On 28 July 2017, the Romanian Criminal Code was amended through Law no. 193/2017 ("Law 193"), which reforms the concept of conflict of interest, by considerably reducing the sphere of people who can be charged with this offence
From the start of this year, the provisions of the Romanian criminal code regarding conflict of interest and their envisaged amendments have generated very significant debates and even protests. Even if the first new amendments were withdrawn by the Romanian Government, other significant changes to the way in which this criminal offence is regulated have been put in place by Law 193.
The first significant change is the name change of the criminal offence, from conflict of interest to use by a public officer of his or her position in order to favor a third party.
The previous provisions of the Romanian Criminal Code provided that a conflict of interest exists when a public officer takes a decision that grants financial benefits to himself, his wife or a relative to the second degree, or to another person or entity which he has been in a commercial relationship with or benefited from financially within the last 5 years prior to the decision. This offence was punishable by up to five years in prison and the interdiction to hold a public function for three years.
The changes to the Criminal Code by Law 193 provide a different solution: a public officer can be prosecuted only if he or she, his or her spouse or a relative to the second degree will benefit from the decision he or she takes part in.
Furthermore, Law 193 also mentions two cases in which the public officer cannot be prosecuted:
1. When he takes part in the issuance of statutory regulations.
2. When he carries out an obligation which is mandatory under the law.
There have been numerous debates regarding these changes in social media, on national television and in major papers.
Basically, the debates revolve around two major issues:
1. The Criminal Code now incriminates fewer acts of favoring third parties, reducing the favoring to only the public officer, his or her spouse and relatives to the second degree, omitting third parties who might offer past or present financial advantages to the public officer.
2. Pardoning the public officer if the act which favored himself or herself, his or her spouse or relatives to the second degree was the consequence of a legal right or obligation given by the nature of his or her public office position. This triggers the conflict of interest only if the public officer took part in another criminal offence, respectively an act which is outside of his or her duties under the law.
The authors of the law modification project claimed the old form of the article created significant room for abusive criminal investigations against high ranking officials and was used as a tool for political coercion of the opposition political parties and public officers in general.
Only time will tell the impact of these new changes and how they will be implemented. Moreover, as publicly announced by members of the Romanian Government, we expect further new changes to this criminal offence.