In early 2017, the newly elected Romanian social democratic government tried to enact Government Emergency Ordinance 13/2007 (the Ordinance), amending the Criminal Code (CC) and the Criminal Procedure Code (CPC).
The Ordinance did achieve partial harmonization with EU requirements and legitimate recommendations of the Constitutional Court. However, since more favorable criminal laws do retro-activate certain controversial amendments of both the abuse of authority and conflicts of interest laws, major concerns were raised on whether corrupt politicians would benefit in their ongoing trials and in the future.
The catalysts of the amendments in the Ordinance included a 2016 ruling of the Constitutional Court of Romania (CCR) (405/2016) indicating that the text "improperly fulfils his/her duties" regarding abuse of authority was constitutional solely if construed as ''infringing the law". The CCR recommended a further clarification on this issue by the Parliament while the courts adapted their practice by requiring prosecutors to indicate the infringement of the relevant statutory provisions when claiming abuse of office.
Abuse of authority and conflicts of interest are not officially part of the "corruption crimes" section of the CC. They are part of a distinct category called ''crimes relating to the office conduct" and proved to be borderline to corruption in the sense that their occurrence often indicates the incidence of a corruption crime as well. Hence, they are important to the general anti-corruption efforts in Romania.
The main controversial amendments included:
- More lenient imprisonment time for abuse of office, from 2-7 years to 6 months-3 years or fines, thus diluting the deterrent effect. The statute of limitation for criminal liability is shortened accordingly (from 8 to 5 years).
- Abuse of office shall no longer be a criminal offence if loss is under RON 200,000 (approx. EUR 45,000), thus triggering the closing of many pending criminal cases, the release from prison of convicted persons and potentially encourages multiple abuses under the threshold.
- Convicted persons can no longer be prohibited from holding public office, allowing for morally controversial persons to hold public office.
- More lenient sentences for regime of abuse committed by discrimination, from imprisonment of 2 - 7 years to 1 month - 1 year or fines.
- Abuse by issuing or approving statutory acts is eliminated, virtually allowing for enacting laws based on racial discrimination.
- The controversial elimination of the phrase “business relations” in conflicts of interest scenarios allows for civil servants to favor former employers, business partners etc.
- Whistleblowing must occur within 6 months rather than any time within the limitation period of the criminal liability.
The proposed amendments were highly controversial because they were not passed through a normal parliamentary procedure but through a summary, emergency one (when no urgency actually existed) with little public debate and analysis among the specialists on the proposed changes.
In essence, such new amendments regarding the regime of abuse of authority and conflicts of interest in the newly introduced Ordinance were considered by the public as substantially watering down the force of the initial regime of these crimes which are still very relevant in Romania, and ultimately caused substantial public upheaval.
Consequently, the Ordinance was repealed and new legislation is expected in the near future to address the public concerns.