ANALYSIS A cascade of legislative changes promoted mainly by the PNL hits NGOs hard and discourages protests / Civil society calls on President Iohannis to intervene

A series of bills promoted in recent months mainly by the PNL restricts the work of non-governmental organisations, limits the organisation of protests and discourages the reporting of corruption cases in the media, civil society has warned.

The projects were initiated either by the Government or by Liberal MPs, led by Prime Minister Nicolae Ciucă. The whistleblowers bill has already become law, while the others are at various stages of the legislative process.

Although civil society has appealed to President Klaus Iohannis to get involved to prevent the adoption of laws reminiscent of the „Dragnea era”, the head of state has so far not responded in any way to such calls.

G4Media.ro has compiled a summary of these provisions that have become law or are about to be adopted.

The whistleblower law

The whistleblower law is a milestone in the NRRP and, according to government sources, is even now being discussed with officials in Brussels, who are unhappy with the form in which it has been adopted because it discourages reporting corruption or breaches of the law.

The bill was initiated by the government almost a year ago, passed through parliament once, was challenged at the Constitutional Court by USR, which declared it constitutional, and was returned by President Klaus Iohannis to parliament for reconsideration. Parliament passed it again and on 16 December 2022 it was promulgated by Klaus Iohannis.

USR and several NGOs complained that in the adopted form the law discourages reporting violations of the law. Basically, anonymous reporting can no longer be made.

Thus, the law stipulates that „the report shall include, at least, the following: name and surname, contact details of the whistleblower in the public interest, the professional context in which the information was obtained, the person concerned, if known, the description of the fact likely to constitute a breach of the law within an authority, public institution, any other legal person under public law, as well as within the legal person under private law, and, where appropriate, the evidence in support of the report, the date and signature, where appropriate”.

„A report that does not contain the name, surname, contact details or signature of the whistleblower in the public interest shall be examined and resolved to the extent that it contains substantiated indications of violations of the law,” the law also states.

The complaint is shelved if „it is submitted anonymously and does not contain sufficient information on violations of the law to allow for analysis and resolution of the complaint, and the person designated (to register the complaint within the institution, ed.) has requested its completion within 15 days, without this obligation being fulfilled”.

The whistleblower may also not disclose information on possible breaches of the law directly to the press, except under certain conditions, which may be interpretable:

A whistleblower in the public interest who publicly discloses information about a violation of the law is protected if one of the following conditions is met:

(a) it has first reported internally and externally or directly externally under ch. III and IV, but considers that appropriate measures have not been taken within the time-limit laid down in Article 17(3) and (4). (6);

(b) it has reasonable grounds to consider that:
1. the breach may constitute an imminent or manifest danger to the public interest or a risk of damage which cannot be remedied; or
2. in the case of external reporting, there is a risk of retaliation or a low probability that the breach will be effectively remedied given the specific circumstances of the reporting.

(2) A complaint of a violation of the law by public disclosure may be made to the press, professional, trade union or employer organizations, non-governmental organizations, parliamentary committees, or by making information about a violation of the law available in the public domain in any manner.

Restricting the right of associations and foundations to bring possible illegal acts before the courts

Several PNL MPs, led by Senators Daniel Fenechiu and Cristian Niculescu Țăgârlaș, registered a legislative initiative in the Senate in November 2022 to amend and supplement Government Ordinance No 26/2000 on associations and foundations.

160 non-governmental organisations requested the withdrawal of the draft which would make it more difficult for non-governmental organisations to bring any possible acts of illegality before the courts. On the other hand, the initiators of the bill (PNL MPs) say they want to limit the „abuse of rights” of organisations challenging infrastructure projects in court.

According to the draft law, „in order to partially guarantee the compensation of the damage caused to the beneficiaries of the administrative act under attack, when the association is a third party to the administrative act under attack, it has the obligation to deposit a bond amounting to 1% of the value of the investment, but not more than 50,000 lei”.

„160 non-governmental organisations and citizens’ groups have sent to the signatories of the legislative proposal to amend and supplement Government Ordinance No 26/2000 on associations and foundations a request to withdraw their signatures from this document. The proposed amendments are an attempt to weaken the capacity of civil society to exercise its mission to protect the public interest and are in line with illiberal trends in other European countries.

In short, the legislative proposal would prevent or significantly hamper the process by which any non-governmental organisation can bring any possible illegality of acts issued by public institutions before the courts.

Among the new elements that the initiators of this law want to introduce are a minimum of two years’ seniority of the non-governmental organisation wishing to apply to the court for the annulment of administrative acts, a deposit of 1% of the value of the investment (for challenging investment projects), and the patrimonial liability of the members of the board of directors, should the court issue a final decision dismissing the case. All these proposals come in the context that the Code of Civil Procedure already regulates, in a comprehensive way, the abuse of procedural law”, the signatory organisations said.

The bill is close to tacit adoption in the Senate, after which it will go to the Chamber of Deputies for a decision vote.

• Read the draft law here 

 

Dissolution of associations if they do not keep registers of people who direct 3.5% of income tax to various NGOs

Other amendments to the same bill have already been introduced in the Senate that threaten the work of NGOs.

A provision was added to the bill initiated by Daniel Fenechiu in February that would allow the state or „any interested person” to apply to the courts for the dissolution of any non-governmental organisation.

One of the amendments also tabled by the senator stipulates that „associations are obliged to set up and maintain registers showing the income obtained from sponsorships, as well as the income obtained from the redirection of the 3.5% income tax rate for the previous fiscal year”, presshub.ro wrote.

NGOs, associations and foundations will have to include in these registers the name of the person who sponsored the association or redirected the 3.5% share of income tax, the total amount of income from sponsorships or from the redirection of the 3.5% share of income tax, broken down per person and the date of conclusion of each sponsorship contract.

Otherwise, according to the amendment also initiated by Daniel Fenechiu, the association will be dissolved by „court order at the request of the Public Ministry or any other interested person”.

REPER MP Cătălin Teniță explained on Tuesday on Europa FM that „ANAF knows very clearly how much each person paid to those associations. The associations don’t know, but at the same time the associations are now obliged to report to the ANAF. I mean it’s completely backwards”.

„But there are two problems here: the first is that this redirection is given from ANAF to the NGO – you as a citizen who wants to redirect write a form that you submit or send by email to ANAF and then, after some time – because ANAF does not pay the associations on time because it keeps that money in the sock to reduce the deficit – at some point that money is redirected by the ANAF. ANAF knows very clearly how much each person has paid to those associations. The associations don’t know, but at the same time the associations now have those obligations to report to ANAF. I mean it’s the completely backwards. (…) „This is crazy because let’s say you find 99% of the people and you put them in the register, but there’s still 1% who omit to say, so you are then liable to a fine because you didn’t report properly to the ANAF, although the ANAF already had the data. It’s another madness”, explained Cătălin Teniță.

At the same time, the right to set up associations is limited.

„There is another problem in this law: if you have created an association and it is dissolved by a judge, you are not allowed to create another association for five years. For example, if you created the association Save the Cismigiu Park and saved it. After that you dissolve your association, but in two years after that if you want to save the Titan Park, you have to wait another three years”, said Cătălin Teniță.

„And there is another issue related to this law: the law says that if your association did not exist when the problem first arose, you can’t tackle this issue. For example, if a apartment block is built that started in 2020, you made your association in 2021, but you notice this issue in 2023, you have no way to sue,” Teniță explained.

Draft law to increase penalties for disturbing the peace

Interior Minister Lucian Bode and Prime Minister Nicolae Ciucă initiated in early February a bill to amend the Penal Code to increase the penalties for several offences, including disturbing public order and peace. Several NGOs have denounced the bill, saying it leads to restrictions on public gatherings. In their explanatory memorandum, Ciucă and Bode cite the „escalation” of this type of crime, without providing any statistics.

The two propose, among other things, amending Article 371 of the Penal Code so that public disorder is punishable by imprisonment of between 1 and 7 years, as opposed to the current provisions – imprisonment of 3 months to 2 years or a fine. The Bode-Ciucă draft thus eliminates the possibility that public disorder could be punished only by a fine.

• See the full draft law here
• See here the explanatory memorandum

Nine civil society organisations accuse the PNL of wanting to restrict freedom of assembly and the right to free expression through a draft amendment to the Penal Code. The nine organisations say in a statement that the bill is similar to the one tabled by the PSD under Liviu Dragnea.

„We strongly oppose this proposal because it would introduce disproportionate sanctions that would unduly restrict freedom of assembly and the right to free expression.

Let’s imagine the following situation: a group of angry citizens gather in front of the Government and shout loudly: „Down! Boo! Go to jail, you gangsters! Ciucă under investigation! Bode is a thief!” and the like, things that are usually shouted at a protest.

Analysis by the authorities:

– they shout, so they disturb the public peace;

– they threaten with imprisonment and seriously damage the dignity of Ciucă and Bode;

– there are two or more of them.

The conclusion: imprisonment from 2 to 7 years”, say representatives of NGOs ActiveWatch, ACCEPT Association, MozaiQ LGBT Association, Association for Technology and Internet – ApTI, Respiro Association, Rise OUT Association, Centre for Public Innovation, CeRe: Resource Centre for Public Participation and Spiritual Militia.

The Group for Social Dialogue (GDS) also asked President Klaus Iohannis to get involved to prevent the draft law from increasing the penalties for public disorder.

The GDS reminds Klaus Iohannis, in a public appeal, that „the draft announced by the Government repeats an old initiative of the Dragnea era, which tried to discourage any protest by citizens against abusive acts of the government”.

The Group for Social Dialogue (GDS) also asked President Klaus Iohannis to get involved to prevent the draft law from increasing the penalties for public disorder.

The GDS reminds Klaus Iohannis, in a public appeal, that „the draft announced by the Government repeats an old initiative of the Dragnea era, which tried to discourage any protest by citizens against abusive acts of the government”.

„If the protests of 2017 and 2018 had been defeated by the repressive forces in charge of the state’s institutions of force, many demonstrators would certainly have been accused of ‘serious attacks on the dignity of persons’ and would have been convicted in the name of Article 371 of the Criminal Code”, as they want to amend it through Ciucă and Bode’s initiative, warns GDS.

„Overlooking the abusive nature of the formulation of the aggravating circumstance (it is known that an anti-government protest often gathers more than one person!), the draft law in fact criminalises any form of public protest, on the basis of which vague charges such as „serious attacks on the dignity of persons” could be made at any time, a pretext under which well-intentioned protesters could be tried and sentenced to years in prison”, the open letter states.

In conclusion, the GDS tells Klaus Iohannis that Romania is a democratic state in which freedom of expression and freedom of assembly are guaranteed by the Constitution, and „the dignity of Romanian citizens, whoever they may be, is no less important than the dignity of persons exercising their duties and, therefore, to legislate for the benefit of some and to the detriment of others is a serious violation of the principles of the rule of law”.

So far, President Klaus Iohannis has not expressed any opinion on this project initiated by Prime Minister Nicolae Ciucă and Minister of Interior Lucian Bode.

Traducere Ovidiu Harfas