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The Forum of Romanian Judges has reported on the amendments to the Criminal Code that their adoption "at the speed of light" by the Parliament without taking into account the Venice Commission's opinion eliminates Romania's minimum standards of 39, a state of right. Magistrates say that the way in which parliamentarians proceed without dialogue, without rules, is reminiscent of the communist period and stresses that changes to such important laws are not quickly adopted in emergency procedures "invented the hot nights of 39, summer during the holidays "but through dialogue and participation of experts. "Otherwise, the consequences will be the same as the explosions in>, dislodging any visible trace of a rule of law in Romania," say the judges, invoking the verses of a communist era song
The judges believe "changing the crime of abuse the service, provided by Article 297 of the Penal Code, is in fact a de facto decriminalization of this crime and the elements introduced by the legislator are not related to the constitutionality of the norm. "
We present the communiqué of the Forum of Judges: the appeals of the Romanian magistrates and European and international organizations, addressed in all possible ways, to hundreds of steps in the last period, the Romanian Parliament has continuously disturbed the final sprint, dismaying the partner states and, indeed, the whole civilized world
regulation reminiscent of the famous rhythm of the Communist period "Hey, Rup! Hey, Rup! (19459024 ) excludes ab initio any form of dialogue (simulated as in an absurd play) with any relevant actor, in fact impossible if the differences between those who wear it are irreducible. Participants in the dialogue must share common values and accept equivalent rules and principles, one of the principles inherent in a democratic state, obliging them to respect the common constitutional heritage of the rule of law, according to the norms and good practices. developed by the Venice Commission. 19659003] The changes required by laws of paramount importance, such as the Penal Code and the Code of Criminal Procedure, are not adopted at the speed of light, in emergency procedures invented during hot nights summer, during the holidays, in defiance of the civilized world. but through dialogue, with serious impact studies and with the participation of all relevant technical experts, especially international experts.
The amendments adopted by the Parliament go beyond the "desideratum" affirmed by the representatives of the legislative power. the agreement of the legal provisions of the in the field of the analysis of the opportunities from the point of view of the penal policy of the State, which means, for example, a careful examination of the necessity of effectively protect social values from anti-social acts committed by public servants
A radical change in the legislature's focus on the civil liability of public servants should be the result of a serious debate in the environment legal and society in order to avoid potential negative consequences such as the vulnerability of social relations that must be based on trust in civil servants, and not in violation of the provisions of the UN Convention against Corruption adopted in New York on October 31, 2003.
For example, the modification of the crime of abuse of service .297 d in the Penal Code, in fact represents a decriminalization of cto of this crime and the elements introduced by the legislator are not related to the constitutionality of the norm: the reduction of the sentence to 5 years of maximum prison (from 7 years). and from the age of 14 in the aggravated form provided for in Article 13 ind. 2 of Law no. 78/2000) and the exclusion of the possibility of prohibiting certain rights, such as to be elected or occupying the post that facilitated the commission of the crime, which does not appear in any decision of the Court Constitutional Law and is in no way justified by the initiator of the law.
The effects that this amendment is supposed to produce must be considered in relation to the limitation periods and, secondly, with reference to the characteristics of the offense and the conduct of the criminal proceedings and to the the scope of other provisions of the law such as extended confiscation
The reduction of the sentence immediately entails the calculation of the limitation period taking into account a different category of offenses considered less serious by the legislator, with a limitation period of 5 years applicable. at 7 years and 6 months, if the lawsuit is brought against a person. By comparison, the aggravated version currently has a 10-year prescription term, which can be extended up to 20 years in the case of a special order. The immediate effect of this change will be to establish the statute of limitations for acts committed prior to 2011, whether they are in the criminal phase or in the judgment phase. A similar effect, which can be analyzed statistically, was generated by the amendment of the provisions of Article 215 para. (5) of the 1968 Criminal Code, reducing the sentence from 15 years to 5 years.
The reduction of penalties, which has the effect of shortening the limits of criminal responsibility, is in no way debatable or inferred from acute and current social needs. On the contrary, the frequent number of these offenses and the continuing violation of the right of persons in different public positions do not justify such legislative intervention which, in addition to encouraging the violation of criminal law, through the easing Crime conditions, allows to have another type of abuse, committed outside of an undue material advantage and by which public and private institutions can be devalued virtually
The proposed criminalization creates even the basis of an autocratic system, because it does not sanction the abuses in the foreign service to obtain patrimonial benefits, consolidate organized crime networks engaged in the theft of public resources or knowingly undermine the Romanian State and the general interests of society, taking advantage of the insufficiency of the general normative framework of the national security of Romania
Last b ut not least, given that the offense of abuse of service is generally invoked for a longer period, either as a result of checks carried out by the administrative authorities or as a result of the finding of the new direction of the institution, so that the possibility for the judicial authorities to become acquainted with the existence of crimes after 1 to 5 years after the commission of the crime. The investigation of the offense, up to his trial, often involves the administration of technical evidence, such as an expertise that can take a long time, hearing from many witnesses, the examination of documents, the conduct of letters rogatory when funds were subcontracted, evidence impossible to administer at short intervals, while respecting the rights of the parties.
Introduce the qualified objective as part of the typology by inserting the expression "in order to obtain a material property advantage", which is not invoked in any decision of the Constitutional Court, is inconsistent with the value protected by the rule in question and has no objective justification, causing the injury sufficient to characterize the intentional act of the public servant as an offense
Abuse in service has been incriminated to ensure the defense of soc as regards the exercise of the functions of service in the public establishments, the violations of the legal provisions by the civil servant and the occurrence of damages considered serious enough to fall under the criminal law. The conditioning of the existence of the offense to obtain the use of the heritage material would lead to sanctioning an act by which, for example, the official would have obtained 50 000 lei in violation of the legal provisions and l & # 39; 39 failure to impose a fact by which the official intentionally caused a loss of 1,000,000 lei, did not obtain any benefit of his own. In addition, it is possible that the grievor seeks to obtain a non-patrimonial benefit by committing the offense, a situation that is excluded by the legislator by the amendment passed. Given the current conditions of criminalization, many facts with a higher degree of social danger will escape the impact of criminal law in cases where the perpetrator will not act to obtain a material advantage
The proposed text also departs from the model which makes the existence of the qualified objective of obtaining a material undue advantage a condition for aggravating the liability the criminalization of the author, so that, in this perspective, the conditions of incrimination introduced lead to a new suppression of international politics (19659003) Condition for the benefit of "oneself, husband, parent or cow , up to the second degree inclusive "and exclusion of the most common form of abuse that involves the obtaining of a material benefit currently incriminated by Law No. 78/2000) for a other or the provisions of Article 13, paragraph 2 of the Law No. 78/2000, in the form in which they sanction the obtaining of a benefit for a third party, have been declared constitutional [19659003] The introduction of a condition relating to the position perpetrator's subjective relationship with the recipient of the proceeds of the offense may unduly restrict the scope of the offense by excluding persons who have a relationship with the perpetrator other than the who have the status of husband, parent or aphinus up to and including the second degree. Such a condition is not imposed either by the case-law of the Constitutional Court or by the statement of reasons, from which it appears that the proposed legislative solution is randomly promoted, regardless of the fact that Romania has assumed at the international level the obligation to sanction such acts for the benefit of a third party, and without taking into account the fact that at the moment the interference of persons in the criminal chain commits crimes using "straw people" and pursuing the interests of criminal groups that are clearly not family-related are frequent means of committing not only abuse of service but also of others types of crime such as corruption, tax evasion, money laundering, etc.
This leads to exclude from the scope of criminal law facts that circumscribe the concept of abuse in service, but that were committed is for the benefit of distant relatives in favor of a trading partner , an affiliate, a stakeholder, or in the interest of a person who is preparing to entertain the official in cash, for example, without being able to establish a link with
The form adopted by the legislator is confused with the provisions of Article 301 of the Penal Code, which prohibits, without it being necessary to violate a legal provision, the making of decisions or the Awarding of contracts by the official of the family members listed and Article 297 of the Criminal Code. In addition, the penalty for both offenses has an identical maximum of 5 years imprisonment and, surprisingly, if the official does not violate the law and the provisions of Article 301 of the Penal Code, the law does not violate the law. prohibition of duties for a period of three years
In a practical explanation, if an official assigns a contract to the company headed by his daughter, who produces the goods and could execute the contract and who participates in the auction without any violation of the law, it faces a 5-year upward sentence and the ban on certain rights. If the same agent violates the legal provisions and creates favorable conditions for the company of his daughter or sells the contract without the company fulfilling the legal conditions, he risks the same sanction without being defended of rights
By modifying the law. material element "The" refusal to perform an act "excludes all situations in which the official does not perform an act that should have been performed but does not express his refusal or n? Such an attitude is not required, especially if the public official is the head of the institution, in which case one can imagine the reach of people who might ask them to express their intention not to execute the 39, act is very limited
By Decision No. 619/2016, the Constitutional Court ruled that the legislature has the power to criminalize the facts that constitute a threat to the social values protected by the Constitution, l & # 39; express of the rule of law and democracy, or to deny crimes when it is no longer justified the need to use criminal means, but it is obvious that its margin of d & # 39; appreciation is not absolute (see also Decision No. 2 of 15 January 2014). Thus, the criminal policy measures must be promoted in accordance with the values, requirements and principles enshrined in the Constitution and expressly and unambiguously assumed by the Parliament
Therefore, the Constitutional Court constantly insists in its decisions "incrimination / decriminalization or reconfiguration of the constituent elements of an offense is at the discretion of the legislator, a margin that is not absolute, being limited by constitutional principles, values and requirements "(Decision No. 683 of 19 November 2014, published in the Official Journal of Romania, Part I, No. 47 of 20 January 2015, paragraph 16, and ad simis, Decision No. 54 of 24 February 2015, published in the Official Gazette of Romania, Part I , No. 257 of April 17, 2015.) In the same vein, the Court emphasized that the discretionary power of the legislature when it questions the limitation of A constitutional right, in this case Article 23 of the Constitution (Decision No. 603 of 6 October 2015, paragraph 23), or non-social relations that would threaten the institutions of the Union. 39: Rule of law, democracy, human rights, equity and social justice (Decision No. 2 of 15 January 2014) are limited and subject to strict control by the Constitutional Court.
The Romanian Association of Judges reiterates that Parliament has an obligation to wait and take full account of the Venice Commission's opinions, notified on 28 June 2018 by the Assembly Parliamentary Assembly of the Council of Europe, adopting the proposed legislative amendments, a minimum indication that the rule of law can still work in Romania and not to disrupt the course of the Romanian state as a member of the Council from Europe. Considering the status of Romania as a party to the European Convention on Human Rights and a member of the Council of Europe, the recommendations of the Venice Commission can not be left unattended in the practical plan . a violation of the principle of the supremacy of the Romanian Constitution (see, for example, Constitutional Court Decision No. 334 of 26 June 2013.)
Otherwise, the consequences will be the same as the explosions in the refrain previously mentioned ("Hey, rup! Hey, Rup! Hey, rup, bum! … in the brigadier's battle"), dislodging any visible trace of a rule of law in Romania
The Association Romanian Forum Judges calls all seasonal subjects to dismiss the Constitutional Court with objections the unconstitutionality of the normative act indicated and will expose, as soon as possible, to a broad constitutionality of the text of the law. "
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