The High Court of Cassation and Justice decided to refer to the Constitutional Court the laws on amendments to the Criminal Code and the Criminal Procedure Code, which were adopted last Wednesday by the Parliament in the form proposed by the Ministry of Justice, Katalin Preda, after controversial meeting of the legal commission led by the PSD.

The Supreme Court of Cassation and Justice announces in a press release that it has decided to turn to the Constitutional Court of Romania to review the constitutionality of the laws before promulgation.

In particular, the Supreme Court complains that the decisions of the Constitutional Court are not implemented in the case of norms on abuse of office and official negligence. It will be recalled that the judges of the KRS decided that the establishment of a value threshold for abuse of official position is mandatory. There is no value threshold in the draft criminal code, which was adopted with a scandal in the parliament on the proposal of Katalin Preda.

In addition, High Court magistrates are seeking a provision in the Criminal Procedure Code that reintroduces SRI in criminal proceedings. More precisely, the parliament decided that the interception of DSI can be used as evidence. This is in conditions where the Central Committee of the Russian Federation has decided in several decisions that this cannot happen.

At the same time, the ICCJ asserts a provision on the access of defense counsel to evidence that constitutes classified information. According to the draft, “if they do not have the authorization of access required by law and the parties or, as the case may be, the injured person do not appoint another defense attorney who has the authorization required by law, the judge of the pre-trial chamber” takes steps to appoint lawyers ex officio , who have this authority.”

• WITH THE CRIMINAL CODE ADOPTED BY PARLIAMENT, SEE HERE
• HERE IS THE CRIMINAL PROCEDURE CODE ADOPTED BY PARLIAMENT

Below we present the aspects reported by the ÎCCJ:

“Regarding the bill on amendments to the Criminal Code:

• unconstitutionality of the provisions of Art. I point 3 (art. 297 para. 1 C. pen.) and art. I point 4 (art. 298 C. pen.) and art. V of the Law on Amendments to Law No. 286/2009 on the Criminal Code, as well as other normative acts (PL-x No. 245/2023), regarding the constitutional provisions of Art. 147 para. (4) regarding the mandatory nature of decisions of the Constitutional Court of Romania, Art. 1 paragraph (3) regarding the rule of law, as well as Art. 1 paragraph (5), according to which compliance with the Constitution and its supremacy is mandatory, as well as in the part related to the clarity of the law.

• unconstitutionality of the provisions of Art. III point 1 of the Law on Amendments and Supplements to Law No. 286/2009 on the Criminal Code, as well as other normative acts (PL-x No. 245/2023) on the provisions of Art. 1 paragraph (4) and Art. 1 paragraph (5) related to Art. 61 par. (1) and to Art. 126 par. (3) Constitution.

Regarding the bill on amendments to the Criminal Procedure Code:

• unconstitutionality of the Law on Amendments and Supplements to Law No. 135/2010 on the Criminal Procedure Code (PL-x 246/2023) in relation to Art. I, item 17 (Article 1391 of the Criminal Procedure Code) in connection with the constitutional provisions of Article 147 para. (4) in terms of the binding nature of decisions of the Constitutional Court, Art. 1 paragraph (3) regarding the principle of the rule of law, as well as Art. 1 paragraph (5) regarding the principle of legality;

• unconstitutionality of Art. I point 1 [art. 9 alin. (5) din Codul de procedură penală], Art. I, item 19 (Article 1451 of the Criminal Procedure Code), Article II, regarding the constitutional provisions of Art. 1 paragraph (5) in terms of requirements for the quality of the law;

• unconstitutionality of Art. I point 38 [art. 345 alin. (11) din Codul de procedură penală] regarding the constitutional provisions of Art. 24 para. (1) regarding the right to defense and Art. 21 regarding the right to a fair trial

• unconstitutionality of the provisions of Art. I point 34 [art. 281 alin. (4) din Codul de procedură penală] regarding the constitutional provisions of Art. 24 para. (1) regarding the right to protection of Art. 1 paragraph (3) regarding the guarantee of basic rights and freedoms, Art. 1 paragraph (5) regarding the obligation to respect the Constitution, its supremacy and laws;

• unconstitutionality of the provisions of Art. I point 62 [art. 595 alin. (11) lit. b)] from the Criminal Procedure Code in connection with the constitutional provisions of Art. 126 par. (3), Art. 61 par. (1), Art. 1 paragraph (4), Art. 1 paragraph (3) and para. (5).”

We will remind you that on April 5, the Chamber of Deputies adopted draft laws that again make changes to the Criminal Code as a decision-making body in the form in which the draft was received from the Ministry of Justice.

The parliamentary vote did not set a threshold for abuse of office, although the Constitutional Court demanded it.

Also, the DRI is returning to the investigation of criminal cases, more specifically, how evidence can be used to intercept DRI under national security warrants and in the case of corruption cases. The opposition also announced that the two adopted draft laws will be challenged in the Constitutional Court.

Before the plenary session, the Legal Committee of the Chamber of Deputies, on the proposal of the PSD, PNL and UDMR, adopted the version of the codes proposed by the Ministry of Justice and rejected all the amendments adopted by the Senate.

At a meeting on the scandal, PSD, PNL and UDMR MPs proposed changes that would exclude wiretapping by secret services based on national security warrants as evidence in a corruption case.

Shortly after the adoption of the amendment, the heads of the legal commission, Marcel Čolaka and Nicolae Chuke, received a phone call and were told that they must abandon all the amendments. Eventually, the threshold for abuse of office, which started at 250,000 lei, was also abolished, an option proposed by the Senate.