Crucial week for Romania : the Constitutional Court is expected to pronounce decisions concerning the Penal and Criminal Code, the Justice laws, the Administrative Code, and concerning the redefinition of the notion of family

A series of deadlines is running this week, from Monday to Thursday , for the Romanian Constitutional Court (CCR), which will pronounce decisions concerning a number of crucial subjects : the changes brought by SDP -ALDE to the Penal Code, changes which depenalise the offence of abuse of office, for which Liviu Dragnea was sentenced to 3 years and 6 months imprisonment in a first instance, the changes brought to the law concerning the statute of Magistrates, and those brought to the law governing the way in which the Superior Council of the Magistracy functions (Justice laws), the controversial changes brought to the Administrative Code, as well as the law meant to revise the Constitution in the direction of re-defining family as the marriage between a man and a woman.

UPDATE 1 On Monday, 17 September 2018, the Constitutional Court postponed its pronouncement on the changes to the Penal Code until October 16. Sources indicated to G4Media that the Judge-Rapporteur failed to submit the report and the written conclusions arguing that the complexity of the case imposed the need for more time for an adequate decision.

UPDATE 2 The Constitutional Court decided on Monday with 7 votes „for” and 2 ”against” that the law revising the Constitution regarding redefining the family as a marriage between a man and a woman respects the provisions of the fundamental law on the revision. The CCR decision was the last filter before the referendum, which will take place on October 7th.

Last week, the Constitutional Court decided to debate on Monday, September 17, the citizens’ initiative to revise the Constitution on Family redefinition, adopted on Tuesday by the Senate as a decision-making chamber.

The penal code

The most important decision that everyone expects from the CCR concerns the changes brought to the Penal and Criminal Code. President Johannis, the High Court of Justice, and opposition MPs contested them in court. The former president of the High Court of Justice, now member of the CCR, is the reporting judge on this matter. Her name is Livia Stanciu. She is known for her firm stand against the SDP -ALDE siege on justice, through her separate opinions on CCR’s decisions concerning the Justice laws (see above) and the famed Emergency Decree 13 (which wanted to depenalise corruption activities overnight and brought hundreds of thousands of Romanians to protest it in January and February 2017). Livia Stanciu has also led the 5-judge team of the High Court which sentenced Liviu Dragnea in 2016 to 2 years imprisonment with suspended sentence in the “Referendum” case.

After receiving on 21sst of June 2018 the sentence of 3 years and 6 months imprisonment for another case, Dragnea intended to change the Penal Code through emergency decree, but his coalition partner, Călin Popescu Tăriceanu opposed the measure. Given this obstacle, the SDP leader sped up the adoption of the normative act in Parliament, where he managed to have it approved in only 4 days.

The deadline of 17 September chosen by CCR to pronounce itself on the matter threw Dragnea’s plans, because the Anticorruption Agency appealed the sentence given by the High Court, asking for a higher punishment, of 7 years. Moreover, on Friday, the High Court has finalized the motivation of the sentence of 3 years and 6 months of imprisonment, which means that, as of now, the sentence can be appealed to the 5 judges Chamber.

Amongst the many controversial changes brought to the Penal Code, the SDP has partially dis-incriminated the abuse of office, the very offence for which Dragnea was sentenced in the file of fictitious employment of party members at the Teleorman Child Services.

According to a communiqué sent in July 2018, the General Secretary of the Council of Europe, Thorbjorn Jagland, has asked all the parties involved in the process to wait “for the opinion of the Venice Commission on the matter and to take it into consideration before any changes are effected concerning the Penal and Criminal Code”.

Thorbjorn Jagland warns that “this reform risks breaking Romania’s international commitments…As a member State of the European Council Romania is obliged to respect the rule of law”.

The Council of Europe’s spokesperson adds that the opinion of the Venice Commission was requested by the Parliamentary Assembly of the Council of Europe on June 28, 2018, and the opinion is supposed to become public on October 19, 2018.”Together with the GRECO recommendations, the opinion of the Commission aims to suggest the best solutions in order to address the issues created by the projected amendments, in accordance with Romania’s commitments”.

The Justice laws

Although SDP, ALDE and UDMR have modified all three of the Justice laws at the end of last year, only one of them has entered into force. The law concerning the Magistrate’s statute and the one concerning the organization and functioning of the Superior Council of the Magistracy are still processed in the ongoing contestation procedure launched by the Presidency, the High Court and the opposition parties. CCR has set a new deadline for Tuesday, 18 September 2018.

In its report published on July 13, 2018, the Venice Commission practically demolished the changes brought to the Justice laws. The Commission has asked Bucharest authorities to rethink the changes brought to the three normative acts, particularly those concerning the appointment and revocation of chief prosecutors of the main Offices – Anticorruption Agency, DIICOT and the General Prosecutor’s Office. The institution has asked for the roles of the Presidency and of the Superior Council of Magistracy (SCM) to be kept in the appointment procedure of these officials.

The main requests expressed by the Venice Commission concerning the Justice Laws are:

· Re-consider the system for the appointment / dismissal of high-ranking prosecutors, including by revising related provisions of the Constitution, with a view to providing conditions for a neutral and objective appointment/dismissal process by maintaining the role of the institutions, such as the President and the SCM, able to balance the influence of the Minister of Justice;

· Remove or better define the provisions enabling the superior prosecutors to invalidate prosecutors’ solution for groundlessness;

· Remove the proposed restriction on judges and prosecutors freedom of expression;

· Supplement the provisions on magistrates’ material liability by explicitly stating that, in the absence of bad faith and/or gross negligence, magistrates are not liable for a solution which could be disputed by another court; amend the mechanism for recovery action in such a way as to ensure that the action for recovery only takes place once and if liability of the magistrate has been established through the disciplinary procedure;

· Reconsider the proposed establishment of a separate prosecutor’s office structure for the investigation of offences committed by judges and prosecutors; the recourse to specialized prosecutors, coupled with effective procedural safeguards appears as a suitable alternative in this respect ;

· Re-examine, with a view to better specifying them, the grounds for the revocation of SCM members; remove the possibility to revoke elected members of the SCM through the no-confidence vote of the general meetings of courts or prosecutors’ offices (including by the way of petition);

· Identify solutions enabling more effective participation, in the work of the SCM, of SCM members who are outside of the judiciary;

· Abandon the proposed early retirement scheme unless it can be ascertained that it will have no adverse impact on the functioning of the system;

· Ensure that the proposed “screening” measures of magistrates are based on clearly specified criteria and coupled with adequate procedural safeguards and a right of appeal to a court of law and identify ways to strengthen oversight mechanisms of the intelligence services.

The administrative Code

Adopted by the Chamber of Deputies in July 2018 in an extraordinary session, the Administrative Code was contested in CCR by the Presidency and the opposition parties. The judges gave the deadline for a decision on 20 September.

The most important provision of the Code is the granting of special pensions for mayors, deputy mayor, presidents and vice-presidents of District Councils.

A special pension is granted provided that the person requesting it had a full mandate as a mayor, deputy mayor, president and vice-president of District Councilsand the sum takes into consideration three mandates.

Another provision targets the decisions concerning the estate of administrative units, which it will be possible to adopt via a simple majority vote, as compared to a two thirds majority, currently in place.

The proposal was made by the Ministry of Development, where the Administrative Code was written, practically adopting an amendment brought by Darius Vâlcov (Dragnea’s right hand in the Government) in 2015 to the law of Local Public Administration.

Constitutional Revision

Last week the CCR decided to debate on Monday, September 17, 2018, the citizen initiative concerning a constitutional revision addressing the redefinition of the family, adopted by Senate last Tuesday.

The CCR decision is a filter before the fundamental law’s revision is presented to the people in a referendum. In case the Court gives the green light on this, the referendum will happen on October 7, 2018. Otherwise, the project will return to Parliament and it will be debated anew, both in the Senate and in the Chamber of Deputies.

According to article 23 of the law governing the CCR:

· (1) Within 5 days since the adoption of the law on the revision of the Constitution, the CCR will pronounce itself automatically on it, applying provisions of art. 20 and 21.

· (2) The decision that states that the constitutional dispositions referring to revision processes were not respected will be sent to the two Parliamentary fora, in order to re-examine the law on the revision of the Constitution, in order to align it with the CCR decisions.

Last Tuesday, the Senate has adopted the citizen initiative on theredefinition of the familyas being the marriage between a man and a woman. There were 107 votes “for”, 13 votes “against” and 7 abstentions.

According to the new text of the fundamental law, “The family is constituted through the freely consented marriage between a man and a woman, it is based on their equality and on their right and obligation to raise and educate children”.

SDP wants to have two days of vote for the referendum on the theme of the traditional family. On Tuesday, the Government is supposed to adopt an emergency decree to this effect. In parallel, there would be a referendum on whether to change the name of a district.

In order to have two days for the referendum, one needs to change the law of the referendum. Furthermore, the Government must also adopt government decrees and decisions designating the specific days for the referendum.

According to the current law on the referendum, „citizens are called to express their will through voting in the national referendum on the revision of the Constitution on the last Sunday of the 30-day period stipulated in the Constitution, calculated from the date of the Parliament’s adoption of the draft law the Government having the obligation to bring to the public, immediately by means of mass media, its text and the date of the referendum ”

According to the last report made by the Permanent Electoral Authority, on 31 August 2018 there were 18,917,495 Romanian citizens with voting rights. Thus, in order for the referendum to be validated, it is necessary to present 30% of the total number of voters, which means 5,675,249. Another condition for validating popular consultation is that at least 25% of votes are valid.

(Traducerea: Ruxandra Stoicescu)