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Depoliticisation or Decriminalisation? – A foreign lawyer looks at the Romanian offence of “Abuse of office”

Depoliticisation or Decriminalisation? - A foreign lawyer looks at the Romanian offence of “Abuse of office”

Romania has now been a member of the EU for ten years and, notwithstanding that its progress in preventing corruption is still being monitored by the EU, I was initially surprised to hear that proposed changes to the law about “abuse of office” – what is commonly referred to in English as “graft” – were becoming a political issue. The actual situation does not appear to be as straightforward as press reports may have suggested.

The crux of the issue is Art. 279 of the Criminal Code, relating to the offence of “abuse of office”. This may be translated as follows:

  1. A public functionary who, in the exercise of office does not discharge acts or who discharges them improperly and thereby causes damage or harm to the rights or legal interests of an individual or a legal person, shall be punished with 2 to 7 years’ imprisonment and deprivation of the right to hold public office.
  2. A public functionary who, in the exercise of office restricts the exercise of a right of any person or places such person in a situation of inferiority based on race, nationality, ethnic origin, language, religion, sex, sexual orientation, political affiliation, wealth, age, disability, non-contagious disease or HIV / AIDS, is subject to the same punishment.

Two points to notice from this are:

  • the wording “…discharges them improperly…” (in Romanian: “…îl îndeplineşte în mod defectuos…”); and
  • the minimum punishment of two years imprisonment and mandatory deprivation of the right to hold public office.

I understand that an explanation for Emergency Ordinance 13/2017 – notwithstanding that it was decided in an unusual manner at the end of January 2017 by the government – was that it was in fact needed to address a problem with the wording of Art. 279 following a ruling of the Constitutional Court. Readers will be aware that Emergency Ordinance 13/2017 was withdrawn and did not come into force.

What the Constitutional Court said…

Last summer, the Constitutional Court through its Judgement 405/2016 ruled that Art. 279 is partially unconstitutional. This ruling took effect as long ago as 8 July 2006. In particular, the Constitutional Court decided that Art. 279 is constitutional only insofar as the expression “…discharges them improperly…” is interpreted to mean “…discharges them in breach of the law…” (in Romanian: “…îndeplineşte prin încălcarea legii…”). In coming to this conclusion, it appears that the Constitutional Court considered (at paragraph 76 of its Judgement) that criminal offences can only be created by laws or government ordinances and that parliament cannot have intended all actions or inactions of public functionaries to have constituted abuse of office, regardless of the gravity of the offence.

“…the Court finds that at present, any act or omission of a person who falls within the qualities required to be subject to the criminal offence, regardless of the gravity of the offence, may fall within the scope of incrimination. This finding leads the Court to be reluctant to appreciate that this was the true intention of the legislature when it incriminated the act of abuse of office. This is particularly so since the Court notes that the legislature identified and regulated at the non-criminal legislative level the necessary instruments to eliminate the consequences of acts which, although falling within the criminal offense of abuse of office under the current rules, are not so serious as to carry criminal penalties.”

(in Romanian: “…Curtea constată că, în prezent, orice acţiune sau inacţiune a persoanei care se circumscrie calităţilor cerute subiectului activ, indiferent de gravitatea faptei săvârşite, poate intra în sfera normei de incriminare. Această constatare determină Curtea să aibă rezerve în a aprecia că aceasta a fost voinţa legiuitorului când a incriminat fapta de abuz în serviciu. Aceasta cu atât mai mult cu cât Curtea constată că legiuitorul a identificat şi reglementat la nivel legislativ extrapenal pârghiile necesare înlăturării consecinţelor unor fapte care, deşi, potrivit reglementării actuale se pot circumscrie săvârşirii infracţiunii de abuz în serviciu, nu prezintă gradul de intensitate necesar aplicării unei pedepse penale.”)

So, there has certainly been a problem with the formulation of the offence of “abuse of office” since the summer of 2016.

What Government Emergency Ordinance 13/2017 would have changed…

How far would the new government’s Emergency Ordinance 13/2017 have addressed this issue had it come into force? Emergency Ordinance 13/2017 would have changed Art. 279(1) to read as follows:

A public functionary who, in the exercise of office, willingly commits an act in violation of an express provisions of any law, ordinance or emergency ordinance of the Government or does not fulfil an act required by the express provisions of any law, ordinance or emergency ordinance of the Government and thereby causes material damage exceeding 200,000 lei or damage which can be qualified as serious, certain and effective to the rights or legal interests of natural or legal persons, as regulated and guaranteed by the legislation in force, shall be punished with 6 months’ to 3 years’ imprisonment or with a fine.

Also, a new Art. 279(3) was to have been added, confirming that neither Arts. 279(1) nor 279(2) were to apply to the issue, approval or adoption of normative acts (a very wide term encompassing any kind of official regulation).

Leaving aside any criticisms of the manner in which Emergency Ordinance 13/2017 was enacted and the absence of any period of public consultation on it, it can be noted that Emergency Ordinance 13/2017:

  • appears to have addressed the comments of the Constitutional Court in Judgement 405/2016 by stating that the relevant act or inaction had to breach a law, government ordinance or government emergency ordinance;
  • applied a further limitation based on the value of the damage caused, as being either more than 200,000 Lei (approximately €44,000) or causing serious damage to the legal rights of individual or legal persons;
  • reduced the penalties for the offence by reducing terms of imprisonment (the maximum term being cut to less than half of the previous maximum term) and allowing for a fine, rather than imprisonment;
  • removed the mandatory disqualification from holding public office for persons convicted of the offence; and
  • removed normative acts from the scope of the offence – a rather startling omission, given the extent to which the actions of public authorities are conducted through normative acts and particularly since this exclusion was also intended to apply to acts motivated by discrimination which is unlawful in other contexts.

The periods for commencing a prosecution and for securing a conviction, from the date of the alleged offence, were also to be reduced.

When is the abuse of a public office (as an average person would understand it) not a criminal offence?

Notwithstanding the cancellation of Emergency Ordinance 13/2017, it appears that the earlier judgement of the Constitutional Court is having effects. A recent example of this can be seen in the appeal by the former General Secretary of Hunedoara County Council to the Court of Appeal in Alba Iulia against conviction for abuse of office (4754/97/2016). According to a press report, this case involved the selection process for a public official and the Court of Appeal, citing the Constitutional Court’s Judgement 405/2016, decided that since the duties which had not been properly discharged did not relate to matters covered in a law, government ordinance or emergency government ordinance (they were covered by a government decision), no offence of abuse of office had been committed.

Comment

It is understood that the government is to introduce legislation in parliament to make changes to the Criminal Code. It can only be in Romania’s interests for such changes to receive cross-party support and not become a political issue. However, what changes should be made to the Criminal Code?

Too trivial a matter to worry about?

Coming from a country in which there has recently been a press report of a conviction for theft of a person who picked up and kept a £20 note found on the floor of a shop, the approaches of the Constitutional Court and of the government to the offence of abuse of office both appear surprising. Whatever may be thought of the decision in the UK to prosecute the theft of a £20 note described above, it is reassuring to note that a disproportionate penalty was not imposed (in this case, a conditional discharge and an order for payment of £175 in compensation and costs).

By contrast, an offence of abuse of office in Romania which caused loss of only £20 would have attracted a minimum sentence of two years’ imprisonment, as Art. 279 stands. In these circumstances, it is perhaps understandable why there may be moves to limit the scope of the offence of abuse of office.

The decriminalisation of what may be argued to be trivial acts however appears to me to be the wrong approach to this problem.

Placing form above substance

In the case of the Constitutional Court’s judgement, it appears that anything which does not involve a breach of a law or of a government ordinance is to be regarded as too trivial to merit being classified as a crime (and attracting the minimum two-year imprisonment). This approach may be criticised as placing form before substance, particularly given the amount of regulation in Romania which is not contained in laws or government ordinances. I doubt that cases such as the Court of Appeal decision mentioned above will give observers much faith that public corruption is being tackled effectively.

Linking criminality to value of the (actual) loss

On the other hand, the approach in Emergency Ordinance 13/2017 of decriminalising acts causing damage of 200,000 Lei or less appears to be equally unwise, quite apart from any question of whether or not that amount is a “trivial” sum. If the same logic and approach were applied to, for example, simple cases of theft, it is hard to imagine that it would be taken seriously. One can also wonder whether cases involving damage of 200,000 Lei or less might be prosecuted as attempts to commit abuse of office involving a loss of more than 200,000 Lei…

Taking the politics out of the fight against corruption

It is quite easy to see how a minimum punishment of two years’ imprisonment may be seen as disproportionate for “trivial” offences of abuse of office, and how some people might argue that the prosecution of such “trivial” offences is motivated by political reasons.

I hope that rather than decriminalising “trivial” cases of abuse of office, parliament will instead depoliticise them. I believe that this could be done by abolishing the minimum penalty of two years’ imprisonment and allowing the courts to impose proportional penalties for less serious offences. The UK’s Bribery Act 2010 sets no minimum penalty for individuals and, for example, a conviction of attempting to bribe a driving examiner was punished by a suspended sentence of two months’ imprisonment.

Romania needs to demonstrate that the problem of corruption is taken seriously and to ensure that laws are in place which enable improper conduct to be proportionately penalised. A system based on decriminalising petty crime – whether based on the value of the damage caused or on the precise legal mechanism which has been used to enact the requirements which have been breached – is unlikely to achieve this. The prevention of graft by public functionaries really should not be a political issue and it is to be hoped that parliament will amend the law in a way which meets the approval of most Romanians and of interested foreign observers.