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April 19, 2021

CCR: ‘Deficiently’ in relation to abuse of office means ‘in breach of law’

The Constitutional Court of Romania (CCR) on Wednesday ruled that ”deficiently” mentioned in the regulations on abuse of office shall be construed as ”breach of law.”

CCR unanimously sustained a constitutionality objection to the point, establishing that the provisions of Article 246 (1) in the Criminal Code of 1969 and Article 297 (1) in the Criminal Code in force are constitutional if by ”deficiently carrying out” mentioned in the codes it is understood ”carrying out by breach of law.”

The judges overruled as ungrounded the constitutionality objection over Article 13 (2) of Law 78/2000, ruling them constitutional against the objection raised.

The CCR ruling is final and generally mandatory.

CCR on Wednesday resumed deliberations on several constitutionality objections over the criminalisation of the abuse of office raised in several court cases.

The court cases in question regard former head of the Directorate for Investigating Organised Crime and Terrorism (DIICOT) Alina Bica, suspended Constanta County Council Chairman Nicusor Constantinescu and former Braila County Council Chairman Gheorghe Bunea Stancu.

CCR says on its website that in several cases objections have been raised over the constitutionality of Articled 297 (1) of the Criminal Code and Article 13 (2) of Law 78/2000 concerning the prevention, discovery and penalisation of corruption.

Article 2917 (1) in the Criminal Code says that the action of the public servants who, while carrying out their professional duties, fail to implement an act or implement it deficiently, thus causing damage or violating the legitimate rights or interests of a natural or a legal entity, shall be punishable by no less than 2 and no more than 7 years of imprisonment and the ban from exercising the right to hold a public office.

Article 13 (2) of Law 78/2000 the prevention, discovery and penalisation of corruption says the abuse of office against public interests, abuse of office against individuals and abuse of office that leads to curtailment of rights shall be punishable by between 3 and 15 years in prison if the public servant obtains gains for self or others.

On the agenda of the meeting on Wednesday there were  8 unconstitutionality complaints related to the Article No.297 of the Criminal Code and to the Article No.13(2) of the Law No.78/2000 on preventing, revealing and sanctioning the corruption deeds. The list of signatories of the complaints includes the former head of DIICOT Alina Bica, Nicusor Constantinescu and Gheorghe Bunea Stancu.

Article No.297 of the Criminal Code states that “the deed of the public officer who, exercising his office attributions, doesn’t perform a deed or he performs it in an inadequate manner, causing this way a damage or an injury to the lawful rights or interests of an individual or of a legal entity, is punished by prison from 2 to 7 years and prohibition of the right to hold public office”.

In one of the complaints submitted to the Constitutional Court by Adrian Simion, who is a defendant in a corruption case before Braila Court, it is mentioned that the expression “injury to the lawful rights or interests” included by the provisions of the Art.297 of the Criminal Code doesn’t have clarity and predictability, not allowing the accurate determination of the constitutive content of the crime of abuse of office, and this situation stays against the principle of the legality of the incrimination stated in the Art.1 of the Criminal Code and Art.7 of the Convention on Human Rights and Freedoms”.

At the same time, a second situation which causes confusion regarding the text is revealed, namely the one referring to the subjective side of the crime, since it is “difficult for the procedural subject to realize what he is not allowed to do, or what the law punishes, because the content of the regulation is ambiguous”.

Another disputed regulation is Art.13(2) of the Law No.78/2000 stating that “in the case of the crimes of abuse of office or of usurpation of the function, if the public officer acquired for himself or for other person an undue benefit, the special limits of the punishment increase by a third”.

Adrian Simion claims in his complaint that the article’s provisions “are imprecisely drawn and they are unclear, since the legislator doesn’t mention if the undue benefit has to be material or ideal, if acquiring such a benefit is the result of the criminal’s will or it can be also accidental, or if in case that other person is the beneficiary of such benefit, a connection between that person and the public officer has to exist or not”.


Former CCR President Augustin Zegrean: In Europe there are only 12 more countries that punish the abuse of office by imprisonment


Early in May, Former President of the Constitutional Court said in a TV interview that in Europe there are only 12 more countries that punish the abuse of office by imprisonment.

“We also have a document drafted by the Venice Commission at the request of EP, the Council of Europe, not of the EU, on this subject – the regulation of the abuse of power, the abuse of office. All the countries are concerned about this matter. As I could check and noticed, there are still 12 countries in Europe who punish the abuse of office by imprisonment; the others do not. I mean the other don’t punish it with imprisonment. There are countries who do not allow the person to hold public office for a certain period of time, but we have applied this measure. As far as I know, this crime was introduced in the Criminal Code since the communist regime and stayed there”, Augustin Zegrean stated for Digi24.

In Switzerland, the person committing this kind of crime risks to receive a criminal fine and to be punished by the prohibition of the right to hold public office.

In France, the law doesn’t stipulate the direct punishment of the abuse of office, but there are other provisions punishing the persons who abuse of their public positions to prevent the law implementation or who do not execute their attributions. Their crimes are punished by a criminal faine or by imprisonment up to 5 years.

Neither Germany incriminates the abuse of office, while the provisions related to criminal deeds executed by persons holding public offices are included in the “Fraud” section; at the same time, in Finland, the person that commits such a crime risks to be punished up to four years of imprisonment. Among the states directly incriminating the crime, Italy is also included, and the maximum punishment is four years of imprisonment.


Laura Codruta Kovesi: If it will be decriminalized, we’ll not be able to make investigations anymore


DNA Chief-prosecutor said that if the Constitutional Court will decide to decriminalize the abuse of office, the public officers will execute their attributions in a discretionary manner, and not according to the law, mentioning that citizens are the ones who should be worried.

“If the crime of abuse of office will miss from our law, public officers will execute their attributions in a discretionary manner, and not according to the law. Therefore, we have to appreciate if we are prepared to let every public officer to acts he wants, without being able to investigate him. One third of the crimes for which we’ve drafted an indictment represent the crime of abuse of office. This is the attribute of the court. Any attempt to limit DNA’s attributions is making us to be worried, but I don’t think that prosecutors should be the ones who are worried, but the citizens. There are public cases in which we’ve indicated huge injuries. As a public officer, you can’t say that you don’t know what you have to do”, stated Laura Codruta Kovesi.

Later, DNA Chief-prosecutor maintained her position also in the Media abroad.

“If it will be decriminalized, we’ll not be able to make investigations anymore”, stated Laura Codruta Kovesi for The Associated Press agency on June 7.


National Union of Judges in Romania: Laura Codruta Kovesi’s statements, a form of pressure


Subsequently to Laura Codruta Kovesi’s statements, the National Union of Judges in Romania have sent a public request to the DNA Chief-prosecutor to cease “the pressures on the Constitutional Court before its decision related to the constitutionality of the abuse of office”.

“National Union of Judges in Romania publicly requests to the DNA Chief-prosecutor Laura Codruta Kovesi, as well as to the opinion leaders, to cease the pressures on the Constitutional Court before its decision related to the abuse of office, regulated by the Law No.78/2000”, UNJR stated in a press release. Judges say that Laura Codruta Kovesi’s statements, according to which “a decision of CCR in the matter of the abuse of office, otherwise than according to DNA’s point of view, would be ‘a cease of the anti-corruption fight in Romania’ and a sign which the Romanian state shows: ‘That’s it, enough with this anti-corruption fight, we no longer have to fight against corruption, we do not need to investigate this kind of deeds’, represent a form of pressure on the Constitutional Court, which is not in accordance to the magistrate’s statute and to the principle of separation of powers”.


Traian Basescu: Kovesi nonchalantly lies. Nobody asked for decriminalization


Laura Codruta Kovesi has been also criticized by the former President Traian Basescu. “Mrs. Kovesi’s statement is shocking for me. I haven’t seen yet a senior dignitary of the Romanian state to lie so nonchalantly. Therefore, Mrs. Kovesi speaks about decriminalizing the abuse of office, but nobody asked for this. (..) It’s a big lie which the lady says in public” Traian Basescu stated in a TV show, for Romania TV.

He also said that Romania has an incorrect definition of the abuse of office in the Criminal Code, allowing “the abuse of the prosecutors and judges”.

National Anti-corruption Division currently works in 865 cases related to frauds in the public tenders, out of which many of them are investigated for abuse of office. One of the cases is on the name of the former Minister of Internal Affairs Gabriel Oprea and the former Attorney General of Romania Tiberiu Nitu. DNA accuses Gabriel Oprea of illegally benefitting of permanent escort and that using his position, he also provided Tiberiu Nitu with road devices.

Among the politicians having criminal files for abuse of office are also included Elena Udrea and Ion Ariton, Alina Bica, Nicusor Constantinescu and Bunea Stancu, who have already seized the Constitutional Court on the matter of the abuse of office, Titus Corlatean – former Minister of External Affairs in the Diaspora case.

Among the ones that are irrevocably convicted for abuse of office, are included Victor Babiuc, convicted to two years of imprisonment in the case of the land exchange between Becali and Minister of National Defense, who was imprisoned on May 21, 2013, Corneliu Dobritoiu, convicted to one year of suspended imprisonment in the case called “houses for the generals”, for improper participation to abuse of office, and Tudor Chiuariu, convicted to 3 years and 6 months of suspended imprisonment in “The Post” case, for deeds committed when he was the Minister of Justice.


Reactions to the Court’s decision: PSD Senator Ioan Chelaru: Court’s decision is a wise one


PSD Senator Ioan Chelaru, member of the Judicial Commission, stated on Wednesday for Mediafax that Constitutional Court’s decision is a wise one, because CCR judges didn’t have extreme opinions, therefore Court’s decision opens the door to an urgent redefinition of the abuse of office.

“The Court issued a wise decision, meaning that it didn’t adopt an extreme position or another. We couldn’t think, judicially speaking, to decriminalize a crime, as it was mentioned in the press, or as Mrs. DN Chief-prosecutor induced into the public opinion”, stated the PSD Vice-President of the Senate, Ioan Chelaru.

He also said that CCR follows a matter which should be followed from the start by the one who initiated the Criminal Code, namely “defining in very clear, explicit, indisputable, and normal terms, all the components of the crime entitled ‘abuse of office’”.

“”Since we have an extremely general definition, with terms which can be interpreted – unfortunately it has appeared in practice, in particular in the case of the prosecutors’ offices, including DNA, an extensive interpretation of the text in the Criminal Code, automatically abuse, abuse of interpretation, in implementing certain measures within a criminal file”, added Chelaru.

PSD Senator also said that “this decision of the Court opens the door to an urgent redefinition of this crime” and that it’s preferable that the amendment of the article referring to the abuse of office to be done by the Parliament within the legal term of 45 days, and not by the GEO.


Vasile Blaga: We didn’t understand much from the Court’s decision, but we will respect it


National Liberal Party will respect the Court’s decision related to the regulation of the abuse of office.

PNL Co-Chair Alina Ghorghiu stated that she didn’t read the minutes, since she was attending to the meeting of the National Political Bureau, but Vasile Blaga confessed that he didn’t understand “much” from this CCR decision.

“If I’m allowed to make a joke, I believe, as an engineer, that this decision was issued by the rabbi from Buhusi; we didn’t understand much, but we’ll respect it, since we always respect Constitutional Court’s decisions”, Vasile Blaga stated.

Alina Gorghiu mentioned that the Court’s decision cannot be commented and it will be respected.


Udrea: Those who screamed that the abuse of office will be decriminalized, proved themselves to be liars wishing to put pressure on the CCR judges


Constitutional Court of Romania decided on Wednesday that the expression “deficiently”, included in the regulation of the abuse of office, means “by breach of law”. The most expected reaction is the one of Elena Udrea, who was suspected to have a benefit in case of an expected amendment made by CCR regarding the regulation of the abuse of office.

“CCR pronounced in the case of the abuse of office, appreciating that the expression ‘deficient fulfillment of duties’ is unconstitutional.

I make the following immediate comment:

1) Those who screamed that the abuse of office will be decriminalized, prove themselves to be liars who wished to put pressure on the CCR judges

2) The Court decided according to the attribution it has and related to the issues which were submitted in order to be judged

3) Now it’s the Parliament’s job to correct the text regulating the abuse of office within the criminal legislation.

Parliament cannot wait the Constitutional Court to pull out the chestnuts out of the fire, since they were thrown into the fire exactly by the MPs!!!”, the former Minister commented.


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