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The Ombudsman, Victor Ciorbea announced on Friday that he decided to notify the Constitutional Court of Romania (CCR) regarding the OUG 13/2017 amending the Criminal Codes. "I decided to raise the exception of unconstitutionality regarding the emergency ordinance 13/2017. It will leave in a matter of minutes to the CCR," declared Ciorbea, in a press conference.
He mentioned that he criticized this OUG, on the whole. "I criticized it on the whole, that is why I started with the extrinsic elements, if they are retained by the Court, they entail the emergency ordinance's unconstitutionality, on the whole. (...) The effect: if this is noticed, it is obvious that the next step would be to move to Parliament's regulation, based on a draft law, and whatever CCR establishes as being unconstitutional, as they will not only limit to analysing the extrinsic element, but also the intrinsic issues, all the elements that will be analysed will become mandatory for Parliament when a draft law with such a topic will be under debate," said Ciorbea.
He mentioned that some of the ideas from the General Prosecutor's letter were introduced in the exception's text. "I received last evening a letter from the General Prosecutor, asking me to consider a series of unconstitutionality critics from a document drawn up by the Prosecutor's Office attached to the High Court of Cassation and Justice (PICCJ). I took this document into account too, some of the ideas were introduced directly into the exception's text, we didn't manage to examine the other ideas, but we attached the document to the exception itself," specified Ciorbea.
He mentioned just some of the unconstitutionality critics from the exception, one of which referring to the non-compliance of the requirements regarding the urgency matter and of the exceptional case that allows for the adoption of such an OUG. "The Government mentions, in the motivation section, as one of the reasons, the necessity to implement a EU Directive, but upon checking, we found that the implementation deadline for the Directive is April 1, 2018," stated the Ombudsman.
As regards the abuse of office, he mentioned that the Government does not define what serious damage means. "It is true that we have the well-known decision of CCR and that through an emergency ordinance, the requests expressed in the CCR decision, but in the OUG it is added, it also refers to serious, clear and effective damage of the rights or legitimate interests of an individual or legal person. So, it says either the damage is higher than 200,000 lei or the damage I was just explaining about is brought, however the Government does not define in the body of the ordinance what this serious damage means, therefore we have another element of unpredictability, uncertainty that contradicts the constitutional requirements in the matter," declared Ciorbea.
He stated that to limit the abuse of office only to violations brought to the law, to ordinances, to emergency ordinances and not refer to other pieces of legislation - Government decisions, ministerial orders, County Councils' decisions, means to withdraw from the incidence of criminal law the activity of the entire administration in Romania. "In the Emergency Ordinance it is said that we are in the presence of abuse of office, but in the situation in which we are dealing with law infringement stricto sensu, that law or emergency ordinance, respectively, or from various CCR decisions, it is clear that we must take into account the broad meaning of the notion of law, so those violations of the dispositions of the Government's decision, of the orders of ministers, of the County Councils' decisions, local or town councils' decisions etc, represent pieces of legislation, laws in the broad sense," said Ciorbea.
