We are increasingly encountering situations in the activity of criminal judicial bodies where privately employed individuals are described by criminal law as “public officials“, although it may seem like a contradiction in terms.
Given the low level of awareness among employers and employees, this article aims to draw attention to the conditions under which criminal law may confer the status of “public officials” on individuals employed in private companies, but also to the importance of preventing violations of the law or reacting in a legally correct way to these provisions of criminal law.
Although there have been numerous decisions of the Constitutional Court of Romania and the High Court of Cassation and Justice outlining the guiding principles in this matter (decisions which, in order to simplify the understanding of the concepts, we will not identify in this article), the provisions of the criminal law on public officials are still applied by judicial bodies in an inconsistent and uneven manner.
However, understanding the conditions for acquiring the status of public official for the purposes of criminal law is of particular importance because, for example: (i) the criminal sanctions applicable to public officials are harsher (the penalty limits are higher) and (ii) public officials are assigned by law with several duties whose violation may, under certain conditions, constitute a criminal offence.
How is it possible for a “private” employee to be a public official at the same time?
To begin with, it is important to bear in mind that criminal law sometimes uses its own notions of certain terms, different from the meaning used in everyday speech or from the meaning used or defined in other non-criminal legislation.
A notion specific to criminal law is also that of “public official“, a notion defined in the Criminal Code and not to be confused with the notion of “public official” used in the Law on the Status of Public Officials or in the Administrative Code.
This autonomous mechanism of criminal liability used by Romanian law has been repeatedly validated by the Constitutional Court of Romania, which stresses that it is not necessary to establish an equivalence between the two categories of definitions of public official, since the notion used by criminal law has a wider scope of applicability and protects a certain spectrum of social relations.
Who is a public official according to the criminal law?
As a rule, a public official is considered to be a person who: (i) exercises powers and responsibilities, established by law, for the purpose of carrying out the prerogatives of the legislative, executive or judicial power, (ii) exercises a function of public dignity or a public function of any kind, or (iii) exercises, alone or together with other persons, within an autonomous public corporation, another economic operator or a legal person with wholly or majority state capital, powers related to the performance of its object of activity (classical public official).
- One of the essential criteria for being a classical public official is public funding. Thus, for example, a doctor employed with a labour agreement in a hospital unit in the public health system is considered to be a classical public official.
Since 2014, the criminal law considers a person who performs a service of public interest for which he/she has been appointed by the public authorities or who is subject to their control or supervision regarding the performance of that public service, to be a public official (assimilated public official).
Last but not least, the criminal law also punishes the commission of offences by or in connection with so-called “private officials“, i.e. persons who perform a task in the service of an individual “assimilated public official” or for any legal person.
What is the criminal relevance of establishing the status of public official?
Given the importance of the values it protects, the criminal law has incriminated certain offences which, as a rule, can only be committed by or in connection with public officials or which, although they could also be committed by private individuals, are punished more severely if committed by public officials.
- This category of offences includes, for example, certain offences against authority (e.g. assaulting an official), offences against the administration of justice (e.g. failure to report), corruption offences (e.g. bribery, influence peddling), service offences (e.g. embezzlement, abuse of office) or forgery offences (e.g. material forgery of official documents, intellectual forgery).
In addition, given the nature of certain offences, public officials can be held criminally liable if they act improperly or remain passive when in fact, they have an obligation to act in a certain way. For example, the offence of “failure to report” is committed by a public official who, having become aware of the commission of an offence under criminal law in connection with the service in which he/she performs his/her duties, fails to report it immediately to the criminal prosecution authorities.
What kind of private employee can also be a public official?
The main subject of this legal dilemma is an individual employed by a private organisation, which is not publicly funded but nevertheless provides a service in the public interest.
Although we might have expected such a person to be considered by criminal law a public official, in certain situations such a person is nevertheless considered to be an assimilated public official if that person or his/her employer operates under a special law and – although not financed from the state budget – performs a service of public interest and is subject to control or supervision by a public authority.
- Based on these characteristics, the category of assimilated public officials includes natural persons such as: doctors, nurses, psychologists, practitioners of alternative medicine working in private hospital units not financed from public funds, individuals who are subject to control or supervision by a public authority (in the previous examples – Ministry of Health).
In practice, however, we also find situations which at first sight may be considered atypical, when natural persons employed are consequently considered to be assimilated public officials.
In other words, although the employer is the one directly controlled or supervised by a public authority (even if it is not a legal person wholly or majority-owned by the State and is not financed from public funds), in fact the person employed by such employer also performs a service in the public interest which is intended to meet general interest needs and in this case a public authority is found to be responsible for performing or controlling or supervising the performance of that service in the public interest.
Therefore, in this context, if the conditions set out above are met, the employees of the following entities, for example, may be considered public officials:
- credit institutions (bank clerks), non-banking financial institutions (e.g. providing financial/operational leasing services), payment institutions and e-money institutions;
- insurance and/or reinsurance companies, financial investment services companies, corporate investment advisors, investment management companies, intermediary companies for the auctioning of gas emission certificates on behalf of their clients;
- companies providing public utilities (such as public water supply and sewerage services; sanitation of localities; public lighting).
It is important to note that the criminal law is of strict interpretation and application, so that any conditions or circumstances other than those set out above, which are not provided for in the criminal law, do not affect the application of the provisions of the criminal law relating to public officials.
Finally, in view of the effects of the law that may arise depending on the circumstances of the specific case, we recommend the assistance of lawyers specialised in criminal law to both private organisations and their employees, in order to understand the legal mechanisms on which the application of the provisions of the criminal law on public officials depends, to be aware of the obligations that the persons concerned have in relation to the provisions of the criminal law and the associated risks, as well as to secure the activity of the organisations and to correctly manage incidents of criminal relevance arising within or in connection with the activity of the organisations concerned.