Considerații asupra răspunderii magistratului sub aspectul săvârșirii infracțiunii de abuz în serviciu
Considerations on the magistrate’s liability in point of committing abuse of office

Summary/Abstract: Abstract: Abuse of office is set to rights both by the Penal Code and Law no. 78/2000. Both the judicial practice and the judicial literature of specialty have stated that abuse of office has a subsidiary character. Subject to abuse of office can also be a judge or a prosecutor, according to art. 175 line (1) a) Penal Code. On what concerns the fulfillment of the subject’s attributes as a judge or prosecutor, the judicial practice has brought a set of gradations. As for what concerns us, we appreciate that the penal liability of a judge or prosecutor can be retained under the aspect of committing abuse of office only when the magistrate breaks with direct or indirect intention the material or procedural norms suited for the cause that he/she investigates or judges. At the same time, we consider that the penal liability of a magistrate cannot be engaged under the aspect of committing abuse of office for the solutions adopted or instrumented. It can be brought to question if a judge or a prosecutor will be charged both criminally for committing abuse of office and disciplinary under the aspect of committing the disciplinary violation provided by art. 99 lit. t) from Law no. 303/2004, republished with additions, regarding the status of judges and attorneys, for the same cause. We opine that the answer to this issue is a negative one, in the sense that there cannot exist a contest between committing abuse of office and a disciplinary violation. The distinction between the two forms of liability, from our point of view, should be made based on the immediate consequence of the deed.

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