The draft ordinance, prepared by the Ministry of Justice in a rush at the end of last week, under the pressure of the civil society, proves that with the amendments to the Criminal Code and Criminal Procedure Code should not be prepared hurriedly, because they risk to throw the whole justice process into chaos and do more harm than good in fixing what was broken by the coming into effect of the new codes on February 1 st .
APADOR-CH points out that this draft ordinance contains serious errors, like allowing some crimes to be investigated before they are committed or phone/home surveillance for people who have committed no crime but are suspected they will, in an unforeseen future.
APADOR-CH maintains that the amendments to the Criminal Procedure Code must not be made in a rushed, improvised way, but through parliamentary procedures, in order to enable a correct wording of the new provisions and their correlation to the other provisions of the codes.
Comments by APADOR-CH on the draft emergency ordinance to amend the new criminal codes
1. As a general remark , APADOR-CH considers that an emergency ordinance should not be in the situation of regulating, even partially, the surveillance regime, because surveillance (interception of phones, mail, SMS, other communication and personal surveillance in public spaces or at home, etc) infringes upon a constitutional right, the right to personal, family and private life, guaranteed by Article 26 of the Constitution.
Thus, the only direct consequence of amending Article 305, par. 1 of the new Criminal Procedure Code, as proposed by article 3 (5) of the draft ordinance, is that persons who have committed no crime but are suspected they might commit one in an uncertain future will be included among those susceptible of being placed under surveillance.
Article 115, par. 6 of the Constitution expressly forbids the issuing of emergency ordinances that infringe upon constitutional rights and freedoms. Or, the effect of the proposed emergency ordinance – expanding the category of persons who can be placed under surveillance by including, alongside people who have allegedly committed a crime, persons who may commit a crime at some point in the future – represents an infringement upon the right to personal, family and private life.
That is why the Association considers that, in order to observe the constitutional path, it is necessary that any amendment to that effect should be made not through an Emergency Ordinance of the Government, but by law. The current draft ordinance should therefore be replaced by a draft bill .
2. As concerns Article 3 (5) of the draft ordinance, modifying Article 305, par. 1 of the Criminal Procedure Code , it allows the launch of a criminal investigation prior to the crime, therefore while a crime is under preparation.
The only explanation and consequence of such an amendment, as reflected, among others, by the intense public debate taking place these days, is that since surveillance can now only be decided after an investigation is officially opened, the tendency is to expand the possibilities to open an investigation up to exaggerated and inadmissible limits .
Thus, from the normal situation, when an investigation is launched after someone had committed a crime (or attempted to commit one), we have come to a provision that allows the launch of a criminal investigation before any crime is committed.
APADOR-CH states that, logically, a criminal investigation is not possible for an inexistent/uncommitted crime – a crime that has not been attempted or commenced, but is just a plan – and therefore is not sanctioned by the existing criminal legislation.
This basis for launching such a criminal investigation even contravenes to Article 285, par. 1 of the Criminal Procedure Code, which provides that a criminal investigation is aimed at collecting evidence to prove the existence of a crime, of a deed already committed, not to prove the eventuality of a crime tbeing committed in an uncertain future.
If the lawmaker considers that some aspects in planning a crime pose a special social threat, the legal solution is to incriminate the acts as such, therefore to include them in the Criminal Code as distinct crimes.
Currently, the Criminal Code includes such incriminations. For instance, Article 412 par. 2 of the new Criminal Code lists as a distinct crime any preparatory act (procurement or production of means or instruments, taking organizing or planning steps etc) in view of committing crimes such as:
– attack against a community
– attack that endangers national security
– acts of diversion
– hostile actions against the state etc.
That is why, the Association considers it unnecessary to maintain a wording like ” preparing a crime ”, which is extremely vague, in the Criminal Procedure Code. The acts of preparation considered by lawmakers to be dangerous have already been covered by being listed as distinct crimes in the Criminal Code. Similar observations have been submitted by the Association as early as 2009, when it issued comments on the then draft Criminal Procedure Code.
It means that a person needs not to be placed under surveillance solely based on the generic ground that he/she allegedly prepared to commit a crime; the surveillance may be launched after the suspect has actually committed a crime, in the form of various acts of preparation that are clearly sanctioned by the law.
The Association points out that, although the prosecutor plays an important role in the criminal investigation (when surveillance takes place), the regulations in the criminal codes must not follow entirely the wish of the prosecutor’s office, but must harmonize the prosecutors’ requests regarding the extended use of surveillance techniques with the guarantee of civil rights, among which the right to personal, family and private life.
executive director APADOR-CH