Legislative Amendments Suggested to the National Assembly

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CHAPTER FOUR. RECOMMENDATIONS

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where customs officials or border police officers, etc. are involved in the perpetration of an offence.

– Criminalizing customs fraud as it is currently beyond the scope of any criminal provision and ways and means are sought to define such of-fences under other provisions of the Criminal Code. The following ap-proaches may be adopted here: inserting a separate definition of the criminal offence of customs fraud, similarly to the provisions on tax eva-sion (Article 255 of the Criminal Code), or providing for heavier penalties for document-related crimes (Articles 308 et seq. of the Criminal Code) having as their subject matter a customs declaration or another cus-toms document, etc.

• The Criminal Procedure Code should be amended so as to facilitate the in-vestigation of cross-border crimes by inter alia:

– Fine-tuning the provision requiring that only the persons appointed ”in-vestigative police officers” at the Ministry of Interior have the capacity to act as investigative authorities. The text should enable a wider range of police officers to undertake procedural and investigative steps, especially in emergencies, as acting swiftly in such circumstances is the only possibility to collect and preserve evidence.

– Reinstating customs investigation that existed before the entry into force of the new Criminal Procedure Code. The unwarranted abolition of the possibility of customs officials to act as investigative officers in cases of smuggling and foreign exchange violations has engendered difficul-ties in practice. Customs officers are better prepared to work on goods smuggling than the investigative police officers at the Ministry of Inte-rior, so their involvement in the investigation of such offences would make the investigative bodies much more efficient.

– Extending the scope of the procedure to institute criminal proceedings by virtue of the record of the first procedural step and adding body searches to the list of emergency procedural and investigative steps undertaken in such cases.

– Rethinking jurisdiction over the smuggling of goods and narcotics.

The new Criminal Procedure Code changed the jurisdiction over those cases and moved them from regional court level to district court level but the district courts are further away from the border compared to regional courts and investigations are frustrated as the investigative bodies are often forced into traveling a long distance to the respective district court in order to obtain an authorization or approval of the pro-cedural steps they have undertaken or to seek orders for coercive mea-sures, including those to prevent absconding.

– Introducing a possibility for the procedural steps made during ad-ministrative liability procedures with a view to seizing physical evi-dence, and the records drawn up on such occasions to be fully admis-sible in court criminal proceedings.

– Improving the conditions and the procedure for deploying the newly-introduced special intelligence means (undercover officers, trusted transactions and controlled deliveries) by providing inter alia for

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viewing the immediate superior of an undercover officer instead of or in addition to interviewing the officer him or herself.

– Improving the rules on interviewing witnesses with secret identity so as to avoid any chances for their identification from the information contained in the transcripts or in any other documents on the file (e.g.

by banning expressly the insertion of certain data in the verbatim re-cords of the interviews).

– Introducing a requirement for the so-called ”certifying witnesses” to be interviewed before a judge.

– Envisaging a possibility to interview the investigative body who drew up the respective verbatim record, in his or her capacity as a witness in the case, which is standard practice in many European countries.

Proposed amendments to the Criminal Procedure Code

”Further to the analysis of the enforcement of the new Criminal Procedure Code, and independently of the positive results reported on, the task force has identified some problems connected with the application of the new rules. This has dictated the drafting of proposals to amend the Criminal Procedure Code. The Draft Law Amending and Supplementing the Criminal Procedure Code presented to the Parliament by a group of MPs proposes the following major changes:

• Providing, within short terms, for a sufficient number of officials en-dowed with investigative powers, so as to enhance the efficiency of police operations in pre-trial proceedings; vesting all police officers with investigative functions.

• Extending the statutory time limits for investigation from two to at least six months, with a possibility for a six-month extension.

• Enabling the police officers having conducted an investigation to tes-tify in court.

• Enabling the head of a police unit implementing an undercover opera-tion to testify in court on behalf of the officer who acted under cover.

• Abolishing the requirement for certifying witnesses to participate in the conduct of any procedural steps at the pre-trial stage.”

Source: Efficiency of Pre-trial Proceedings: The Effects of the Criminal Procedure Code Ana-lyzed (analysis made by the Interagency Monitoring Task Force for the Criminal Procedure Code, 9 March 2007).

• Amending the Law on the Ministry of Interior and/or its implementing regu-Law on the Ministry of Interior and/or its implementing regu-Law on the Ministry of Interior lations so as to define unequivocal criteria for the number of investiga-tive police officers in the country’s different regions; elements to be taken on board (besides the size of the population) include the peculiar features of and the criminogenic factors in the region in question. Many areas, espe-cially border-adjacent ones, now experience a genuine deficit of investiga-tive police officers.

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• Changing the procedure for imposing administrative penalties for smuggling of goods as set out in the Law on Customs; in particular, some scenarios should exclude the possibility for an agreement between the offender and the sanctioning administrative body, e.g. where the subject-matter of the offence exceeds a certain value threshold or in the event of repeat offending. The existing possibility to make such agreements leaves the door wide-open for imposing the minimum statutory penalty and or-dering the payment of just a quarter of the value of the items involved and of the vehicle used as an instrumentality, instead of heading for forfeiture.

That privilege should not be applicable to serious instances of smuggling of goods as it is conducive to corruption.

• The Law on Extradition and the European Arrest Warrant should be amended Law on Extradition and the European Arrest Warrant should be amended Law on Extradition and the European Arrest Warrant so as to extend the powers of prosecutors, inter alia by introducing an interim arrest procedure pending the receipt of a European arrest warrant, similarly to the procedure allowing for the interim arrest of an individual pending the receipt of an extradition request.

• Rules should be introduced on the level and sharing of costs between the pre-trial authorities and the courts in order to change the current situation where expert witnesses set themselves the fees for their own as-sessments in the pre-trial proceeding and the courts reimburse the costs incurred by the Ministry of Interior. The decisions to fund large expert as-sessments are currently made by the Supreme Judicial Council. The rules thus introduced should reflect recent changes in the process, in particular the fact that the majority of the pre-trial authorities no longer belong to the judiciary.

In addition to the specific amendments proposed, a general recommendation in the long run is to make the legislation more stable, to enact amendments more rarely and only where they are well thought-out and compelling, as that would stabilize law enforcement as well. There seems to be a universally rec-ognized need for interpretative decisions of the Supreme Court of Cassa-tion to provide guidance for the applicaCassa-tion of the laws, in particular the new Criminal Procedure Code and some of the latest amendments to the Criminal Code.

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2. RECOMMENDED ORGANIZATIONAL AND