Transparency International Romania statment on recent immunity decision by Chamber of Deputies
Members of the Romanian Chamber of Deputies have voted to become citizens with ”more equal” rights than the rest of the citizens, in an unprecedented action in post-communist Romania which defies elementary common sense norms, democratic values and the Rule of Law.
On the agenda of the Chamber of Deputies – as decisional chamber, there were a series of extremely important bills, which have bespeak the attention of the general public and the non-governmental organizations. Among these, the one by far the most contested was the bill that sought to amend the mining law, which received abundant criticism and street protests and against which there was massive public pressure on the 10th of December.
The rejection of the mining law created a wave of mass contentment among the protesters. But behind the petty reason for the rejection: the lack of quorum at the time of vote, it concealed in its shadow the true stake of the vote on December 10th.
During the same day, the Chamber of Deputies adopted two amendments to the Criminal Code – both the one in force and the new one, through which all appointed or elected officials ARE NO LONGER CRIMINALLY LIABLE FOR CORRUPTION! Neither of the two laws was on the agenda of the Chamber of Deputies and in order to misinform the public, the law that substantially modifies the two criminal codes is registered on the website of the Chamber under the title ”Bill for the repeal of Art. 741 of the Criminal Code”. – article that had been ruled unconstitutional since the half of 2011.
- In fact, the mentioned law expressly includes in article 101 of the Criminal Code the impossibility to criminally sanction a person according to the old law, as long as the new one does not provide those acts as a criminal offense. This legal principle is recognized in all civil law jurisdictions and regarding which Transparency International România has already expressed its point of view during the ”Stop the Codes!” campaign in 2009 – developed by the largest protest coalition of the civil society.
In 2009, TI-Romania, along with the ”Stop the Codes!” coalition, showed that the impact of the corroborated application of this provision and the way corruption crimes are regulated within the new code will lead to:
- The reducing of the punishment limitations and implicitly, of the statute of limitations terms within which the guilty can be held accountable;
- The decriminalization of corruption in the penal form, when it takes place between two private agents: respectively the president of a commercial bank won’t be criminally punishable for taking a bribe for awarding a loan;
- General amnesty for all private agents who are undergoing investigation or trial for corruption within the private sector – they will never be held accountable again for the acts of corruption they are accused of.
- Art. 741 is not only not repealed, as the title of the bill suggests, but it is even reintroduced both in the criminal code in force and in the new one and represents one of the stakes of this law. According to this article, as long as the value of the damage does not exceed 500000 EUR, the culprit will fully cover the damage and be sanctioned with a criminal fine and if the damage is under 100000 EUR, he/she will be sanctioned with an administrative fine. In other words, the grand corrupt will be able to buy their freedom, while the common citizens pay 30 years for a loan of 57000 EUR, to buy a home under the First House Program. Under these circumstances, what is in fact the educational and discouraging effect of criminal sanctions?!
- Newly introduced Art. 1231 stipulates that the suspension of the course of the statute of limitations produces effects towards all participants to the crime, even if the act of suspension only regards some of them”. This provision is of a nature to effectively prolong the statute of limitations term for all participants to a crime up to the maximum provided by art. 124 – respectively, the exceeding of the statute of limitations term by half.
- Paragraph (3) of art. 147 actually represents the true stake of the whole law. If any of the previous provisions failed to exonerate of criminal liability, this latter one comes to completely decriminalize any acts of corruption committed by the country’s elected officials: the president, the senators and the deputies. Equal treatment is also enjoyed by the members of liberal professions. However, the members of Government, who are not also members of Parliament, are not part of this feast – appointed and not elected officials, as well as members of the European Parliament, both categories continuing to be subject to the provisions of the Criminal Code.
- The final amendments made through the same law target the provisions regarding insult and defamation, which are going to be sanctioned with a criminal fine, whose modest amount ranges from 34 EUR to 2921 EUR. Still, the acts are not sanctioned if the affirmation or imputation was made for public information and in the defense of a legitimate interest.
The second part of the law brings the same amendments to the corresponding articles from the new criminal code with the purpose of avoiding any difficulties when enforcing the law.
Furthermore, using a separate law, the same Chamber of Deputies, during the same day decides to amend article 2531 from the Criminal Code in effect, which defines the conflict of interests as a criminal act. According to the amendments made, the persons who may be held liable are only those public sector employees who work under a labour contract, except in those cases in which they adopt or issue regulatory or administrative documents. The article represents a legal construction indicating crass ignorance with regard to the structure and functioning of the Romanian public sector, lack of professionalism and in fact it denotes the conspicuous intention of hiding, under the appearance of a norm, the wish to exempt from liability all policy makers from the public sector. Nevertheless, in the public sector, the majority of the personnel are comprised of public servants appointed on the basis of the decisions taken by the heads of the institutions and who never sign employment contracts. Moreover, the structures with special statute such as: the police, gendarmes, tax inspection, the Parliament’s technical apparatus are also considered public servants. Within the public sector the majority of documents drafted are administrative documents thorough which legal norms are enforced in the central public administration or local public administration. The contractual personnel – the one who does in fact sign employment contracts DOES NOT HAVE DECISIONAL COMPETENCE and much less DECISIONAL COMPETENCE WITH REGULATORY CHARACTER.
According to the criminal code in effect, public servants are not only the person who possesses the statute of public servant but also the elected or appointed dignitaries. The current modification exempts, ab initio, these persons from criminal liability for being in a conflict of interests. Thus, no minister, deputy, senator, member of the local or county council will be held criminally liable if they have obtained benefits for themselves or for a member of their family as a result of a situation where they were in conflict of interests.
The general context in which they adopted the two legislative amendments which exempt from criminal liability all those who partake freely from public resources, resources to which all citizens contribute, denotes the state policy in which they offer “bread and circuses” for the audience in exchange of their wellbeing. The current situation is the result of the indolence with which citizens treat the actions conducted by the political elite and also the result of their lack of reaction that would hold accountable all policy and decision makers with regard to the way in which they exercise their mandate.
Transparency International Romania publicly protests against the lack of accountability shown by the members of the Parliament and by the questionable professional and moral quality of those who drafted and voted such bills, in conditions of complete opacity and crass manipulation of public information with regard to the content of the decisions from the 10th of December 2013.
Transparency International Romania requests the Chamber of Deputies to disclose how each of the members of the Chamber have voted with regard to the two normative acts mentioned above. Transparency International Romania also requests the parliamentary groups belonging to PSD, PNL, PDL and UDMR or a sufficient number of deputies to take on the responsibility of a public initiative to challenge the laws in front of the Constitutional Court, which through the Decision no. 573/2011 declared article 741 from the Criminal Code unconstitutional. This initiative may represent the proof that there still are members of the Parliament who feel concerned of the disastrous situation generated by the corruption affecting the Romanian society, and who understand to keep functional those mechanisms which hold accountable those responsible for widespread theft from the public purse.
Since the Constitutional Court, also considering the appointment procedure, understands to exempt from liability the ones responsible for the previous, current and future governing system, Transparency International Romania requests the President of Romania, although it might result favourable, NOT to promulgate the two normative acts.
In the situation in which these errors of legislative technique or political will are not corrected with regard to both of the two normative acts voted on the 10th of December 2013, Transparency International Romania will constantly inform the international fora on the matter until settling the present crisis, which represents a family business established among parties and which disregards the Romanian society and the rule of law.
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