A decision of Romania’s Constitutional Court (CCR) related to the abuse of office offense prevents the recovery of damages worth EUR 188 million in cases the National Anticorruption Directorate (DNA) investigated this year, says DNA chief prosecutor Laura Codruţa Kovesi.

The Constitutional Court decided in June 2016 that abuse of office was too widely defined in the Criminal Code and suggested that the definition be changed. Before this decision, abuse of office was defined as “the deed of a public servant who, when undertaking his work duties, does not fulfill an act or fulfills it in a deficient manner” and causes damages. The Court recommended that the phrasing “in a deficient manner” be replaced with “by breaking the law,” Mediafax reported.

When motivating its decision, the Court explained that “not fulfilling or fulfilling in a deficient manner an act needs to be analyzed only in relation to work duties specifically regulated by the primary legislation,” according to Cursdeguvernmare.ro. The primary legislation refers to laws issued by the Parliament and to ordinances issued by the Government.

The chief DNA prosecutor said 245 cases were closed this year, and the associated damages amounting to EUR 188 million cannot be recovered as the facts can no longer be investigated. Last year, the DNA seized EUR 263 million in abuse of office cases, she added.

Kovesi said that the abuse of office offense is “unfortunately, a repetitive one, which is generalized when we are talking about public acquisitions, and which unfortunately the DNA will not be able to investigate in the future because of this CCR decision.”

The chief DNA prosecutor argued that even bigger consequences can arise if further changes to the abuse of office offense are made. “If only a CCR decision can lead to these consequences, what can happen if we change the public servant definition, if we set a threshold for abuse of office, or if we make other changes in the way abuse of office or bribery are defined?,” Kovesi said.

The abuse of office offense has been a hot topic in Romania throughout the year. It started at the beginning of 2017, when the repealed emergency ordinance OUG 13 proposed a RON 200,000 limit under which abuse of office would not be a criminal offense. Setting such a limit means that public officials who abuse the powers given by their positions but don’t cause damages over this limit would not face criminal charges anymore. The ordinance was repealed after massive street protests but the Parliament took on the task of changing the Criminal Code.

In June, the Constitutional Court said the Parliament should set such a limit. The Constitutional Court’s ruling was related to a case in which PSD leader Liviu Dragnea’s former wife, Bombonica Prodana, is charged with abuse of office.

In November, the Parliament was analyzing two options for abuse of office, namely setting a limit under which abuse of office is not considered a criminal offense or redefining it all together. The second option may link abuse of office to a direct benefit for the public official.

Liviu Dragnea, the leader of the ruling Social Democrat Party (PSD), is currently investigated by the DNA for abuse of office, among others.

Another hot topic is related to the changes the Parliament plans to make to the justice laws. Speaking of these changes, Kovesi argued these will have a serious impact on the independence of the judiciary.

“There is this attempt to increase the authority of the justice minister over the prosecutors, which will seriously impact the prosecutors' independence, and not only, indirectly the independence of judges as well,” she said, quoted by Mediafax.

However, she said that “regardless of what happens in the public space, regardless of how much pressure was or will be, we at DNA will continue to do our job.”

At the beginning of November, the ruling coalition PSD-ALDE submitted a project to amend the justice laws. According to the project, Romania's president will remain part of the procedure to appoint chief prosecutors, but he will be able to refuse only one appointment. The establishment of a prosecutor’s office to investigate magistrates was also proposed.

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editor@romania-insider.com