Specifically, the first amendment removed the condition of establishing the absence of recidivism by an expert forensic psychologist and eliminated the prohibition on the application of the amnesty act, including to persons who had committed extremely serious crimes. The second amendment removed the condition of absence of risk of recidivism. The third introduced the concept of substitution of punishment applicable to persons sentenced to life imprisonment.
The amendments changed the conditions for applying for amnesty and made them more “flexible”. Although the parliament later overturned its own decisions by appropriate interpretation, on Thursday, July 24, the CC finally declared the amendments to the law unconstitutional.
The request to the Constitutional Court was made while Ion Munteanu was still in office as Prosecutor General. Later, he resigned after a decree of the head of state appointing him as a judge of the Supreme Court of Justice.
Deputy Prosecutor General Sergiu Brigai believes that “the replacement of punishment in the case of a convicted person with a risk of recidivism without a real assessment of the public danger may constitute a serious omission in the fulfillment of the state’s duties”.
Deputy Prosecutor General Sergiu Brigai: “Such a measure should be assessed from the perspective of the principle of proportionality enshrined in the Constitution, as well as taking into account the obligation of the state to protect the fundamental rights of others – in particular, the right to life and physical inviolability, guaranteed by the Constitution…and to take effective measures to protect against threats from others.”
Also, the Prosecutor General’s Office does not rule out violations in the process of adopting amendments to Article 7 of the Law on Amnesty. In particular, we are talking about paragraph (2), which was allegedly excluded from the law in violation of parliamentary regulations. As a result, there is a discrepancy between the text voted in Parliament and the text published in the Monitorul Oficial. The annex to the report of the Parliamentary Commission contained a version that only referred to the repeal of paragraph b. However, in the published version, the entire paragraph (2) disappeared. It was the repeal of this part of the law that broadened the scope of persons eligible for amnesty.
“The issue is extremely serious. Although the text with the repeal of only paragraph b was adopted, the Monitorul Oficial published a law repealing the whole paragraph. You work in a state institution that has very serious and important responsibilities for society. Can you imagine a situation in which you are discussing one thing and another thing appears in the document?”,” CC President Domnica Manole asked the prosecutor.
“I believe that such a practice is unacceptable. According to the position of the Prosecutor General’s Office and the information available to us, certain violations were committed in this case. We appealed to the Anti-Corruption Prosecutor’s Office with a request to check these circumstances. Now the competent body must give a legal assessment of what happened. …There can be only one explanation: to a certain extent, the procedure for adopting the law was falsified. I have no other explanation,” Brigay said.
To Manole’s question about “how serious is the repeal of the entire second paragraph of the article, which, in fact, was not voted on in Parliament?”, the prosecutor said that the amendments made in general opened up the possibility of benefiting from the act of pardon to suspects, accused, defendants or convicted of committing a premeditated crime in prison and even those who committed a crime against minors. “In our opinion, this is quite serious,” Brigay remarked.
Interestingly, all the MPs in the hall, including those from the opposition, voted in favor of the draft in both the first and second readings. As the head of the parliament’s legal commission, Olesia Stamate, noted at the time, the proposals for the second reading “were agreed with the Ministry of Justice and the Department of Penitentiary Institutions, and they are contained in the edited text of the law”.
“This is a very long-awaited law, especially since now, under the emergency situation, very many convicts cannot be considered for early conditional release, although some of them have already reached the deadline,” MP Anna Racu, a member of the UN Committee against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, said at the time.
Another amendment to the amnesty law was to delete the phrase “in the absence of a risk of recidivism.” The Law Commission approved it, and Parliament voted in favor of it on July 29, 2022. However, the original draft was about amending the Criminal Code, while the amendment added later was about the Amnesty Law – that is, a completely different area of legislation. In other words, its content went beyond the scope of the original draft. Consequently, these “amendments should be recognized as unconstitutional,” the CC decided.
Another judge – Mykolae Roška – joined the “beating of the baby” (the parliamentary legal commission) at the CC session. He asked whether the position of the Prosecutor General’s Office on the amendments to the law on amnesty had been requested. Brigai replied that the Prosecutor General’s Office had not submitted any opinion on the amendments to the Amnesty Law and had not even received a corresponding request from the authors.
Former Prosecutor General Aliaksandr Stoianohlo gave his version of the answer to the question why the amnesty of convicts was held without the participation of the prosecutor on the air of Cinema1.
“The prosecutor is a key figure responsible for the implementation of state policy in the field of criminal prosecution and execution of punishments. However, someone deliberately excluded him from this procedure. Why? Because in this “formula” the prosecutor is an inconvenient figure….. I went through this in my practice – for every case of amnesty of a person, the prosecutor wrote a special report. …There are systemic problems that need to be eliminated – not to punish someone, but to prevent these things from happening in the future,” Stoianoglo said.
Logos Press asked the former chairman of the Parliamentary Commission on Law, Appointments and Immunity Olesia Stamata to comment on the CC decision.
Olesa Stamate: “An interesting fact – the Constitutional Court in the same composition in 2023 made a decision, where it stated that these provisions do not raise questions, and now – ruled the opposite. This is if we talk about the essence of the amendments. If we talk about the procedure, the fact that some of the amendments were made through broader bills – the CC ruled that the procedure was violated. And in this case, the court will be able to recognize as unconstitutional many laws approved by the current parliament, because many times amendments that only indirectly related to the main bill were adopted by the parliament. The most recent example is the amendments on the protection of journalists. They were introduced on the last day and voted on at the last parliamentary session on July 11 in a bill that had nothing to do with this topic. In fact, it was just an attempt to once again point to “the only guilty party”, although the problem is not the law or its amendments at all, but the way the law was applied. But apparently no one is interested in that.”
Earlier, Stamate suggested creating a commission to investigate how the amnesty for life prisoners was carried out, and without waiting for a positive reaction from fellow MPs, she conducted her own investigation – “The Truth about Amnesty”.
“The conclusion of the investigation is simple: there is a mechanism, a whole scheme at the level of the penitentiary system. And we are talking not only about the prison in Rezina, where prisoners sentenced to life imprisonment are kept, but also about other institutions. There, the prison commission, together with “selected” lawyers and with the participation of some representatives of the judicial system, knew how to pass through the amnesty procedure convicts who did not fit the criteria established by law. At the same time, those who really deserved amnesty were denied,” said Olesia Stamate in a Gonța Media program on YouTube.
In April this year, the Ministry of Justice clarified the application of legal provisions on amnesty and parole for some people sentenced to life imprisonment. “The mechanism of parole, including for persons sentenced to life imprisonment for extremely serious crimes, has always been provided for in the Criminal Code as well and operates independently of the Amnesty Law,” it said.
According to the Ministry of Justice, 9 people sentenced to life imprisonment were released from custody. The provisions of the Criminal Code were applied to them. Of these: 3 were challenged, 2 appeals were satisfied, 1 person was returned to the penitentiary institution, the whereabouts of one is yet to be established, and the situation of one was under consideration. At the same time, the following were carried out: change of leadership of the National Penitentiary Administration and an official investigation; suspension of the work of the amnesty commissions in Rezina and Cahul and verification of all cases of life prisoners; revision of the psychological assessment and monitoring of the risk of recidivism, among others.
In April this year, Parliament approved in two readings the law on the interpretation of Article 7 of the Amnesty Law, which came into force immediately. According to the interpretation, convicts whose punishment was commuted or reduced cannot be released on parole before the expiration of the full term. These norms also apply to those who have already benefited from the amendments.
That is, the decision of the Constitutional Court is an interpretation of legislative norms that have already lost their force. The big question is whether it solves serious, systemic problems – in law enforcement, control over the penitentiary system, and even in parliamentary procedures. It is also curious why such a decision was made and why it was made now.
