“The decisions of the CCR unequivocally establish in the device that the crime of abuse of office is constitutional even if it does not have a threshold”

“Nobody hid the truth. It is essential to discern the substance of the problem in the case of abuse of office. A real myth in the political space is that the abuse of office is of communist origin. Not true. Abuse at work has long been in our law, it was outlined very well in 1936, in the Penal Code of Charles II. Abuse at work is not communist-inspired. Pre-war Romania was not communist. The author of the codes from 1968 and 1936, professor Vintilă Dongoroz, is considered by penal experts to be the greatest expert in criminal law that Romanian legal science has produced. All European states, with the exception of Ireland, have regulated abuse of office. The rule in many states is no threshold for abuse of office. In Greece and Belgium abuse of office is not foreseen for government ministers. This draft law had to be adopted for years, based on the decisions of the CCR. The project was developed by the Ministry of Justice in 2020, it was completed in 2022. The project was discussed with the European Commission, including regarding abuse of office, without a threshold. The project was worked on within an inter-institutional working group in which the ÎCCJ, CSM, PÎCCJ, DNA, DIICOT participated”, said the Minister of Justice, Cătălin Predoiu, in the OFF/OnTheRecord show, on Aleph News.

The Minister of Justice explained in the show what, in his opinion, the decisions of the CCR say regarding the crime of abuse of office.

“We have 3 decisions of the CCR: decision 405 from 2016, decision 392 from 2017 and decision 650 from 2019. The decisions of the CCR must be separated into conclusions from the device and considerations. The disposition of CCR decisions must be followed to the letter. No decision of the Constitutional Court establishes in imperative terms that the offense of abuse of office is constitutional if it has a threshold. The decisions of the CCR reject the exceptions of unconstitutionality on the grounds that there is no threshold. The rulings of the CCR decisions 405, 392, 650, 515, 741 – all say that the exception is rejected. In other words, the crime of abuse of office is constitutional if it has no threshold. The verdict of the CCR was that the crime of abuse of office is constitutional even if it has no value threshold. That’s why we made the project without a threshold. In the considerations of decision 405, the CCR expresses its reservation that the Legislator’s intention was to legislate abuse of office without a threshold.
The Venice Commission’s report only examines the abuse of office segment dedicated to ministers. The Venice Commission says that in the case of some ministers we must consider a certain type of approach to the abuse of office. In more than 100 years of regulations, the offense of abuse of office has remained largely the same. If the legislator wanted to change his intention regarding this crime, he did it in this hundred years. The decisions of the CCR unequivocally establish in the device that the crime of abuse of office is constitutional even if it does not have a threshold. The theoretical discussions of the CCR related to the threshold were made in the considerations of the decisions. The second CCR decision speaks of a difficulty in applying the law in the absence of a threshold. The CCR raises a problem, but it does not at all affect the provision of the CCR decision which says that the crime is constitutional even without a threshold. In another decision, the CCR says that if the Legislator raises the issue of a threshold, it is his obligation to do so and the threshold must not be derisive. No decision of the CCR establishes in the instrument the obligation of a threshold for abuse of service. There are several CCR decisions that debate the issue, suggest that there should be a threshold, and say that the Legislature has the obligation to set it. The conclusion is that a draft law, developed by the MoJ in accordance with the decisions of the CCR, should have been without a threshold. The Coalition did the right thing when it approved this bill in the summer of 2022. A bill with a threshold that is not derisory or one without a threshold is also constitutional. The formula with threshold is constitutional if the threshold is not ridiculous, but the formula without threshold is also constitutional. The Constitutional Court was generous, it opened the range of options for the Legislator.”

Cătălin Predoiu admits that there have been difficulties in applying the law on abuse of office, but claims that even in the UN Convention on Combating Corruption, introduced in Romania by law 365/2004 – abuse of office is regulated without a threshold. In addition, the MCV reports recommended that Romania stop weakening anti-corruption legislation.

“There were undoubtedly difficulties in the application of the law, reality proves it, the figures from penitentiaries. There are 20 people convicted for abuse of office at this time in Romanian prisons, out of a prison population of 24,500 inmates. There are still 626 files on abuse of office in all the courts in the country, there are still 22 cases pending before the ÎCCJ. Later, another theory was raised: to alternate criminal liability with contraventional liability below the threshold. The contravention considered was quite severe: fines up to 200,000 lei and confiscation of the damage. It was a one-time change of approach, which was later abandoned and returned to the MJ project. MJ went on the road without a threshold, later the political option in the coalition changed. As a result of the reactions from Parliament and civil society, it returned to the initial concept. I thought about this compromise solution within the limits of the Constitution. In the end, exactly as the CCR says, the Legislator opted for the version of the Ministry of Justice. From my point of view, this option without a threshold is perfectly constitutional. Political responsibility for projects belongs to the Ministry of Justice. The ÎCCJ has this constitutional right to appeal, but I would be curious what was the proportion of opinions at the High Court. It is one thing to have a vote at the ÎCCJ of 230 to 15, another is to have a half-half plus one vote. This issue of abuse of office is only apparently controversial. In the UN Convention on combating corruption, in art.19, the crime of abuse of office is regulated without a threshold, reflected by law 365/2004. Let’s see if by regulating a threshold, we collide with other principles and mechanisms of legal logic. The MCV reports – they all recommended us not to weaken the legislation to fight corruption and organized crime”.