Dragoș Călin (Judge at the Bucharest Court of Appeal and Co-President of the Romanian Judges' Forum Association)
The decisions of the Constitutional Court of Romania once again created a wave of requests for preliminary rulings at the CJEU. Currently there are ten such new referrals that the ordinary courts in Romania (Brașov Court of Appeal, Bucharest Court of Appeal, Bistrița First Instance Court) have submitted or are going to submit after drafting the decisions,[1] under Article 267 of the Treaty on the Functioning of the European Union. In fact, one of the requests (case C-107/23 PPU, Lin) will be heard in an urgent preliminary ruling procedure, therefore, in a very short time, a solution is expected from the CJEU, as the pleadings are scheduled for 10 May 2023. Another reference for a preliminary ruling was dismissed in a peculiar manner, as a result of the admission by the High Court of Cassation and Justice – Criminal Division of the request to transfer the hearing of the case, the High Court noting the fear of a defendant, judged in several cases in which he has such a capacity, regarding the referral to the CJEU.
In the domestic cases in which these requests were submitted, the accused requested the application of the principle of the most favorable criminal law (lex mitior) in the situation where a decision of the Constitutional Court of Romania declared unconstitutional a legal provision (Article 155 par. (1) of the Romanian Criminal Code) regarding the interruption of the limitation period of criminal liability (Decision no. 358/2022). To do so, the Constitutional Court argued the passivity of the legislator, which did not intervene to bring the legal text into agreement with another decision of the Constitutional Court, issued four years earlier (Decision no. 297/2018). During that time the case law of the common courts formed and attempted to interpret the existing in law in accordance with the Constitutional Court’s decision, the practical consequence of reducing to half the limitation period for all criminal acts for which a final judgment of conviction was not issued prior to the first decision of the Constitutional Court and of terminating the criminal proceedings against the accused in question.
Specifically, through Decision no. 297/2018, the Constitutional Court of Romania found that the legislative solution that provides for the interruption of the criminal liability limitation period by fulfilment of “any procedural act in the case”, from the provisions of Article 155 par. (1) of the Romanian Criminal Code, is unconstitutional, since that phrase also refers to documents that are not communicated to the suspect or defendant, thus not allowing them to be aware of the aspect of the interruption of the limitation period and the beginning of a new limitation period of their criminal liability. The circumstance invoked was that “in countries such as Estonia, Finland, France, Germany, Italy, Malta, the Netherlands, Portugal, Slovakia and Spain, the interruption of the limitation period of criminal liability is done by procedural documents that are communicated to the suspect or the defendant or that involve their presence before the judicial bodies or by acts that directly aim at the settlement of the criminal legal relationship of conflict, and according to the case law of the Federal Constitutional Court of Germany, the general constitutional guarantees still remain applicable and must be observed in terms of the limitation periods regarding criminal liability. This includes, in particular, the principle of protection of legitimate expectations and the general requirement of legal clarity and the specificity that derives from the principle of the rule of law.”
Most of the courts have taken into consideration this Decision no. 297/2018, interpreting more restrictively the situations where a procedural act could lead to the interruption of the limitation period.
By Decision no. 25/2019 of the High Court of Cassation and Justice, the panel for the settlement of the appeal in the interest of the law rejected, as inadmissible, the appeal in the interest of the law declared by the general prosecutor of the Prosecutor’s Office attached to the High Court of Cassation and Justice, regarding the “interpretation and application of the provisions Article 155 par. (1) of the Criminal Code regarding the interruption of the limitation period of criminal liability by the fulfillment of any procedural act in the case, after the publication in the Official Gazette of the Constitutional Court Decision no. 297 of 26 April 2018”, showing that, in the majority jurisprudential orientation, it was argued, in essence, that the effects of the Constitutional Court Decision no. 297/2018 do not extend to the entire institution of the interruption of the limitation period of criminal liability, but, according to the considerations of the decision of the Constitutional Court, the cause of interruption is applicable only in the case of the procedural documents which, according to the law, must be communicated to the suspect or the defendant. As such, it was held that the provisions of Article 155 par. (1) of the Romanian Criminal Code have remained valid and continue to produce effects, but the only documents that can have the effect of interrupting the limitation period of criminal liability are those that are communicated to the suspect or the defendant.
Nevertheless, through Decision no. 358/2022 of the Constitutional Court, it was established that the provisions of Article 155 par. (1) of the Criminal Code are unconstitutional. The Court noted that, due to the legislator’s silence, the identification of cases of interruption of the limitation period of criminal liability remained an operation carried out by the judicial body, thus lacking clarity and predictability, a situation which also determined the different application of the criticized provisions to similar situations (a fact confirmed by the finding by the High Court of Cassation and Justice of the existence of a non-unitary practice). Thus, the lack of intervention by the legislator has determined the need for the judicial body to replace it by outlining the applicable normative framework in the event of the interruption of the limitation period of criminal liability and, implicitly, the application of the criminal law by analogy. The situation created by the legislator’s passivity, following the publication of the aforementioned admission decision, represents, in our view, a violation of the provisions of Article 1 par. (3) and (5) of the Constitution of Romania, which establishes the rule of law nature of the Romanian state, as well as the supremacy of the Constitution.
The Decision of the Constitutional Court of Romania, which is binding, was subsequently implemented by Decision no. 67/2022 of the High Court of Cassation and Justice – The panel for the settlement of the appeal in the interest of the law. In Romanian law, the limitation is considered as belonging to the substantive criminal law, the principle of the legality of crimes and punishments, including lex mitior, being applicable.
In the requests for a preliminary ruling, the Brașov Court of Appeal found that the first decision of the Constitutional Court did not expressly declare the entire text of law on the interruption of the limitation period of criminal liability to be unconstitutional, but, on the contrary, the criticized legal text was found to be unconstitutional only with regard to the established solution, reminding the previous – uniquely traditional – solution provided in the former Romanian Criminal Code, regarding the qualification as acts of interruption of the limitation period only of those that are communicated to the accused, without the Constitutional Court prefiguring any other alternative legislative formulation to it.. The remaining courts have applied the text of law by interpreting it and taking into account the case law of the Constitutional Court, almost unanimously, in the sense that the legal text subsists through the application of the unique traditional solution of the interruption of the limitation period through the documents that must be communicated to the accused. In fact, the High Court admitted appeals in cassation and annulled contrary final court decisions, by which the criminal proceedings had been terminated as a result of the calculation of the limitation period without taking into account the acts of interruption (for example, Decision no.174/RC/15.05.2019 of the High Court of Cassation and Justice – Criminal Division).
In its turn, the Bucharest Court of Appeal mentions in the request for a preliminary ruling that the rule of material law from the national law, regarding the interruption of the criminal liability limitation period, in force at the time when the crime was committed, met the requirements of clarity, precision, predictability and accessibility, as the Constitutional Court itself found, so that the accused persons could know, at the time of the the main litigation, the conditions under which that interruption could occur (by fulfilment of a procedural act that had to be communicated to them and was indeed communicated to them) and, also, the conditions under which, depending on the existence or not of such an interruptive act, they could be held criminally liable. The content of this rule continued to be applied, in the national case law, including at the level of the Supreme Court.
The European Commission, in the Reportto the European Parliament and the Council of 22.11.2022 (COM(2022) 664 final), held that “the lack of a legislative response to the Constitutional Court ruling on the statute of limitation has had a major impact on ongoing cases. This is particularly true in the case of corruption cases (beyond corruption cases, according to an estimate provided by the specialised prosecution office handling terrorism and organised crime, in the area handled by DIICOT (Directorate for Investigating Organized Crime and Terrorism – note of the referring court) a total of 605 ongoing cases, with a total estimated financial damage of over €1 billion, would be affected. Estimates from the General Prosecutor’s office on other crimes were not available). According to an estimate published by the DNA, a total of 557 criminal cases under criminal prosecution or pending before the courts could consequently be terminated (DNA, press release of 28 October 2022). While the exact prejudice would need to be assessed case by case, the National Anticorruption Directorate estimates damage in these cases to around €1.2 billion and the total amount of bribery and influence peddling at around €150 million. Although civil law avenues for recovering some of the prejudice remain, the discontinuation of criminal proceedings in such a high number of corruption cases may have a significant impact on efforts to combat high-level corruption. Its actual consequences and possible mitigating actions will be monitored closely by the Commission, also in the light of the CJEU’s ruling that EU law precludes the application of national rules or a national practice similar to the case-law of the Constitutional Court if it is capable of giving rise to a systemic risk of impunity for corruption offences or acts of fraud affecting the financial interests of the Union (Judgment of the Court of Justice of 21 December 2021, Euro Box Promotion and others, in joined cases C-357/19, C-379/19, C-547/19, C-811/19 and C-840/19. For more details, see 2022 Rule of Law report, Country Chapter on the rule of law situation in Romania, p. 14.). The risk that thousands of defendants would not face criminal liability has triggered major criticism in Romania.”
The national courts, in relation to the described situation, mainly requested the interpretation of Article 2 of the TEU, the second sub-paragraph of Article 19(1) of the TEU and Article 4 par. 3 of the TEU, in conjunction with Article 325(1) of TFEU and with Article 2(1) of the PIF Convention, with Article 2 and Article 12 of the Directive (EU) 2017/1371 on the fight against fraud to the Union’s financial interests by means of criminal law, as well as with Directive 2004/18/CE on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, with reference to the principle of establishing effective and dissuasive sanctions in cases of serious fraud affecting the financial interests of the European Union, all with the application of Decision 2006/928/EC of the Commission establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption, by referring to the last sentence of Article 49 par. 1 of the Charter of Fundamental Rights of the European Union.
It was assessed that the obligation to fight corruption affecting the European Union’s financial interests, which follows from Article 325(1) TFEU, is supplemented by the specific commitments accepted by Romania when accession negotiations were completed on 14 December 2004. Indeed, in accordance with point I(4) of Annex IX to the Act of Accession, the mentioned Member State undertook, inter alia, to “considerably step up the fight against corruption and in particular against high-level corruption, by ensuring a rigorous enforcement of the anti-corruption legislation”. This specific commitment was subsequently given concrete expression by the adoption of Decision 2006/928, which sets benchmarks for the purpose of addressing the shortcomings observed by the Commission prior to Romania’s accession to the European Union, in particular in the fight against corruption. Thus, the annex to that decision, in which those benchmarks are set out, refers, in point 3 thereof, to the objective of “continu[ing] to conduct professional, non-partisan investigations into allegations of high-level corruption”, and, in point 4 thereof, to the objective of “tak[ing] further measures to prevent and fight against corruption, in particular within the local government”.” (Judgment of the Court (Grand Chamber) of 21 December 2021, in joined cases C-357/19, C-379/19, C-547/19, C-811/19 and C-840/19, par.188). Moreover, it was also shown that, as for the “national courts, it is for them to give full effect to the obligations under Article 325(1) TFEU and Decision 2006/928 and to disapply national provisions which, in connection with proceedings concerning serious fraud affecting the financial interests of the European Union or offences of corruption in general, prevent the application of effective penalties that act as a deterrent in order to counter such offences”.
Therefore, through the CVM Decision, specific obligations were imposed on Romania regarding the judicial reform and the fight against corruption, in the form of the four benchmarks that Romania must achieve, taking into account, accordingly, the requirements and recommendations formulated in the Commission’s CVM reports, obligations that supplement the requirement of Article 325(1) TFEU to effectively combat fraud and any other illegal activities affecting the financial interests of the Union. Some of the present references for a preliminary ruling do not directly concern corruption crimes but, for example, tax evasion crimes related to VAT, the CJEU having jurisdiction to determine whether the legal situation created by the two decisions of the CCR has a general nature or not, while Article 155 par. (1) of the Criminal Code is applicable to any type of crime, except for those not subject to statutory limitation.
Of course, the situation may remind us of the Taricco saga, in which the Court of Justice analyzed similar aspects, but the situations do not seem to be identical for Romanian judges. As the Brașov Court of Appeal assesses, “in Taricco I, the CJEU authorized the national court to disapply domestic legal provisions that reduced the special limitation period, if it found that this undermines the fight against serious fraud in a considerable number of cases, affecting the need to apply effective and dissuasive criminal sanctions for the protection of the financial interests of the Union, which would be incompatible with Art. 325 par. 1 and 2 TFEU and with Art. 2 par. 1 of the PIF Convention, which impose on the Member States a precise result obligation and which is not subject to any condition regarding the application of the rule they provide, in the case M.A.S. and M.B., CJUE established an exception for the case where such non-application causes a violation of the principle of the legality of criminal offences and penalties, due to a lack of precision of the applicable law or for the reason of the retroactive application of legislation that imposes incrimination conditions more severe than those in force at the time of the commission of the crime, recalling the importance, both in the Union legal order and in the national legal orders, which have shared competences in the field, of the principle of the legality of criminal offences and penalties, which is part of the traditions common to the Member States, which requires that the applicable criminal law be predictable, precise and non-retroactive.”
In the Italian saga, the change of the limitation period was set by law, and not by a decision of the Constitutional Court, which was consistently applied in judicial practice. In the case provided by the Romanian law, as shown by the Brașov Court of Appeal, there was never an applicable criminal law that was also applied for any period of time, but only a decision of the Constitutional Court. Also, the Romanian courts specified that the PIF Directive refers, starting with Article 1, to the purpose pursued in the matter and defines it as “to strengthen protection against criminal offences which affect those financial interests, in line with the acquis of the Union in this field”. Moreover, Article 12 of the Directive itself, which provides for those limitation periods, sets forth in the first paragraph that “Member States shall take the necessary measures to provide for a limitation period that enables the investigation, prosecution, trial and judicial decision of criminal offences referred to in Articles 3, 4 and 5 for a sufficient period of time after the commission of those criminal offences, in order for those criminal offences to be tackled effectively”.
Additionally, the Brașov Court of Appeal assesses that, in case it is considered that during the reference period, a more favorable law regarding the time-barred criminal liability was in force, the principle of the more favorable criminal law should work together with the principle of equity and justice, respectively balance and impartiality in the conduct of social relations and the performance of the act of justice, based on the requirements of justice, morality and fairness in the process of law enforcement, in order to protect the public interest and safeguard the recognized rights of the criminal offence victims, from the perspective of finding out the truth and of the possibility to request that offenders be held criminally liable. We should find “a fair balance between, on the one hand, the application of the principle of the more favorable criminal law regarding an intermediate criminal law and the finding of the limitation of the criminal acts brought before the court and, on the other hand, giving priority to the principles of equity, justice and finding out the truth, which would primarily protect the public interest and the subjective rights that constitute the legal object of the criminal offences brought before the court, reflected in the applicable European law in terms of the principle of enforcing effective and dissuasive sanctions for the protection of the financial interests of the European Union and in the principle of effective jurisdictional protection in the areas regulated by the European Union law both of the public interest regarding the effective functioning of the criminal judicial system, including as regards the protection of the financial interests of the European Union, and of the rights of natural or legal persons, including contracting authorities, with legal personality and own budget, as fundamental aspects of the rule of law”.
Finally, one of the questions concerns the need to disapply the solutions of the national Constitutional and Supreme Court, especially in the specific national context, in which non-compliance with these decisions can trigger the disciplinary liability of the judge of the case. A similar solution was issued by the CJEU (Judgment of the Grand Chamber of 18 May 2021, joined cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19, Asociația Forumul Judecătorilor din România and others, respectively the Judgment of the Grand Chamber of 21 December 2021, joined cases, C-357/19, C-379/19, C-547/19, C-811/19 and C-840/19, Euro Box Promotion and others). The CJEU established that the second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 and Article 4(2) and (3) TEU, with Article 267 TFEU, and with the principle of the primacy of EU law, must be interpreted as precluding national rules or a national practice under which a national judge may incur disciplinary liability on the ground that he or she has applied EU law, as interpreted by the Court, thereby departing from case-law of the Constitutional Court of the Member State concerned that is incompatible with the principle of the primacy of EU law.
In 2022, Romania changed the legislation on the status of judges, under the pressure of the European Commission and attempting to apply the decisions of the CJEU, among others, expressly repealing the disciplinary offense that concerned the non-compliance with the decisions of the Constitutional Court or the decisions issued by the High Court of Cassation and Justice in the settlement of appeals in the interest of the law.
However, Article 271 letter s) of Law no. 303/2022 regarding the status of judges and prosecutors, the new law, provides that exercising the position in bad faith or with gross negligence is a disciplinary offense. The Constitutional Court of Romania, by Decision no. 520/2022, interpreting this legislative text, assessed that non-compliance with the decisions of the Constitutional Court or with the decisions issued by the High Court of Cassation and Justice in the settlement of appeals in the interest of the law can trigger the disciplinary liability of the judge or the prosecutor to the extent that it is proven that they exercised their position in bad faith or with gross negligence.
This is also the opinion of the Judicial Inspectorate, which filed an appeal against the decision of the Disciplinary Section for Judges of the Superior Council of the Magistracy, by which, in April 2022, the disciplinary action against Judge Costin Andrei Stancu, from the Pitești Court of Appeal, the only Romanian judge who had applied the Judgment of the Grand Chamber of 18 May 2021, joined cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19, Asociația Forumul Judecătorilor din România and others, was rejected. This appeal was also rejected on 24 April 2023.
[1] See cases C-56-23, Riaman; C-74/23, Parchetul de pe lângă Înalta Curte de Casaţie şi Justiţie – D.N.A. Serviciul Teritorial Braşov; C-75/23, Parchetul de pe lângă Tribunalul Braşov; C-107/23, Lin; C-131/23, Unitatea Administrativ Teritorială Judeţul Braşov; C-219/13, Dudea; C-223/13, Redu.
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