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Criminalising the Breach of Rights and Interests of an Individual by Excess of Power – Constitutional
On 27 June 2017, Constitutional Court of Moldova delivered a judgment on the exception of unconstitutionality of certain provisions of Article 328.1 of the Criminal Code.
Circumstances of the case
The case originated in an exception of unconstitutionality of the following legal provisions:
- the phrase “provided that such an action caused considerable damage to public interests or to the legally protected rights and interests of individuals or legal entities” of the Criminal Code of Moldova no. 985-XV of 18 April 2002, raised by the lawyer Alexandru Bot in the case no. 1rh-4/2016 pending before the Court of Chișinău – Ciocana District;
- the phrase “considerable damage to public interests” of Article 328.1 of the Criminal Code of Moldova no. 985-XV of 18 April 2002, raised by the lawyer Dorin Popescu in the case no. 1a-521/2016 pending before the Court of Appeal of Chișinău.
Article 328.1 of the Criminal Code incriminates the following: ”Commission by a public figure of actions clearly exceeding the limits of the rights and duties granted him by law, provided that such an action caused considerable damage to public interests or to the legally protected rights and interests of individuals or legal entities.”
The authors of the exception of unconstitutionality have particularly contended that the consequences of a criminal offence – excess of power or excess of official authority – are not determined by the criminal law, which is in breach of Articles 1.3, 22 and 23 of the Constitution.
The complaint was examined by the Constitutional Court of Moldova in the following composition:
Mr Tudor PANȚÎRU, President,
Mr Aurel BĂIEȘU,
Mr Igor DOLEA,
Mrs Victoria IFTODI,
Mr Victor POPA,
Mr Veaceslav ZAPOROJAN, judges.
Conclusions of the Court
Examining the casefiles and hearing the reasoning of the parties, the Court observed that rule of law includes, in criminal matters, the principle of legality of criminal offences and penalties and the principle of inadmissibility of an extensive application of criminal law, to the detriment of the individual, particularly by way of analogy.
The Court noted that the safeguards provided by the Constitution impose to the lawmakers to regulate the incriminated conduct, so that the act – as an indication of the objective side of a crime – would be clearly defined, and not identified by an extensive interpretation of those applying criminal law. Such a manner of applying may lead to abusive interpretations. The requirement of a narrow interpretation of the criminal law, as well as the prohibition on making use of analogy in applying criminal law, pursue the goal of protecting the individual against arbitrariness.
The Court observed that Article 328 of the Criminal Code sanctions the excess of power or excess of official authority, reading as follows: “The Commission by an official of actions clearly exceeding the limits of the rights and powers granted to him by law, provided that such an action caused considerable damage to public interests or to the legally protected rights and interests of individuals or legal entities.”
The Court noted that in the Report on the relationship between political and the criminal ministerial responsibility, the Venice Commission mentioned that criminal provisions banning “the abuse of office,” “misuse of powers” and “abuse of power” or the alike are deeply problematic, both in relation to qualitative requirements of Article 7 of the Convention, as well as to other basic requirements under the principle of the rule of law, such as predictability and legal certainty, and that they are particularly vulnerable to political misuse.
The Venice Commission considers that these criminal provisions should be construed narrowly and applied with a high threshold, so that they may only be invoked in cases where the offence is of a grave nature.
The Court noted that the criminal offence of excess of power or excess of official authority is part of the category of criminal offences against the smooth carrying out of activities in public sphere, them being committed by special subjects – public figures. Also, this is a result-related crime (material crime), so that in order for the crime to be completed, it should compulsorily relate to the resulted damages.
Examining the provisions of Article 328.1 of the Criminal Code, the Court found that a consequence of such a criminal offence is causing considerable damage to ”public interest.”
Concurrently, the Court found that the provisions of the Criminal Code, which constitute a ground when assessing in concreto the damage caused in each case, did not provide expressis verbis for ”public interest” as a social value that may be assessed.
In this regard, the Venice Commission in the above-cited Report mentioned that: “Article 7 does not require absolute predictability, and judicial interpretation is sometimes inevitable. But a certain level of legal clarity is necessary and criminal provisions using such formulas as for example ”infringement of the rule of law” or “infringement of democracy” may easily be found in breach of the ECHR.”
The Court underscored that the lack of any provisions on assessing the great nature of damages brought to public interests leaves a wide room for arbitrariness, and this may give rise to the risk for the actions of a public figure which exceed the limits of the rights and duties prescribed by law – irrespective of the gravity of the committed act and of the damage caused – to fall into the scope of criminal law.
Concluding the abovementioned, the Court noted that the use in Art. 328.1 of the Criminal Code of the notion “public interest” – which is a generic notion, that may not be defined – is in breach of Articles 1.3 and 22 of the Constitution [the principle of legality of criminal offences and penalties], as well as Article 23 of the Constitution [the quality of criminal law].
In the part related to the consequences to the detriment of “the rights and interests protected by law of the individuals and legal entities,” the Court observed that the provisions of Article 126.2 of the Criminal Code provide that in order for the considerable nature of damage caused to them to be assessed, there shall be taking into account the degree of damage caused to human fundamental rights and freedoms.
Subsequently, the Court rejected the complaint in the part related to the cause of damage to legally protected interests and rights of the individuals and legal entities.
With regards to determining the amount of the caused damage, the Court found that Art. 126.1 and 126.1/1 of the Criminal Code provide for a quantum in the following terms: (1) large scale damage and (2) especially large scale damage. Therefore, when determining the large scale and especially large scale damage, the lawmaker provided as a basis of calculation the forecasted average national monthly salary, established by a Government Decision, which is in force at the moment the act is committed, as follows:
- Large scale – more than 20 salaries;
- Especially large scale – more than 40 salaries.
The small damages caused, that trigger liability under Contraventions Code, are the damages that when committing the offence, do not exceed 20% of the quantum of the forecasted average monthly national salary, approved by the Government for the year when the offence was committed.
The Court found that in line with the mentioned legal provisions, damages that fall within the limits between small and large scale damages shall qualify, where appropriate, as essential or considerable.
At the same time, the Court observed that the lawmaker provided in Article 126.2 of the Criminal Code subjective criteria on delimiting between “considerable” and “essential” damage, which is decided upon depending on the significance the victim attributes to the goods and upon other circumstances that have an influence on their financial condition.
The Court found that an express regulation with regards to the quantum of “essential” and “considerable” damage was provided in the initial wording of the Criminal Code in force on 18 April 2002, but it was excluded by the Law no. 211 of 29 March 2003.
Subsequently, given that it remains for the lawmaker to regulate the gravity of the damage resulted from the committed criminal offence and the value of the damage, the Court considered it necessary to issue an Address to the Parliament in order to institute in criminal law the use of a threshold of the considerable and essential damage thereby precluding subjective estimations.
At the same time, prior to instituting by the lawmaker of a threshold for the essential or considerable damage, their amount shall constitute the limits that fall between the small scale and large scale damages.
Judgment of the Court
Stemming from the above reasoning, the Constitutional Court of Moldova partially admitted the exceptions of unconstitutionality and followingly:
- Declared unconstitutional the phrase “to public interests or” of para. 1 of Article 328 of the Criminal Code of Moldova no. 985-XV of 18 April 2002;
- Declared constitutional the phrase “provided that such an action caused considerable damage […] to the legally protected rights and interests of the individuals or legal entities” of para. 1 of Article 328 of the Criminal Code of Moldova no. 985-XV of 18 April 2002, to the extent the degree of damage is assessed based on the limits that fall between small scale and large scale.
This Judgment of the Constitutional Court is final, cannot be appealed, shall enter into force on the date of passing, and shall be published in the Official Journal of Moldova.
This is an English language courtesy translation of the original press-release – in Romanian language.