PROSECUTORS HAVE PREDOMINANTLY INVESTIGATED DOMESTIC COMPANIES Deputies want the investigated companies to participate in public calls for tenders and the awarding of concessions

This month, in the Senate, several deputies have proposed a draft to amend the Law of public procurement acquisitions and of the Law concerning the concession of works and services, which would allow investigated companies to participate in the public calls for tenders. Domestic businesspeople have repeatedly complained that the current anti-corruption anti-campaign has led to prosecutors focusing mostly on their own investigations rather than foreign companies, which has led to a contraction of domestic businesses, and even to their bankruptcy.

The MPs who initiated the draft law are saying that only a judge may issue a temporary and provisional ruling to institute the interdiction from participating in the procedure for the awarding of public procurement contracts, concession agreements or framework agreements.

"The existence of an ongoing criminal trial, in which a legal person is being indicted, is a circumstance which, by its own existence, may not determine the exclusion of an economic operator from the procedure for the awarding of public procurement or concession contracts or of framework agreements", the argumentation states, and further goes on to say: "As long as a person is considered innocent, in the absence of an objective and necessary justification, it appears to be discriminated against in relation to other economic entities that want to participate in a call for tenders for public procurement contracts or framework agreements".

Deputies also state the following in the argumentation: "Since 2006, once the Law no. 278/2006, came into effect, which introduced the criminal liability of legal persons in Romanian criminal law, the principle of presumed innocence became applicable to individuals as well as collective entities that have legal personality to be criminally liable. With the institution of the criminal liability of legal persons, the principle of presumed innocence must also be applicable in the case of these law subjects. According to art. 167 paragraph (4) of the Law no. 98/2016, the exclusion from the awarding procedure of a the public procurement contract or of the framework agreement also happens in the case where the economic agent or one of the persons provided in article 164 paragraph (2) is subjected to a legal proceeding of investigation in relation to committing one or several of the actions stipulated in art. 164 paragraph (1).

The provisions of art. 167 paragraph (4) of the Law no. 98/2016 are unconstitutional, because they violate the presumption of innocence and the principle of equality before the law. Until the rendering of a final court ruling, which establishes a person's guilt, which is the object of legal proceedings, that person is considered innocent, which means that any negative legal effects or juridical consequences related to the existence of an ongoing criminal trial, in which the person in question is a defendant, may not lead to interdictions, incapacities or other restrictions on that person's rights".

Deputies say that the only measures which may be taken during a criminal trial and which may affect the exercising of rights and freedoms of suspected or indicted persons are preventive or precautionary ones, if such measures are needed for the good progress of the criminal trial and if they are commensurate.

Provisions of art. 167 paragraph (4) of the Law no. 98/2016 are unconstitutional, because they violate the presumption of innocence and the principle of inequality before the law. Until a definitive court ruling, which establishes the innocence of a person involved in legal proceedings, that person is considered innocent, which means that any negative legal effects or juridical consequences pertaining to the existence of an ongoing lawsuit, in which the person in question is a defendant, may not result in interdictions, incapacities or limitations of that person's rights".