The Romanian Constitutional Court (CCR) ruled on June 15 that abuse of office will remain a criminal offence, but narrowed the definition to where suspects have broken the law rather than simply performing their job badly.

The ruling averts a potential setback for Romania’s fight against corruption. The outcome was critical for the Romanian judicial system, considering that almost half of the cases investigated by the anti-corruption body, the National Anticorruption Directorate (DNA), include offences of abuse of office.

Abuse of office will still be considered a criminal offence as long as the phrase “implements faultily” from article 297 of the Criminal Code means “implements by breaking the law”, according to the court’s ruling. Currently, the article defines abuse of office as “the action of the public servant who, while exercising their professional responsibilities, fails to implement an act or implements it faultily, thus causing damage or violating the legitimate rights or interests of a natural or a legal entity.” The offence is punishable by two to seven years in prison and those found guilty are banned from holding public office.

Judges claim that the “implements faultily” phrase left space for interpretation and abuse. The clarification is expected to prevent possible abuses by prosecutors and judges.

The decision was adopted unanimously and will apply from now on. However, it is not clear how the CCR’s ruling will affect abuse of office cases which are being investigated or in which sentences have been already given. The current cases will continue their course, CCR judge Petre Lazaroiu claimed.

“Nothing has happened, [the ruling] will affect nothing. The trials will continue and the judges will decide if the action involved breaking the law, or not,” Lazaroiu told reporters after the CCR meeting.

However, it is expected that people who are currently being investigated or have been sentenced for this offence will invoke the unconstitutionality of the article, and try to avoid a prison sentence.

High-level abuse

An large number of Romanian high officials are currently under investigation, have been indicted or sentenced for abuse of office.  

Former Transport Minister Relu Fenechiu and former Justice Minister Tudor Chiuariu have both been sentenced. Former Interior Minister Gabriel Oprea, former Tourism Minister Elena Udrea, former Bucharest district 4 mayor Cristian Popescu Piedone and former Constanta mayor Radu Mazare have all been indicted for abuse of office, and former chief prosecutor Tiberiu Nitu is under investigation.

Recently, DNA head Laura Codruta Kovesi has been lobbying in favour of the current legislation, and calling for abuse of office to remain a criminal offence.

Up to 42% of the cases investigated by the DNA concern abuse of office, Kovesi said in early June in an interview with Digi24 TV channel. Only last year, the damage stemming from this offence was €620mn, she claimed. If the Constitutional Court rules that the offense is not constitutional, Romania will lose this money, she warned. In addition, public officials will show no responsibility as there will be no offence to charge them with, “they will be able to do whatever they want, to conclude any contracts,” she said.

“The people who were sentenced to prison for abuse of office will get out of jail, will go home as nothing has ever happened. If the damage has not been recovered, it will no longer be recovered,” Kovesi added. “In the future, we should not expect public officials to be responsible and we should have no expectations. They will interpret the law the way they want. There will be very serious consequences.”

According to prosecutors, around 1,500 people have been sent to trial for abuse of office in the last ten years. The highest number of abuse of office cases is in the public administration, Kovesi told News.ro in an interview. Only last year, more than 100 mayors and deputy mayors and more than a third of the heads of the county councils were indicted.

Alone in Europe

The case was initiated with the CCR by Alina Bica, a former head of the anti-organised crime body DIICOT and a former member of the property restitution office ANRP, who is also being investigated for abuse of office and bribe taking.

Bica claimed that abuse of office is too vaguely defined in the Penal Code. The former head of Braila county council, Gheorghe Bunea Stancu, sentenced to three years in prison, and the former head of Constanta county council, Nicusor Constantinescu, tried for abuse of office, have also complained to the CCR over the vagueness of the definition, claiming that it is not constitutional.

Former Tourism Minister Elena Udrea has also said that the offence should be removed from the Criminal Code, as it is not a corrupt act.

“No other country in the EU considers abuse of office a criminal offence, not to mention it is not a corrupt act. So, if someone makes a mistake and causes damage, he or she is administratively sanctioned and the damage is recovered. I think this should be removed from the Criminal Code,” Udrea said in January, according to Hotnews.ro.

Romania’s anti-graft battle

However, despite the opposition from high officials, the decriminalisation of abuse of public office would have constituted a big step behind in Romania’s fight against corruption.

In recent years, Romania has taken major steps in fighting high level corruption. The DNA reported a record year in 2015. It indicted over 1,250 people for high and medium-level corruption crimes, and 970 defendants received final convictions. Five times more ministers - including one prime minister, Victor Ponta - and members of parliament were sent to trial in 2015 compared to 2013.

Romania and its neighbour Bulgaria are the only EU countries monitored under the so-called Cooperation and Verification Mechanism (CVM), which measures progress in combatting corruption and - in Bulgaria’s case - organised crime. However, European Commission officials are now considering scrapping CVM monitoring for Romania.

Despite being praised by EU institutions, the intense activity of the DNA has sparked criticism at local level. Many politicians, who have become targets of investigations or felt threatened by the DNA’s drive, have started to raise questions on the methods used by the prosecutors in their investigations. Former President Traian Basescu, who appointed Kovesi, told local media in January that the DNA was infringing the human rights of those it arrested.

Basescu also criticized Kovesi for her statements on the decriminalisation of the abuse of office.

“For me, Mrs Kovesi’s statement is shocking. I have never seen another high official lying so easily. Mrs Kovesi is speaking about the decriminalisation of the abuse of office, but nobody has asked for this […] It is a big lie which the lady is saying publicly,” Basescu said in a TV show, according to Mediafax news agency.

According to Basescu, the Romanian Criminal Code includes an incorrect definition of the offence, which allows “abuse from prosecutors and judges”.

The decriminalisation of the abuse of office offence would have represented another obstacle in the DNA’s activity after the institution has been prevented from using evidence obtained from Romania’s intelligence services (SRI) under an earlier Constitutional Court decision.

The CCR said on March 9 that there are no legal grounds empowering organisations other than specialised criminal investigation bodies to conduct investigations in criminal cases. This had been allowed under a specification in the Criminal Code, but the court concluded this was in breach of the constitution.