Supreme Court says changes to abuse of office in Criminal Code exceed issues analysed by constitutional judges

The proposed form for amending the abuse of office exceeds the aspects analysed by the Constitutional Court of Romania, which did not question the limitation of the scope of the crime, according to an analysis carried out at the level of the Attorney General's Office into the impact of the recent amendments brought to the Criminal Code by Romania's lawmakers.

The Attorney General's Office argues that the amendment to the offence could result in criminal liability being dropped for more than 2,000 persons brought to court in 2014-2017 who have incurred losses in excess of 4 billion lei.

According to a statement from the Attorney General's Office, an analysis into the impact of the legislative amendments to the Criminal Code regarding to abuse of office and neglect of duty finds that the state's obligation to ensure, through its criminal policy, an effective protection of the citizens against acts of unlawful nature that affect his / her rights or legitimate interests has been violated.

"With regard to the alleged criminality of abuse of office, the analysis highlighted that the final text restricts the scope of the offence and violates the provisions of the United Nations Convention Against Corruption adopted in New York on October 31, 2003. At the same time, the form proposed to amend Article 297 of the Criminal Code (abuse of office) exceeds the aspects analysed by the Constitutional Court, which did not question the limitation of the scope of the offence. As a consequence of the restriction of the definition of the active office abuser, a category a large number of civil servants will be exempted from criminal liability in circumstances where they would violate their explicitly regulated powers by law, with the immediate consequence being the closure of ongoing court cases either at the stage of criminal prosecution or being considered for acquittal in cases where referral to the court has been ordered, " reads the statement.

The court also mentions that curtailing the sentences will work on reducing the statutes of limitation for criminal liability, which will lead to the termination of criminal proceedings in many cases.

The Attorney General's Office also notes that restricting the definition of beneficiaries of ill-gotten gains to spouse, siblings, and immediate in-laws legalises all other abuse of office infractions committed by the civil servant in order to obtain undue gains for immediate relatives or other people.

"In order to highlight the impact of the modifications to the text, we mention that, between 2014 and 2017, at the level of the Public Prosecution Service, 2,099 people were brought to court, with the damage caused by the acts committed by them standing at 4,017,356,809 lei."

Regarding the repealing the criminal offence of neglect of duty, the Public Prosecution Service says that the analysis revealed that it is not justified by the provisions of the Constitutional Court's ruling, as that would leave outside the scope of criminalisation of unlawful deeds impinging on the right or legitimate interests of an individual or legal person.

"In 2014-2017, 233 people were brought to justice by the Public Prosecution Service for the neglect of duty for a damage incurred by their criminal activity amounting to 5,381,726 lei."

They also say that an analysis of the criminal codes in several other EU member states reveals that many of these contain criminalistaion of abuse of office and neglect of duty.

"The states that do not have such generic criminalisation in their criminal laws have instead a plurality of other crimes that in the Romanian criminal law would qualify as abuse of office," the concludes the Supreme Court's Prosecution Office. AGERPRES (RO - author: Mihai Stoica, editor: Georgiana Tanasescu; EN - author: Corneliu-Aurelian Colceriu, editor: Adina Panaitescu)