Adoption. On the night of January 31/1 February 2017, it has been published in the Official Gazette 92/2017 the Government Emergency Ordinance 13/2017 that amends the Criminal Code and the Criminal Procedure Code. In the same night, it has been adopted a bill on the pardon, but it will follow the regular legislative procedure in Parliament, so there is no law on the pardon to take effect yet.
Why emergency ordinance? For emergency situations, when we cannot expect for the Parliament to pass a law, the Government can do that instead, by emergency ordinance. The introductory note of the emergency ordinance does not clarify what would have been the urgent situation that required the amendments of the two codes, but only mentions some non-unified interpretations caused by the publication of some decisions of the Constitutional Court of Romania.
CSM’s opinion. For areas related to justice and the two codes, it is compulsory to ask the opinion of the CSM, which is only of consultative value. Regarding an initial draft of the emergency ordinance launched last week, CSM has issued a negative opinion. But on Tuesday significant changes have been made to the initial text so that the Ministry of Justice considered that a new opinion from the CSM is needed. At 17:00, CSM received the new version of the draft emergency ordinance. The CSM President scheduled a CSM plenary meeting for Wednesday 9:00 and even announced the minister about that. At 21:30, the Government approved the emergency ordinance, without the opinion of the CSM.
Adjusting the Criminal Code. The emergency ordinance introduces several amendments to the Criminal Code to come into force in 10 days:
- favouring the offender. A person who helps another person to evade a court trial or the execution of a sentence commits a crime. Those who help their family members (parents or grandparents or great-grandparents, children or grandchildren or great-grandchildren, brothers, sisters or their grandchildren, spouses or cohabitees) are not penalized, though.
– the ordinance also introduces a new category of people who will not be penalized: affinity relatives up to the second degree of kinship, which means that starting now the husband’s parents, grandparents, children, grandchildren, brothers and sisters will not be penalized anymore. This also means that the case files opened so far for these latter categories of persons should be closed;
– the ordinance provides for those who favour the perpetrators by issuing, approving and adopting legal acts to not be punished anymore, starting now.
- abuse of office. The regulation has been almost entirely amended, by exceeding the requirements of a CCR decision (405/2016) which called for attention to a single lack of clarity. There are several matters here:
– starting now, an action will be considered an offense only when it violates the regulations of a law, government ordinance or government emergency ordinance and causes a prejudice of over 200,000 lei or harms the rights or interests of a person. It means that starting 11 February 2017, the abuse that causes a prejudice of no more than 200,000 lei will no longer be considered crimes: pending criminal cases would have to be closed and the interested parties could recover the prejudice only through a civil lawsuit (the complainant has to pay for stamp fee, expert opinions, etc., which does not apply for a criminal trial). The persons with a final sentence for such offenses will have to be released and their criminal conviction deleted from the criminal records. Another clarification: the threshold of 200,000 lei has been arbitrarily set;
– penalty limits have been reduced from 2-7 years to 6 months-3 years or a fine. It means that the new law introduces smaller penalties. The effect is that the prescription period for the criminal liabilities also decrease, which affects the case files in progress: until now an abuse of office could be prosecuted within up to eight years from the date of the offense and now this period would be of 5 years, which means that the pending case files that have been before the national courts for more than 5 years should be closed;
– in case of conviction, the judge had until now the possibility to cancel the convict’s right to exercise a public function for 1-5 years. The emergency ordinance eliminates this option;
– penalties for abuse of office committed by discrimination have been drastically reduced: until now, these acts were punished by imprisonment for 2-7 years and the prohibition of the right to exercise a public function, for restricting the rights of a person on grounds of race, nationality, religion, sex, disability etc.; now, these acts would be punished by imprisonment for one month to one year or a fine;
– the ordinance provides that the offenses of abuse of office, including those that involve discrimination, by issuing, approving or adopting legal acts the acts, will not be punished anymore. It means that there is a special category of state employees who cannot be held accountable, irrespective of the level of prejudice or the importance of the harm caused. Besides, that creates the possibility of issuing racist legislation!
- negligence. Until now, if an official caused a prejudice or injury while exercising their duties, not intentionally (in which case it would be abuse), but because of the indifference or negligence, the act was considered a crime. In 10 days, this provision will completely disappear from the Criminal Code, no matter how serious the consequences of the offense. That means that the pending criminal cases will be closed and the prejudice can be recovered by the interested parties only in a civil lawsuit. The persons with a final sentence for such offenses will have to be released and the conviction deleted from the criminal records.
- conflict of interest. A decision that a person took in a public office for their material benefit, the benefit of a spouse or a relative/an affine up to the second degree is a crime. The Code stipulated that such decisions can be taken neither for those who have been in commercial or employment relationships with the decision maker in the last 5 years or the person received gifts or donations from them.
– CCR warned that the text of the law uses the phrase „commercial relationships” that is not clarified (decision 603/2015), but instead of clarifying this phrase, the Ordinance 13 has completely repealed this mention. Furthermore, even the references to the employment relationships, gifts and donations have been eliminated! Consequently, if the public servant took a decision that favours their former boss, business partner or somebody who just paid for their holiday, they would not commit any crime;
– In a correct manner, the conflict of interests in the private sector has been repealed, which follows the CCR Decision 603/2015.
- drunk drivers
– the text stipulates that the blood alcohol levels that exceed the legal limit (0.8 gr / l of pure alcohol in the blood) are considered when the person was driving, not in the moment of biological sampling. The amendment is correct, as it was required by the CCR decision 732/2014.
– a new crime is introduced: alcohol or drug consumption after a traffic accident resulted in killing or injuring a person is punishable by imprisonment for 1-5 years.
Amendments to the Criminal Procedure Code. The emergency ordinance brings several changes to the Criminal Procedure Code and they entered into force upon the publication of the ordinance
- acquittal in case of the prescription Until now, in case of the prescription of the criminal liability, the defendant would have been cleared and the civil action remained in the backlog. Starting now, the judge should solve the matter related to the prejudice even in this situation (amendment in line with the CCR decision 586/2016), which favours the victim.
- extension of the judicial review: To be in line with the CCR decision 614/2016, the emergency ordinance 13 provides that the defendant should be subpoenaed, heard and have a lawyer in case of extension of the judicial review.
- denunciation: The prosecution sometimes finds out about the offenses committed from the witnesses who submitted denunciations. Before 1 February 2017, the denunciation could be submitted at any time within the prescription period for the criminal liability, sometimes several years after the offense was committed. The ordinance provides that from 1 February the denunciation must be submitted within 6 months from the date of the offense. Two consequences are to be emphasized:
– that cannot refer to the case files started before 31 January 2017, inclusive, because the criminal procedure regulations do not apply retroactively, as it happens in the matters of criminal law;
– there is no penalty established for breaching this time limit. Basically, even if an offense is announced to the police or prosecutor after these 6 months, the prosecuting authority may consider of its own motion the case. It remains for the practice to identify whether there are other consequences as well.
The Parliament procedure. The ordinance has been submitted yesterday to the Parliament. The legislative body can either approve or reject it, according to art. 115 par. 4 of the Constitution. The procedure is rapid, but will certainly take more than 10 days, as the text needs to be discussed in both Houses of the Parliament.
Weak points of the ordinance. According to art. 115 par. 4 of the Constitution, the Government may only adopt emergency ordinances in exceptional cases, when adopting the new regulations cannot be postponed, and has to explain the emergency in the text of the ordinances. But in this case, the entry into force of the amendments to the Criminal Code is delayed for 10 days even in the emergency ordinance.
What can be done?
– the Government to reconsider the OUG 13/2017, amend or even repeal it;
– According to art. 146 letter d) of the Constitution, the Ombudsman can raise the issue of the constitutionality of the ordinance. It is at his sole discretion whether to attack OUG 13/2017, which can be done at any time from the moment of its publication in the Official Gazette, as the Constitution does not require for the regulations of the ordinance to be in force, but only the ordinance to exist as a legislation;
– According to art. 146 letter d) of the Constitution, CCR decides on the exceptions of unconstitutionality related to laws and ordinances, raised before the national courts. So, if there is a pending lawsuit with the hearing scheduled for today-tomorrow-the day after tomorrow, in which the provisions of OUG 13/2017 are incidental, the prosecutor from the hearing, possibly a DNA prosecutor, may request that from the court which might send them to CCR;
– Based on art. 146 letter e) of the Constitution and art. 34-39 of Law 74/1992, CSM can trigger the constitutional conflict between the state authorities – CSM, the courts and the Public Ministry on one side, and the Government on the other. On 1 February, the President of CSM announced that;
Entry into force of the emergency ordinance:
– The amendments to the Criminal Procedure Code entered into force on 1 February 2017;
– The amendments to the Criminal Code will enter into force on 11 February 2017. Even if the ordinance would be withdrawn by the Government, rejected by the Parliament or declared unconstitutional by the CCR, the effects of the amendments to the Criminal Code will have been realised: it is about a law more favourable to the defendants (see art. 5 paragraph 2 of the Criminal Code).
- The emergency ordinance was not urgent, as it reconciles provisions of the Criminal Code with CCR decisions even older than one year and stipulates the entry into force in 10 days;
- Putting the situation in order again by judicial means can only take place before 11 February 2017, at 00:00.
Cristi Danilet is judge at the Cluj Court and former member of CSM