Bucharest, Jan 20th 2017
The signatory organizations consider unacceptable that normative acts of such importance as those regarding collective pardons for criminal sentences or amending the Criminal Codes are secretly drafted and included on the Government’s agenda without effective consultation of the Romanian society. There was no opportunity for the civil society, representatives of the judiciary system and other interested parties to formulate a point of view, or indeed to know what is going on. Such practices throw Romania back to the early, authoritarian stages of the post-Communist transition and are incompatible with the normal practice in EU member states.
Granting collective pardon through an emergency ordinance (EO) is unprecedented in Romania’s post communist history. Previously, this happened only by acts of Parliament, after proper debates in plenum which allowed the majority and the opposition to present arguments pro and against, as is the normal practice in democracies.
The statements of mr Iordache, Minister of Justice, regarding the impact of the measure – that it would affect 2300-2500 persons currently incarcerated in the Romanian penitentiary system, i.e. less than 10% of the total – appear disingenuous: this will not solve the problem of overcrowding. Rather, the measure is more likely to benefit people convicted for serious offences such as corruption-related crimes, abuse in office, crimes directed against the judicial process and electoral crimes.
Reading the draft EOs, published on the website of MoJ only after the Government meeting of Jan 18th, it is clear that certain crimes are excluded from the general pardon measure provided by art. 1 of the EO. However, these exceptions do not include serious crimes as those mentioned above (see the Annex for the full list). This means that individuals convicted to 5 years of prison or less will be pardoned as a result. Suspended sentences and fines are mentioned expressis verbis for pardoning, which raise another question mark over the declared goals: obviously such sanctions have nothing to do with the overcrowding of jails, but a lot to do with the personal cases of some top politicians.
There is also a partial pardoning (sentences are cut in half), but with no specifics about the nature of the crime committed; upon release the convicts are not subject to the obligation to cover the damages within one year, as in the case of the absolute pardon mentioned before. All convicts, no matter what the crime was, would benefit from this partial pardon if they are over 60 years of age, or if they are suffering from a disease in a terminal phase, or if they have children under 5 years of age or if they are pregnant.
With respect to the EO amending the Criminal Codes, the stated goal is to implement recent Constitutional Court’s jurisprudence. This looks more like a pretext because (i) not all relevant decisions are reflected in the proposed amendments, and (ii) the problematic amendments are in no way related to the jurisprudence of the Constitutional Court. For example, making investigations for abuse in office dependent on the submission of a complaint would practically make prosecutions for abuse in office impossible where the victim is the state. When the suspects are leaders of public institutions, which happens often, it is very unlikely that they will submit complaints against themselves. What is more, a threshold of 200.000 RON (approx. 50.000 EURO) operates as de facto decriminalization of offences that fall under this threshold.
Reducing the penalty for abuse in office from 2-7 years and the interdiction to exercise the right to occupy a public position (as the law provides now), to 6 months-3 years or a fine (as proposed by the emergency ordinance), would proportionally diminish the statute of limitation period and risk closing some of the pending cases. In conclusion, the amendments proposed regarding the offence of abuse in office leave it largely empty of meaning and block investigations for crimes against the state.
The offence of negligence in office is decriminalized without any explanation or reference to jurisprudence.
The conflict of interests is made ineffective by making it conditional upon the “undue” nature of the benefits realized. Until now this provision was meant to sanction the situation when a public official obtained, by using their public position, benefits for themselves or close associates. This is not the first time when we witness attempts to decriminalize the conflict of interests by introducing the words “undue benefits”. Decision no. 2/2014 of the Constitutional Court says that this is unconstitutional. Coming back with the same amendments, once declared unconstitutional, is in itself unconstitutional.
In the Criminal Procedure Code, restricting the validity of effective regret to only six months after the crime was committed is unreasonable. People will no longer report crimes to the investigators and the efficiency of criminal investigations will be reduced. If the intention is to introduce time limits, the international practice should serve as a guide; these matters were analysed in the GRECO reports.
We demand the Ministry of Justice to stop the current fast track procedure for these amendments, make public the existing data on overcrowding in Romanian jails and engage the social actors in a rational debate to search for viable solutions together.
 Effective regret allows prosecutors to waive criminal responsibility for individuals who took part in criminal conduct if they cooperate with the investigators.
Institutul pentru Politici Publice (IPP)
Centrul Român de Politici Europene (CRPE)
Grupul pentru Dialog Social (GDS)