January 21, 2013
PRESS RELEASE
In the context of the recent public allegations by members of the Chamber of Deputies published by various media stating that the Prosecutor’s Office attached to the High Court of Cassation and Justice has expressed its approval of the draft amending the Statute of senators and deputies,
the Public Information and Press Relations Bureau of the Prosecutor’s Office attached to the High Court of Cassation and Justice is hereby specifying that:
After having examined the draft amending the Statute of senators and deputies sent to us for this purpose, the Prosecutor’s Office attached to the High Court of Cassation and Justice has sent the following observations to the Chamber of Deputies:
I. “Taking into account the legislative proposal amending and completing the Law No. 96/2006 on the Statute of deputies and senators, we are hereby sending the position of the Prosecutor’s Office attached to the High Court of Cassation and Justice regarding the provisions impacting the criminal proceedings.
1. We propose that Point 15 of the legislative proposal (concerning the introduction of paragraph 21 of Article 23 of the Law No. 96/2006) be rephrased to read as follows:
“(21) Members of the Deputies’ Chamber and senators may be summoned to testify before the prosecutor’s office or the court as witnesses. If they are requested to testify on acts or information that came to their knowledge while exercising their mandate and are classified, they shall make their testimony according to the Law No. 182/2002 on the protection of classified information, with the subsequent amendments and completions, and after having dully informed the Standing Bureau of the Chamber they belong to.”
We consider that the present text of the legislative proposal does not sufficiently clarify whether the two prerequisites concerning the information that came to the MP’s knowledge are cumulative or alternative, leaving room for interpretation.
Also, we consider that obtaining the consent of the Standing Bureau for the magistrate to be able to hear a witness is not justified considering the principle of the separation of powers, as long as the provisions regarding the access to classified information have been observed. It should be taken into account that, according to the legal provisions, magistrates have access to any classified information for which they have been granted the required approval, without the consent of the institution holding the respective information. Judicial bodies are often carrying out investigations into crimes against national security frequently involving access to classified information; conditioning the administration of evidence on the consent of an extrajudicial body would go against the principles governing the criminal proceedings.
2. We propose that Point 17 of the legislative proposal (concerning the amendment of Article 24 of the Law No. 96/2006) be rephrased in order to present in detail the meaning of concrete, legal, and solid grounds, as well as to expressly specify the writs that must accompany the justice minister’s request, because the present wording may leave room for interpretation. In our opinion, it should be expressly specified that the request is not accompanied by the case file, so it should not appear that the Parliament substitutes itself for the court.
The text could read as follows:
“(1) The request for the detention, arrest, or search of a member of the Deputies’ Chamber or senator shall be submitted by the minister of justice to the speaker of the Chamber the respective MP belongs to, to be approved by the plenum of the Chamber, pursuant to Article 72 of the Romanian Constitution, republished. The request shall specify the case provided by the Criminal Procedure Code justifying the respective prudential measure or the search, the underlying reasons, and a presentation of the issue in fact. The request is not accompanied by the case file.”
We also consider that the text of paragraph 2 should expressly specify the competent Commission to analyze the request, so as to avoid interpretations leading to the conclusion that a special commission needs to be created.
3. We propose that Point 18 of the legislative proposal (concerning the amendment of Article 241 of the Law No. 96/2006) be rephrased by eliminating the formulation “and shall be communicated to the Superior Council of the Magistracy so that the required measures may be taken.”
In its present formulation, the text suggests that, in such a case and following a note by the Chamber, the Superior Council of the Magistracy would launch disciplinary proceedings against the magistrate, which would go against the powers separation principle.
The legality of the measures ordered by the prosecutor can be checked only by the court, so that the accountability of a judicial body cannot be determined during this stage of the proceedings. If an individual considers that a disciplinary irregularity has been committed affecting his rights, he/she may directly notify the Judicial Inspection within the Superior Council of the Magistracy.
4. We propose that Point 18 of the legislative proposal (concerning the amendment of Article 242 of the Law No. 96/2006) be rephrased to read as follows:
“(1) The Prosecutor’s Office attached to the High Court of Cassation and Justice notifies the Chamber of Deputies or the Senate, as the case may be, to request that a criminal investigation be instituted for the commission of a criminal act related to the exercise of the mandate of a minister who is also a deputy or a senator, pursuant to Article 109 of the Romanian Constitution, republished. The notification shall include the concrete, legal, and solid grounds justifying the institution of the criminal investigation and is not accompanied by the case file.”
Employing the same terminology currently used in the Constitution and in the decisions of the Constitutional Court increases the accuracy of the text and makes it compatible with the provisions of the new Criminal Procedure Code stipulating that the institution of the criminal investigation shall be ordered only in rem, without the possibility of instituting the criminal investigation against a person.
Also, the reference to the constitutional ground renders the two procedures symmetrical, while the express specification that the notification shall not be accompanied by the case file is required for the above-mentioned reasons.
It should also be taken into account that, according to the decisions of the Constitutional Court, other persons or institutions may also notify the Chambers about requests for instituting criminal investigations against ministers who are also members of the Deputies’ Chamber or senators, and therefore the usefulness of introducing a procedure regulating such a situation should be analyzed.
Paragraph 2 of the same article should expressly specify the competent Commission to analyze the request and to stipulate the deadline for it to produce a report, similarly to the procedure for requesting the pretrial detention, taking into custody, or search of an MP.
For the same reasons, we consider that paragraph 3 of the article should be eliminated. The two procedures should be symmetrical and there are no reasons to justify an additional procedure for the criminal investigation request which has a limited influence over the legal status of an individual compared to the institution of prudential measures. Preserving the provision regarding the hearing of the person in question could affect the celerity of the procedure with consequences on the proper administration of justice.
II. As an addition to the point of view transmitted initially, we are sending you an additional set of information regarding the legislative proposal for the amendment and completion of the Law No. 96/2006 on the statute of members of the Deputies’ Chamber and senators.
1. We propose that Point 17 of the legislative proposal (concerning the amendment of paragraph 3 of the Article 242 of the Law No. 96/2006) be rephrased to read as follows:
“(3) The decision concerning the approval or the denial of the justice minister’s request shall be brought before the plenum of the respective Chamber for approval within 5 days from the submission of the report, in compliance with the provisions of Article 67 and Article 76 Para (2) of the Romanian Constitution, republished.”
We consider that the present formulation of the legislative proposal referring only to the decision to approve the request could leave room for interpretation that decisions will not be brought before the plenum if the commission that reviewed the justice minister’s request produced a negative report, in which case it would go against the provisions of Article 72 Para 2 of the Constitution.
Thus, it should be taken into account that, according to Article 62 of the Chamber of Deputies Regulations, the Standing Bureau sends the Chamber’s decision drafts to the commissions for review and preparation of reports and, according to Article 67 Para 2 of the same law, the commission prepares a report with reasoned proposals concerning the approval or the denial of the reviewed act. According to Article 104 of the Regulations, in the second case the Chamber will vote on a proposal of a denial decision.
An interpretation of these provisions leads to the conclusion that, according to the Regulations, denial decisions on the justice minister’s proposal can be drafted; however, the legislative proposal does not provide a voting procedure in plenum for such cases although the constitutional provisions state the Chamber’s plenum exclusive competence to approve the search, detention or taking into custody of deputies and senators.
Although the current parliamentary practice is to prepare drafts of approval decisions on the justice minister’s requests also when a negative report has been produced, we are of the opinion that the law should provide procedures for all possible situations according to the Regulations, considering that practices may change in time.
2. For the same reasons, we propose that Point 18 of the legislative proposal (regarding the introduction of Article 242 Para 5 and 6 of the Law No. 96/2006) be similarly rephrased to read as follows:
“(5) The decision to approve or deny the criminal investigation request shall be brought for approval before the plenum of the respective Chamber within 5 days from the submission of the report. It shall be approved in compliance with the provisions of Article 67 and Article 76 Para (2) of the Romanian Constitution, republished. Voting shall be secret, with balls.
(6) The decision to approve or deny the request for the criminal investigation of a minister who is also a deputy or senator shall be sent to the Prosecutor’s Office attached to the High Court of Cassation and Justice by the Speaker of the respective Chamber.”