IMPARȚIALITATE·INTEGRITATE·EFICIENȚĂ
June 8th, 2016
No. 776/VIII/3
Press Release
Regarding the request addressed by the Constitutional Court of Romania on the jurisprudence of the National Anticorruption Directorate and of the courts during 2006 - 2016 (relevant cases) concerning the offence of abuse of office, our institution has submitted an answer containing an analysis of the court decisions ruled in DNA files and also of the aspects regarding the practice of the Constitutional Court in terms of the exceptions raised in connection with the meaning of certain expressions defining the offence of abuse of office. Thus,
I. The exceptions of unconstitutionality have been repeatedly subjected in time to constitutional review regarding the legal meaning of the terms:
- harming legitimate rights or interests
- improper fulfilment of office duties
- undue benefit
And they were considered constitutional, according to the in force legislation.
In this respect, the Constitutional Court ruled on the one hand that the regulations regarding the judicial terms referred to do not constitute an issue related to constitutional jurisdiction. On the other hand, the Constitutional Court stated that "the predictability of the law relates to the content of the analysed text, to the field where it is applied, to whom it is addressed, and it assumes that the person in question could even request clarifying advice, even more so considering that it is about a qualified active subject, about a professional who must prove caution in exercising his/her profession".
The Constitutional Court constantly stated in its analysis concerning the constitutionality of the dispositions regarding the abuse of office that "the foreseeability and predictability of a legal text assume that the person to whom it is addressed is aware of his/her capacity and should behave accordingly. Therefore, there is undoubtedly just one meaning for the fact that the regulating provisions are applicable to all the people with control duties, according to the law, the legislator not being forced to precisely enumerate them in order to validate the constitutional nature".
Given that the law in itself has a general character, the Constitutional Court ruled that "the circumstances surrounding the perpetration of an unlawful deed and qualifying it in a certain offence is not under the jurisdiction of the Constitutional Court, being under the exclusive jurisdiction of the common judge who must interpret and apply the law".
Moreover, the area of definition of the terms "deed", "it does not fulfil", "improper fulfilment" and "undue benefit" does not belong to the Constitution, but to the legislator who has defined the above mentioned judicial terms in the content of the Criminal Code, as an organic law. It is also under the exclusive jurisdiction of the legislator to establish which deed committed by public officials and civil servants is a criminal offence and which is not, like in the case of office offences or offences related to office. The legislator has established the circumstances which can be part of their content and the circumstances in which an unlawful deed is committed and qualifying it in an offence or another is not under the jurisdiction of the Constitutional Court. Consequently, the judge is the one interpreting and applying the law.
II. In their turn, the judicial decisions regarding the offence of abuse of office for the period 2006 – 2016 present a constant national jurisprudence.
According to the European Court of Human Rights (ECHR), final court decisions are equal to a law, if there is a constant jurisprudence for a long period of time.
Consequently, the foreseeability of the law regulating the offence of abuse of office is ensured, due to the fact that a person can foresee to a reasonable extent the consequences of his/her conduct taking into account the activity and tasks he/she performs, a fact which results from the jurisprudence of the courts in this field.
A few examples portraying the jurisprudence of the High Court of Cassation and Justice in the cases indicted by the National Anticorruption Directorate:
The High Court of Cassation and Justice stated that it is abuse of office the fact that the defendants violated the legal provisions provided by the orders and instructions issued by the Minister of National Defence according to which it was forbidden to distribute, sell, buy subsidized official lodgings by people who had or have themselves, their husband, wife or dependent child a dwelling under their property. The improper deed consisted of the fact that the above mentioned people submitted reports, documents, false statements and of the fact that the people whose office tasks were to check if the conditions were met did not do it.
Analysing what it means to improperly fulfil an office duty, the Supreme Court ruled that this criminal activity means to conduct an operation differently than it had to be conducted or conducting an operation discretionarily.
The jurisprudence of the High Court of Cassation and Justice, the Trial Panel of 5 judges, noticed that the document used by the defendants to approve the Programme Project on the Land Operational Preparation for Defence during 1997-2000 without justifying the operational requirements of the forces of the national defence system and the document approving the transfer of the public domain land meet the constitutive elements of the offences of abuse of office with very serious consequences, whether the defendants had the necessary legal knowledge or not. The High Court of Cassation and Justice noticed that the defendants had the obligation to analyse the approved transactions, in relation to the necessity, opportunity and legality of the respective transactions.
Moreover, the jurisprudence showed that the documents used by the defendant to ask the students to buy the anatomy books she had written and published outside the university (the purchase being a requirement to be accepted to sit for the exam) represents an abusive deed. The jurisprudence showed also that this deed is an abusive one as the evaluation of the students’ knowledge was not carried out based on their training but based on the requirement she made as a result of her discretionary powers exerted upon the students, which is contrary to the duty obligations mentioned in the legal provisions related to the education and University Charta.
In this matter, the acts of the defendant, former prosecutor of case, who failed to order the legal measures for the restitution of the amounts of money received from the perpetrators, but spent them in the personal interest, meet the constitutive elements of the offences of abuse of office as the failure to comply with the legal obligation provided by the Criminal Procedure Code represents an abusive conduct, the defendant having the representation of willingly obtaining the sum of money for personal use.
The charge brought against the defendants who, as the members of the government, initiated and approved the project of a Government Decision finally ascertaining the transfer of the land from the public state domain to the private state domain, in order to obtain a patrimonial advantage, for the benefit of a commercial company, represents, within the meaning of the High Court of Cassation and Justice, abuse of office.
The jurisprudence of the Court of Appeals, including of the Military Court of Appeal in the cases sent to court by the National Anticorruption Directorate:
The use of the military staff having employment contracts concluded with the commander of a military unit, during the work-time and in his personal interest, meets the constitutive elements of the abuse of office, as the document ordering the carrying out of the respective work is contrary to the daily requirements within the military unit specifically providing the activities the military staff had to carry out. In the same respect and using the same arguments the Military Court of Appeal ruled against the defendant, commander of a military unit, who abusively used the military staff having employment contract and the civil staff in order to renovate certain buildings owned by the defendant, his parent and parents in law, during the period of time in which the workers were fictitiously listed in the time-sheets following the defendant’s order.
The charge brought against the defendants who, in the exercise of the public function of accountant, economic advisor, public officer at a prosecuting unit, intentionally violated their duty obligations provided in the general and special legal dispositions, job description and drew up payment orders for fictitious purchases that were entered into the accountancy as false expenses, by failing to comply with the budget execution, represents an abuse of office.
The customs worker was charged with abuse of office for violating the duty obligation to enter into the control register the activities carried out.
Statistically, the situation of the cases having also as subject the offence of abuse of office, in the reference period, if the following:
| Year |
No. of cases |
No. of defendants sent to trial |
No. of convicted defendants |
| TOTAL |
241 |
1471 |
569 |
| 2006 |
7 |
14 |
|
| 2007 |
5 |
17 |
|
| 2008 |
6 |
14 |
|
| 2009 |
12 |
21 |
|
| 2010 |
9 |
21 |
|
| 2011 |
20 |
62 |
|
| 2012 |
35 |
399 |
|
| 2013 |
38 |
274 |
164 |
| 2014 |
43 |
267 |
151 |
| 2015 |
46 |
313 |
213 |
| 2016 (up to 15th, 2016) |
20 |
69 |
41 |
(Observation: the number of the defendants sent to trial refers to all the defendants mentioned in the indictment in the respective case, including to those who were sent to trial for committing other offences than the offences of abuse of office. The number of the sentenced defendants strictly refers to those who received penalties for committing the offence of abuse of office, the available statistics starting from 2013).
THE INFORMATION AND PUBLIC RELATIONS OFFICE