INFRACŢIUNEA DE ABUZ ÎN SERVICIU ÎN LUMINA DECIZIEI CURŢII CONSTITUŢIONALE NR. 405/2016
THE CRIME OF ABUSE OF AUTHORITY IN THE LIGHT OF THE DECISION NO. 405/2016 ISSUED BY THE CONSTITUTIONAL COURT

Summary/Abstract: Through the above mentioned Decision issued by the Constitutional Court the exception of unconstitutionality raised by a large number of public officer arraigned for the committing the crime of abuse of authority regulated by the Art. 246 of the Criminal Code 1969 and Art. 297 para 1 of the applicable Criminal Code has been admitted with full justification, determining that these clauses are constitutional whereas through the phrase „defectively fulfils” within their content it is understood „fulfils through the infringement of the law”. The faulty regulating of the infringement of the law regarding the abuse of power while on duty by using the phrase „meets in a wrong manner”, which is improper, to criminal law, has given the possibility to prosecutors and judges to consider in a subjective and arbitrary manner, if a deed imputed to a state functionary, not punished by the law, meets the constitutional rights of the infringement of the law regarding the abuse of power. Using the collocation „meets by breaking the law” used in the decision of the Constitutional Court, it is wanted that the deed imputed on the state's functionary achieve „the standard objective”, which is to be punished by the law. The deed of the state's functionary, not punishable by the law, does not represent an „unlawful crime” that can attract a criminal sanction, but an illicit unlawful, deed that will attract a reparative sanction, if the conditions of the juristic act are met which can be administrative, civil, material, tax or contravention. The documents issued by state functionaries, in accordance with work attributions that they have and the type of places where this activity takes place can be cancelled or abolished by using judiciary procedures regulated by the law, in which the people that consider themselves injured party in right or lawful interest can demand retribution. For the errors in the process of interpreting and applying the law or for the wrong or contradictory solutions, all state functionaries, not only judges or prosecutors, as the High Court of Cassation and Justice has wrongfully pronounced, cannot be charged legally due to the fact that the lawmaker did not accuse and could not even accuse the wrong errors or solutions, in most of the cases generated by the faults in the law system. Saying that deeds of non-criminal law are infringements of the law by abusing power for which state functionaries have been accused, which are not incriminated by the law, for which there are different judicial procedures, is a practise contrary to the law, created after the year 1990 by the prosecutors and by the courts. If this decision of the Constitutional Court will be interpreted and applied by prosecutors and judges accordingly, this will remain as an important contribution in turning to good account of criminal law, which is called to defend the fundamental rights and freedoms of man through means of criminal law and not to repress them.

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