The lethal provision in the Code of Criminal Procedure that could blast high corruption cases accepted by the Constitutional Court / Half of the amendments to the normative act were rejected

On Thursday, the Constitutional Court rejected the objections brought against one of the key amendments introduced by SDP-ALDE-UDMR to the Code of Criminal Procedure, a lethal legislative change concerning corruption cases and beyond, which could lead to the closure of large corruption case files, including Liviu Dragnea’s, CCR sources told G4Media.ro.

The specific provision is outlined in Article 145, index 1, and eliminates the possibility of using evidence resulting from national security oversight (MSN) in cases other than the offenses named by the national security law for which the warrant was issued.

The new article is phrased as follows, index 145. „The data, information and results of the technical surveillance mandates obtained on the basis of Law no. 51/1991 on Romania’s national security, republished, with subsequent completions, can not be used in other cases and for investigating offenses other than those affecting national security under this law, and for which there were suspicions that substantiated the request under the sanction of absolute nullity. ”

In other words, while monitoring a person for terrorist offenses, if the Romanian Information Service finds out that that person or others commit and a crime of corruption, tax evasion or rape, for example, the service can no longer send evidence to the Prosecutor’s Office to be prosecuted in criminal cases of corruption, tax evasion or rape. Only the evidence for terrorism remains valid in the terrorist file.

However, the judges declared unconstitutional the second part of Article 145 index 1, namely the phrase: „under this law ,and for which there were suspicions that substantiated the request under the sanction of absolute nullity.” However, this will not affect the essence of the regulation, ie that the evidence obtained on the basis of an MSN may be used exclusively for the acts provided by the Romanian National Security Law 51/1991.

Among the beneficiaries of this legislative change could be the SDP leader, Liviu Dragnea. According to sources from lawyers, the case files concerning his person also contain interceptions made by SRI on national security mandate (MSN), on economic security. For example, this interception by SRI on MSN on March 15, 2017, in the first Tel Drum file, has already been sent to court.

According to the cited sources, the judges examined three-quarters of the Code of Criminal Procedure on Thursday, half of the amendments to the normative act being rejected.

The volume of work was huge, the sources quoted, the report compiled by the Judge-Rapporteur, Daniel Morar, was about 300 pages.

On Thursday’s session, the judges debated each of the criticisms by voting on the constitutionality or unconstitutionality of the amendments made by the SDP-ALDE-UDMR majority to the Code of Criminal Procedure.

The debates are to be resumed Friday morning at 10:00, the judges’ estimation being that until the end of the meeting, an overall solution will be given to the normative act.

The law amending the Criminal Procedure Code (CPP), adopted in July by Parliament, contains provisions that could affect or relate to Liviu Dragnea’s court case files: Tel Drum, Belina, Fictitious Employment (in which the SDP leader received 3 years and a half of actual imprisonement), and even the Referendum one (in which Dragnea was finally sentenced to 2 years imprisonment). The law contains several provisions that change the rules of evidence management and will make it difficult or even impossible for criminal investigations, as the Anti corruption Directorate (DNA) has shown in an analysis of the impact of legislative changes.

The CPP’s new provisions include articles dedicated to politicians or influential people, such as Liviu Dragnea or Dan Voiculescu, as well as amendments whereby those who commit criminal acts receive new tools in the fight with the judiciary, being effectively advantaged in their confrontation with the prosecutors.

Some changes have been discussed in today’s meeting, others are to be debated on Friday. It is not clear at this point what has passed and has not:

The phrase „reasonable suspicion” has been replaced everywhere in the law with the phrase „solid indication” and the ways and possibilities of making interceptions have been drastically restricted.
The length of the prosecution is reduced to one year. If within that span of time prosecutors fail to sue the person concerned, then the case file is automatically archived.
Conditional release may be required every 6 months, as compared to the minimum one-year interval that must now pass between requests.
Two new reasons have been put forward for the review of a final court judgment:

The non-drafting / or non-recognition of the decision by the judge who participated in the settlement of the case (Liviu Dragnea could benefit);

Disciplinary sanctioning of the judge or prosecutor for the exercise of the position in bad faith or serious negligence, if such a decision was influenced (Dan Voiculescu could benefit from an advantage in this case).

Amendments were made to the SDP and ALDE proposal and concerned Article 453 (1) of the Code of Criminal Procedure:

„The review of final judgments on the criminal side may be required in case of:

non-drafting and / or non-signing of the conviction decision by the judge who participated in the case (SDP and ALDE amendment)

a judge or prosecutor has been sanctioned disciplinarily for the performance of his or her duties in bad faith or serious negligence if these circumstances have influenced the verdict in question (SDP amendment) ”

An amendment was also adopted which provides that public disclosure of any information relating to the facts and persons subject to the procedure is prohibited during criminal proceedings:

„Art. (3) Public communications, public statements and the provision of other information, directly or indirectly, coming from public authorities regarding the facts and persons subject to these procedures cannot be referred to in the course of criminal prosecution and trial of the case in suspected or accused persons as if they had been convicted. (amendment SDP and UDMR) „.

At the same time, the Court of appeal can no longer sentence a person who has been acquitted in the first instance unless new evidence arises, which would make the process much more cumbersome:

„Art. 421 paragraph (2) The appeal body may not abolish the sentence of the first instance ordering the acquittal of the defendant and may not pronounce a conviction decision directly in the appeal unless new evidence is readied that would lead to the abolition of the first instance acquittal the reasons for which payment was ordered (SDP amendment) „.

The amendments to the Criminal Procedure Code were appealed to the Constitutional Court by the High Court of Cassation and Justice, PNL, USR and President Klaus Iohannis.

Traducerea: Ruxandra Stoicescu