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07.12
2017

Incrimination of “abuse of service” for infringement of duties granted by law – constitutional

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On 7 December 2017, the Constitutional Court ruled on the exception of unconstitutionality of certain provisions of Articles 327.1 and 361.2.d of the Criminal Code (Complaints no. 80g/2017 and no. 129g/2017).

Circumstances of the case

The case originated in the exception of unconstitutionality:

- of Article 327.1 of the Criminal Code, raised by the lawyer Mihail Murzac within the case file no.1-648/17 pending before the Chișinău Court, based in the Buiucani district;

- of the text caused considerable damage to public interests” of Article 327.1 and the text “causing large-scale damage to public interests” of Article 361.2.d of the Criminal Code, raised by the lawyer Anton Antuan, within the case file no. 1-307/2014, pending before the Chişinău Court, based in its headquarters.

Article 327.1 of the Criminal Code incriminates: The deliberate use by an official of his/her official position for purposes of profit or other personal interests provided that such an action caused considerable damage to public interests or to the legally protected rights and interests of individuals or legal entities.

Also, the fabrication, possession, sale, or use of false official documents, false imprints, stamps, or seals causing large-scale damage to public interests or to the legally protected rights and interests of individuals or legal entities is incriminated under Article 361.2.d.

The author of the complaint no. 80g/2017 claimed, in essence, that the text official position” is unpredictable since it does not indicate whether the incriminated actions are to be in breach of the duties granted by law.

At the same time, the complainants contended that the abstract wording of the text public interests”, as an harmful consequence of the offenses prescribed by Articles 327.1 and 361.2.d of the Criminal Code, leads to its arbitrary application, which is contrary to Articles 1.3, 22 and 23 of the Constitution.

The Constitutional Court ruled on the complaint in the following composition:

 

Mr Tudor PANȚÎRU, President,

Mr Aurel BĂIEȘU,

Mr Igor DOLEA,

Mrs Victoria IFTODI,

Mr Veaceslav ZAPOROJAN, justices

 

Conclusions of the Court

Having examined the materials of the case file and having heard the arguments of the parties, the Court observed that the rule of law includes, in criminal matters, the principle of legality of criminal offences and punishments and the principle of inadmissibility of an extensive application of criminal law, to the detriment of the individual.

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. On the contrary, criminal law is to be interpreted narrowly, pursuing the goal of protecting the individual against arbitrariness.

- On the text “official position” from Article 327.1 of the Criminal Code

The Court found that, under Article 327 of the Criminal Code, the abuse of power is criminalized as the deliberate use by an official of his/her official position for purposes of profit or other personal interests provided that such an action caused considerable damage to public interests or to the legally protected rights and interests of individuals or legal entities.

In the part related to the use of the notion “official position”, the Court underlined that in comparison to other sanctioning laws the criminal law has the harshest repercussions and criminalizes the most damaging acts as a last resort remedy. For this reason, unlike other areas of legal regulation, the provision of criminal law requires a higher degree of precision for all elements composing the offense.

In the same sense, the legislator identified and regulated at a non-criminal law legislative level the necessary instruments to eliminate the consequences of acts that do not showcase the degree of intensity necessary for the application of a criminal punishment. Thus, for infringement by public officials of their official duties, the legislator also provides for other forms of liability, such as disciplinary, contraventional or civil.

The Court noted that Article 19, entitled “Abuse of functions”, of the UN Convention against Corruption, ratified by the Republic of Moldova, operates with the notion of “act in violation of laws” referring to the performance of or failure to perform an act by a public official in the discharge of his or her functions.

In the same context, the Court noted that, when operating with the notion of “official duties”, the Criminal Code uses the expression “duties granted by law” (see Article 328 of the Criminal Code, criminalizing the “Excess of power or exceeding of one’s official duties”). Therefore, the Court concluded that the aim of the legislator was to circumscribe the criminal law to the circle of official duties contained in the “law”.

 

In the light of the above, the Court held that the notion of “official position” in the material element of the offense “abuse of power or abuse of office” in Article 327 of the Criminal Code refers to the official duties granted by law.

- On the clarity of the texts “public interests” from Articles 327.1 and 361.2.d of the Criminal Code

Having examined the provisions of Articles 327.1 and 361.2.d of the Criminal Code, the Court found that the text of public interests can be found in both crimes as a harmful consequence.

The Court pointed out that it previously declared unconstitutional the text “public interests” in Article 328.1 of the Criminal Code, by Judgment no. 22 of 27 June 2017. The Court has held that the notion of “public interests” is a generic one, which is not defined by criminal law, and thus infringes upon Articles 1.3, 22 of the Constitution [the principle of legality of criminal offences and punishments] and Article 23 of the Constitution [the quality of the criminal law].

Thus, the Court held that both the solution and the reasoning of that judgment are valid and applicable in the present case.

Judgment of the Court

Stemming from the above reasoning, the Constitutional Court partially admitted the exceptions of unconstitutionality and:

- declared as unconstitutional the text “public interests or” in Articles 327.1 and 361.2.d of the Criminal Code of the Republic of Moldova no.985-XV of 18 April 2002.

- declared constitutional the text of the “official position” in Article 327.1 of the Criminal Code of the Republic of Moldova no. 985-XV of 18 April 2002, in so far as it relates to the official duties granted by law.

The 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 the Republic of Moldova.

This is an English language courtesy translation of the original press-release in Romanian language.

 
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