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Romania: Court Finds Immunity Law Unconstitutional

(Jan. 23, 2014) On January 15, 2014, the Constitutional Court of Romania issued a ruling finding unconstitutional draft legislation that would grant public officials immunity from prosecution. The amendments to the Criminal Law, adopted by the Romanian legislature on December 9, 2013, would have made it harder to prosecute elected officials, provided legislators and government officials immunity from prosecution for corruption while in office, and made libel of such public servants a criminal offense. (Elizabeth LaForgia, Romania Court Finds Immunity Law Unconstitutional, PAPER CHASE NEWSBURST (Jan. 15, 2014).)

The international watchdog group Transparency International (TI) had called for the immediate repeal of the amendments soon after their passage. As a TI press release pointed out, the measures “risk opening the door for corrupt politicians to act with impunity.” (Press Release, Transparency International Secretariat,Transparency International Demands Repeal of Legal Changes Granting Immunity to Romanian Politicians, TI website (Dec. 13, 2013).) TI also contended that debate on the amendments was concealed from the public and that civil society groups were not consulted before the changes were voted on. (Id.) Romania’s President Traian Basescu, in addition to opposition lawmakers, had criticized passage of the measures. (Romania Court Rules Immunity Law Unconstitutional, supra.)

The Court Decision

The Court’s review was in response to objections raised regarding the constitutionality of the legislation by the High Court of Cassation and Justice and 50 Members of Parliament belonging to the Democratic Liberal Party (PDL, the main opposition party), with reference to several provisions of the Law on the Modification and Completion of Several Normative Acts.(CCR: Amendments Brought to the Criminal Code Violate Principles of the Rule of Law, ACTMEDIA (Jan. 16, 2014).) The Court found, in a unanimous decision, that:

1. Articles 1(5) and 2(3) of the Law, whereby the President of Romania, Senators, and Deputies are removed from the category “civil servants,” violate several articles of the Constitution, including article 1, paragraphs (1) and (5), on the sovereignty and unity of the state and on the supremacy of the Constitution and the laws in Romania; article 16, paragraphs (1) and (2), on the equality of citizens before the law and no one being above the law; and article 11, paragraph 1, on the obligation of the Romanian state to fulfill its obligations deriving from treaties to which it is a party. (Comunicat de Presa [Press Release], Constitutional Court of Romania (Jan. 15, 2014), Constitutional Court of Romania website; Constitution of Romania (Nov. 21, 1991, as last amended by Law No. 429 of 2003), Chamber of Deputies website (last visited Jan. 17, 2014); CCR: Amendments Brought to the Criminal Code Violate Principles of the Rule of Law, supra.)

2. The article of the Law revising article 253 superscript 1 of the Criminal Code (on conflict of interest) that would exempt public servants from punishment related to acts involving conflict of interest and would exempt from the category of incriminating documents any administrative acts, among others, that have been issued, approved, adopted, or signed violates the same articles of the Constitution as those listed above. (Press Release, supra; Art. 253 Cod Penal, Infractiuni de Serviciu sau in Legatura cu Serviciul [Art. 253, Penal Code, Offenses of Public Service or Related to Public Service],Codul Penal Actualizat [current Criminal Code] (Law No. 140/1996) (last amended by Law No. 63/2012), LegeAZ website.)

3. Articles 1(2) and 2(5) of the Law, on article 74 superscript 1 of the current Criminal Code and article 309 superscript 1 of the new Criminal Code, aimed at reducing and replacing the sanctions for several offenses generically referred to as offenses involving pecuniary damage,violate the following provisions of the Constitution: article 1, paragraphs (3) and (5), on democracy and the rule of law and on the obligation to obey the Constitution and the laws of the state in terms of the clarity and predictability of the norms; article 21, on the free access to justice; and article 147, paragraphs (1) and (4), on the generally binding character of decisions of the Constitutional Court. (Press Release, supra; CCR: Amendments Brought to the Criminal Code Violate Principles of the Rule of Law, supra; Current Criminal Code, art. 74, LegeAZ website; Codul Penal din 2009, Legea nr. 286/2009 – Codul Penal, Noul Cod Penal [Penal Code of 2009, Law No. 286/2009 – Penal Code, New Penal Code], MONITORUL OFICIAL [ Official Gazette], Part 1, No. 510 (July 24, 2009); Constitution of Romania, supra.)

The argumentation of the Court will be presented as part of its decision, which will be published in Monitorul Oficial, the official gazette of Romania. (Press Release, supra.) The Court sent the draft law back to Romania’s Parliament for reconsideration. (Romania Court Rules Immunity Law Unconstitutional, THE WASHINGTON POST (Jan. 15, 2014).)