Considerații cu privire la reținerea infracțiunilor de zădărnicire a combaterii bolilor (art. 352 Cod penal) și abuz în serviciu (art. 297 Cod penal) în sarcina personalului medical
The offenses of thwarting the fight against diseases (article 352 par. 2 of the Romanian Criminal Code) and abuse of power (article 297 of the Romanian Criminal Code) in regard to the medical staff’s task

Summary/Abstract: The amplification of the epidemic with a new type of infectious disease (COVID-19) generated, in thefirst months of 2020, the need to implement exceptional measures, which changed the ordinary reality of themedical system, of the daily life and even of the legal system. In the context of the efforts made to prevent and combat the spread of this disease,more public varietiesof more or less controversial types of human behavior have been submitted to the public’s attention, oftengenerating problematic discussions regarding the criminal stamp of certain behaviors. Such a topic is alsoconferred by the decision made by a part of the medical staff working in the hospital units to refuse to providemedical care to patients suspected or confirmed as infected with the virus in question.Starting from this point, the author analyzes to what extent and in which conditions certain conductsof the medical staff are able to consist in the crimes of thwarting the fight against diseases [art. 353 par. (2) ofthe Romanian Criminal Code] and abuse of power [art. 297 alin. (1) of the Romanian Criminal Code]. Theauthor concludes that no generally valid conclusions can be found to establish if such acts are fullfilling thetypicality of the mentioned offences. Because of that, the author proposes a balanced and contextual approachto such situations, advocating for a concrete analysis to be performed according to the specifics of each twill.The amplification of the epidemic with a new type of infectious disease (COVID-19) generated, in the first months of 2020, the need to implement exceptional measures, which changed the ordinary reality of the medical system, of the daily life and even of the legal system.In the context of the efforts made to prevent and combat the spread of this disease,more public varieties of more or less controversial types of human behavior have been submitted to the public’s attention, often generating problematic discussions regarding the criminal stamp of certain behaviors. Such a topic is also conferred by the decision made by a part of the medical staff working in the hospital units to refuse to provide medical care to patients suspected or confirmed as infected with the virus in question.Starting from this point, the author analyzes to what extent and in which conditions certain conducts of the medical staff are able to consist in the crimes of thwarting the fight against diseases [art. 353 par. (2) of the Romanian Criminal Code] and abuse of power [art. 297 alin. (1) of the Romanian Criminal Code]. The author concludes that no generally valid conclusions can be found to establish if such acts are fullfilling the typicality of the mentioned offences. Because of that, the author proposes a balanced and contextual approach to such situations, advocating for a concrete analysis to be performed according to the specifics of each twill.

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