CRIMINAL CODE REVISIONS: A PARLIAMENTARY

C O N F I D E N T I A L SECTION 01 OF 02 BUCHAREST 001230

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STATE FOR EUR/NCE - AARON JENSEN

E.O. 12958: DECL: 10/30/2017
TAGS: PGOV KJUS KCOR PREL RO
SUBJECT: CRIMINAL CODE REVISIONS: A PARLIAMENTARY
GET-OUT-OF-JAIL-FREE CARD?

REF: A) BUCHAREST 1215 B) BUCHAREST 1179

Classified By: PolCouns Theodore Tanoue for reasons 1.4 (b) and (d).


1. (C) Summary: Prosecutors and NGOs complain that
parliament's amended draft Criminal Code and Criminal
Procedures Code, if signed into law, would exculpate a wide
variety of criminal acts by nullifying evidence gained
outside of its new, highly restrictive procedures. In
attempting to absolve themselves of any possible future
indictment for high-level corruption, parliamentarians from
all political parties have raised the bar for criminal
prosecution for a range of crimes, including corruption,
cyber crime, trafficking in persons and organized crime,
until a new Criminal Code and Criminal Procedures Code are
debated and adopted in spring 2008. End Summary.


2. (SBU) The Chamber of Deputies unanimously adopted
amendments to the Criminal Code and Criminal Procedures Code
on October 23 that severely limit prosecution of a broad
range of criminals and instead criminalize journalists who
broadcast audio/visual investigative evidence. Legal, Media,
and human rights NGOs, along with prosecutors, criticized the
amendments as effectively being a "get out of jail free card"
which raises the bar for admitting in court evidence not only
for high-level corruption, but for complex crime in general,
including organized crime, trafficking in persons and drugs,
and cyber crime, among others. The amendments were drafted
by the Legal Committee of the Chamber of Deputies, and
adopted by all political parties. NGOs have asked President
Basescu to send it back to parliament, but without additional
opposition to the law, parliamentarians would likely override
the veto.


3. (SBU) These new amendments to the Criminal Code and
Criminal Procedures Code prevent prosecutors from
intercepting communications (conducting audio/visual
recordings, wiretaps, or monitoring electronic communication)
unless the defendant is notified of the start of a criminal
investigation. The amendments also create criminal penalties
of 2-7 years in prison for anyone who releases or broadcasts
audio/visual evidence. They also raise the threshold for one
of the most commonly used charges in corruption cases--"abuse
in office with serious consequences"--from the current 60,000
euros to 9 million euros, reducing the possible prison
sentences for many current investigations and narrowing the
statute of limitations for many crimes. Another amendment
reduces the possible timeframe of criminal investigations to
6 months; a limit prosecutors say is less than sufficient for
complex criminal investigations. One amendment states that a
warrant for a house search can only be given after a
prosecutor submits the minutes of the conversation where the
suspect refused to provide the specific object sought.
Another amendment would invalidate evidence if any procedure
is violated. It would also become mandatory for expert
opinions to be carried out at anyone's request--not just the
prosecutor's or judge's--leading to delays in prosecuting
future cases.


4. (C) The Initiative for a Clean Justice (ICJ),along with
the Media Monitoring Agency (MMA),ProDemocracy Association
(APD),and the Center for Independent Journalism (CJI)
released its analysis of the draft law on October 28, and
asked President Basescu not to sign it into law. ICJ legal
analyst (and former Justice Ministry Anticorruption Director)
Laura Stefan told PolOff October 29 that these amendments
"break all the rules" as they create a "get out of jail free
card" that applies not just to high-level corruption cases,
but to all criminal cases. Stefan explained that if the code
became law even for a day, any defendants currently being
tried would be able to be judged according to the laws most
favorable to the defense. She noted, however, that a new
Criminal Code and Criminal Procedures Code was being hammered
out "according to a different spirit" for introduction in
Spring 2008, but added that the amended code would be
applicable to any crimes committed during the interim period
if the current amendments go into effect. She said this
exculpation of past and future graft opportunities as the
main motive for parliament rushing through these amendments,
but added that these changes had the additional effect of
weakening prosecutorial weapons in all crime cases. In
pointing the finger at the Romanian parliament as a body,
Stefan noted that instead of the usual practice of individual
parliamentarians' attaching their names to specific
amendments, most of these amendments were just listed as a
"group decision" of the Legal Committee of the Chamber of
Deputies.

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5. (C) Ioana Albani, Chief Prosecutor for cyber crime at the
Directorate for the Investigation of Organized Crime and
Terrorism (DIICOT) also outlined to PolOff during an October
29 meeting the many difficulties prosecutors would have
should the amendments come into effect. She claimed that it
would be "nearly impossible" to investigate cyber crime
without the ability to intercept electronic communications
before the suspect knows about it. Other types of
investigations would be affected, given that current
procedures exclude the defense attorney from being present,
for example, to protect the identity of a trafficking victim
or to gain a search warrant or warrant to intercept
communications, but the amendments would inhibit such
confidentiality and could tip off a suspect of the aim of

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specific warrants.


6. (C) Asked if there was anything in the new amendments
that would help prosecutors do their jobs better, Albani
replied flatly, "No, they (parliamentarians) wanted to be
very precise in excluding evidence." She noted that much
evidence could easily be thrown out immediately as a final
decision, offering prosecutors no recourse. Albani said she
was incredulous that one of the new provisions would take
away the judge's role in determining whether evidence was
obtained legally. Noting the recent scandal involving an
Agriculture Minister taking bribes (ref B),Albani commented,
"There was a panic for everybody after Remes" and added that
these amendments were a "deliberate attempt to put a leash on
justice."


7. (C) In a related development, President Basescu rejected
Justice Minister Chiuariu's request for the dismissal of the
National Anticorruption Directorate prosecutor Doru Tulus on
October 29, calling instead for Chiuariu's resignation.
Basescu lambasted Chiuariu as acting as "a shield, a
protector for prospective offenders, rather than as a
Minister of Justice." Basescu criticized Chiuariu for
requesting Tulus' dismissal without performing an analysis of
the work of Tulus' section, and for ignoring the advice of
the Superior Council of Magistrates prosecutors to drop the
dismissal request, and for blocking the fight against
corruption through emergency ordinances that thwart
high-level corruption investigations. Basescu argued that
Chiurariu "made this request simply because this is what his
masters had asked him to do after appointing him as
minister." Several observers believe Chiuariu will likely
appeal this decision to the Constitutional Court.


8. (C) Comment: As noted in ref A, the televised airing of
footage of the Agriculture Minister blatantly receiving a
bribe has had a bombshell effect, as it has been seen by the
public not just as an indictment of the current Tariceanu
government, but of the practices of an entire political
class. It is interesting to note that neither PD nor PLD
objected. However, Parliament's move to close ranks and to
put Romania's anti-corruption prosecutors under greater
political control plays directly into President Basescu's
hands, as he is unlikely to miss this opportunity to inveigh
against Romania's culture of corruption as part of his
campaign to adopt electoral code changes that will make
parliamentarians more directly accountable to voters.
Basescu will likely veto the bill or delay signing as long as
he can as parliament has the votes to override his veto. We
have heard from European Commission Anticorruption Task Force
Manager Cristina Tauber that a new expert peer review team
would come to Romania in November to monitor these
developments that she is detailing to Brussels daily. We
likewise will continue to monitor this legislation and the
Ambassador will likely express concern on the progress
against corruption in public and behind closed doors. End
Comment.
TAUBMAN