The subjects of the abuse of office offence

Abstract

The active subject of the crimes is relevant for the identification of the crimes in relation to which there is a subsidiary character.

The legal literature talks of an autonomous nature of the notion of public official in criminal law in relation to that in administrative law. The notion of public official is more comprehensive than the one in administrative law. The reason for the conceptual autonomy of the notions is intimately related to the need to effectively protect the public office, as well as the interests of the administration in its various dimensions.

The classification of a person in one of the categories of public and private official must not be based on an abstract, inflexible analysis, but one made in concreto, depending on the professional activity actually carried out by the person in question, "harnessed" in the commission of the crime.

In contrast to the previous regulation, in the current Criminal Code, a detailed version of the regulation by categories and subcategories was chosen. Despite the obvious attempt to bring more clarity, the sheer number of requests to solve questions of law (only a small proportion of which make it past the admissibility stage) points to the exact opposite.

Fulfilment of the conditions provided by art. 175 para. (2) of the Criminal Code must be analysed for each specific professional category, starting from the special rules that regulate its status.

In the case of the private officials, the law excludes the relevance of the duration of the assignment within the legal entity, it can be both indefinite and temporary, just as it does not attach importance to the remunerated or free nature of the assignment, the nature or the way of assignment. Therefore, the validity of the employment relationship has no significance either, so that the eventual nullity does not exclude the status of an official/servant. That is precisely why it is not necessary to refer to the benchmarks of the de facto official/servant theory from administrative law.

The author or co-author of the crime, in any of its forms, can only be a natural person, and not a legal person. A legal person other than the passive subject of the crime, the state, public authorities or public institutions may have the capacity of instigator or accomplice.

Regarding criminal participation, there may be situations in which the conduct of the author and the participant are identical from the point of view of their material contribution, in which case the conduct of the participant will not be considered an act of execution, because he is not a public or private official in the exercise of service duties.

Summa summarum, the analysis reflects the fact that the Romanian criminal law combined, rather, a functional criterion with a formal one, so the approach of the Romanian criminal legislator is not similar to that of the Spanish legislator. In order to avoid contradictory solutions in the judicial practice, the restructuring of the notion of public official starting from a purely functional criterion and renouncing the formal criterion can represent a legal solution.

The reason for criminalizing the abuse of office in the private environment, by applying it to private officials, when it does not constitute a crime assimilated to corruption, does not correspond to the principle of minimum intervention. The New York Convention against Corruption and the Strasbourg Criminal Convention on Corruption bind the Romanian state to criminalize abuse of office in the private sector, only if it is a crime assimilated to corruption crimes.