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Bucharest
May 18, 2021
JUSTICE

Tudorel Toader: Abuse of office is not distinctly incriminated in Germany’s Penal Code

Abuse of office is not distinctly incriminated in Germany’s Criminal Code, Justice Minister Tudorel Toader stated against the backdrop in which the German diplomatic mission to Bucharest recently published a posting on this issue on its website.

“Abuse of office is not distinctly incriminated in the German Criminal Code! Being a civil servant or European civil servant does however appear as an aggravating element in the case of several offences such as: fraud, fraud in the subsidies domain, abuse of trust, forgery, the forgery of technical recordings, the forgery of evidence, constraint, bodily harm caused while exercising a public office, obtaining statements through force, criminally probing an innocent person, enforcing a sanction against an innocent person, abuse of confidence in foreign affairs, breach of official secret, breach of tax secret, prompting subordinates to commit a crime, sexual abuse committed through abuse of office etc. The Romanian Criminal Code also incriminates concrete acts through which the civil servant abuses the position he/she holds, such as: abusive investigation, abusive conduct, forgery etc.,” the Justice Minister wrote on Facebook on Saturday.

The German embassy to Bucharest recently informed that in Germany the criminal prosecution of abuse of office is regulated through several paragraphs from fiscal laws, disciplinary law, and the Criminal Code.

“”In Germany, the prosecution of abuse of office is governed by a number of tax laws, disciplinary law and the Criminal Code. Penalties range from modest fines to disciplinary measures and even considerable sentences including deprivation of liberty,” reads a message posted on the Facebook page of the German Embassy in Bucharest.

On June 28, the United States Embassy in Bucharest reported that “major partner countries” are calling upon Romania to consider the “potential negative impact of criminal law amendments.”

The US voiced the position seconded by Belgium, Canada, Denmark, Switzerland, Finland, France, Germany, Luxembourg, the Netherlands, Norway, and Sweden.

“We, Romania’s international partners and allies, call on all parties involved in amending Romania’s criminal and criminal procedure codes to avoid changes that would weaken the rule of law or Romania’s ability to fight crime or corruption. Romania has shown considerable progress in combatting corruption and building effective rule of law. We encourage Romanians to continue on this path,” reads the press statement released by the US Embassy.

 

Prosecutor Alexandra Lancranjan: In Germany there are very many Criminal Code articles that regulate specific actions of civil servants without calling them abuse of office

 

DNA prosecutor Alexandra Lancranjan wrote on Saturday that in Germany the Criminal Code has very many articles that regulate specific actions of civil servants, without dubbing them abuse of office. She said that the Justice Minister should have read the German Criminal Code “all the way through” and should have argued “without distorting the juridical reality.” The DNA prosecutor’s statement comes against the backdrop in which the Justice Minister said that “abuse of office is not distinctly incriminated in the German Criminal Code.”

DNA prosecutor Alexandra Lancranjan posted on her Facebook account on Saturday a message in which she comments on the statements made by Justice Minister Tudorel Toader, regarding the incrimination of abuse of office in the German Criminal Code.

“For a man who considers himself a professional of law, it’s very important to have patience and read a law all the way through, to argue without distorting the juridical reality and when the arguments are not in favour of his theory to accept them without distorting the legal text or leaving things out. When you can no longer do this… For example, in Germany there are very many articles in the Criminal Code that regulate the specific actions of civil servants without dubbing them abuse of office,” Alexandra Lancranjan writes.

She refers to Article 266 of the German Criminal Code, which “regulates a breach of duty (non-loyalty in the German variant).”

“(1) The guilty act of the person who abuses the authority conferred upon them by law, by being invested by a public authority or through conventional mens, to dispose of the assets of another person or to act on behalf or in the interest of another person or to undertake obligations on the said person’s behalf or who infringes upon the obligation to protect the patrimonial assets and interests of another person, obligation established by law, public authority’s decision or through conventional means, and, as a result, causes harm to the said person, is punishable by at most five years in prison or fine,” the DNA prosecutor’s message reads.

According to her, “if a jurist were to read the German Criminal Code in full, he/she could effortlessly note that abuse of office is incriminated, both through articles of high specificity and through this article that covers the other possible hypotheses.”

 

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