The Association of Prosecutors “Initiative for Justice” protests against the attempts of politicians to encourage a particularly dangerous criminal phenomenon by amending the article of the Criminal Code, which regulates the abuse of official position, in terms of establishing a high price threshold for damages, as well as other additional conditions.

In a press release sent on Monday, the prosecutors’ association says that it “presents evidence of hypocrisy and bad faith” by setting a threshold of 250,000 lei or even “only” 9,000 lei for violations of the law committed by civil servants in the course of their official duties . official duties, which are punishable under the criminal law, “at the same time as seeking by any means the reduction of seniority pensions classified as “special” or “unjustified”, paid for decades according to the law and granted in view of inconsistencies, prohibitions and occupational risks that the beneficiaries had to bear during the activity.

What the prosecutors’ association says:

• “The amount of 9,000 lei is higher than the monthly salary rights of most citizens, including many judges and permanent prosecutors at the rank of court or prosecutor’s office next to the court. Setting such a threshold means “giving free rein” to government officials if the damages for each material act are lower than this amount.
• For those who are not familiar with criminal legislation, we note that in accordance with the provisions of Art. 35 par. 1 of the Criminal Code and with the Decision of the Constitutional Court no. 368/2017, a crime is considered “continuous” when a person commits it at different time intervals, but carrying out the same decision, actions or omissions, which constitute, each separately, the content of the same crime. For this reason, even in the scandalous situation where a public servant with an 8-hour work schedule and a 20-minute lunch break will seek to break the law as often as possible and succeed in committing during the actual work schedule, every 5 minutes, a violation of the law that would cause damages of 8,999.99 lei, he could not be held liable for the total damages of 827,999.08 lei, since none of his actions contained the crime of abuse of office. Since most of the intentional harm is caused by the author and/or other persons receiving an undue benefit, it can be assumed that some persons will be unjustly enriched.
• For such actions, the civil servant may be subject to disciplinary and civil liability as a result of steps initiated by the head of the institution – who is usually involved in resorting to such methods of operation – but the prospect of damages from the official would be illusory. From another point of view, even assuming that the institution, through its manager and lawyers, would act promptly and procedurally correctly when it comes to the contracts, any steps to judicially terminate them would lead to new costs, with no guarantee that the process could ever earn institution.
• Furthermore, by adding additional conditions for an act to constitute an abuse of office, namely that the official acted “knowingly” and that, as an alternative to causing harm above the threshold, the act causes “serious” harm to rights or legitimate interests of human rights – it tends to make it difficult to prove the act and even to decriminalize it. Thus, on the one hand, prosecutors will have to dismantle defenses such as “I did not know what I was doing” (“I did not realize the consequences of my act, the extent of the harm caused or the severity of the harm caused by it”, the difficulties are often insurmountable, because it is necessary to demonstrate, beyond any reasonable doubt and in detail, what calculations someone has made in his mind. This proposal/intention to change has no source in the decisions of the Constitutional Court and is unjustified, the provisions of the Criminal Code regarding the intention are sufficient. On the other hand, by leaving it to the discretion of the judiciary to interpret whether the harm caused is “serious”, it leaves open the question of whether the act constitutes a crime which is inadmissible under the principle of the legality of incrimination, and the legal text certainly risks this result to be sanctioned again by the Constitutional Court. In view of the legal reasoning, it can be predicted that the decision of the Constitutional Court can only be to declare unconstitutional the entire phrase referring to injury, not just the word “serious”.
• For these reasons, it is clear that the aim is to promote a criminal phenomenon that can damage the public budget, bringing this phenomenon to incredible proportions by decriminalizing in various ways the actions of the public officials involved, and that the entire current campaign of citizens against each other, giving the impression that some of which are unduly privileged in terms of income generated from work is actually a diversion. The real beneficiaries, if the proposed changes go into effect, will be public officials who break the law and those who benefit from breaking the law.
• If, after all, the legislator considers it necessary to regulate the value threshold of damage and the degree of damage to a right or legitimate interest as a result of the commission of an act within the framework of the criminal norms relating to the crime of abuse of official position, when establishing the threshold, it must be taken into account that it cannot induce the commission of a crime, and regarding the intensity of damage, vague words or expressions cannot be used, but it must be related to the meaning of moral damage, which in each case is quantified by the damage to the right or legal interest of a non-property nature.
• In order to satisfy the social need to prevent violations of the law by public officials in the performance of their duties, this threshold and the amount that would quantify the minimum intensity of damage to a right or legitimate interest should be modest so that the official public is not tempted to violate the law and perceive as such by the majority of citizens.
• The amount of 9,000 lei, which exceeds the salary of most civil servants and exceeds the salary entitlements of a significant number of citizens, including a large part of judges and prosecutors, is not a modest amount that an ordinary citizen can do without. casual and not seductive. Even the size of the minimum wage in the economy cannot be a modest amount, adequate to the value threshold of damage or moral damage caused by the crime of abuse of official position, because many people work honestly, hard for a month for this amount. . Even the amount of state aid per child cannot be small, because this amount is important for many families. A modest amount might be the approximate price of a portion of lunch in a cafeteria or part of the “menu of the day” in a modest restaurant, which most citizens could afford to give as alms to the needy and for which most citizens would not be tempted to commit a crime. Establishing such a threshold will not be a problem of disproportionate state response or waste of resources for judicial authorities, as fine limits allow for some decisions to refuse prosecution, which is a frequent practice in prosecutorial bodies in cases of crimes caused by small or large damages and about criminals without a criminal record.”

We remind you that the amendment regarding the value threshold of 250,000 lei, from which the crime of abuse of office is applied, was proposed and accepted by the Minister of Justice Catalin Preda at a closed meeting of the Coalition, which took place on Sunday evening, party sources told HotNews.ro.

The meeting was also attended by Nicolae Chuke, Marcel Cholaku, Kelemen Hunor, Lucian Bode, Robert Kazanchuk and Marian Neatsu.

After the decision of the Coalition, the corresponding amendment reached the Senate. The head of the Senate’s legal commission, Cristian Niculescu Cegarlas, told HotNews.ro on Thursday that it had reached parliament via email, but he did not say from whom.

Following the submission of Buklukas’s amendment, the Senate approved on Thursday a draft amendment to the Criminal Code that would establish a value threshold for abuse and neglect in the service. More precisely, if the damage is less than 250,000 lei, i.e. 50,000 euros, then there is no crime. This was provided for by Law No. 13, which brought hundreds of thousands of people to the streets, only then the threshold was 200,000 lei.

After the approval of the project, the Ministry of Justice announced that it was proposing a threshold of 9,000 lei.

The leaders of the ruling coalition, Nicolae Chuke and Marcel Čolaku, announced that they have decided to support the proposal of the Ministry of Justice to establish a threshold of 9,000 lei to decriminalize the abuse of official position in a project approved by the Senate on Wednesday. Both made the announcement on Facebook, posting almost simultaneously.