Briefly, an official position is a competence (right or obligation) to make a decision or carry out an act that influences another person or participate in this upon performing a public duty. Such competence may derive from legislation, a contract, and the actual work organisation of the authority.
The Supreme Court has found that it is sufficient for a person to become a public official if the person has actually taken up the duties of a public official, regardless of whether his or her professional obligations are specified as a separate Annex to the employment contract; the assignment of an official position to a person in criminal terms is based on the person’s position and job description, as well as his or her actual role in the process of making and adopting decisions in the authority (judgments No. III-1/1-24/95 and 3-1-1-95-12, clause 14.2). It can be concluded that if an act or a contract, which does not establish a person’s official position, contradicts the person’s actual competence to make a decision, in view of the purpose of the prevention of corruption, it should be assumed that the person has an official position.
A person, who substitutes a public official for a shorter or longer period, and who has those competences during the substitution period, which make him or her a public official, is actually a public official.
While determining the definitions of a decision and an act, it is required to follow the content provided in subsection 2 (2) of the Anti-corruption Act, and not the meaning of the same definitions established in other laws.
Decisions include legislative acts (law, regulation, decree), administrative acts (e.g. provision of an authorisation, precept, assignment to a post, pardon), judicial decisions, internal acts of an authority, and a declaration of intention serving as the content of transaction (based on subsection 67 (1) of the General Part of the Civil Code Act, a transaction contains a declaration of intention directed at bringing about a certain legal consequence). Therefore, the decision-makers, for example, are persons engaged in the procurement, maintenance, privatisation, transfer or granting of state or municipal property, persons engaged in the ordering of services and budgetary resources, the conclusion of agreements on using the EU funds and external aid, economic and administrative officials, training managers, IT managers, and public officials related to making decisions with regard to public procurements, calls for proposals, projects, and the awarding of grants.
An act is an activity that causes a legal or inevitable factual consequence for another person, which is not making a decision. For example, a procedure may cover detention, security search, judicial review, registry entry, direct coercion (the affecting of a natural person, animal or thing by physical force or a weapon), responding to an emergency call number and rescue service within the meaning of the Rescue Act, closing a road, providing an explanations or other non-binding act, identification, certification, authentication within the meaning of the Notarisation Act, eviction.
An official position presumes the person’s competence (right or obligation) to somehow function. The fact that a person has a legitimate or unlawful option to behave in one way or another cannot be considered as the characteristic of an official position. For example, although a guard can transfer a letter that has been delivered to an institution, he or she does not have the competence to decide on refusing to accept the letter and, therefore, he or she does not have an official position in this respect.
Attention should be also paid to subsection 2 (3) of the Anti-corruption Act, establishing that an obligation to make a disposition is not deemed to be the competence to make decisions in the case the person has no right to determine the circumstances of the transaction and an obligation to perform an act is not deemed to be the competence to perform acts in the case the person has no right to determine the circumstances affecting the consequences of the act. In general, due to this specification, an official position is not given to a person whose competence is limited to the obligation to comply with a decision.