Issues regarding the offence stipulated by article 12 letter a from Law nº 78/2000. Jurisprudence

Author:Adrian Aldea
Position:Assistant Lecturer PhD, Faculty of Law, Transilvania University of Brasov, Romania
Pages:139-146
SUMMARY

Interpretation and implementation of the provision of the article 12 letter a from Law no 78/2000, republished (offences assimilated to corruption offences), respectively whether the stipulation of "use of information obtained by virtue of position, competence or assignment" represents an inherent condition for the first version of the above-quoted offence (carrying out commercial activities which are conflicting an individual's position, competence or assignment), is important for shaping a coherent and predictable judiciary practice, as also requested by article 6 from European Convention of Human Rights (ECHR). This paper intends to analyse the national jurisprudence of the above interpretation and to elucidate the issue from an academic perspective.

 
CONTENT
Issues regarding the offence stipulated by article 12 letter a from law... 139
ISSUES REGARDING THE OFFENCE STIPULATED
BY ARTICLE 12 LETTER A FROM LAW NO 78/2000.
JURISPRUDENCE
Assistant Lecturer PhD Adrian ALDEA
Faculty of Law, TRANSILVANIA UNIVERSITY OF BRAŞOV, ROMANIA,
adrian.aldea@unitbv.ro
Abstract
Interpretation and implementation of the provision of the article 12 letter a from Law no
78/2000, republished (offences assimilated to corruption offences), respectively whether the
stipulation of "use of information obtained by virtue of position, competence or assignment"
represents an inherent condition for the first version of the above-quoted offence (carrying out
commercial activities which are conflicting an individual's position, competence or assignment), is
important for shaping a coherent and predictable judiciary practice, as also requested by article 6
from European Convention of Human Rights (ECHR). This paper intends to analyse the national
jurisprudence of the above interpretation and to elucidate the issue from an academic perspective.
Key words: Public Law, Corruption, commercial activities, jurisprudence, abuse of service
a) The structure of incrimination
The offence in question is stipulated by Law no 78 from 8 May 2000 regarding
prevention, detection and punishment of corruption offences, amended and
republished, as provided in the version of the law in force from 15th December
2015.
According with the incrimination provisions, the following activities are
punished with one to five years of imprisonment, when they are committed with
the purpose of obtaining money, goods or undue advantages for the individuals or
somebody else: the performance of financial operations, as commercial acts,
incompatible with the function, the duty or task an individual must meet or the
conclusion of financial transactions, using information obtained by virtue of
his/her function, duty or task.
The act provided by article 12 letter a is an offence assimilated to corruption
offences. By incrimination of this offence it was intended to prohibit the
performance of financial operations, as commercial acts, by the individuals who,
by virtue of their function, have access to economic levers and information which
may give advantages towards other participants within economic environment. [1]
Law Review vol. VII, special issue, December 2017, p. 139-146
140 ADRIAN ALDEA
1. The special legal object
The special legal object of the offence consists of social relationships
concerning probity, honesty, fairness and honesty of individuals who, by virtue of
their position, duty or empowerment, must refrain from performing financial
transactions, as commercial acts, or from conclusion of commercial transactions
using information obtained by virtue of their function, duty or task.
Committing the alleged misconduct endangers the social relations concerning
moral integrity, probity, honesty, fairness and honesty of public servants, as
described within criminal law, or of other individuals, from those indicated in
article 1 of Law no. 78/2000, republished.
Moreover, incrimination of these acts as offences safeguards the social
relations concerning the credit and the prestige held in front of its citizens by the
institution, the economic operators, the authorities or the departments within the
individual is performing his/her activity, individual that is bound to refrain from
making financial operations, as commercial acts, incompatible with the function,
duty or empowerment or from conclusion of financial transactions using
information obtained by virtue of his/her function, duty or task.
The functions, duties or assignments carried out and information obtained
throughout the perfomance of their functions, duties or assignments should not be
used by the public servants or other persons mentioned above for personal
purposes by conducting financial operations, as acts of trade, or by conclusion of
financial transactions and therefore getting some advantages, as in this way great
injury is caused to social relationships concerning both individual's honesty,
fairness, correctness and institutional authority, prestige and credibility.
2. The material object
The offence in question has not a material object, as the incriminated activities
of conducting financial transactions, as commercial acts, or the conclusion of
financial transactions represent material elements of the offence, activities that are
set against social values and not against material, tangible values (money, goods or
unfair advantages).
In these circumstances, the offence is a formal one, having an abstract risk.
When the offence is committed, there is not necessary to prove the exposure to
risk, this resulting from the materiality of the deed (ex re). [2]
Goods that are acquired by performing financial transactions, as commercial
acts, incompatible with the function or by conclusion of financial transactions
using information obtained by virtue of the function, are not material object of the
offence, but its product, still being able to represent the subject of special
confiscation measure provided by article 112 paragraph 1 letter e) from Criminal
Code. [3]
Issues regarding the offence stipulated by article 12 letter a from law... 141
3. The subject of the offence
3.1. The active subject
The direct active subject (the author) of the offence is a qualified one and can
be one of the individuals who meets the features provided by article 1 of the Law
no 78/2000 for prevention and sanctioning corruption offences, namely:
a) exercising a public function, regardless of how they were vested within the
public authorities or public institutions;
b) performing, permanently or temporarily, according with the law, a function
or task, if they participate in making decisions or can influence them, within public
services, autonomous administrations, companies, national companies, national
bodies, cooperative units or other economic agents;
c) exercising control powers, according to the law;
d) providing specialized assistance to the units mentioned in paragraphs a)
and b) if they participate in decisions or can influence them;
e) performing, controlling or granting specialized assistance, irrespective of
their position, if they participate in making decisions or can influence them, with
regards on operations that involve capital movements, bank, foreign exchange or
credit operations, stock exchanges, insurance or mutual investment, bank accounts
and assimilated operations, domestic and international commercial transactions;
f) holding a leading position in a political party, a trade union, an employers'
organization or a non-profit association or foundation;
g) other persons than those referred to in a) - f), as provided by law. [4]
According to the same rules, the above-mentioned persons are bound to fulfil
their duties while performing their functions, tasks or assignments in strict
compliance with the laws and rules of professional conduct and to ensure the
protection and accomplishment of the rights and legitimate interests of the citizens,
without the use of their own functions, duties or assignments to acquire money,
goods or other undue advantages for themselves or for others.
In most cases, the position and the performance of some assignments fit with
the status of civil servant, as provided by the criminal law, status owned by the
person who is incompatible to perform financial operations, as commercial acts, or
has the interdiction to the use of information obtained by virtue of his/her
function for conclusion of financial transactions.
According to article 175 of the Criminal Code, a public or civil servant is an
individual who, permanently or temporarily, with or without remuneration: a)
carries out the duties and responsibilities established by law in order to achieve the
prerogatives of the legislative, executive or judiciary; b) exercises a public dignity
or public function of any kind; c) exercises, alone or with others, tasks related to
the object of activity within an autonomous administration, another economic
agent, a state-owned company or a legal entity with majority state capital. It is also
considered a civil servant within the meaning of criminal law, the person who
142 ADRIAN ALDEA
exercises a public service being vested by a public authority or is subject to control
or supervision of the public authorities regarding the performance of a public
service. According to article 175 paragraph (2) of the Criminal Code, it is not
enough for that person to exercise a public service, but he/her must be invested or
controlled or supervised, as appropriate, by the public authorities considering the
performance of that public service.
The offence may have all forms of occasional participation - multiple
perpetrators, instigation and complicity; it can be committed in any of them.
Committing the offence in the form of multiple participation is only when the co-
authors meet the same features of the main perpetrator.
3.2 The passive subject
The main passive subject of the offence is the state, the institution or the legal
entity which the person who is the active subject of the offence operates in.
The offence can also have a secondary passive subject, represented by the
individual or legal entity - participant in the commercial operations carried out as
acts of trade or financial transactions and whose interests were harmed. [5]
4. The objective side
4.1 The premise
In general, the premise implies a fact or situation prior to committing the
offence, which the offence grounds on.
In the case of this offence, the prerequisite assumes the existence of an
authority or institution within which the perpetrator performs its duties, under
the provisions of article 1 of Law no. 78/2000 republished.
4.2 Material element
Regarding the first version of the committing the offence, the doctrine [6]
stated that the offence has double conditioning as follows:
- financial transactions must be performed as commercial acts;
- financial operations, as commercial acts, must be incompatible with the
position, competence or assignment performed by an individual.
The doctrine refers to the first condition by giving details and explaining the
terminology - - financial operations / acts of trade.
The second condition of this form of offence is that financial operations as
commercial acts, must be incompatible with the function, duty or task performed
by an individual.
This conflict must result from the law, otherwise there is no offence. Therefore,
mere performance of the commercial acts is not enough, the existence of a legal
prohibition being required.
Issues regarding the offence stipulated by article 12 letter a from law... 143
In practice, the Supreme Court stipulated that there was an offence for
performing financial transactions, as commercial acts, that are incompatible with
the function he undertakes with the purpose of obtaining money for himself, as
provided by article 12 letter a) thesis I of the Law. 78/2000 also applying articl. 41
paragraph (2) of the Criminal Code, when a police officer from S.P.C.R.P.C.Î.V.
Braşov carried out commercial activities and participated in the administration of
SC B SRL, in order to obtain profit and thus violated his duties regarding
incompatibilities as stipulated by article 45 letter g) of the Law no. 360/2002
(Statute of the policemen) [7]
Similarly, another case emphasizes the provisions of article 94 paragraph (2) c)
of Law no. 161/2003 on certain measures to assure transparency in exercising
public dignities, public functions and in the business environment, prevention and
punishment of corruption, according to which the "civil servants can not hold
other positions and can not perform any other activities, paid or unpaid, within
autonomous administrations, state-owned companies or other lucrative entities
from public sector". The same type of incompatibility is regulated by article 8
paragraph (1) a) of Law no. 303/2004, republished regarding the statute of judges
and prosecutors, according to which "judges and prosecutors are forbidden to
carry out, directly or through intermediaries, any commercial activities."
In this regard, the High Court of Casation and Justice stated that the following
action meets the constitutive elements of the offence as stipulated by article 12
letter a) thesis I of Law no. 78/2000: the defendants A. and B., first as chief
prosecutor of the prosecutor's Office near by the Bucharest 4th District Court, the
second as secretary at Bucharest 1st district City Hall and suspended lawyer who,
by violation of the duties regarding the incompatibilities established by article 8
paragraph (1) a) of Law no. 303/2004, republished, regarding the statute of judges
and prosecutors, respectively article 94 paragraph ( 2) c) of Law no. 161/2003
regarding certain measures to assure transparency in exercising public dignities,
public functions and in business, prevention and punishment of corruption,
performed - through intermediaries - commercial activities and participated in
administration of the legal entity AA SRL from Bucharest for personally obtaining
undue material benefits. [8]
The doctrine, comprising the above-mentioned decisions and other similar
ones [9] assessed only these two regulatory requirements with regard to article 12
letter a of Law no.78 / 2000, without considering the existence of "using the
information obtained by virtue of the position, competence or assignment".
Therefore, the conclusion is that its scope does not cover the first version of
committing the offence.
Regarding the the second way of committing the crime, it refers to performing
financial transactions. In relation to it, the above-mentioned doctrine showed that
the offence is committed using information obtained by virtue of position, duty or
task.
144 ADRIAN ALDEA
Inserting this last condition after the enumeration of the two alternative ways
of committing the offence stipulated by article 12 letter a) of the Law no.78 / 2000
led to difficulties in determining whether the phrase "using information obtained
by virtue of the function, duty or task" is intrinsic to both versions of legal
provisions mentioned above or only to the second one.
The analysis of doctrine and jurisprudence shows that the examination of the
phrase "using information obtained by virtue of the position, competence or
assignment" is performed exclusively within the circumstances of the second
alternative way of committing the offence, meaning the one consisting in the
conclusion of financial transactions of by an individual.
Thereby, it can be concluded that, only in this normative way, the material
element of the objective side of the offence is determined by using information
obtained by virtue of an individual's function, duty or task.
The jurisprudence of the Supreme Court is uniform while exclusively
assessing the conditions regarding the requirement for performance of financial
operations as acts of trade and their incompatibility with the position, competence
or assignment of an individual, assessment made in the case of the first way of
committing the offence stipulated by article 12 letter a) of the Law no.78 / 2000.
Moreover, the courts consider that the first normative argument of the legal
text was intended to incriminate the performance of activities that are conflicting
with the position held by a person (activities which are not permitted in relation to
function), while in the second form, punishment is implemented for the conduct of
a person who concludes financial transactions - legitimate activity - but using
information available by virtue of the function held. [10]
4.3 The immediate consequence
The socially unsafe consequence consists in the risk standing of the social
relationships that is the legal object of the offence resulting from the commitment
of the actions that represent its material element of the objective side (ex re).
4.4 The causality connection
The generated risk standing, that represents the socially unsafe result, must be
determined by the action defining the material element of the objective side,
between them being necessary to exist a causality relationship, a definition of the
cause-effect connection.
5. Subjective side
In terms of subjective side, the offence stipulated by article 12 letter a) thesis I
of the Law. 78/2000 is knowingly committed, since the performance of financial
transactions, as commercial acts, conflicting with the function, duty or task that is
carried out by an individual in order to obtain money, goods or other undue
advantages for himself or for others. For the existence of the offence, it is not
Issues regarding the offence stipulated by article 12 letter a from law... 145
required that the purpose to be achieved, rather sufficient that the perpetrator to
act so as to pursue this goal. The offence is depleted when the material element of
the objective side has been accomplished and when the socially unsafe
consequence has occurred.
6. Forms. Methods. Penalties
The offence may stand as imperfect attempt, punishable in accordance with
stipulations of article 15 from Law no. 78/2000.
Completed attempt is not possible since the material element of the objective
side - the financial operations as commercial acts or the conclusion of financial
transactions - has been achieved and therefore the socially unsafe consequence has
occurred.
Commitment of the repeated offence can determine the existence of a criminal
plurality under the form of multiple offences or recurrent offences whether they
were performed under the same decision: in the latter case, the offence has a
moment of depletion that occurs when the last performance act has ceased.
An individual guilty of an offence under provisions of article 12 is liable to
imprisonment for a term between one to five years.
7. Conclusions
In comparison with the doctrine and jurisprudence reviews, I believe that the
first normative argument of the offence punishes individuals who by virtue of
their position have established certain inconsistencies that they contravene by
performing financial transactions as acts of trade. I also consider that the scope of
the phrase "using information obtained by virtue of position, competence or
assignment" exclusively circumscribes to the second sentence of article 12 letter a)
of Law no.78 / 2000 by taking into account the financial transactions not financial
operations as commercial acts.
References
[1] http://www.chirita-law.com/scurta-analiza-a-infractiunii-prevazuta-de-
art-12-lit-a-din-legea-nr-782000/ entered on 18th Octomber 2017
[2] Udroiu, M. (2017) Criminal Law. General part. 4th edition, C.H. Beck
Publishing House, Bucharest, page 96
[3] Romanian Criminal Code – Law no. 289/2009 (O.M. no 510 from 24th July
2009)
[4] Law No. 78 from 8th May 2000 regarding prevention, detection and
punishment of corruption offences
[5]Diaconesc, H. (2004) Corruption offences and offences assimilated to
corruption, All Beck Publishing House, pages 194-199
[6] Gârbule, I. (2010), Corruption offences, Universul Juridic P.H., pages 273-
274
146 ADRIAN ALDEA
[7] Decision No. 2645 of September 22nd, 2014 the High Court of Cassation
and Justice
[8] Decision No. 429 of November 24th, 2015 the High Court of Cassation and
Justice
[9] Decision No. 836 of February 13rd, 2013, Decision no. 333 of October 21st,
2014, the High Court of Cassation and Justice
[10] Decision No. 806 / A of May 6th, 2016 the Court of Appeal, Criminal
Division I, delivered in case no. 1869/312/2015