Constitutional Court partially upholds the unconstitutionality of provisions on abuse of office. The offence remains in place
The Constitutional Court (CCR) on Wednesday partially upheld the complaints regarding the unconstitutionality of the provisions on abuse of office, said the CCR interim president Valer Dorneanu, the judges recommending that the phrase ‘defective’ is replaced by ‘breaking the law’’.
The phrase ‘defective’ will be replaced by ‘breaking the law’ in Article 297 of the Criminal Code for which the objection of unconstitutionality has been filed, digi24.ro reports.
Under Article 297 of the Criminal Code, “the act of a public employee who, in the line of duty, does not meet the act or fulfils it improperly and thereby causes damage or harm to the rights or interests of an individual or a legal person is punished with imprisonment for 2 to 7 years and deprivation of the right to hold a public office.”
The Constitutional Court decision is final and binding.
“The long-awaited decision was taken unanimously. It is a partial decision. The complaint is upheld and the term ‘defective’ in art. 246 and 297 of the Criminal Code is to be replaced by ‘breaking the law’. So, (the punishment comes – our note) not for doing the duties incorrectly, but for violating the law. All the other complaints were dismissed, including the ones on 13 index 2 of Law 78/2000,” Constitutional Court judge Baler Dorneanu said on Wednesday.
Asked if it’s fair to say that the abuse was decriminalized, Dorneanu replied: “No, God forbid. In all the discussions it was not raised the issue of decriminalization.”
“Our decision will apply in the future, as of its publication. The abuse of office remains, but remains defined by this remark, ‘breaking the law’,” added Valer Dorneanu.
Pending the publication of reasoning, the arguments of CCR judges are difficult to predict, but one thing is almost certain: a redefinition of the offense of abuse of office in the Criminal Code can be done only in the autumn session of parliament.
According to digi24.ro, under the Constitution, the provisions declared contrary to the constitution are suspended by law until the publishing of the CCR decision by the Official Gazette. If, within 45 days from the publication of CCR decision, the Parliament or the Government, as appropriate, fail to agree on the provisions declared as unconstitutional by the constitution, the provisions ‘shall lapse legally’.
The MPs will go on holiday later this month and will return to work in September. It is less likely that the amendment on redefining is made in the next two weeks, especially since senators and deputies, some of them having their own files and allegations of abuse of office, have no interest to hurry. A legal vacuum for months would be a breath of fresh air for many politicians and officials close to them, the quoted source says.
The decision on Wednesday comes after the CCR judges discussed on May 24 about the issue of abuse of office, the verdict was postponed.
Parliament is not compelled to amend the articles, judge says
The Constitutional Court’s decision on abuse of office is one of interpretation for judges and prosecutors, the Parliament is not compelled to amend those articles, said one of the CCR judges on Wednesday.
“It is a matter of interpretation. This means that Parliament is not compelled to amend the articles in question, but is an interpretation for judges and prosecutors,” the judge explained.
Social-democrat senator Ioan Chelaru, member of the law committee, said that the CCR decision is a wise one, as the CCR judges did not go to extremes, adding that the decision opens the way for an urgent redefining of abuse of office.
“The Court has given a wise decision, it’s not to an extreme or another. From the judicial point of view, there was no question to decriminalize the offence, as quoted by the media, as the DNA chief prosecutor had warned the public opinion,” Ioan Chelaru said.