Subsidiary/special nature of the offence of abuse of office in relation to other offences

DREPT PENAL ŞI DREPT PROCESUAL PENAL

Abstract

The offence of abuse of office is of a subsidiary nature, in the sense that the act committed by a public official is covered by the provisions of Article 297 of the Criminal Code, only if this abuse does not have a separate incrimination in the Criminal Code or in a special law.

Given that the offence was held to be one of improper participation in destruction, the offence of abuse of office can no longer be held against the defendant, since although the objective aspect is characterized by the knowing, defective performance of his official duties, these features are included in the offence of improper participation in destruction. As such, the rules incriminating the abuse of office do not apply in this case, either as regards actual or ideal multiple offences.

Therefore, the act of the public official to instruct subordinate employees to destroy property belonging to another person, meets the elements of the offence of improper participation in destruction provided for in Article 52 para. (3) in conjunction with Article 253 (1) of the Criminal Code and not those of the offence of abuse of office provided for in Article 297(1) of the Criminal Code.