“I would be interested to know how many people were acquitted for abuse of office. If we have a very large number of people acquitted, over 15-20%, it means that there are problems with the typical elements of the crime”

“I was deputy of the DNA for 5 years and twice interim chief prosecutor of the DNA. I worked in the prosecutor’s office for over 21 years. Prosecutors are not legally allowed to provide data from the files, the prosecution is non-public. There were people sent to court for providing data from criminal investigation files. Communication is regulated by a guide approved by the CSM. Not every provision of information is a crime. Communication with the Public Ministry can only be done in certain situations. The prosecutor cannot discuss concrete data related to the criminal investigation file. When I revoked C. Man and C. Ardelean, there was another scandal regarding a recording with not quite right aspects from a meeting of ST Oradea. When you work in DNA, a specialized department, you must have much higher demands on conduct and compliance with legal norms. I do not regret that I revoked the two prosecutors from the DNA. They never provided information that they would not be involved in those discussions. No, it is not right, the magistrate has the obligation to reserve. Discussions that exceed minimum norms of professional conduct must be sanctioned. If there are such behaviors, there are institutions that should sanction such slips: Judicial Inspection, CSM. I have often been the target of campaigns, but not on a large scale,” Nistor Călin, former DNA chief prosecutor, current lawyer, said in the OFF/OnTheRecord show about the case of wiretapping that appeared in the press in which former DNA prosecutors are also involved. revoked.

The former chief prosecutor of the DNA also spoke on the show about the problem of abuse of office – from the perspective of the prosecutor as well as the lawyer:

“Until 2016, this crime did not involve constitutionality problems. In any legal norm there is a margin of interpretation. He exaggerated with the prosecutions for the crime of abuse of office. All public prosecutor’s offices handle abuse of office files. At a prosecutor’s office, a police officer who went by car to take some medicine to the sick child’s home was sued for abuse of office. When I exaggerate with the interpretation, at some point someone will intervene to put you in certain constitutional or legal coordinates. The CCR speaks of the need to impose a threshold for a better assessment of the meeting of the constitutive elements of the crime. It wouldn’t hurt to establish a threshold because we wouldn’t have situations like this again. And if a threshold was introduced, the prosecutors would go for the other option anyway: harming a person’s legal interests. The court says that the intensity of the injury must also be assessed somehow. So the threshold alone doesn’t actually solve the problem. CCR considerations are binding for everyone. They have been mandatory since 1995. In the considerations, the CCR court mentions a certain conduct that the respective law imposes, even if the exception is rejected. In order for the Court to review its decisions, something unprecedented must happen. I don’t know that special events happened. I would be interested in how many people were acquitted of the crime of abuse of office. If we have a very large number of people acquitted for abuse of office, more than 15-20%, it means that there are problems with the typical elements of the crime. It means that the legislator must somehow regulate this situation. It is very good that the ÎCCJ referred the issue of abuse of office to the CCR. There are many cases that, regardless of the decision of the CCR, were still acquitted. CCR saved us to a certain extent. There was a situation with a mayor acquitted on merits, convicted on appeal. Some were convicted for such acts, others went to labor law litigation. The CCR says in decision 405 that criminal liability is ultima ratio”.

In the OFF/OnTheRecord show, Nistor Călin also pointed out the problems related to the amendment of the CPP – namely the possibility that interceptions from national security warrants become evidence in corruption cases, but also the access of lawyers to classified information, even if they have an ORNISS certificate:

“CCR said that corruption crimes are not crimes that threaten national security. If corruption threatens national security, that state is failed, like Haiti. It would be unfair to say that corruption is a big problem in Romania. Corruption must be fought, but it is not of the scope to affect national security. I saw other professionals who said a few months ago that there is widespread corruption in Romania. Yes, heads of institutions. Corruption must be fought, without management, based on solidly proven acts of corruption. DNA must be sued for the idea for which it was created: to fight corruption at medium and high level. (…) I worked with such cases, until the CCR allowed it. Classified information passed through my hand at DNA. We got access to MSN if one of the intelligence services told us. Law 182/2002 is based on the need to know principle. At DNA I had ORNISS, as a lawyer I don’t have ORNISS. And if I have ORNISS as a lawyer, and if the issuer does not give me access to the classified materials, what do I do? Under the current legislative framework, access to classified material is given to you by the issuer. If someone carefully read the CCR decision, they would have noticed that it was said that the judge charged with judging the case should decide on the declassification, not the issuer of the act. Under the conditions of access for magistrates, access should also be granted for lawyers. Both magistrates and lawyers are participants in the criminal process. You cannot create situations of inequality when we discuss the principle of equality of arms. It is a problem in the CPP amendment bill. The change doesn’t solve anything. It does not respond to the requirements imposed by the CCR through decisions. (…) I did not request an ORNISS certificate. I didn’t go into any MSN files. Requesting a national security warrant does not necessarily mean that it will translate into a criminal case. On an MSN there can be one person, there can be several people. There is no limited number of people. A prosecutor gave access to classified materials to some lawyers, the Judicial Inspection was notified, the disciplinary action was rejected by the section for prosecutors of the CSM. By decision 49/2019, the ÎCCJ assessed that the prosecutor acted correctly by giving the lawyers access to the classified materials, although the laws require another way of access. In order to avoid discussions, we could proceed in a mirror manner with lawyers as with magistrates. Many times national security is a concept that is far above individual interests”.

The former head of the DNA says that the ÎCCJ’s decision on prescription generates a discriminatory situation in the files. Regarding the DNA, Nistor Călin argued in the OFF/OnTheRecord show on Aleph News that the main anti-corruption institution must return to its purpose: fighting corruption at medium and high levels:

“I don’t know the incidence of the last decision on prescription in the DNA. The decisions of the CCR on prescription are quite clear, as is the decision of the ÎCCJ. The decision of the High Court generates a discriminatory situation. It is incorrect that a defendant whose lawyer initially raised the issue of the statute of limitations cannot benefit from the subsequent provisions (…) At the time I left the DNA, I was leading a department. I was the case prosecutor in two cases sent to court for corruption crimes during the pandemic. In the case of Adrian Ionel – UNIFARM, there is a conviction on the merits. The DNA must do serious investigations, based on solid evidence. The purpose of the DNA is to fight corruption at medium and high level. We must trust the new chief prosecutors, they are at the beginning of the journey”.