed only in favour of the defendant. A failure by a judge who took part in settlement of the case to sign the judgment is not in reality a ground for review supported by the ECHR’s case-law because once drawn up by the judge concerned, the court judgment is the outcome of that judge’s wish expressed at an earlier date, and the signature of the president of the panel or of the president of the court only confirms official legal proceedings that have been concluded.
Eventually, the transitory provisions in the draft law are unconstitutional because they have retroactive effects and allow that judgments rendered before the effective date thereof are challenged on grounds regulated under the new law, contrary to the constitutional principle that the new law only provides for the future, expect for the more favourable criminal law.
As only the new criminal law may have retroactive effects, and not also the procedural law, the possibility afforded to the interested persons to challenge the court judgments rendered before the effective date of the new law on procedural grounds prejudice the principle of legal certainty and finality, as well as all the principles observed in drawing up transitory rules in civil and criminal matters. In fact, this principle has been constantly observed in application of both the Code of Criminal Proceeding and the Code of Civil Proceedings, and has not allowed that the procedural law has any retroactive effects regardless the matter of law it is applied to. Under the Romanian procedural criminal law, this principal has been expressly enshrined also in the provisions of art. 13 of the Code of Criminal Proceedings reading that the procedural criminal law applies in the criminal proceedings to the steps performed and the measures ordered since the effective date and until the expiry thereof, except for the situations provided in the transitory provisions. As for the final court judgments, a legal remedy cannot have retroactive effects regardless the favourable or unfavourable nature of the new procedural provisions because, while it is accepted that the provisions contained in the law issued for application of the Code of Criminal Proceedings apply only to the situations caused by the entry into force of the Code, the general provisions of the Code of Civil Proceedings applicable only to criminal matters pursuant to art. 2 of this latter Code state that judgments remain subject to the remedies, grounds and terms set out in the law under which the proceedings initially started (art. 27).
In the light of the foregoing, it thus follows that most of the proposed amendments are solutions intended to hinder the work of courts and prosecutor’s offices, the effects of which have not been even reviewed further to an impact assessment and which, in a relatively short period of time, are expected to genuinely overturn operation of the judicial bodies and, unavoidably and irreversibly to weaken the rule of law.
These legislative amendments cannot be called into question in absence of reliable and in-depth strategies in terms of management of the human and logistic resources, by disregarding the law predictability and accessibility standards and by instituting different standards as to the rights of the participants in the criminal proceedings, by enshrining a privileged status for suspects and defendants in the criminal proceedings, or by relying on principles which are not that close to the Romanian criminal legislation and which don’t afford the same benefits to other participants.
Considering the examples provided above, as well as the full review of the proposed amendments of the criminal legislation, we hereby ask the competent authorities to withdraw any draft amendments and start a genuine and in good faith consultation with all the stakeholders involved in enforcement of the provisions of the criminal and procedural criminal law.
Judge Dragoş Călin, Bucharest Court of Appeal, Co-President
The Recitals of the Directive state that private persons are increasingly involved in the management of Union funds.
In order to protect Union funds adequately from corruption and misappropriation, the definition of “public official” therefore needs to cover persons who do not hold formal office but who are nonetheless assigned and exercise, in a similar manner, a public service function in relation to Union funds, such as contractors involved in the management of such funds. Thus, article 4 paragraph 4 letter b of the Directive includes in the definition of the public official any other person assigned and exercising a public service function involving the management of or decisions concerning the Union’s financial interests in Member States or third countries. Consequently, in order to abide by the European legislation, the definition of the public official should not be limited, but, to the contrary, broadened so as to include, inter alia, also the private contractors who managed EU funds.