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April 16, 2021

CCR ruled on Tuesday on decriminalising malfeasance in office. Over 800 cases at stake

Constitutional Court of Romania (CCR) judges tackled on Tuesday the decriminalising of malfeasance in office topic. A decision to declare unconstitutional the legal provisions that concern malfeasance in office would have a direct impact on over 800 case files currently pending, according to the National Anticorruption Directorate (DNA), thus helping many politicians get rid of their legal problems.

8 unconstitutionality complaints filed against Article 297 of the Criminal Code and Article 13, Paragraph 2 of Law no.78/2000 on the prevention, discovery and punishment of corruption were on Tuesday meeting’s order of the day. Former DIICOT Director Alina Bica and local “barons” Nicusor Constantinescu and Gheorghe Bunea Stancu filed some of the complaints.

CCR President Augustin Zegrean stated on Tuesday morning that it would be nothing special for all unconstitutionality complaints to be accepted, despite the fact that similar memos were rejected as groundless back in 2010.

“Read the definition of malfeasance in office and see whether it’s sufficiently clear. If you don’t understand, let me explain it to you. The law has to be interpreted positively from on a case-by-case basis. One can reconsider previous decisions, we’ve done it before. This happens at any judicial court because the law does not sit idle, it develops and it has to be adapted to social conditions, to free life,” Zegrean stated.

The controversial Criminal Code article stipulates that “a civil servant who, while acting in official capacity, fails to carry out an action or carries it out improperly and by doing so causes damage or injury to the legitimate rights or interests of a physical or juridical person is punishable by 2 to 7 years in prison and the suspension of the right to hold public office.”

Article 13, Paragraph 2 of Law no.78/2000 stipulates that “in the case of malfeasance in office or of usurping office, if the civil servant obtains undue benefits for self or for another party, the punishment’s special limits are hiked by a third.”

CCR President Augustin Zegrean stated two weeks ago at a talk show that the Criminal Code’s stipulation on malfeasance in office could give rise to interpretations.

“It can give rise to debate, it can give rise to interpretations. The Criminal Code defines the felony, Law 78 is an aggravation of the punishment stipulated by the Criminal Code and so one could ask whether the definition is the one in the Criminal Code or the one in Law 78, this is the problem. Do we have two malfeasance in office felonies defined? (…)I don’t believe any breaking of the law on the part of a civil servant has to be malfeasance in office, things have to be analysed on a case-by-case basis,” he stated.

“This is fairly complicated, we haven’t taken a decision yet, things are in the process of being analysed at the Court. We also have a document authored by the Venice Commission on this topic – regulating abuse of power, malfeasance in office. In Europe there are 12 other countries that punish malfeasance in office by jail time, the rest do not,” Zegrean added.

Two days after the statements made by the CCR President, DNA Chief Prosecutor Laura Codruta Kovesi stated that if the CCR decides to decriminalise malfeasance in office then civil servants will perform their duties based on their whims, not on the law, adding that citizens are the ones who should worry.

“If the malfeasance in office felony disappears from our legislation, civil servants will perform their duties based on whims, not on the law. And we have to think whether we are prepared to see every civil servant acting as he pleases, without us being able to investigate him. A third of the felonies for which we have authored case reports consist of malfeasance in office. I studied the CCR praxis since 2000. CCR never interpreted the text of the law. This is the prerogative of the courts. Any attempt to limit the DNA’s prerogatives worries us but I believe the citizens, not the prosecutors, should be the ones worried. There are public cases in which we showed enormous damage. You cannot come up and say, as civil servant, that you don’t know your job,” Laura Codruta Kovesi stated two weeks ago.

The National Anticorruption Directorate (DNA) is currently handling 865 cases that concern public procurement fraud. Malfeasance in office felonies are being probed in most of them.

One of the cases concerns former Interior Minister Gabriel Oprea and former Prosecutor General Tiberiu Nitu. DNA accuses Gabriel Oprea of illegally benefitting from permanent official motorcades and that he used his office to place official motorcades at Tiberiu Nitu’s disposal too.

“We are getting close to finalising it, several indictments have been made, some technical reports are pending, we are waiting for feedback from some institutions, I hope we will soon have a solution in this case. We are currently waiting for feedback from the Interior Ministry’s structures, we have asked them to calculate the damage in this case,” the DNA Chief Prosecutor stated.

Ex-minister Elena Udrea, accused of malfeasance in office in the Bute Boxing Gala Case, is among the politicians who would get rid of some of their legal problems. She is among the politicians who lobbied in favour of decriminalising malfeasance in office, alongside ex-president Traian Basescu, Senate Speaker Calin Popescu Tariceanu and PSD representatives.

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