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The Constitutional Court published the reasons for Decision 633 of 12 October 2018 on amendments to the Code of Criminal Procedure. With the publication of the protocol of agreement in the Official Journal, the Parliament will be able to resume its debates on the issue in order to bring the draft law into conformity with the decision of the CCR. The statement, made by Daniel Morar and Liviu Stanciu, also contains two separate opinions.
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This year's MCV report also refers to the amendment of the Code of Criminal Procedure. The European Commission recommends "freeze the proposed amendments to the Criminal Code and the Code of Criminal Procedure" and "revive the procedure for the revision of the Criminal Code and Code of Criminal Procedure, taking full account of the need to ensure the compatibility of these codes in accordance with the law of the Union and the international anti-corruption instruments, as well as the recommendations made in the CVM and the Venice Commission's opinion. "
According to legal sources, the RAC will publish next week as well as the reasons for the decision on amendments to the Penal Code.
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The Constitutional Court ruled on October 12 that 64 provisions of the law amending the Code of Criminal Procedure were unconstitutional, while 31 objections are constitutional. The objections were made by the HCCJ, the PNL-USR and the President of Romania.
The CCR found that the provisions of the law amending the Code of Criminal Procedure, which refer to the effects of the entry of the new CPC into pending cases and judgments, are unconstitutional.
The RCC unanimously stated that it was an unconstitutional art. II of the Law amending and supplementing the Law No. 135/2010 on the Code of Criminal Procedure, which contains "final and transitional provisions".
"The provisions of this Law shall apply to all cases pending on the date of entry into force and judgments delivered up to that date." The decisions taken up to the date of entry into force of this law will be subject to the remedies provided by this law and will also be analyzed according to the reasons it governs ", specifies the article declared unconstitutional.
The article also states that "the time limit for appealing judgments rendered up to the date of entry into force of this Act and for the reasons stated therein begins to run on the date of its entry into force ".
"The courts competent to hear and judge appeals under this Act and for the following reasons are those competent under Law 135/2010, as subsequently amended and supplemented", Article II of the Law amending and supplementing Law 135/2010 on the Code of Criminal Procedure declared unconstitutional by the RAC.
CCR: Revision of final judgments if the judge does not sign the document, unconstitutional
The Constitutional Court declared unconstitutional the provisions of the new Code of Criminal Procedure introducing additional cases in which the revision of a final judgment may be requested.
According to a press release of the CCR, one of the provisions declared unconstitutional in the law amending the Code of Criminal Procedure is that which stipulates that the review of final judicial decisions in criminal matters may be required when "(f) conviction on the basis of a criminal law provision which, once the judgment became final, was declared unconstitutional, in whole or in part, or in some form of interpretation by the Constitutional Court. "
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In addition, two new grounds for reconsideration were declared unconstitutional: "(g) the absence of a decision and / or the absence of a decision of conviction by the judge who participated in the settlement of the case, (h) The European Court of Human Rights of human found a violation of fundamental rights or freedoms as a result of a court decision and the serious consequences of this violation continue to occur. "
Another provision of the CPC, which was declared unconstitutional, states that "the judgment is rendered by one of the judges who participated in the case and is signed by the members of the committee who took part in it. 39, Administration of Evidence and Substantive Judgment, as well as by the Registrar ".
The CCR also declared unconstitutional the article of the CPC stipulating that the execution of a criminal judgment may be challenged in the following cases: "(d) where the amnesty, the prescription, the grace or any other cause of extinction or reduction of sentence, including a more favorable criminal law or a decision of the Constitutional Court on the content of the offense on which the judgment is based ".
The article states that "the effect of the repairs must place the suspect or the accused in the same situation as if there had been a violation of his rights" and the person who says "He is entitled to compensation for the damage and the person against whom, in the course of the criminal proceedings, a preventive measure or a precautionary measure was taken if the public prosecutor subsequently ordered the lodging of the complaint or if the court had ordered the acquittal " were declared unconstitutional on Friday.
The CCR also rejected as unconstitutional certain provisions relating to the appeal on points of law.
"In Article 438, after paragraph 1, four new paragraphs, (11) – (14), as follows:" (11) An appeal in cassation may be invoked in favor of the convicted person only in the following cases : 1. where the elements of the offense are not fulfilled or where the court has convicted for an act other than that for which the sentenced person was sent to the court, 2. when the wrongdoing s & # 39, is given a bad legal classification; 3. when the judgment is against the law or when a judgment has been wrongly executed to influence the outcome of the trial; 4. when a serious fault has been committed; 5. when substantive judges have committed an excess of power, in the sense that they have passed into the field of other powers of the state. (12) Final judgments in cases where the European Court of Human Rights found a violation of a right guaranteed by the European Convention for the Protection of Human Rights and Human Rights. fundamental freedoms in similar cases may also be the subject of an appeal in cassation. (13) The court, ruling on the appeal on points of law, checks the judgments under appeal in respect of all the grounds of appeal mentioned in the previous paragraphs, prior to the parties' discussion. (14) The appeal in cassation favorable to the defendant can be declared at any time ", they declare the provisions unconstitutional.
CCR: Participation of the suspect in any act of criminal investigation, unconstitutional
The CCR has found that a number of provisions are inconsistent with the rights of defense of suspects and accused and their ability to participate in criminal proceedings or hearings.
The CCR decided that the article of the law amending the Code of Criminal Procedure stipulated that "the criminal investigation organs and the courts are obliged to provide the main subjects of the trial and their counsel the necessary time to prepare the defense, which can not be less than 3 except to take or judge preventive measures, when the duration can not be less than 6 hours and the facilities necessary for the preparation of the defense, by providing and communicating all the elements electronic criminal investigation. "
Constitutional judges also rejected the CCP's provision stating that "the violation of the rights set forth in this article (the right to defense – n.r.) is punishable by the absolute nullity of the acts performed with their contempt".
The provision that "the suspect or defendant may participate in any criminal act or any hearing at his request" was also declared unconstitutional, as well as the provision that "In order to prepare the defense, counsel for the defendant has the law Familiarize yourself with all the documents in the criminal investigation file during the proceedings before the judge of rights and freedoms relating to deprivations or restrictive measures in which the lawyer participates. requests for preventive measures can begin only when the lawyer has the time necessary to prepare the defense and after the judge is satisfied that he has had sufficient time to examine all the elements of the prosecution case, but not less than 4 hours The violation of this right entails the absolute nullity of the provision of the preventive measure. "
The CCR determined that the word "evidence" or "in the text" the person in respect of which, judging by the evidence or clues of the case in question, was unconstitutional, "stated that 39, she committed a criminal offense ". In addition, the CCR established that the phrase "or prosecutors" is unconstitutional in the provision that "the distribution of all cases to judges or prosecutors is random".
CCR: Prohibition to use interceptions that do not refer to the act, unconstitutional
The CCR judges declared unconstitutional the article of the Code of Criminal Procedure, which states that interceptions unrelated to the act being investigated can not be used in the criminal investigation file.
The Constitutional Court rejected an article of the law amending the Code of Criminal Procedure, which refers to the procedure for issuing the technical control warrant.
"The request made by the prosecutor includes: the indication of the technical control measures to be ordered, the name or other identifying data of the person against whom the measure is ordered, if any, the indication of evidence or data resulting from the execution of offenses for which the measure may be ordered, factual and legal classification, and, in the case of video surveillance, sound recording or filming, if the consent of the authorities criminal investigation to access private areas was indicated to activate or deactivate the technical means to be used for the implementation of the measure of technical supervision, the justification of the proportionality and subsidiary nature of the measure. must submit the file to the judge of rights and freedoms, "said the text unconstitutional.
The CCR also ruled that a CPC article on interceptions is unconstitutional.
"Conversations intercepted, recorded, or that do not relate to the subject of the research or persons under investigation or who do not contribute to the identification or location of persons may not be used or attached to the criminal investigation file.They are archived at the office of the prosecutor's office in special and confidential places and can be made available to the target at his request.When the case will finally be settled, they will be erased or, as the case may be, destroyed by the prosecutor, and the minutes will be closed if no interception order has been obtained for the rest of the discussions, if during the interception or the recording of conversations or conversations, indications to commit or other offenses are disclosed, the performance of the warrant may also be required for such offenses.The conversations, conversations or conversations in tercepted and registered can only be used to prove the act being investigated, or to help identify or locate persons for whom permission has been requested by the Judge of Rights and Freedoms ", said the unconstitutional text.
In addition, the constitutional judges also rejected the provision of the CCP that "after the lifting of the technical control measure, the prosecutor must inform in writing not later than 10 days each object of the mandate, as well as all persons supervised." technically relevant to the purpose of the warrant and who have no quality in the criminal investigation and any person independent of the quality of the prosecution in the criminal prosecution, the technical control measure that has been taken in his regard. "
Among the provisions declared unconstitutional by the RACs are some of the searches.
"The lack of identification of objects or persons sought hinders the search of the judicial body.The search report mentions the refusal of the person searched to hand over the persons or objects sought with precision. Absence of this mention in the search report, as well as the continuation of 24 searches without request or instruction, are sanctioned with absolute nullity.Samples obtained on the basis of a blank registration for these reasons can not not to be used in criminal proceedings ", is a text of the CPP declared Friday unconstitutional.
CCR: The phrase "sound cues" in the case of evidence necessary for criminal action, unconstitutional
The CCR has declared unconstitutional the provision that criminal prosecution is implemented and is exercised when there is evidence "that clearly indicates" that a person has committed an offense.
The judges of the CCR ruled on the provision of the law amending the Code of Criminal Procedure, which states that "criminal prosecution is implemented and exercised when there is evidence that it is obvious that a person has committed an offense and that no case prevents him from moving or exercising it, that he is unconstitutional with respect to the phrase "d & # 39, where the sound cues result ".
The CCR also rejected the article that "illegally obtained evidence can not be used in criminal proceedings, being punishable by absolute nullity".
In addition, the Constitutional Judges have decided that the texts that "In deciding the existence of the offense and the guilt of the accused, the court shall rule in a reasonable manner, with reference to all the evidence evaluated. conviction only when the court is satisfied that the allegation has been proved beyond a reasonable doubt "and that the provision that" The sentence, surrender or stay of sentence can not be ordered acts other than those for which it has been ordered to proceed to court The extension of the criminal trial may not be ordered for other acts or circumstances other than those for which the trial was ordered. legal classification can only be provided if the factual situation may be legally inferior to that of the court referral ", are also unconstitutional es.
Another provision rejected by the JRC judges refers to the fact that "the judge who participated in the settlement of the complaint against non-arbitration or non-arbitration or who ruled on the request for confirmation of the waiver of criminal prosecution or the request for confiscation or dissolution of a document can not participate in the same case in the proceedings on the merits or appeals ".
CCR: It is unconstitutional that the state is required to pay court fees in case of payment
The judges of the CCR determined that the law amending the Code of Criminal Procedure stipulated that the state would bear the legal costs in the event of acquittal of the defendant.
"In case of payment, the state will be obliged to pay the defendant the legal costs it incurred," is the text declared Friday, unconstitutional by the RCC.
The judges of the Court also declared unconstitutional the article of the CPP, according to which "the court seized of the case can order, by concluding, the measure of control jurisdictional against the defendant with the reasoned request by the prosecutor or the Office for a specified period. " up to 30 days can be extended up to 150 days ".
Another provision under the constitutional control of the CCR is that "the court may, during the trial, order the judicial review against the defendant for a period not exceeding 60 days." the total duration of the judicial review may not exceed a reasonable period and in any case not more than 5 years from the date of the trial. "
In addition, the text states that "if the superior prosecutor finds that new facts or circumstances have occurred, demonstrating that the circumstance on which the subsequent classification was based, but no later than six months after the date on which it was filed , knowledge of the appearance of the new act or the new circumstance, refusal of the order and order of the reopening of the criminal proceedings "was declared unconstitutional.
The CCR further held that the constitutional rules, nor the provision that "the change in the legal qualification of the act can not be challenged in relation to a situation other than that contained in the act d & # 39; If it is established that the factual situation differs from that which was set at trial, it may be necessary to resume criminal proceedings for these facts if they may constitute another offense. "
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