Transparency International Romania protests towards the completely non-transparent manner the projects of the four codes have been elaborated and endorsed, and would like to mention that the statements of the Minister for Justice concerning the wide consultation process are false and not covered by the reality.
The provisions of these codes have not been extensively analysed and debated within the society, and the criminal policy decisions involved have never been the object of a real public consultation. Even a fairly brief analysis of recent surveys would clearly reveal that certain proposed resolutions are in disagreement with the social values shared by the general public – sanctions of the corruption deeds with petty punishments, exoneration of incest, limitation of the freedom of press and promoting torture.
Transparency International Romania considers that the project of the criminal code and the project of the code of criminal procedure bring severe prejudice to the interest of Romania through the maximum tolerance policy towards the generalised corruption phenomenon.
Therefore, although it is proved that the corruption phenomenon substantially affects the public resources, that it deviates the public institutions from their mission, that it affects, directly or indirectly, the rights and freedoms of the citizens, and that it constitutes the main source of poverty and underdevelopment of Romania compared to the other EU members, The Ministry of Justice institutes an inadmissible shallowness as criminal policy with regard to this plague.
The entire legal construction of the Criminal Code, both the general and special sections, results in the lack of sanctioning for corruption crimes or moderately sanctioning of such (best case scenario). Such sanctions could be considered as acceptable by the offenders, considering the benefits coming from committing the crime.
The Ministry of Justice has never provided either the needs assessment for the regulation, the criminological studies it relied upon, the judiciary statistics indicators considered for the analysis, or the impact analyses and implementation projections. General considerations, unfunded appreciations and speculations with regards to the future effects cannot substitute the necessary and sufficient arguments for the new shape of the legal infrastructure of Romania.
The direct consequences of the new regulation mode are the encouragement of probation sentencing, the shorter period for the effect of the statutes of limitation, and more lenient penalties.
Lenient penalties. The Minister for Justice claims that, in order to respond the critics regarding the low level of penalties, lower penalty limits have been established,, statement which embodies a logical contradiction (see Annex 1). This way, the Minister legalises an unsatisfactory situation, instead of correcting it. The solution would have been increasing the lower limit of the penalty provision. The courts of law must sentence within the limits established by the law, yet the correction should occur in this very realm. (See Annex 2).
Probation sentencing. The possibility sentenced to probation is extended due to the increase through omission of the probation sentence limit in case of multiple crimes from 2 to 3 years.
The statutes of limitations for corruption crimes
The Ministry of Justice designed the closing of high corruption files and the ceasing of the criminal process through the decrease of the special maxim limit of the punishment, to which the statutes of limitations are related (see Annex 2).
A faulty fashion of writing for the general part of the criminal code results in the exoneration of the largest part of the already committed corruption crimes, and thus, in an indirect partial amnesty of the corruption acts which have grinded and seriously affected Romania’s social system and development. As an example, we would like to point to the manner the infraction is defined or to the ambiguousness of the definitions regarding the criminal nature of the deed(see Annex 1). These gravely affect the clarity, the expectancy, and the predictability of the criminal policy of the state. At the same time, the criminal draft code and the criminal procedure draft code include a series of provisions which visibly contradict the jurisprudence of the Constitutional Court and may affect the efficacy of the law. The introduction of the Preliminary Chamber can positively affect the saving of means, yet, considering the manner in which it is designed, it can negatively influence the independence of the magistrate-prosecutor, the constitutional principles and the values established by the ECHR practice with regards to the right to a fair trial (e.g., the unpublicised but mandatory character of the decision, equality of arms, the limitation of the judiciary control of the first instance courts).
Transparency International Romania will present, by 28th March 2009, a complete analysis report for the codes, which will be subjected to public debate. Without being able to substitute for the lack of transparency of the Ministry of Justice, we are trying to limit its effects.
We consider it would have been necessary to also supply the justification for all the norms provided in the draft codes. The fact that the Minister of Justice tries to transfer the technical accountability to the working groups is unreasonable, considering the fact that the specialists within these groups have informed that the promoted form was not the final one, and that at least three more working months were necessary to bring it to this stage.
We request that the Ministry of Justice does not keep on excessively using the name of the European Commission in order to push draft laws which are insufficiently considered or bear contrary effects to those requested by the European Union. We would like to remind that European Commission reports require the adoption of the code for a more efficient and coherent anticorruption activity, yet the effect of the draft codes is converse to these requirements.
We request that the European Commission does not endorse the Bucharest authorities’ initiatives, which may have negative consequences for the health of the Romanian society, regardless of the purely formal justifications they might convey. Unfortunately, the approach of some of the Bucharest officials with regard to the Romania – EU relationship worked on the benchmark-checkmark system without technical basis and serious impact analyses.
We request that the Parliament of Romania returns the codes to the Government, so as the latter carries out a real public consultation, not only in the framework of a number of expert roundtables, since these codes will be applicable to all citizens and resident companies. It is unnatural for the legislative chambers to have to formally analyse the legal text without the reports regarding the penal policy options of the state and the conclusions of the debates with the stakeholders, which have led to the proposed legislative solutions.
Transparency International Romania
Victor Alistar, Executive Director