The government has on the agenda of the last government meeting in 2022 two bills on amendments to the Criminal Code and the Criminal Procedure Code initiated by the Ministry of Justice. They are accompanied by dozens of changes to two normative acts, taking into account almost 50 decisions of the Constitutional Court over the past ten years.

With regard to the Criminal Code, the Ministry of Justice refers to 10 decisions of the Criminal Code, and no less than 36 with regard to the Criminal Procedure Code.

Among the proposed changes are crimes related to abuse of official position and official negligence, as well as some related to the DRI and the interceptions it carries out, in which case the Ministry of Justice proposes to use them as evidence in criminal cases.

After approval by the Government, the bills will be sent to the Verkhovna Rada for discussion and adoption.

New regulation of abuse of office and official negligence

In 2016, the Constitutional Court ruled on the crime of abuse of office, which led to a series of acquittals in pending cases. KDR noted that only the action of a civil servant who, while performing his duties, does not perform an action or performs it in violation of the law, directly indicating that it is a matter of laws or government regulations, can be qualified as abuse of official position. The same was decided by the Court in 2017 in the case of negligence in the service. Thus, if until that moment the Criminal Code spoke of an “improper” act, then from that moment it should be interpreted as a violation of the law or regulation.

Thus, the new norms proposed by the Ministry of Justice:

297 of the Criminal Code – abuse of office:

• “(1) Actions of a civil servant who, during the performance of his duties, does not perform the actions provided for by the law, the Government’s order, the Government’s emergency order or another normative act, which at the time of its adoption, had legal authority or performs it in violation of the provisions of such of the normative act, which harms the rights or legal interests of a natural or legal person, or harms the rights or legal interests of a natural or legal person, shall be punished by imprisonment from 2 to 7 years and a ban on exercising the right to hold public office.”

298 of the Criminal Code – official negligence:

• “The actions of a civil servant who, in the performance of his duties, through fault did not perform an action provided for by law, a Government order, an emergency Government order, or another normative act, which at the time of its adoption, had legal authority, or performs it in violation of the provision that is contained in such a regulatory act, and thereby causes harm or causes harm to the rights or legitimate interests of a natural or legal person, shall be punished by imprisonment for at least 3 months. up to 3 years or with a fine”

READ THE REASONS FOR CHANGES TO THE CRIMINAL CODE HERE

READ THE DRAFT CHANGES TO THE CRIMINAL CODE HERE

SRI records can be used as evidence

In 2020, the Constitutional Court virtually excluded SRI recordings as evidence in criminal trials, arguing that the provision was not accompanied by a set of rules that would allow their legality to be challenged under effective conditions. The decision referred to the provisions of the Criminal Procedure Code.

What KKR said in the decision:

• In addition to the obvious consequences of the different goals of activities carried out in the field of national security and criminal procedural activities, if the judge of the preliminary examination chamber takes as a guide the provisions of Law No. 51/1991, we will end up with the fact that in a situation where the courts, hierarchically lower than the one which issued the mandate, have the competence to check the elements related to the legality of the evidence. The court notes that if in the case of technical supervision appointed in accordance with the Code of Criminal Procedure, the legality of providing evidence is carried out, in principle, by a court equal in degree to the one that issued the technical supervision. mandate, in the case of mandates issued in accordance with Law No. 51/1991, the analysis of their legality is carried out, in most cases, by courts hierarchically lower than the one that issued the mandate (mandate is always issued by the Supreme Court of Cassation and Justice). Or the consecration of the High Court of Cassation and Justice by Law No. 51/1991 as a specialized court in the field of granting permits for activities specific to the collection of information that involves limiting the exercise of certain rights or Basic human freedoms also requires it to have certain specialized competence, strictly defined by law.
• In this case, the Court considers that the regulation of the possibility of providing the quality of evidence to documents obtained as a result of a specific information gathering activity, which involves limiting the exercise of some basic human rights or freedoms, is not accompanied by a set of rules that allow challenging their legality in effective conditions. By simply regulating the possibility of giving these records the quality of evidence, without creating an adequate basis that would provide an opportunity to challenge their legality, the legislator did not comply with the requirements of clarity and predictability.
• However, insufficient clarity and predictability of the regulatory framework of the incident in the matter of contesting the legality of records – means of proof, which is the result of a specific activity to collect information, which involves limiting the realization of some basic human rights or freedoms. , which is used in the criminal process, causes, in fact, the implementation of formal and ineffective control, the consequence of which is the violation of the rights and fundamental freedoms provided for by the Constitution.
• However, the provision of the quality of evidence in a criminal trial to certain elements is inextricably linked to the creation of an appropriate basis that makes it possible to challenge their legality. 57. Thus, in accordance with Law No. 51/1991, in accordance with Law No. 51/1991, the granting of the quality of evidence in criminal proceedings to records obtained as a result of the performance of activities specific to the collection of information, which involves the restriction of the exercise of some fundamental human rights or freedoms , as this regulation is accompanied by a clear and distinct procedure for verifying the legality of this element.

A variant found by Preda

In the draft law on amendments to the Criminal Procedure Code, the Ministry of Justice proposes that the legality be checked by a judge of the trial chamber from the court whose competence, according to the law, belongs to the consideration of the case in the first instance.

It is proposed to add a new article after Article 139. 139-1 as follows:

• “(1) Records obtained as a result of specific information gathering actions that involve restrictions on the exercise of certain human rights or fundamental freedoms may be used as evidence in criminal proceedings if they contain data or information about the preparation or commission of a crime. crimes provided for by Art. 139 par. (2) of the Code of Criminal Procedure and the statutory provisions governing the receipt of these records have been complied with.
• (2) The legality of the conclusion, which was granted permission for the relevant activity, the mandate issued on its basis, the method of execution of the permission, as well as the summary records are checked in the procedure of the previous chamber by the previous court. a judge of the chamber from the court whose competence, according to the law, belongs to the consideration of the case in the first instance”.

Crimes provided for in part 2 of Article 139:

• crimes against national security provided for by the Criminal Code and special laws, as well as in the case of crimes related to illegal drug trafficking, crimes related to the use of doping, illegal transactions with precursors or other products that may have a psychoactive effect, crimes , related to non-compliance with the regime of weapons, ammunition, nuclear materials, explosive materials and explosive precursors with limited access, trade and exploitation of vulnerable persons, terrorist acts, money laundering, counterfeiting of coins, stamps or other valuables, counterfeiting of electronic payment instruments , regarding crimes committed through computer systems or electronic means of communication, against property, blackmail, rape, illegal deprivation of liberty, tax evasion, regarding corruption crimes and crimes equivalent to corruption crimes, crimes against the financial interests of the European Union or in the case of other crimes for which the law provides sentenced to imprisonment for a term of 5 years.

Also, according to the draft law, the norm under which the State Security Service could carry out technical surveillance tasks in cases of crimes related to state security and terrorism is abolished.

READ HERE THE REASONS FOR THE ACCEPTANCE OF THE CRIMINAL PROCEDURE CODE AMENDMENT LAW

READ THE DRAFT CHANGES TO THE CRIMINAL PROCEDURE CODE HERE