Banditism de stat, reglementat prin ordonanţe de urgenţă
E mai grav decât am bănuit: se poate demonstra cu uşurinţă că cele două ordonanţe de urgenţă propuse de Ministerul Justiţiei, privind graţierea şi modificarea legilor penale, reprezintă nimic altceva decât o autorizaţie legală pentru furt din banii publici. Prima ordonanţă rezolvă trecutul, cealaltă pregăteşte viitorul. E ca şi cum am fi pus nişte infractori să scrie Codul Penal. Şi acum, demonstraţia.
Dacă eliminăm zgura emoţională a celor două ordonanţe de urgenţă, putem constata că miza majoră a autorilor lor pare să fi fost dezincriminarea aproape completă a unei anume infracţiuni: abuzul în serviciu, pedepsit acum cu închisoarea de la 2 la 7 ani. Spre deosebire de alte infracţiuni legate de activitatea demnitarilor sau a funcţionarilor publici – cum ar fi darea şi luarea de mită sau traficul şi cumpărarea de influenţă – abuzul în serviciu are un mare păcat: nu se poate face în deplină clandestinitate. Lasă întotdeauna urme, pentru că implică decizii scrise, caiete de sarcini, procese-verbale, viramente bancare, alte documente. Este rezonabil că credem că nimeni nu comite un abuz doar de dragul abuzului, ci aşteaptă îndeobşte şi o recompensă. Iar logica celor care au gândit ordonanţele de urgenţă aceasta pare să fi fost: dacă lipsim de substanţă penală abuzul în serviciu, infracţiunile subsecvente, cele clandestine, vor fi mult mai greu de descoperit. Ordonanţa de urgenţă privind graţierea rezolvă trecutul. Abuzul în serviciu, indiferent de gravitatea sa, nu se află printre infracţiunile exceptate de la graţiere. Cum covârşitoarea majoritate a sentinţelor date până acum pentru abuz în serviciu nu depăşesc limita de cinci ani, ordonanţa privind graţierea îi scoate din puşcărie pe aproape toţi cei care au comis asemenea infracţiuni. În schimb, ordonanţa de urgenţă privind modificarea legilor penale pregăteşte – şi mutilează – viitorul. Pretextul, vehicolul acestei mutilări, este o decizie din vara trecută a Curţii Constituţionale. CCR a rafinat definiţia abuzului în seriviu, statuând că sintagma „îndeplinirea defectuoasă a atribuţiilor” de către un funcţionar public este constituţională în măsura în care prin cuvântul „defectuoasă” se înţelege „cu încălcarea legii”. Decizia nu reclama neapărat o schimbare a legii. Judecătorii ar fi ştiut să interpreteze litera legii în sensul stabilit de CCR, iar dacă n-ar fi ştiut judecătorii, aveau avocaţii grijă să le spună. Însă Ministerul Justiţiei a profitat de această decizie şi nu doar că a pus în acord Codul Penal cu decizia CCR, dar a adus şi alte modificări, fundamentale, la definirea abuzului în serviciu, după cum urmează: ** Limitele de pedeapsă pentru abuz în serviciu au fost scăzute de la 2-7 ani de închisoare la 6 luni – 3 ani sau amendă. ** S-a stabilit un prag de 200.000 de lei (cam 45.000 de euro) prejudiciu peste care abuzul în serviciu poate fi considerat infracţiune. Sub acest prag nu există infracţiune. ** S-a impus condiţia ca acţiunea penală pentru un abuz în serviciu să nu poată fi declanşată decât dacă persoana vătămată face plângere prealabilă. Potrivit procedurii penale, plângerea prealabilă nu poate fi depusă decât până în trei luni de la comiterea infracţiunii. Ministerul Justiţiei nu a justificat în niciun fel aceste modificări. Prima nu este doar un inexplicabil semn de indulgenţă faţă de abuzul în serviciu, dar are în plus meritul că scurtează în mod corespunzător şi perioada de prescripţie, dincolo de care anchetele sau procesele nu mai pot continua. Cât priveşte celelalte două modificări, să luăm un caz pur ipotetic, dar perfect realizabil. Un primar decide să achiziţioneze un banal creion cu un milion de euro, din banii primăriei pe care o conduce. Este acesta un abuz? Orice om normal la cap ar zice că da. Dar în ipoteza ordonanţei de urgenţă, persoana vătămată, care trebuie să depună plângere prealabilă pentru abuz în serviciu, este chiar primăria care plăteşte. Iar reprezentantul acesteia, singurul în măsură să depună plângerea prealabilă, este exact primarul care şi-a dorit creionul. Dacă n-o face în termen de trei luni, primarul rămâne şi cu milionul de dolari, şi cu creionul. Dacă primarul este mai puţin hapsân, el poate decide să achiziţioneze acelaşi banal creion nu cu un milion, ci cu 25.000 de mii de euro – câtă vreme legea permite achiziţii publice directe de până la 30.000 de euro. În aceste condiţii, chiar şi dacă primarul, prin absurd, depune plângere prealabilă pentru abuz în serviciu împotriva propriei sale decizii, procurorii tot nu pot declanşa urmărirea penală, pentru că prejudiciul este sub pragul 45.000 de euro, impus de ordonanţa de urgenţă. De mai bine de zece ani, în activitatea de zi cu zi, mărturisesc că folosesc creioane. Cam patru bucăţi pe lună. Acum ce să zic? Cred că mi-ar plăcea să fiu primar în condiţiile ordonanţei de urgenţă promovate de Ministerul Justiţiei. Măcar trei-patru luni. Prin condiţiile puse pentru declanşarea urmăririi penale, asistăm, în fapt, la o veritabilă dezincriminare a abuzului în serviciu contra intereselor publice. Simpla punere în dezbatere publică a acestor ordonanţe de urgenţă, aşa cum au fost ele concepute, este prin ea însăşi o dovadă că în Guvernul României au pătruns persoane cu ridicat potenţial infracţional, apte să impună, prin manipularea legislaţiei, un veritabil banditism de stat. Ministrul Justiţiei, Florin Iordache, nu are ce căuta în dezbaterea publică a acestor iniţiative dacă nu spune clar, cu nume şi prenume, cine le-a gândit. Iar dacă numele este Iordache şi prenumele este Florin, mai e de aşteptat un singur gest: demisia. Este imposibil să mai ai încredere într-un guvern în care au pătruns persoane care au putut gândi asemenea acte normative.
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