Romanian Judges` Forum and Association of Romanian Prosecutors – Remarks concerning the Transposition of Directive (EU) no. 2016/343
The proposed amendments to the Criminal Code and to the Criminal Procedure Code are in breach of several international obligations that Romania has assumed as a member state of the European Union and as a party to the Council of Europe and to the European Convention on Human Rights.
The European Union is based on the rule of law and every member state has to provide for a minimum standard regarding the independence of the judiciary, the accountability of the public officials and the transparency and efficiency of the legislative process.
From this perspective the amendments to the criminal procedure will have as a result the disruption of the criminal trial, always in the favor of the accused person, it will make it impossible for the prosecution and courts to sanction illegal acts and it will leave without any efficient protection the victims of crime, especially the vulnerable victims despite the transposition of Directive 2012/29/UE regarding the rights of victims.
On the other hand, the new provision are in breach of the European Agenda on Security which has as a priority strengthening the fight against terrorism and organized crime and the means to reaching this objective. Just taking into account the new provisions that make it mandatory for the prosecutor to notify the suspect immediately after the complaint has been filed is a clear example why in cases of terrorism, organized crime or trafficking in human beings the investigation will become purely formal and without result. Another breach of the international obligation Romania took regards the cooperation in criminal matters and the fight against the frauds against the financial interests of the European Union. By changing and restricting the evidence and the methods through which they are obtained the new amendments will interfere with the requests from other member states in mutual assistance proceedings and would make it nearly impossible to document and prosecute frauds against the EU budget taking into account that many times this type of crimes require methods as computer searches, surveillance, analyzing the bank accounts or performing rapid specialist reports.
From the perspective of the rights envisaged by the European Convention on Human Rights the Amendments are in violation of article 6 of the Convention, articles 2 and 3 of the Convention on the procedural limb and on many aspects in dissonance with the presumption of innocence and the right to defense.
The right to a fair trial and the procedural obligation of the State to properly investigate breaches of art 2 and 3 of the Convention are reduced to non-existence in the new image of the procedural code as the investigation phase becomes public from the first moment the complaint is filed, the victims are obliged (in most of the cases) to confront in the early stage of the proceedings the suspect, some types of evidence vital to offenses related to domestic violence or sexual crimes – as private footage from third parties or medical reports that are done immediately after the crime has been committed – are eliminated from the code entirely.
Even from the perspective of the person suspected of committing a crime the new provisions are detrimental and in violation of his rights and the legislator did not take into consideration that the impact of a formal accusation at the early stage of the investigation can have tremendous negative effects on the person accused or that in a home search the prosecution can find evidence related to another crime that are able to prove that the suspect is innocent and it will be unable to use because the new provision strictly imposes the interdiction of gathering them.
Last but not least the amendments, taken together, do not take into consideration the legal terminology, the structure of the criminal investigation and trial, the international rules regarding the standard of proof or the legislative technique in amending the norms.