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February 28, 2021

CCR ruling on malfeasance in office sparks confusion

The Constitutional Court of Romania (CCR) admitted on Wednesday an exception of unconstitutionality filed against Criminal Code articles that deal with malfeasance in office, pointing out that “deficiently fulfils” means “fulfils by breaking the law.”

The decision sparked confusion about what will happen next, not being clear whether Parliament has to modify the articles concerned within the 45-day deadline stipulated by the Constitution.

Laura Stefan, anticorruption activities coordinator for Expert Forum, stated that there is no need for Parliament to intervene on the Criminal Code following the CCR ruling on malfeasance in office, giving as an example the ANI [National Integrity Agency] Law precedent. The specialist explained for Ziare.com that the law challenged at the CCR remains in force, with the interpretation provided by CCR judges.

Following the decision adopted in 2014 there was no need for Parliament’s intervention and there is no need for it now either, Laura Stefan claims.

“Let’s recall CCR Decision no.418/2014, which was a decision admitting the challenge, just like today’s decision. In that case the question was what does “the same capacity” mean in the ANI Law. The Court accepted the unconstitutionality exception and established that “the same capacity” means all ‘eligible capacities,’” the expert explained.

“At this moment, the Court has clarified what “deficiently” means and this interpretation will be taken into account by courts in all the cases that are pending. Once CCR offers an interpretation, you can no longer come up with another one. There is no need for Parliament to act, if we compare with the previous decision. We have a precedent, both cases are about interpretative decisions. (…) When the Court admits an exception of unconstitutionality and offers the interpretation of a term, the text remains in force with the aforementioned interpretation,” Laura Stefan emphasised.

Likewise, one of the CCR judges stated on Wednesday for Mediafax that “Parliament is not obliged to modify those articles.”

Nevertheless, nothing prevents Parliament from modifying the law on its own initiative, invoking the CCR’s decision as a pretext, and PSD Senator Ioan Chelaru has announced that this is in fact what will happen.

“Since the definition is extremely general, featuring terms that are open to interpretation – unfortunately a practice has been emerging, particularly on the part of prosecutor’s offices, including the DNA [Anticorruption Directorate], namely an extensive interpretation of the Criminal Code’s text, which is automatically abuse, abuse in interpretation, abuse in enforcing some measures in a criminal case. (…) This Court decision opens the door to the urgent redefining of the offence,” Ioan Chelaru stated for Mediafax.


President Iohannis: “I hope this decision will be one that eases the judiciary’s job in Romania”


On Wednesday, President Iohannis had a first reaction following the CCR decision which stipulates that malfeasance in office will remain within the Criminal Code but will have to be redefined.

Present in Bulgaria, where he was paying an official visit, Iohannis said he hopes the CCR decision will be one that clarifies and eases the judiciary’s job in Romania.

“It seems to me the Court judged this calmly and I hope that this decision would be one that clarifies and eases the judiciary’s job in Romania,” Iohannis stated, according to Digi24.

He pointed out he cannot comment on the essence of the problem, but emphasised that in his opinion the debates that preceded the CCR decision went into too much detail on many occasions.

“I found out about the CCR decision. Don’t expect me to comment on the essence of the decision, but I admit the many times I thought the debates that preceded it went into too much detail. After all, the Constitutional Court has to decide on these issues, not analysts or others who have an interest, maybe even a legitimate one, in what is being discussed there,” the Head of State pointed out.

When asked by journalists whether in his opinion the CCR’s clarification was needed in order for judges and prosecutors not to commit abuses, President Iohannis said:

“I don’t know whether we should talk about abuses on the part of those who represent the judiciary, but every time a legislation is unclear or easily open to interpretations there are situations in which some could be again accused of abuses. That is why every time legislation that is not very, very clear is corrected and replaced with a very clear one – I believe this is essentially a good thing for the system,” Iohannis replied.


Basescu on CCR ruling: “Don’t be angry with democracy!”


Ex-president Traian Basescu considers that the decision the CCR adopted on Wednesday – according to which malfeasance in office will remain within the Criminal Code but has to be redefined – helps prevent abuses committed by prosecutors.

“Don’t be angry with democracy! CCR has noted the unconstitutional character of the term “deficiently” in Article 297 of NCP [New Criminal Code – editor’s note) and has asked for it to be replaced with the term “by breaking the law.” Nothing could be simpler, clearer, more constitutional in order to clarify the malfeasance in office charge but also to prevent the prosecutors’ abuses,” Traian Basescu wrote on Facebook on Thursday.

The ex-President underscored that any citizen indicted has the right to know “precisely which article of law he broke.”

“Some believe anticorruption can be carried out without the prosecutors’ and judges’ actions being strictly within the law, as the extermination of the bourgeoisie and landlords was carried out in the 1950s? If we want to be a democratic state, the person charged and indicted by the prosecutor has the right to know precisely the article of law he broke. I believe every citizen has this right,” the former head of state pointed out.


PSD President Liviu Dragnea: “I haven’t understood much”


PSD President Liviu Dragnea stated on Thursday that he is an engineer by trade so he did not understand much from the Constitutional Court’s decision on malfeasance in office. “I’m an engineer. I haven’t understood much, I don’t know if it’s better or worse,” Liviu Dragnea said.

“When the explanatory statement is published, legal specialists could analyse,” the PSD leader added.

Liviu Dragnea’s comments came after the Constitutional Court decided on Wednesday that malfeasance in office will remain within the Criminal Code but offered an interpretation to one of the articles challenged, an interpretation that will be used by courts.

PNL Co-President Vasile Blaga admitted on Wednesday in his turn too that he did not understand “much” from the Constitutional Court’s decision.


Ex-premier Victor Ponta: Decision does not stop anticorruption fight


Ex-premier Victor Ponta believes that the Constitutional Court decision is rational and balanced and “does not stop in any way the anticorruption fight, but it limits abuses generated through advisability analyses.”

“For years, all rational people (not Securitate and KGB people with the mentality of a Macovei or a Pruna) have been saying that the offences that have to do with legality, not with advisability, have to be sanctioned!!! Legality is the job of the magistrates – advisability is the job of the civil servant or of the politician who is held accountable politically not criminally! Otherwise everything turns to malfeasance and anything you do (without breaking any law) becomes open to interpretation after 1 year or 10 years!” Victor Ponta wrote on Facebook.

The PSD MP gave ex-foreign minister Titus Corlatean as an example.

“No law says how many polling centres have to be abroad, legally he could have opened as many as he would have considered advisable (and he opened a number identical to the one in the 2009 elections, back when there was no problem)! In the end, the decision turned out to be deficient because they were queues at certain polling centres. (…) Corlatean answered for it politically, by resigning, but he did not break a law, nor did he have some criminal intent,” Ponta emphasised.



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