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de Razvan Diaconu , 24.3.2019
The Justice Ministry has prepared the two OUG drafts for which the coalition has put much pressure on the Justice Minister Tudorel Toader before granting him the support within the simple motion on Wednesday.
Through their effects, the two OUGs could lift Liviu Dragnea’s sentence within the Referendum File (a sentence because of which he could not be a prime minister), and would free him from possible criminal liability in the fictive employment file from Teleorman child protection authority.
It can also solve TelDrum file, in terms of prescription.
The trial on the fictive engagement is just a few deadlines away from completion and a probable prison sentence, given that Liviu Dragnea has been sentenced to three years and six months of imprisonment.
PSD leader avoids this way any risk of being convicted, even if he is found guilty in the second (pending) and in the third (near completion and referral) files as well and will be free to run for presidential elections.
Both OUGs appear during the three days of leave that Justice Minister Tudorel Toader took, and during the confusion about Liviu Dragnea’s illness, who was hospitalized on the very day of the trial on the fictive employment file.
1.OUG on court formation of five judges
The Ordinance introduces a new deadline for the submission of the appeal for annulment, for which they received final sentences between February 1 (when all five judges in the ICCJ formations should have been voted) and November 29, 2018 (when CCR declared these court formations because there was a legal member),
They have 60 days from the publication of the OUG in the Official Gazette, a term in which they can file the appeal in the annulment. This leads to the suspension of the conviction (where applicable) and the retrial of the appeal.
We recall that these five-judge formations rule on the appeals from the Supreme Court where the files of senior dignitaries, magistrates, etc. reach.
Liviu Dragnea will benefit from this act, as it will delete the suspended sentence on the Referendum File, and at the retrial, they will note the facts were prescribed.
2. OUG to amend criminal codes
In this case, the situation is more complicated, because criminal codes are in Parliament, where they have been returned by the CCR due to the unconstitutionality of several dozen articles.
An OUG to amend the codes in this situation would be unconstitutional as long as their amendment is taking place in Parliament, and a series of previous CCR decisions have found, in similar situations, a constitutional legal conflict between the legislature and the government.
The main amendments proposed by this OUG draft:
Article 155 of the Criminal Code, relating to the interruption of the penalty liability course.
(1) The course of the criminal liability prescription term shall be interrupted for each deed and person by performing any procedural act in question which, according to the law, must be communicated to the suspect or defendant within the criminal proceedings
(2) A new limitation period begins to run after each interruption.
(3) The prescription shall abolish the criminal liability no matter how many interruptions would occur if the prescription period provided in art. 154 is exceeded by another half
(4) The admission in principle of the request to reopen the criminal proceeding leads to a new limitation period of criminal liability, in compliance with the provisions of paragraph (3)
The drastic reduction of prescription periods, that is, of the period during which an offender can be held liable.
Amendments to Art. 154 of the Penal Code:
· from 10 years to 8 years “when the law provides for a prison term of more than 10 years but not exceeding 20 years for the offense committed”
· from 8 years to 6 years “when the law provides for imprisonment of more than 5 years but not exceeding 10 years for the offense”.
One of the beneficiaries of the two changes above is Liviu Dragnea, within both files in different phases – fictive employment from the General Directorate for Social Assistance and Child Protection and Tel Drum file (with frauds of about EUR 20 million of European funds).
The other amendments are also toward softening penalties for corruption offenses:
· the article that increased by one-third the punishments for the abuse of office was abrogated. Article 13, index 2 of Law 78/2000, on the prevention of corruption acts, states: “In case of offenses of abuse of office or position usurpation, if the civil servant has obtained an undue advantage for himself or another person, the special limits of the punishment shall be increased by a third“.
· eliminates most of the offenses for which no attenuated circumstances are granted in the event of full payment of the damage. The amendment is operated under paragraph (d) of Article 75 of the Criminal Code so that the only crimes that do not benefit from attenuating circumstances are: robbery, piracy, qualified theft, fraud through computer systems and electronic means of payment.
Context – referendum on judiciary
The two drafts, drawn up despite repeated warnings from the European Commission, and the risk that PSD would be excluded from the Social Democrat group in the European Parliament, come shortly after President Klaus Iohannis said he is determined to organize the referendum on the judiciary at the same time with the European Parliament elections, at the end of June.
It is unclear how the question will look, but one of the versions suggested to the head of state by non-governmental organizations is like: Do you agree with the tightening of punishments for corruption offenses? If the answer was YES, such OUGs would no longer be possible.