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Raport - November 2007 - Effects of the Changes in the Criminal Code and the Code of Criminal Procedure

I. Amendments to the Code of Criminal Procedure

A. Art. 100 - Searches
Due to the amendments concerning searches, prosecutors will no longer obtain search warrants from a judge unless they first ask the owner of the house to hand in the goods, and duly write a report of the owner’s refusal to comply.

Only if these conditions are met can the prosecutor ask for, and the judge issue, a search warrant. Imagine the following scenario: a prosecutor is tipped by an undercover investigator and makes a home call to a drug trafficker asking him to hand in the 10 kg of cocaine and 5 kg of heroin stashed under the bed. No doubt, the suspect will refuse to comply. The prosecutor will eventually obtain a search warrant from a judge, and return to perform the search; a fruitless search. Cocaine and heroin in the previous example could be replaced by anything, including weapons or illegal proceeds obtained by bribery.

B. Art. 91/2 and the next (on wiretapping and other secret surveillance measures)
According to the amendment, the interception can only be authorized if criminal proceedings have started and the suspect has been charged, thus becoming the defendant. However, according to art. 6, para. 3, of the CCP, “immediately and prior to any hearing, the prosecution must notify the suspect or the defendant of the charges brought against him/her and of the criminalization of his/her deeds, and it must ensure that the defendant has the opportunity to prepare and exercise defense”. In other words, once criminal prosecution starts, the suspect is immediately notified of the deed and its criminalization, and any subsequent interception becomes useless.
Further specification is required: in most of the cases, interception is either prior to or simultaneous with the crime, and the criminal can be caught flagrante delicto, in accordance with the investigation strategy and the aims of the prosecution. Under these new circumstances, such interception will no longer be performed because criminal proceedings cannot be brought against a crime that has not been committed yet, and consequently interception cannot be authorized.

C. Art. 260/1 – the time length of the criminal investigation
By this article, the time length of the criminal investigation is reduced to 6 months, with possibility to prolong it only under exceptional circumstances. This is a huge obstacle for the investigation of complex offences of organized crime, corruption and of economic offences. By their nature, investigations in these cases are long, and this limitation will lead to the impossibility of prosecutors to gather enough evidences. We are witnessing an attempt to block criminal investigations in complex cases.

D. Art. 911 para. 1.
It is easily noticeable that by this amendment the Legal Committee did not "prevent substantive errors", as it claimed in the reasons for the change, but instead created a logical fallacy. According to the legislation in force, interception can be carried out if “the location or identity of the persons involved cannot be ascertained by any other means, or the inquiry would be significantly delayed otherwise” - therefore, there are two distinct hypotheses. “Or” has been changed to “and”, leading to a new construction of the paragraph, according to which interception may be authorized if the identity or location of the persons involved cannot be ascertained by any other means and this impossibility would cause delay in the proceedings. We would like to specify that the impossibility of ascertaining the identity of the persons involved leads to the cessation of proceedings, not to delays in proceedings, and the text becomes superfluous. For instance, if there is a denounce concerning a drug sales to be discussed by telephone by the supplier and the buyer, failure to intercept this conversation in order to find out the specifics of the sale and the persons involved will make it impossible to identify the suspects and will eventually lead to the case being closed for lack of evidence, not to 'delays in proceedings'.

The same arguments for the further Articles and Art. 4934 para. 1.

E. Art. 91/2
The prosecutor’s possibility of authorizing, on an emergency basis and for 48 hours only, the interception and recording of talks or communications that were to be referred to a judge for confirmation within the 48 hours has now been abrogated. If such interceptions were not referred to a judge within 48 hours or if the judge disagreed to the prosecutor’s authorization, the recordings authorized by the prosecutor were supposed to be destroyed. These regulations also concerned other surveillance devices, not only phone tapping.
’Emergency’ refers to cases when a judge’s warrant cannot be obtained in due time or when there are unpredictable changes in the development of an undercover operation and a judge’s warrant cannot be obtained fast enough to prevent the loss of evidence.
Examples:
- the undercover investigator notifies the police/prosecutor that the suspect (about to bribe him or to sell him drugs, weapons, radioactive material) told him that the deal is to be concluded within an hour (which can also happen at night or at the weekend). Delaying the transaction would jeopardize the undercover operation and the collection of evidence. (Using the same example, imagine the position of the prosecutors who, according to the amendments, will have to first inform the suspect that he is being investigated!);
- the initial suspect, for whom a judge’s warrant had been duly obtained, fails to show up for the deal and sends somebody else instead, whose existence and involvement could not have been known beforehand. In such cases, in accordance to the current law, the prosecution had the possibility to issue a 48-hour warrant for interception. This will not be possible any longer if the changes enter into force.
Consequence:
1. Along with the amendment stating that before interception of communication being requested/done a person must be criminally charged and notified, this change (elimination of the 48 hours) will prevent any undercover operations (which are the most efficient investigative tools against organized crime and corruption).
2. The impossibility of performing controlled deliveries. Example: Operations –as part of international cooperation- for the prevention of organized crime, allowing the transit of illegal goods (drugs, weapons, radioactive material, counterfeit goods, pirate goods etc.) in a cooperating country, in order to identify and apprehend all the persons involved in the network. The transit of goods on Romanian territory is controlled by surveillance devices, and the records are used as evidentiary matter in the country of destination. According to the amendments proposed, in order to make video recordings of the progress of goods, Romanian prosecutors should start criminal proceedings against the carriers, notify them of the charges, and then wait for them to proceed to the country of destination (!!!)

F. Art. 117
Introducing obligatory expertise at the request of the parties, to ascertain whether evidence has been obtained illegally.
First of all, this is the only the case when it is the parties and not the judge who decide whether an expert opinion is required or not; by a simple request, the parties can force the judge to require expert opinion as to the legality of evidence.
Secondly, the legality of the manner of obtaining evidence is assessed by verifying compliance with the legal provisions concerning evidentiary matter. Thus, the affidavit of a witness, suspect or defendant shall be deemed to be illegally obtained if it is proven that the affidavit was made under duress. A search shall be deemed to be illegal if it was performed without a warrant. What kind of expert opinion could prove that a statement was made under duress? Perhaps a psychiatrist’s opinion? A psychoanalyst’s expertise? An expertise under hypnosis? Who is to be investigated, the prosecutor or the police officer who dealt with the person concerned? We would like to stress that in accordance with the proposed change, the expertise is mandatory if requested by the parties, irrespective of the nature of the evidence.

G. Art . 136
The prosecutor can no longer prohibit the suspect from leaving town / leaving the country.
As long as such measures taken by the prosecutor can be contested in court by the defendant, who can ask the judge to verify their legal grounding, there is no real justification for this amendment.

H. Art. 176
Another change concerns the content of the subpoena. According to art. 176, letter g), of the legislation in force, the subpoenaed party may refer to the file available in the court archive, in order to exercise his/her right to defense. The text concerns the subpoena issued by court and was inserted under art. I point 102 of Law 356/2006 in order to prevent delays in trial, particularly by accused persons who invariably requested a postponement by failing to show up in court or by changing their counsel, and the court could not deny their request. The aim was to compel the parties and their counsel to refer to the file kept in the court archive and to prepare their defense before trial, thus speeding up the procedure.
The amendment replaces the phrase “available in the court archive” with: “in order to exercise his/her right to defense, the subpoenaed party may refer to the file”. The reason for this change is that “the file is not always available in the court archive”. At first sight, the change seems harmless and gives the impression that it intends to cover cases when the file is kept at the registry of the court that issued the subpoena, or at the registry of a higher court if the case has been referred to a higher court, for instance to appeal against prolonged preventive custody. What this amendment actually does is to entitle the parties and their counsel to access to the file during prosecution. By virtue of this right, the accused may see the file after the charges have been brought against him/her, but before making his/her first statement. Obviously, this statement will be coined in such a way as to give plausible explanation for the evidence contained in the file. This way, the accused may find out the content of documents which would have been inaccessible otherwise in this early stage of the investigations: rogatory letters, forensic reports, documents submitted by undercover investigators, information provided by banks or other legal entities.

I. Art 197
Evidence, which is information concerning the circumstances of the offence and the persons involved, cannot be legal or illegal, but useful or useless in finding out the truth. According to the current Code of Criminal Procedure (CCP), only the way of obtaining evidence can be illegal, if evidence is obtained under duress or by committing another offence (Art. 68 of CCP); for instance, evidence obtained in a search performed without a warrant cannot be used by the prosecution because it has been obtained by violation of domicile.
Secondly, not any infringement of the rules of procedure concerning evidence can raise suspicion about the way in which it was obtained. Example: if during prosecution the subpoena is not sent to the right address of a witness, and the witness is notified by the neighbors and goes to the police or to the prosecutor’s office for an affidavit: although a rule of procedure has been broken, this is not likely to prejudice the evidence status of the affidavit. After the amendment, such an affidavit cannot be used during the trial. Another example: before being heard, the defendant is asked to state his/her fist name and surname, any nicknames, the date and place of birth, the parents’ names, nationality, education, military service, employment, actual address of residence, criminal record. If the defendant is not asked to stat his/her nickname(s), education or nationality, the affidavit is null.
Consequence: the defense has countless possibilities of claiming that procedure rules, which are strictly related to the administration of evidence but have no effect on the validity of evidence as such, have been broken. These complaints against the evidence adduced by the prosecution are to be decided on by the judge during criminal prosecution, as is shown below. This is the easiest way of delaying a trial, leading even to negative prescription, since any evidence in a criminal prosecution case can be contested and will effectively lead to the prosecution being suspended pending the decision of the court. Take for instance a person or drug trafficking case or a corruption case involving the hearing of scores of people: when will such a case eventually be tried if the defense can attack each and every piece of evidence, even without justified grounds.

II. Amendments to the Criminal Code

Article 146
Article 146 has been modify so as to increase the value of the minimal damage function of which a crime may be deemed as leading to extremely severe consequences; rising from 200.000 RON (approximately 60.000 EUR) to 30.000.000 RON (approximately 10.000.000 EUR).

a. Consequences with regard to the alleviation of punishment:
Crimes with a minimal damage exceeding 200 000 RON will no longer be deemed to be acts with extremely serious consequences and punishment will be lowered accordingly.
Examples:
1. For instance, “the heist of the century”, with proceeds of circa 3.000.000 EUR, will no longer be punishable by a term of imprisonment of 10 to 20 years, as theft with extremely serious consequences, but instead will carry a prison sentence of 3 to 15 years, as grand theft. Stealing a rearview mirror falls in the same category and carries the same sentence;
2. Deceit with damage exceeding 200.000 RON carries a prison sentence of 10 to 20 years, and in the future the term will be 3 to 15 years;
3. Embezzlement exceeding 200.000 RON currently carries a prison sentence of 10 to 20 years, and in the future the term will be 3 to 15 years;
4. Abuse of office with prejudice to public interests exceeding 200.000 RON currently carries a prison sentence of 10 to 20 years, and in the future the term of imprisonment will be 6 months to 5 years.

b. Consequences with regard to the compulsory enforcement of more lenient provisions of criminal law in the case of final sentences:
Final and enforceable sentences for crimes with extremely serious consequences will be alleviated if the crime has not caused a prejudice of 30.000.000 RON.
For example, in the case of a 10-year sentence for abuse of service against public interests with extremely serious consequences (aggravated abuse), with a prejudice of 5.000.000 EUR, the sentence will be alleviated to the limit allowed for simple abuse of office, which is a 5-year term of imprisonment.

c. Consequences regarding the prescription deadline for criminal liability:
Crimes with extremely serious consequences carry a prison sentence of 15, 20 or 25 years. According to these terms, the prescription deadline (the interval after the expiry of which the perpetrator can no longer be inquired, tried or convicted) for criminal liability is as follows:
- for a term of imprisonment that exceeds 15 years, the prescription deadline is 15 years;
- for a 15-year term of imprisonment, the prescription deadline is 10 years.
The alleviation of sentences due to the crime no longer being deemed as "having extremely serious consequences" leads to shorter prescription deadlines.
For instance, the prescription deadline for abuse of service against public interests with extremely serious consequences is 10 years, whereas the simple form of the same crime has a 5 year prescription deadline.
We should also point out that due to these amendments it will become increasingly difficult to commit the aggravated form of these crimes. It is difficult to imagine what movable goods worth in excess of 30.000.000 RON could be the object of grand theft with extremely serious consequences.

In addition, the new crime punishing the journalists disclosing audio/video recordings, as in the Remes/Muresan case. This new crime was already described in the media and other docs.

 

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