The effects of repealing GEO No.13. The courts acquit people accused of abuse of office, on the ground that the deed is not provided by the criminal law

*Four persons accused of abuse of office, acquitted by the Cluj Court of Appeal

 

Four persons from the former leadership of SC Electrica Nord Transilvania, judged for abuse of office against public interests and for complicity to abuse of office have been definitively acquitted by the Cluj Court of Appeal, on the ground that these deeds are not provided anymore by the criminal law.

According to the courts’ website, the former General Manager of SC Electrica Nord Transilvania, Gabriel Ruga was accused of abuse of office together with other two persons from the former leadership of the company, and a fourth person was accused f complicity to abuse of office, and they have been acquitted following a final decision issued on Monday by the Cluj Court of Appeal.

The spokesman of the court from Cluj, Lucian Marian, stated on Tuesday for News.ro that the acquittal decision relied on the Constitutional Court’s decision of June, 2006 “by which the provision on the abuse of office has been interpreted”.

“Speaking with one of the members of the panel, I understood that the acquittal decision for abuse of office or participation to abuse of office relied on the Constitutional Court’s decision of June, 2016, by which the provision on the abuse of office has been interpreted. Specifically, by analyzing the deeds for which the defendants have been sent to judgement, the court concluded that those duties or obligations allegedly breached by them weren’t provided by the law or by a GEO, but by inferior normative acts”, Lucian Marian stated.

The case of the four persons from the former leadership of SC Transelectrica Nord Transilvania was opened by the DNA Cluj prosecutors in 2009, and they were accused of buying counterfeit electronic products from 2002 to 2004.

The decision of the Cluj Napoca Court of Appeal comes few days after a similar decision of the Alba Iulia Court of Appeal. The court in Alba Iulia was the first who issued a decision in which it ascertains the decriminalization of certain provisions of the abuse of office, ordering the cessation of executing the sentence of 3 years of suspended prison for the former Secretary General of the Hunedoara County Council, Dan Daniel, who was accused of intervening I a contest organized at the General Directorate for Social Assistance and Child Protection. The decision of the court could rely on the Constitutional Court’s decision of June 15, 2016, which maintained the abuse of office, but gave a different interpretation to the phrase “defectively performs”.

Amendments of the Article no.297 para.1 on abuse of office have been also brought by GEO 13, but they didn’t limit only to the CCR decision of June, 2016, bringing more completions. GEO 13, adopted by the Government on January 31, has been repealed five days later by another GEO, so that those amendments and completions are not currently into force.

Vehemently challenged by the civil society, magistrates and some of the politicians, who claimed that the deed is decriminalized in the interest of certain politicians who are investigated or judged for abuse of office, GEO 13 was finally repealed, after large street protests across the country, started right in the evening of adopting the ordinance.

 

Lawyer Piperea comments on Alba Iulia Court’s decision: Many of the DNA files on abuse of office will close because the deed is decriminalized

 

Lawyer Gheorghe Piperea says that the decision of the Alba Iulia court is very important both for files pending to prosecutors or judges and for those who are convicted based on the text invoked by the Alba Iulia Court of Appeal.

“Let’s see what Alba Iulia Court of Appeal tells us: the abuse of office has been decriminalized by the effect of non-implementing the CCR Decision No.405/2016 within 45 days since it was published.

For the (former) convicted person, things are like this: since he is acquitted, not only that he is saved from prison, but also from the complementary punishment of being forbidden to be elected in public authorities and other public offices; moreover, he can demand compensations for staying in jail unjustly since April, 2016 until today; of course, we are the ones who will bear the complaints, not the magistrates. They have immunity.

For the judiciary, the consequences are drastic. Based on CCR Decision No.405/20016, the abuse of office is tacitly decriminalized, at least in the version solved by the Alba Iulia Court of Appeal. All those who were convicted based on this text declared to be unconstitutional will be acquitted. All of them can obtain compensations for unjust imprisonment. We will bear them, too, of course. Many of the files on abuse of office that are still unsolved will close because the deed is decriminalized. DNA files included. They’ll be so many files that probably a quarter of the DNA’s activity will disappear. The repealed GEO 13/2017 was recriminalizing the abuse of office. DNA was able to continue building its myth. Only that the main opponent of the GEO 13/2017 was exactly DNA. The opposition against this regulation (who was wrong, made in a hurry, hastily, artificially, as you like), was very effective. Almost everybody was fooled, believing that GEO 13/207 legalizes the theft (??!), when it actually was causing the impression that it decriminalizes the abuse of office. Actually, the decriminalization has already happened before, in August, 2016. Now we need a new criminalization. Only that those whose files are already solved or pending will be acquitted. Regardless of the new law, the most favorable criminal law will apply.

Let’s see now who takes advantage from this situation.

And let’s see who and what actually undermines the rule of law by incompetence and being overzealous” is lawyer Gheorghe Piperea’s message.

 

Dragnea: There is legislative vacuum. We must have debate on all judiciary laws, including CCR decisions

 

PSD President Liviu Dragnea stated on Tuesday that the tabling of a new emergency ordinance amending the Criminal Codes has not been discussed but after the new Justice Minister is appointed a debate will have to be organised concerning the whole judiciary legislation, including Constitutional Court (CCR) decisions, a debate in which the associations of magistrates, the Council of Europe and the Venice Commission should take part because it concerns the Romanian citizens’ fundamental rights and liberties.

“I’ve told the Prime Minister, both publicly and privately, and I’m saying it now too, that after they appoint the new Justice Minister I believe the Justice Ministry, along with the judiciary committees and Parliament, will have to organise, within a reasonable period of time, a serious debate on the whole judiciary legislation, including the Constitutional Court’s decisions,” Liviu Dragnea said when asked what will happen now that GEO 13, which amended the Criminal Codes, has been repealed.

The Lower Chamber Speaker emphasised that the government emergency ordinance (GEO) would be repealed in Parliament through the urgent adoption of ordinance no.14 (GEO 14), but pointed out that the legislative vacuum remains.

Liviu Dragnea pointed out he wants to see the National Union of Romanian Judges (UNJR) and the Association of Romanian Magistrates (ASM) involved in these debates, bodies that “were not consulted very much or almost at all,” but also the Council of Europe and the Venice Commission.

“A very serious discussion is needed on these issues, because we are talking about legislation that concerns the Romanian citizens’ fundamental rights and liberties,” the PSD President added after he took part in a new court hearing in the case in which he is indicted for instigating abuse of office.

Dragnea pointed out that the Alba-Iulia Court of Appeals has cancelled a sentence for abuse of office, something that would not have happened had GEO 13 not been repealed.

“On one hand, such a decision wouldn’t have appeared and, on the other hand, had the Ciolos Government considered these Constitutional Court decisions too, when it adopted that ordinance, this non-unitary praxis would no longer have appeared,” Dragnea added.

He pointed out that the provisions included in both the body of the Constitutional Court decision on abuse of office and in its reasons for adopting it are mandatory.

“In its reasons and the body of its decision, the Court refers to three things: for a limit for the damage caused to be established, for the intensity of the injury to be established, and for the law infringed to be mentioned,” Dragnea pointed out.

Asked, in the context in which he stated he is “forever in love with truth,” what would he choose now, on Valentine’s Day, between freedom and truth, Dragnea said: “Truth. I respect this day, I don’t want to inhibit any overture, but I didn’t grow up with Valentine’s Day, for me Dragobete is the lovers’ day. And, of course, it’s nice that we’re talking about Valentine’s Day in this building (the headquarters of the High Court of Justice – editor’s note), where there’s a lot of love.”

 

Zegrean explains the effects of the CCR decisions: Abuse of office, partially decriminalized

 

The former President of the Constitutional Court (CCR), Augustin Zegrean, has a clarifying intervention in the scandal that occurred these days. Zegrean claims that by not harmonizing the laws in force with the CCR decisions within 45 days, the abuse of office is partially decriminalized, actually.

“It’s hard for me to understand where from this perplexity related to what happened at Alba Iulia. If people would read the laws and the decisions of the Constitutional Court, it wouldn’t have been any surprise that a judge from Alba Iulia approved an opposition to enforcement, because as far as I understood, that man was convicted for abuse of office and the reason for that case was that he failed to comply with Government’s Decision or with some rules for the implementation of a Government’s Decision. But the Constitutional Court, by that decision of June 15, 2016 – I wasn’t President at that time – stated that the offense of abuse of office is committed only if the deed of the public officer breaches a duty provided by an ordinance, an emergency ordinance or a law”, the former President of the Constitutional Court explained for timponline. ro

Zegrean explained that since the law wasn’t harmonized with the CCR decisions, these texts are suspended by the law. “After 45 days have passed, it’s obvious that the rest of the definition of the legal text is not in force anymore, because the text is devoid of legal effect, that text doesn’t exist anymore. It’s obvious that, after 45 days have elapsed, that part of the text criminalizing the abuse of office doesn’t exist anymore.”

Being asked who is responsible for not harmonizing the laws with the Constitutional Court’s decision, the former CCR President claimed that maybe there was no interest in solving this issue. “It’s wrong to put it this way. Many times, the issuer of a normative act, the Government or the Parliament, as the case may be, according to the law, is not interested anymore to harmonize the law with the Court’s decision, or it isn’t possible anymore. I wish to be understood or considered that there are 45 days. After 45 days, you don’t harmonize the law with the Court’s decision. After 45 days, you issue another law, eventually. For this reason, the legal provision is suspended for 45 days, to give the possibility to the legislator to take a stand: either that text is removed – and we had many cases, it’s not the first time when a text is not harmonized with the Court’s decision – because it was considered that it cannot be harmonized anymore”.

 

 

 

 

 

 

 

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