Inequities regarding the incrimination of the criminal offence of abusive conduct in aggravated form

  • Claudia Cristina Povăliceanu Faculty of Law, Babeș-Bolyai University, Cluj-Napoca; Prosecutor's Office attached to the Timișoara District Court
Keywords: crime of abusive conduct, vacuum of incrimination, the right of the victim to file a prior complaint, injured interest, material element of the crime


The new incrimination of the crime of abusive conduct brought with it a series of restrictive, unjustified changes regarding the material element of the offence, but also an excessive widening of the scope in application regarding the active subject. We are putting forward for debate the reasoning of the legislator in relation to the need to incriminate in the form of a more serious offence the acts committed by the person in the exercise of their office duties, and not only of the acts committed by the civil servants or by an assimilated civil servants, and we further ask ourselves what was the purpose of extending the legal object, considering that in the case of the first category of active subjects the damaged social value may be purely private. Respectively, what was the spirit of the law when the deed of the persons was aggravated in the context that the persons were employed by a maintenance company, only for the fact that, during the exercise of their office duties, they hit a colleague, causing injuries that required several days of medical care, determining the qualification of the deed as abusive conduct, and not a simple assault. Moreover, given the nature of the injured interest, the minimum harm to the social value, we put forward the controversy related to the reason of the legislator to avoid, in this case, the right of the victim to file a prior complaint and, consequently, to exercise the criminal action ex officio.

The essence of the article is the finding of a vacuum of incrimination and, at the same time, an injustice in the case of committing more serios consequences than the two limitative provided by the legislator in aggravated form, namely the threat and assault, by an employee, and offering solutions in regards to the sanctioning regime. Currently, the commission of a personal injury, assault causing death or even murder by a person in the exercise of their office duties leads to the application of the rules regarding multiple offences between the aggravated form of the abusive conduct offence and the criminal offence protecting the more serious consequence, aspect that constitutes an inequity, as if the perpetrator had committed one of the offences strictly provided by the content of the legal norm, the limits of punishment applicable would have been increased by a half and the mandatory and fixed increase of a third from the more serious punishment would remain inapplicable.

As lex ferenda, we advance the proposal to modify the constitutive elements of the aggravated form of the criminal offence, by extending the scope of the incrimination and including the personal injury, assault leading to death, murder and, why not, also other criminal offences that, committed in the exercise of the office duties, impact the proper conduct of work relationships. Only by reforming the constitutive content of the criminal offence the current inequities both regarding the active subject, material element of the crime, but also the sanctioning regime, can be amended.