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CCR Chairman Dorneanu: We believe DNA investigation has upset Gov't's smooth operation

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Chairman of the Constitutional Court of Romania (CCR) Valer Dorneanu on Monday said that an investigation into the drawing up and adoption of a controversial emergency ordinance, OUG 13, had upset the smooth operation of the Government.

"The court believes that the smooth operation of the Government as well as the relations that must exist among the three powers — the judiciary, the executive and the legislature — have all been upset," Dorneanu said after a meeting of the court on a complaint against DNA probing the ordinance.

He added that the court ruled by a "significant majority."

"DNA virtually embarked on checking to what extent the conditions for the passage of an emergency ordinance had been met; to what extent the emergency condition was there; to what extent the situation could have been solved otherwise, and whether or not the emergency was justified. It also checked whether or not all the approvals from the Legislative Council and the Supreme Council of Magistrates (CSM) had been issued, all that exceeds the powers of the DNA. Such checks are performed by the Constitutional Court as part of constitutionality checks. On the other hand, all that was done was done as the legislative process was going on. The ordinance had already been submitted to Parliament, which could have passed it or defeat it, and all this was happening at the exact same time. Thus, the court believes that the smooth operation of the Government as well as the relations that must exists among the three powers — the judiciary, the executive and the legislature — have all been upset," explained Dorneanu.

The report was submitted by Senate Chairman Calin Popescu Tariceanu, who argued that by inquiring into the timeliness and circumstances of the drawing up of the draft piece of legislation, "the officials of the Public Prosecution Service have usurped one of the Government's powers incumbent on the Justice Ministry, thus leading to the preset judicial conflict of a constitutional nature as construed by CCR in their rulings."

According to the Justice Minister Tudorel Toader, prosecutors are not allowed to inquire into the opportunity, legality or constitutionality of juridical documents. The statement came as the Constitutional Court (CCR) was considering a report on the existence of a judiciary conflict of a constitutional nature between the Government and the Public Prosecution Service regarding the drawing up of an emergency ordinance (OUG) modifying the Criminal Code and the Code of Criminal Procedure. 

"A favourable ruling of the CCR would solve a principle problem generated by the separation of powers, namely that prosecutors inquire into criminal offences while not being allowed to inquire into opportunity, legality or constitutionality of judiciary documents. In concrete terms, if the Government passes judiciary document, decisions, energy ordinance, you name it, the prosecutors may both inquire into the opportunity of drawing up the document or the legality or constitutionality of adoption. Because opportunity is censored by Parliament when approving, defeating or modifying ordinances; legality is checked by the judge of administration law while constitutionality is ruled by constitutional judges," Toader said after a meeting of the Constitutional Court. 

The General Prosecutor's Office maintains it took note regarding the decision of the Constitutional Court of Romania (CCR) in respect to the finding of a conflict between the Government and the Public Ministry, through the National Anticorruption Directorate (DNA) and that the CCR motivation will be determining for the future course of the investigation regarding the offenses which represent the object of the case known generically as the "Adoption of the Ordinance No.13." 

"The Prosecutor's Office attached to the High Court of Cassation and Justice (ICCJ) took note regarding the Decision of the Constitutional Court of Romania (CCR) in respect to the finding of a judicial conflict of a constitutional nature between the Government and the Public Ministry, through the National Anticorruption Directorate (DNA), decision, through which the contentious constitutional court established that "the Prosecutor's Office attached to the High Court of Cassation and Justice (PICCJ) - DNA action to arrogate the attribution to verify the legality and the opportunity of a normative act, the GEO No.12/2017 respectively, by breaking the constitutional competencies of the Government and Parliament, stipulated by the article 115, the paragraphs 4 and 5 of the Romania's Constitution, the CCR respectively, which are stipulated by the article 146 of the Constitution," generated a judicial conflict of a constitutional nature between the respective authorities of the state," the release of the PICCJ sent on Monday reveals. 

The quoted source mentions that the motivation of the CCR will be determining for the future course of the investigation in this case.

Anti-corruption prosecutors conducting a criminal investigation into the case of the Government's Emergency Ordinance No. 13 say that evidence and clues emerged that certain approvals have been destroyed or concealed, and other documents have been manipulated. 

The National Anti-corruption Directorate ordered the splitting of the cause and declined to the Prosecution Office attached to the High Court of Cassation and Justice (ICCJ) jurisdiction for investigation into OUG No. 13 for several offences, including the presentation in ill faith of inaccurate data to Parliament or the President of Romania on the activity of the government or a ministry, with a view to concealing deeds likely to harm the interests of the state and abet the offender. 

The DNA says in a release sent to AGERPRES on Monday that in the case evidence resulted that the first approval submitted by fax from the Ministry on Relation with the Parliament (MRP) to the Justice Ministry (MJ) on 31 January would have been destroyed, and the original of this document that was handed in to the MJ representatives has been stolen. 

Likewise, evidence of some unreal data were found inside the book of delivery/receipt of the Justice Minister's Cabinet, as well as evidence that other documents were being drafted to attesting the said mentions unreal. 

The DNA specifies that the file in question was piled up following a notification by individuals, under the aspect of presenting in bad faith of inaccurate data to Parliament or the President of Romania on the activity of the government or a ministry, with a view to concealing deeds likely to harm the interests of the state and abet the offender, as provided by Art. 8 para1 letter b of the Law 115/1999, in connection with the ways the Prime Minister and the Minister of Justice have promoted and advocated the enforcement through Emergency Ordinance on 18.01.2017 of two draft emergency ordinances on pardoning some punishments, as well as on the amendment of the Criminal Code (CP) and the Criminal Procedure Code (CPP). 

"The notification was also completed by the same plaintiffs as to regarding the crime provided by Art. 13 of the Law 78/2000 by persons holding leading positions in a political party who have allegedly exercised their jurisdiction or political influence with a view to adopt in the evening of 31.01.2017 of an emergency ordinance through which the Criminal Code and the Criminal Procedure Code were amended, aiming to favour certain criminally investigated or prosecuted individuals who in this way would have benefited directly or indirectly from ill-gotten goods," says the communiqué. 

Subsequently, following some procedural deeds by the prosecutors, decided was the extension of the criminal investigation with regard to the crimes of stealing or destroying of official documents, stealing or destruction of evidence or official documents and intellectual forgery. 

The DNA says that on 17.01.2017, the draft OUG was written regarding the amendment of the Criminal Code and the Criminal Procedure Code, as well as regarding the pardon, by giving up overall decriminalization of abuse of office, and subsequently were published on the Justice Ministry's website, so to be sent opinions on, at the same time being asked for viewpoints with the main bodies in the judiciary. 

"After 25.01.2017, these opinions were centralized by the MJ's specialists, most of which critical to both the substance of the drafts and the intention of promoting them through OUG, meaning that legal conditions were not observed, so to justify urgency. In all this period of time, the MJ's specialty staff drafted six notes through which they expressed criticism to the above-mentioned drafts. The most consistent note is the one drafted on 27.01.2017, comprising over 30 pages in which an analysis of the draft emergency ordinance of the CP, CPP amendment is carried out, through the eyes of the opinions expressed by the judicial system's specialists. Through this note, the MJ specialists say that promotion through OUG is inopportune," says the DNA. 

According to the source, up to the initially scheduled hour of the Government Sitting on 31 January (19:45hrs), the OUG of amending the two criminal codes, that was not on the agenda, has only had two out of five necessary approvals. 

"The Internal Affairs Ministry (MAI) communicated an approval strictly on the road traffic crimes. The Legislative Council has sent a note with observations. This note was drawing attention on the insufficient motivation of the urgency character of the draft OUG to amend the criminal codes," the DNA mentions. 

As regards the Supreme Council of Magistracy (CSM)'s approval, it says the issuance deadline was 1 February at 9:00 hrs. 

"Moreover, two kinds of documents of the draft pieces of legislation to amending the criminal codes were sent to the CSM, namely an Emergency Ordinance and a draft law. Although the CSM did not send a notification, the Justice Ministry have attached the said body's negative note yet issued for the drafts' shape the way they were made public on 18.01.2017, even in the meantime substantial alterations occurred, of which the introduction of some cases of non-punishment in case of the abuse of office and the perpetrator's favouring. The Foreign Affairs Ministry sent no formal note, the relevant minister only signing the draft piece of legislation on the criminal codes' amending in the very headquarters of the Government, because they were asked for this "note" "hic et nunc,"" the DNA release reads.

The DNA prosecutors also explain that the note by the Ministry for Relation with the Parliament (MRP) was finalized at around 20:00 hrs., being assumed by the relevant minister who signed it. 

Forthwith after being registered, signed and stamped, the MRP note was sent by fax, reaching the Justice Ministry at around 20:00 hrs., the fax being registered with seal and registration number, according to methodology, so it became in its turn official. 

"Synthetically, the MRP note was criticizing the lack of motivation for the urgency of amending the criminal codes' draft. This note was handed in by the MRP representatives to the Justice Ministry's representatives. The MJ specialty staff took note of the MRP note contents after 20:00 hrs., and communicated through intermediaries to the Justice Minister the impediments resulted from the MRP note," says DNA. 

The DNA prosecutors say that subsequently the MRP note suffered modifications, and another note was issued a favourable one this time. 

"From 20:00 hrs. to 21:00 hrs, at the Government Seat tensed discussions took place regarding the MRP approval, between the MRP representatives and the Justice Ministry's officials. Eventually, the MRP representatives were made to modify the initial note, so that in the above-mentioned interval of time, a second approval was issued, this time a favourable one, of which all critical lines to the CP and CPP's amendment draft are eliminated. This second note of the MRP - favourable - was finalized at around 21:10 - 21:15 hrs, and was registered, signed, stamped and faxed to the Justice Ministry where it was registered with the same number just like the first note,' explain the DNA prosecutors. 

DNA emphasizes that by the initial hour set for the commencement of the Government sitting, the note from the Supreme Council for National Defence (CSAT) was registered at the General Secretariat of the Government, as it was necessary to adopting the budget drafts on the agenda, but the Government sitting was delayed by around 21:00 hrs due to the non-finalising of the MRP note on the OUG draft to amending the criminal codes, although this last deed was not on the agenda, nor it was requested for the agenda to be supplemented. 

"During the sitting, (...), the Justice Minister asked for the supplementation of the agenda with three draft laws, among which the draft OUG for the amendment of the Criminal codes. (...) The draft OUG No 13/31.01.2017 was approved by the Government, thus finding formally the existence of the opinions, although the one from the CSM was about an older draft law, the one from the MAE was only certified through one simple signature, and the first opportunity opinion with observations and proposals from the MRP (which would have blocked the adoption of OUG 13/2017) was not attached to the approvals file. The second approval from the MRP, in original form, was taken over by the Justice Ministry representatives that very night of 31 January 2017, but it was registered at the Justice Ministry only the next day, on 1 February 2017, with the same number with the first opinion of the MRP - the one with observations and proposals (that was sent by fax on 31 January 2017, around 20:00 hrs.)," say the prosecutors. 

According to the DNA, during the criminal investigation evidence surfaced that the first opinion, the one with observations and proposals, faxed from the Ministry for Relation with the Parliament to the Justice Ministry was shredded at this last ministry. 

At the same time, unreal mentions were written in the book of delivery / receipt with the Justice Minister's Cabinet, with regards to the first approval sent by fax from the MRP and officially registered with a number and stamp at the Justice Ministry's level, say the prosecutors. 

"Likewise, there is data that other documents have been forged so they justified the unreal mentions within the book of delivery/receipts at the Justice Minister's Cabinet,' the release reads. 

In this context, the DNA appreciates that it is opportune to extend the criminal prosecution for the following offences: theft or destruction of documents, with regards to the destruction of the first approval faxed from the MRP and officially registered at the MJ (on 31.01, at 20:02 hrs.), as well as the theft of the original of this first note from the MRP that has been handed to the MJ representatives and the theft or evidence or documents destruction and intellectual forgery, as regards the mentions representing endorsement of false data carried the long of the criminal investigation, in the book of delivery / receipt book with the Justice Minister's Cabinet, alongside as regards the drafting of other documents to endorse falsely the said mentions. 

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