Romanian parliamentary parties about to deal destructive blow to justice with amendments imposing censorship, witness intimidation and others

A special commission of the Romanian Parliament on Thursday is expected to discuss a series of amendments to the Criminal Code and the Criminal Procedure Code, which if adopted will deliver a massive blow to Romanian justice. They argue changes to the codes are needed because of a EU directive. But the amendments appear to be conceived specifically to save whole categories of culprits, while others impose heavy limits to inquiries or are aimed at intimidating investigators.

• UPDATE The head of the special commission said on Thursday morning that the talks on the amendments to the criminal codes would take place on Monday

Criminal law experts consulted by HotNews.ro consider the amendments as a „serious limitation” of prosecutors’ responsibilities and means of investigation and have a destructive effect on criminal justice.

• A special parliamentary commission has been working overtime to finish a series of changes to key pieces of Justice-related legislation. Three such sets of changes have already been adopted and they all have been massively criticized as attempts to subdue the Judiciary politically. Now, it has introduced on its Thursday agenda a series of amendments to other key laws – the Criminal Code and the Criminal Procedure Code.

Despite Thursday is a national mourning day in memory of Romania’s ex-King Michael, who passed away last week, and a suspension of the special commission work has been voted for the occasion, the commission nonetheless has decided to introduce an issue for discussion on Thursday.

It is officially described as a transposition of EU Directive 2016/343 on strengthening rules on presumption of innocence and the right to attend trial during criminal procedures.

But many of the amendments introduced have nothing to do with what the directive demands. Their initiators are the governing PSD and ALDE parties, their supporting party UDMR (ethnic Hungarians), as well as the opposition PNL. The amendments introduce, among others:

1. Censorship. An amendments applies total censorship on anything related to people facing criminal inquiries. HotNews.ro warned as early as November 22 of Supreme Council of Magistrates (CSM) plans to seriously limit the access of media to data included in criminal files. The CSM used the same argument of the EU Directive, which in fact recommends member states to adopt adequate measures to strengthen the presumption of innocence by avoiding using physical constraint measures. But the PSD-ALDE supported amendment to the Criminal Code forbids anny form of communication about criminal cases until the case leaves the preliminary chamber. Prosecutors will not be allowed to communicate anything about anybody – politician or ordinary citizen – who is facing a criminal inquiry, despite this being information of maximum public interest.

2. Witness intimidation. A new amendment is introduced by which a defendant will be able to attend witness hearings. Let’s say, for example, that in a human trafficking case, the defendant – that is, the head of the organised crime group – will stand before the victim all the time. Prosecutors’ chances to obtain valuable information will drop considerably. This can be replicated to cases of domestic violence, rape etc.

3. Helping witnesses to lie professionally. Witnesses’ lawyers will be able to assist witnesses during hearings. Witnesses have to tell the truth. Let’s take a tax evasion or EU fund fraud case: key witnesses will be easily taught by lawyers what to say to cover facts or to coordinate statements, thus lowering the chances of prosecutors finding out the truth.

4. Limits to what constitutes evidence. Experts consulted by HotNews.ro say that an amendment introduces limits to the types of evidence that can be used in an inquiry. For example, street cameras, which are not explicitly named in the definition of what may constitute evidence, could no longer be used.

5. Harder to obtain sentences. Another amendment is aimed at completely blurring the meaning of a type of evidence – the statements of those who admit their deeds, when co-defendants are sentenced. That means that admitting guilt gets a lower importance as a means of evidence.

6. Limits to the use of recordings in an inquiry: A conversation recorded, let’s say, by a public servant, between a businessman offering bribe and a politician accepting it would not constitute evidence.

7. One of the most destructive amendments blocks the use of data collected from electronic systems in a criminal case, if the data was collected in a search related to another criminal case. Romania’s anti-graft prosecutors, for example, made a series of IT system searches related to the Tel Drum case – which is of major interest for PSD leader Liviu Dragnea – and used the data to pursue criminal cases different from that in which a criminal inquriy was made in the first place.

8. Corruption suspects could no longer be placed under preventive arrest. An amendment changes the line refering to what cases can use preventive arrests, removing from the list cases such as money laundering, tax evasion, corruption, cyber crime.

9. Another amendment prevents, let’s say, the access of prosecutors to Tax Administration data, in a tax evasion case, unless they provide the access of the defendant to the tax authority’s data base.

10. Another amendment would make it impossible for a case to be re-opened after a 6 months deadline. If the head prosecutors is corrupt or neglectful and fails to re-open a case within the 6 month time frame, nobody can re-open it – even if said prosecutor is proven to have been bribed.

11. An amendment makes it almost impossible to sentence someone in absentia.

Other amendments are aimed at intimidating magistrates and prosecutors by introducing new rules to criminalise their activities in certain circumstances.