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DNA is investigating how the two ordinances have been drafted. Tough reaction of Ministry of Justice
de Mariana Bechir 5.2.2017
If the act is not confirmed, the case will close, if there are indications, it will go further.
“At the National Anticorruption Directorate, a complaint filed by several individuals has been registered about possible acts that fall under the institution’s competence for resolution, related to the way of adopting certain legislation. Therefore, in accordance with the criminal procedure, procedural acts are carried out on the issues brought before the DNA. Please note that when circumstances permit, we will be able to provide further details.”
UPDATE 10.57: The Ministry of Justice confirmed Wednesday in a press release that it has received a request from DNA to transmit the originals of all documentary evidence related to the drafting and issuance of the emergency ordinance on amending the Criminal Code and the Criminal Procedure Code and the draft law on pardon:
“Yesterday, 1 February 2017, the Ministry of Justice has been requested by the National Anticorruption Directorate – Department for combating crimes assimilated to corruption offenses – to hand over by 2 February 2017, the original of all the documents related drafting and issuance of the Government Emergency Ordinance of 31 January 2017, which amended and supplemented Law 286/2009 on the Criminal Code and Law 135/2010 on the Criminal Procedure Code, as well as the draft law adopted by the Government on granting pardon for some sentences.
By the same notification, the National Anticorruption Directorate has requested the documents – resulting from the interinstitutional and internal correspondence, written or electronic mail, on the two pieces of legislation mentioned, and the full names and identification data of persons who participated in the drafting, preparation and/or endorsement of the two draft laws.
According to the notification, the documents have been requested for the proceedings conducted in a case pending before the National Anticorruption Directorate.”
In the statement, the Ministry strongly criticizes the action of DNA:
“Regarding this approach, the Ministry of Justice underlines that the legislative amendment in question was and is undertaken by the Ministry of Justice in exercising its statutory and legal duties.
We consider that triggering an investigation by the DNA on the drafting of an emergency ordinance is a serious interference in the work of the executive authority and an unprecedented impairment of the constitutional balance of powers.
Also, the press release reads that “the Ministry of Justice states that it does not envisage the reorganization of the National Anticorruption Directorate and the Directorate for Investigating Organized Crime and Terrorism and rejects all the information recently circulated in public on this issue.”
The General Prosecutor of Romania Augustin Lazar announced Thursday morning that there is a DNA investigation underway on how the draft law on pardon and the ordinance amending the criminal codes have been drafted.
Asked at the entrance of the CSM building whether any such investigation exists, Lazar confirmed the news on sources that was already circulating on Wednesday evening, but declined to offer further details:
“There is a DNA investigation and please address to the press office of the DNA for further information. It needs to be precise information and not me saying things that are not rigorously accurate. (…) There is a pending case before the DNA somehow related to that,” said Augustin Lazar before the meeting of the Superior Council of Magistracy.
Sources said the DNA might have requested the Ministry of Justice to provide a list of persons involved in drafting the two pieces of legislation. They might have also asked for the videos recorded at the entrance of the Ministry of Justice, to see all the people who entered the institution after the establishment of Sorin Grindeanu government.
The investigation has been opened based on a preliminary complaint.
Emergency ordinance decriminalizing certain offenses of corruption
It is recalled that the Government adopted Tuesday night an ordinance amending the Criminal Code and the Criminal Procedure Code and a bill on the pardon. The first document has been published immediately after the approval and the draft law sent to the Parliament.
Negligence in office, the same as in the original version, is totally decriminalized.
Abuse of office
The Government has maintained the prejudice threshold of 200,000 lei, below which there is no criminal offense, but just the administrative and disciplinary sanction, plus the recovery of the prejudice.
The ordinance also maintained lower penalties (the upper limit is now three years, instead of five years, as stipulated in the former version) and dropped the requirement for the criminal proceedings to be triggered following the complaint of the injured party.
How the article on the abuse of office looks like:
“The act of a civil servant who, in the line of duty, knowingly commits a violation of some express provisions of a law or a government ordinance, or fails to perform an act required by the express provisions of a law or a government ordinance, thereby causing a material prejudice exceeding 200,000 lei or a serious harm, certain and effective, of the rights and interests of a natural or legal person, as provided and guaranteed by an applicable law, is punishable by imprisonment for 6 months to 3 years or a fine.”
The two large shields for perpetrators: protecting decision-making civil servant who issues abusive pieces of legislation, and “denunciation matter”
Another provision that endangers many pending cases and has been preserved in the emergency ordinance published in the Official Gazette refers to the denunciation and amends the Criminal Procedure Code – the denunciation may be filed only within 6 months from the date of the offense.
The big novelty of the ordinance has been announced right in the press conference Tuesday evening:
It has been decriminalized the abuse of office “when issuing, approving or adopting pieces of legislation”, which means that for the liability is discharged for all high and middle-level public officials who have the power to issue, approve or adopt regulations.
An identical situation was for the offense of favouring the perpetrator, which no longer exists “for the cases of issuing, approving or adopting pieces of legislation“.
Consequently, Grindeanu government would not be held responsible for the draft legislation in the justice areas if the emergency ordinance took effect, no matter if the action exists.
Draft law for pardon
Liviu Dragnea will no longer benefit from the pardon unless the bill will be amended in the Parliament, because the draft adopted by the Government extended the list of exceptions and included the corruption related offenses. Dragnea received a suspended sentence for such charge in the “Referendum” case file:
“A person holding a leadership position in a political party, trade union or employer association or within a legal non-profit entity, who uses the influence or authority for obtaining for himself or another person money, goods or other unfair advantages, shall be punished by imprisonment for one to five years.”
His only chance to become prime minister is for the CCR to declare unconstitutional the provision of Law 90 that does not allow convicted persons to become members of the Government.
Also, as the provision regarding the diminishing by 1/2 of the penalty that benefited people over 60 years, regardless of the offense, there is no longer possible for criminals, rapists, Dan Voiculescu, Alexander Visinescu, defendants from the “Revolution” and “Mineriada” case files to get out of jail under the Law on pardon.
It has been added the provision specifying that it is mandatory for those who benefit from this reduction of penalty to pay for the damage caused and that those sentenced for offenses exempted from granting pardon will not benefit from this reduction.
Now, only pregnant women and people who are sole breadwinners with dependent minors aged up to 14 can be granted a reduction by half of the sentence or a pardon. The first version included the persons aged over 60 and stipulated a maximum age of only 5 for children.
Also, the bill added a new provision that does not allow granting pardon to people convicted of crimes where the penalty provided for by law exceeds 10 years, even if the offense is not on the list of exceptions from the bill on the pardon.
The conflict of interests and intellectual forgery are also exempted from granting the pardon.
The offenses stipulated in Law 78/2000 on corruption and abuse of office have also been added to the list of offenses excepted from the pardon.
It should be recalled that the Government approved on Tuesday night an ordinance that amends the Criminal Code and the Criminal Procedure Code and a bill on the pardon.
The ordinance has been published in the Official Gazette on Wednesday at 01:00 but stipulates a 10-day interval before some of the provisions effectively enter into force.
The Law on pardon has been submitted to the Senate on Wednesday morning.