IMPARȚIALITATE·INTEGRITATE·EFICIENȚĂ
December, 10th, 2013
No. 1145/VIII/3
Press release
Regarding the modification of the article defining the concept of ”servant” stipulated by the Criminal Code (both in the Criminal Code currently in force – art.147 and in the New Criminal Code entering in force in 2014 – art.175), by exempting certain precisely defined categories from the mentioned provisions, the Information and Public Relations Office is authorized to state as follows:
On the 10th of December, the Pleanry of the Chamber of Deputies adopted the following modification to the Criminal Code:
Art. 147 (prior to the modification): ”Public servant” and ”servant”
(1)“Public servant” means any person who temporarily or permanently exerts a duty of any nature, under any title, paid or not paid, in the service of one of the entities mentioned in art. 145.
(2) “Servant” means the person addressed in paragraph 1, as well as any employee who exerts a duty in the service of another legal person than established in paragraph 1.
Art. 147 (after the modification): the following paragraph is added:
„From the provisions of art.147 are exempted the President of Romania, the deputies and the senators as well as the persons having liberal professions regulated by special laws, and who are not financed by the state budget those being liable in criminal, civil or administrative matters according to the provisions of special laws regulating their activity and to the general law, by observing the provisions of this paragraph.”
The National Anticorruption Directorate considers that, through this modification, the mentioned categories – the President of Romania, the deputies and senators, as well as the persons having liberal professions regulated by special laws, and who are not financed by the state budget – will not be investigated and sanctioned for crimes perpetrated in performing their duties
For example, the President of Romania, the senators and the deputies, the lawyers, the notaries, the officers of the court will not be investigated and sanctioned for corruption offences and for offences assimilated to those of corruption such as taking bribe and abuse of office.
Also, the defendants belonging to the above mentioned categories sent to trial, could be acquitted, and those already imprisoned could be released.
We mention that 28 members of the parliament indicted by DNA are currently under trial or under the execution of punishment.
Through this modification the Romanian legislation would contradict the provisions of the international conventions on anticorruption ratified by Romania in 2002 and 2004 : The Criminal Law Convention on Corruption of the Council of Europe and the UN Convention against Corruption. Both conventions require to the state parties to define as broadly as possible the categories of public servants when incriminating corruption. The corruption among the members of the legislative is specifically regulated by these 2 conventions.
Due to the fact that these categories will not be subject to regulation Romania will also breach the international judicial cooperation standards and thus it will not be able to execute mutual legal assistance requests in criminal matters regarding these categories of persons, when applying the rule of dual criminality.
Moreover, through the same act, the Chamber of Deputies changed the regime of prescription (limitation) of criminal liability, by reducing the term of special prescription (limitation)
Regarding the modification of another article from the Criminal Code –namely the one on the conflict of interests, adopted by the Plenary of the Chamber of Deputies on the 10th of December 2013, the National Anticorruption Directorate considers the new regulation limits unjustifiably the applicability of the conflict of interests to certain categories of persons performing public duties. Thus, for example, the mayors are not anymore subjects of this legal provision and therefore, will be allowed to award contracts financed through public or European funds to their own relatives.
Currently, over 100 mayors and deputy mayors indicted by DNA are under trial for various crimes.
THE INFORMATION AND PUBLIC RELATIONS OFFICE