The Court of Justice of the European Union (CJEU) ruled on Monday that decisions on the termination of criminal proceedings due to the statute of limitations are contrary to European law. That is, Romanian courts are not obliged to apply the controversial decision of the Constitutional Court from May 2022, which caused a wave of acquittals. The CJEU’s decision was taken after the Brasov Court of Appeal referred the case on tax evasion and fraud with European funds. A big dilemma in the judicial system is whether the ECJ ruling will be applied strictly to criminal cases in this area or to all major corruption cases.

The CJEU’s decision risks leading to new non-unified court decisions, which was also pointed out by Judge Horace Dumbrave, former president of the Supreme Council of Magistrates.

• What does the EU Court’s decision on the statute of limitations mean? Why this can cause a lot of confusion

The opinions of representatives of the judicial system were divided. Some lawyers consulted by HotNews.ro say that the decision of the EU Court can be applied only in cases of fraud with European funds, tax evasion and smuggling. These are the offenses mentioned in the materials in which the Court of Appeal of Brasov appealed to the CJEU. Other lawyers say the CJEU ruling should apply to all major corruption cases, not just those involving tax evasion and fraud involving European money.

Judge Horasius Dumbrava argues that the High Court of Cassation and Justice must intervene so that the law is applied equally by the courts.

What does DNA say?

I also asked DNA if, after the CJEU decision, it will use legal leverage, that is, formulate appeals in major corruption cases, not just those involving fraud with EU funds, to prevent them from being closed.

However, the answer is not very clear. According to a statement sent by the institution, DNA’s chief prosecutor Marius Wojniag says that “the CJEU’s decision shows that DNA acted fairly and coherently when it used all legal means of challenging the decisions of the courts that require the termination of criminal proceedings due to the expiration of the statute of limitations.”

• “The decision of the Court of Justice of the European Union from Monday, July 24, 2023, confirms how the national legislation, the decision of the Constitutional Court of Romania and the High Court of Cassation and Justice, as well as the legislation and guidelines of the European Union were interpreted by the prosecutors of the National Anti-Corruption Directorate.
• This decision clarifies how prosecutors within the DNA will refer to decision no. 297/2018 and No. 358/2022 of the Constitutional Court, in accordance with Decision no. 67/2022 of the High Court of Cassation and Justice, in deciding cases under the leadership, and legitimized institutional consistency in the interpretation of national and European legislation, establishing in an instructive way the way of applying the provisions on the statute of limitations of criminal liability in the case of corruption crimes and those equivalent to corruption crimes, respectively, fraud that harms the financial interests of the European Union.
• In addition, the decision of the Court of Justice of the European Union shows that DNA acted fairly and coherently when it conducted all judicial appeals against decisions of courts to terminate criminal proceedings due to the expiration of the statute of limitations. Based on these principles, aligned with all our activities, DNA will continue to act with the same firmness and determination, adhering to the principle of legality,” said DNA Chairman Marius Voyneag.

However, the National Directorate for the Prevention of Corruption is the only institution in the judicial system that has so far responded to the decision of the Court of the European Union.

One of the major corruption cases recently closed due to the statute of limitations is the one in which Ioana Basescu and Elena Udrea were sentenced by the first instance to 5 and 8 years in prison, respectively, for illegally financing Traian Basescu’s election campaign. On July 11, the Supreme Court of Cassation decided to close the criminal proceedings due to the expiration of the statute of limitations.

Conveyor payments

The Constitutional Court established in June 2022 that from the moment of the decision of 2018, in which the phrase in the article of the Criminal Code regarding the statute of limitations for criminal liability was recognized as unconstitutional, and until the extraordinary resolution adopted by the government on May 30, 2022, which amended the Criminal Code. Parliament did not introduce legislative changes to bring the Criminal Code into line with the Constitutional Court decision, so as of 2018 there were no legislative provisions regulating the interruption of the statute of limitations, an aspect imposed by the KRS decision.

After the KRS decision, countless trials were put on hold, and courts asked the ICCJ to clarify whether the Constitutional Court’s statute of limitations applies retroactively to the principle of the most favorable criminal law.

In October 2022, the Supreme Court of Cassation and Justice Jurisprudence Panel ruled that the CCR ruling on the injunction was retroactive, affecting thousands of cases pending in the courts or prosecutors’ offices.

• SEE THE FULL DECISION OF THE SUPREME COURT HERE

The KRS decision led to a wave of acquittals, with more than 5,000 cases closed over the past year. Beneficiaries included politicians, businessmen, and people convicted of violence, robbery or adultery, all of whom were acquitted. Among the big names that escaped conviction were Elena Udrea (the Hidroelectrica case), Claudio Manda, Bohdan Olteanu, Adrian Mititelu, Cristian Bureanu or the directors of Hexi Pharma.

What the EU Court decided

The ECJ ruled on Monday that “a national court is, in principle, obliged to remove national rules or case law that create a systemic risk of impunity for such crimes.”

• The European Court of Justice overturned a statute of limitations ruling that closed thousands of criminal cases and sparked a wave of acquittals

The most important points from the decision of the EU Court:

• “It follows from consistent jurisprudence that the principle of the supremacy of Union law imposes on a national court, which is entrusted with the application within its own jurisdiction of the provisions of Union law, the obligation, if it cannot continue to interpret a national normative act that meets the requirements of Union law, to ensure the full effect of the requirements of this law in the judicial process to which it is directed, leaving without application, if necessary, ex officio, any national normative acts or practice. , even later, contrary to a provision of Union law which has direct effect, without the need to require or await the prior abolition of that national regulation or practice by legislation or any other constitutional procedure.
• (…) The task of national courts is, in principle, to fully comply with the obligations arising from Article 325(1) TFEU and Article 2(1) of the PIF Convention, and to leave inapplicable national provisions which, in proceedings for serious fraud affecting the financial interests of the Union, prevent the application of effective and dissuasive sanctions to combat such crimes.
• (…) in principle, national courts are obliged, in accordance with this article 325 paragraph (1) and this article 2 paragraph (1), to leave Decision no. 297/2018 and No. 358/2022 of the Constitutional Court, from which it follows that in the period from June 25, 2018, the date of publication of this Decision No. 297/2018, and May 30, 2022, the date of entry into force of GEO No. 71/2022, the Romanian legislation did not provide any grounds for interrupting the limitation period for criminal liability, as these decisions lead to the limitation of criminal liability in a large number of cases of serious fraud affecting the financial interests of the Union and therefore, as stated in paragraph 91 of this decision, create a systemic risk of impunity for such crimes.
• In addition, national courts are obliged, in principle, in accordance with these provisions, to leave Decision no. 67/2022 of the High Court of Cassation and Justice, as this decision allows the imposition of criminal liability based on the consequences of decisions no. 297/2018 and No. 358/2022 of the Constitutional Court, as a more favorable criminal law (lex mitior), in cases of serious fraud that harms the financial interests of the Union and thus increases the systemic risk of impunity for such crimes.
• (…) it must be taken into account that national courts cannot, within the framework of jurisdictional proceedings aimed at criminal punishment for serious fraud offenses affecting the financial interests of the Union, apply the national standard of protection relating to the principle of retroactivity of a more favorable criminal law (lex mitior), as stated in paragraph 119 of this judgment, in order to call into question the interruption of the limitation period of criminal liability through procedural actions. acts intervened before June 25, 2018, the date of publication of Decision No. 297/2018 of the Constitutional Court.
• Paragraph 119: However, from the explanations given by the referring court, it follows that Decision no. 67/2022 of the High Court of Cassation and Justice will also be based on the principle of retroactive application of more favorable criminal legislation (lex mitior), which follows from decisions no. 297/2018 and No. 358/2022 of the Constitutional Court. According to the interpretation provided by the court, which refers to Decision no. 67/2022 of the High Court of Cassation and Justice, the latter would recognize that this principle would allow the consequences of the lack of grounds for interrupting the limitation period of criminal liability in Romanian law, arising from these two decisions of the Constitutional Court, to have retroactive effect for procedural documents intervened before June 25, 2018, namely the date of publication of Decision no. 297/2018 of the last court”. (Photo: Dreamstime.com)