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October 1, 2020
JUSTICE POLITICS

Government awaits CCR motivation on abuse of office, followed by – transparent draft law, says PM Grindeanu

Prime Minister Sorin Grindeanu stated on Wednesday that the Executive will await the Constitutional Court’s motivation for the decision on abuse of office, rendered Tuesday, mentioning that he had already discussed the matter with the Minister of Justice, Tudorel Toader.

Asked if the Government will assume by an ordinance the setting of a threshold for abuse of office or will initiate a bill to send in Parliament for debate and adoption, Sorin Grindeanu replied: “Things are as clear as possible, I will not dwell on the content because it’s not my job. Instead, I repeat, what I have been telling you for a very long time – this bill, not an ordinance, not something else, this bill that will be granted the Government’s opinion must refer strictly to the decisions of the Constitutional Court, I think I have spoken to you about this, and I believe this is the form it will take.”

The prime minister added that he had a discussion on this issue with Justice Minister Tudorel Toader after the Constitutional Court’s decision on Tuesday.

“I talked to Mr. Tudorel Toader. There was and there is a decision of the Constitutional Court yesterday which refers to the amendments to the Criminal Code and the Criminal Procedure Code. The minister’s opinion, which he has communicated and I share, is to wait to see the motivation and to take into account the decisions of the Constitutional Court,” Grindeanu stated on Wednesday in Parliament.

He expressed his agreement with the Justice Minister’s decision to await the CCR’s motivation. “I agree with Mr. Tudorel Toader’s decision to wait, to see the very important motivation, and to take into account the decision of the Constitutional court that is mandatory (…) I believe that the correct procedure is an approved bill, processed at the Ministry of Justice, through a public debate, as was the original draft, publicly debated, transparent, adopted by the Government, sent to Parliament,” the Premier stressed.

 

Justice Ministry: The offense of abuse of office will be redefined, including by setting a value threshold

 

Justice Ministry says that following the decision issued by the Constitutional Court of Romania (CCR) on Tuesday, referring to the abuse of office, this offense will be redefined, including by setting a value threshold, invoking that CCR decisions are mandatory and they are valid only for the future.

“Taking into account the issued that have been decided, the content of the offense of abuse of office will be reconfigured by establishing a value threshold” the Justice Ministry stated after expressing its arguments in favor of this statement.

Thus, Justice Ministry said that by the Decision no.405 since Tuesday, the Constitutional Court admitted the constitutional challenge against Art.246 of the Criminal Code since 1969 and Art.297 par. (1) of the Criminal Code, deciding that “they are constitutional to the extent in which the phrase ‘deficiently performs’ means ‘performs by the breach of the law’”.

“The Court essentially held, in the decision’s reasoning, that not performing or deficiently performing a deed must be analyzed not only by relating to the office duties expressly regulated by the primary legislation – laws and GEOs. This is because adopting secondary regulatory acts detailing the primary legislation is made only within the limits and according to the regulations that establish them. The Court held that the criminal offense is the most serious form of violating a social value, and the consequences of applying the criminal law are the most serious, so that the legislator is obliged to establish guarantees against arbitrariness by issuing clear and predictable regulations. (…) The Court has decided on the same legal provisions, from the point of view of the criticisms related to the lack of a value of the damage, or of the intensity of the damage caused by committing the deed” explained the Justice Ministry.

Justice Ministry also quoted the CCR press release, according to which by rejecting as inadmissible the constitutional challenge against Art.297 par. (1) of the Criminal Code, the Court held that “given the nature of the legal omission that was indicated, the Constitutional Court does not have the competence to complete this legislative flaw, since it would exceed its legal attributions, acting within the competence of the primary or delegated legislator, which is the only authority that has the obligation to set the value threshold or the intensity of the injury resulting from committing the deed, within the criminal provisions related to the offense of abuse of office”.

Justice Ministry also mentions that Constitutional Court’s decisions are published in the Official Journal, and they are mandatory since the publishing date, being valid only for the future.

 

Dragnea: Court says very clearly that a threshold must be set for the abuse of office

 

President of the Social Democrat Party (PSD), Liviu Dragnea, stated on Tuesday for Antena 3 that the decision issued by the Constitutional Court (CCR) related to the value threshold for the abuse of office requires the Parliament and the Government to introduce this thresholds Dragnea said that those who came out in the street to protest against GEO 13/2017 “their protests relied on lies”.

“CCR remained consistent, in my opinion. By today’s decision, it actually highlighted the first decision, which was misunderstood, willingly or not, to say so. All the discussion was made around that poor threshold for the abuse of office, and of course it was built to imply that the ordinance was issued for me. It was said in Romania, in Europe and in America. The Court says once again, and it says much more clearly and explicitly that the Parliament is obliged to set a value threshold and the intensity of the injury”, Liviu Dragnea stated.

He said that, although he is not upset with those who attended the protests against the Government in February, the demonstrations were caused by the deliberate distortion of the reality, in certain situations. “Their protests relied on lies. I’m not upset with those who came out in the street (…) It was a very clear example of manipulation” Dragnea also said.

Constitutional Court explains, in a press release, that the Parliament is in charge with setting a value threshold for the abuse of office, thus resuming the arguments from the Decision 405/2016, mentioning that regulating the value of the damage and the intensity of the injury resulted from committing the abuse of office is necessary to delimit the criminal liability from the other forms of legal liability.

“Regarding the criticisms made against the lack of a value threshold or of the intensity of the injury resulting from committing the deed, the Court has resumed the arguments of the Decision no.405 since June 15, 2016, by which it underlined that the legislator is in charge with setting the value of the damage and the intensity of the injury resulting from committing the deed of ‘abuse of office’, applying the principle ‘ultima ratio’, as it was developed by the doctrine and jurisprudence (including the one belonging to the Constitutional Court), these issues being necessary to delimit the criminal liability from the other forms of legal liability. At the same time, the Court also noted that, given the nature of the legal omission that was indicated, the Constitutional Court does not have the competence to complete this legislative flaw, since it would exceed its legal attributions, acting within the competence of the primary or delegated legislator, which is the only authority that has the obligation to set the value threshold or the intensity of the injury resulting from committing the deed, within the criminal provisions related to the offense of abuse of office” reads the press release sent by the Constitutional Court.

The constitutional judges also mentioned, as they did in the Decision 405/2016, that “the provisions of Art.246 of the Criminal Code since 1969 and of the Art.297 par. (1) of the Criminal Coode are constitutional to the extent in which the phrase ‘deficiently performs’ within these provisions means ‘performs by breach of the law’”.

Regarding the rejection of the constitutional challenge against Art.132 of the Law 78/2000, the Constitutional Court explained that the offense of abuse of office against the public interest provided by that law is “an offense that is assimilated to the corruption deeds, being a special form of the offense of abuse of office, according to the manner in which it was incriminated”.

On Tuesday, the Constitutional Court judged the constitutional challenge submitted by Liviu Dragnea’s ex-wife, Bombonica Prodana, against the definition of the abuse of office, the Government asking the Court to reject the request made by of the PSD leader’s former wife, who was sent to judgment for abuse of office, as inadmissible.

On March 28, the Supreme Court decided to notify CCR on the definition of the abuse of office, at the request submitted by Bombonica Prodana, Liviu Dragnea’s ex-wife.

On March 2, Bombonica Prodana filed a notification request for the Constitutional Court on the definition of abuse of office, on two issues. One issue was related to the ambiguity of the phrase “deficiently performs” if there is no minimum value threshold in order to define an offense as abuse of office.

The prosecutor of the National Anticorruption Directorate (DNA) opposed this request, saying that the judges of the Constitutional Court have previously ruled on similar cases.

Bombonica Prodana’s lawyers mentioned in the notification request for the Constitutional Court, that there must be set a minimum threshold of the damage, in order to accuse somebody of abuse of office, claiming that incriminating the deed without relating to a damage, as currently provided by the law, is unconstitutional.

The Constitutional Court’s decision has been taken by a majority vote.

 

 

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