Press Release

Before discussing the presented draft, it would have been necessary for this discussion to have been preceded by a society-wide reflection on the need for a new code. The code currently in force was adopted in 1995 and has undergone numerous interventions to adapt to the various needs of the country. Therefore, it cannot be said that it is outdated or presents serious challenges in its implementation.

The absence of a prior process aimed at identifying the alleged insurmountable issues with the current code, issues which raised the need to completely revise a law that is fundamentally important to the life of the country and which affects the lives of everyone, naturally does not contribute to achieving broad-based consensus.

In 1995, due to a particular historical context, the need to move away from the authoritarian conception of the former Criminal Code toward one shaped entirely by a liberal democratic spirit, reflecting the values of the society we aspired to build, was abundantly clear. This should have served as the starting point for the process of drafting a new code, as a genuine necessity arising from the evolution of societal values and the need to adapt to rapid changes at the global level in many aspects, often quite delicate and for which it is not easy to lead to consensus. Such a process would have laid the appropriate philosophical, moral, and legal groundwork upon which to construct the framework of a new code. The absence of this process constitutes a fatal structural error in the construction of this institutional framework. Rather than being the product of a natural institutional and societal progression as a historical necessity, it appears instead to be a hasty action that risks irreparably undermining the proper functioning of the country’s criminal justice system.

On the other hand, given the way in which the adoption of a code is typically handled, due to its extraordinary volume and complexity, the public consultation process and the subsequent parliamentary procedures have little to no impact on its substance, which renders the public debate process formalistic and ineffective, as it does not allow for a systematic intervention in the entirety of the draft. Based also on the text brought forward for discussion, I believe it would generate significant confusion among magistrates in the application of legal norms and provisions, laying the groundwork for entirely divergent interpretations in similar cases. Furthermore, the drafting technique used for the provisions makes it impossible to improve them through public consultation. The tendency to pre-emptively embed every possible interpretation of a legal norm into the provisions themselves compromises the quality of its implementation and prevents the resolution of numerous unpredictable issues, that arise in practice for those tasked with enforcing the law.

Moreover, the general approach in the draft to broaden the scope of actions considered dangerous to the extent that they are classified as criminal offences punishable by imprisonment demonstrates a repressive tendency. This expands the potential for the criminalisation of individuals within society and has serious implications for citizens’ lives. On the other hand, certain provisions in the general part of the draft risk transforming an individual's unlawful conduct at a specific point in time into a potentially punishable offence throughout their lifetime, thereby conflicting with the principles of legal certainty and humanism.

These are precisely some of the principles that ought to have been clarified since the outset of the drafting process, as the product of a broad societal reflection that was lacking, yet fundamentally necessary in order to undertake, or not undertake, this initiative.

Beyond the aforementioned, and in light of recent media discussions regarding the draft, I do not consider the tightening of custodial sentences to be the sole or most effective solution to the multitude of issues the country is currently facing, at a time when we already have one of the most punitive criminal codes at the European level. This position has been maintained institutionally across all legislative processes in which we have been requested to provide a legal opinion. It must also be understood that amendments to criminal legislation directly influence the application of procedural norms and provisions, and their harmonisation cannot be achieved without first adopting a visionary approach to defining the direction in which we intend to move.

Experience has shown that the law-making process in the country, particularly with regard to the justice system and, above all, the criminal legal framework, is flawed and often influenced by momentary needs and emotions, failing to yield the intended outcomes. Due to the extent and long-term impact of the consequences, for decades, when dealing with a code, such a mistake must not be repeated in the case of a law of such significance, all the more so in light of the current state of the justice system in the country, where such debates could be deeply influenced by non-objective approaches, beyond the impartial legal reasoning required by a criminal code.

The arrival of the draft at this particularly challenging moment for the justice system, when it continues to suffer from massive staff shortages and an extreme backlog of case files, would significantly exacerbate the chaos within investigative procedures and judicial processes, due to the inevitable confusion that would arise from the implementation of new criminal norms and provisions. This is also clearly reflected in the absence of any substantive contribution by magistrates in providing opinions on the draft since 2023, precisely due to the unbearable workload that prevents them from effectively participating in such a delicate and critical process.

Rather than adopting a new Criminal Code, the country currently faces an urgent need for intervention in the Criminal Procedure Code, in order to address the shortcomings in its functioning and to facilitate processes from bureaucracies that are contributing to delays in investigations and trials.