Definition of abuse of office in Romanian legislation
Criminal Code. Abuse of office is regulated by Article 297 of the Criminal Code. Under the current wording of the law, “the act of the public official who, in the exercise of his or her duties, fails to perform an act provided for by a law, ordinance or emergency ordinance, or performs it by breaching a legal provision, thereby causing damage or an impairment of the rights or legitimate interests of a natural or legal person, shall be punished by imprisonment from 2 to 7 years and a ban on the right to hold a public office.” Paragraph (2) of the same Article provides that the same penalty shall apply to the public official who, in the exercise of his or her duties, restricts the exercise of a right of a person or creates for that person a situation of inferiority on grounds of discrimination (race, nationality, sex, age, etc.).
Clarifications by the Constitutional Court. The notion of “defective performance” in the legal definition gave rise to debate regarding the foreseeability of the law. By Decision no. 405/2016, the Constitutional Court of Romania (CCR) held that the phrase “performs in a defective manner” must be interpreted as “performs by breaching the law”, in order to comply with the requirements of clarity and legality. In other words, abuse of office presupposes the breach of a law or ordinance with the force of law, not merely the failure to comply with internal procedures. This mandatory interpretation was subsequently expressly transposed into the text of Article 297 of the Criminal Code (by Law no. 200/2023) and ensures that the illegal nature of the act is clearly defined.
In conclusion, in Romanian legislation abuse of office refers to the action or omission of a public official who breaches the duties laid down by law, with the intent to cause damage or to harm the rights of others. It is an offence in the category of offences relating to service, intended to protect the integrity of the public administration and the rights of citizens against the abusive exercise of authority. Both the Criminal Code and the decisions of the Constitutional Court stress that the central element of abuse of office is the breach of the law by the official, and not mere error or inefficiency.
Constitutive elements of the offence
For the offence of abuse of office to exist, a series of constitutive elements must be cumulatively fulfilled, as laid down by law and interpreted in doctrine and case-law:
Active subject (who can commit the act)
Only a person with the special status of public official (in the criminal-law sense) can be the author of abuse of office.[1] The Criminal Code defines “public official” broadly in Article 175, including not only officials within the meaning of the Law on civil servants, but also any person who performs a service of public interest or a public function of authority, being appointed or controlled by a public authority. For example, this includes civil servants in central or local administration, police officers, magistrates, staff of public institutions, as well as persons who, although they do not have the status of civil servant in the administrative sense, are assimilated (e.g. employees of autonomous administrations or state-owned companies, insofar as they perform a public service under the control of the State).[1]
The passive subject of the offence may be either the institution within which the official carries out his or her activity (which suffers material damage) or a natural or legal person whose rights or legitimate interests are harmed by the abusive act.
Legal object
The legal object consists of the social relations relating to the proper functioning of the public service, the integrity and lawfulness of officials’ acts, as well as the protection of the rights and legitimate interests of individuals. The law therefore protects both the general interest (the rule of law in the administration) and the particular interests of those affected by the abuse.
Objective side (the act and its consequences)
The objective side consists in an action or omission by the official: failure to perform a mandatory act (provided by law among his or her duties) or performing it in breach of the law (defective performance, in the sense explained by the Constitutional Court). In other words, the official either omits to do something which he or she was legally bound to do, or performs that act, but not in accordance with the law (performs it unlawfully, abusively).
The essential condition is that this action/omission produces a serious consequence: material damage (pecuniary prejudice) or harm to the rights or legitimate interests of a person. Thus, a result required by law must exist – a concrete negative effect on the protected values (for example, a loss for the institution or a breach of someone’s right to a service, to a legal benefit, etc.). There must be a direct causal link between the official’s act and this result: the damage/harm must be the consequence of the breach of the duty of service.[2] If no damage or concrete harm occurs, the act does not fulfil the legal elements of abuse of office, no matter how inappropriate the official’s conduct may have been.
Subjective side (fault)
Abuse of office is committed with intent. The law requires the official to act intentionally – either with direct intent (wishing to produce the result, seeking to obtain a benefit or cause damage) or with indirect intent (accepting the possibility of the result and assuming this risk).[3]
Negligence (culpa) is not sufficient to engage liability for abuse of office – in the case of negligence, the distinct offence of negligence in office (Article 298 of the Criminal Code) may be applicable, as will be shown in the following sections. In other words, abuse presupposes that the official knows what he or she is doing and deliberately breaches the law in the exercise of his or her duties, whereas errors committed out of recklessness or unintentional omission may only fall under criminal liability for negligence (or remain in the sphere of administrative liability if they are not serious).
Special aggravated form (Law no. 78/2000)
If the public official acted in order to obtain an undue benefit (an unjust advantage) for himself/herself or for another, the act falls under the special Law no. 78/2000 on the prevention and combating of corruption. Article 13² of this law qualifies abuse of office as an offence assimilated to corruption when an undue benefit is obtained, and provides for a harsher penalty (the limits of punishment laid down in the Criminal Code are increased by one third).[4] This aggravation reflects the greater social danger of situations in which the official has used his or her position abusively not only to cause damage, but also to enrich himself or herself unlawfully (or to favour another). The penalty regime will be detailed below.
Note. The constitutive elements mentioned must be fulfilled cumulatively. The absence of any of them (for example, if the perpetrator does not have the status of public official, or if no actual damage/harm was produced) means that the act cannot be classified as abuse of office and may at most give rise to another type of liability (disciplinary, civil) or no criminal liability at all. In practice, the legal definition synthesises these elements, and the judicial authorities verify their fulfilment in detail in each case.
Practical examples and the distinction from negligence or administrative error
To illustrate the way in which the notion of abuse of office is applied in practice, as well as to understand the boundaries between this offence and less serious acts (such as negligence in office or simple administrative error), here are some hypothetical examples and clarifications:
Example of abuse of office
A mayor knowingly awards a public contract directly to a friend’s company, without tender and in breach of public procurement law, thereby causing damage to the municipality (because the price paid is unjustifiably high) and infringing the right of other companies to equal treatment. The mayor knew that he was acting unlawfully and sought to favour his friend, accepting the damage caused to the institution. This situation fulfils the elements of abuse of office: public official, deliberate breach of the law in the exercise of duties, damage caused and intent (obtaining an undue benefit for another, i.e. the friend).[4]
Another example: a counter clerk unlawfully refuses to issue a document to which a citizen is entitled, thereby causing harm to the citizen’s rights (preventing him or her from enjoying a legal right in due time). If the refusal is intentional and contrary to the law (perhaps in bad faith or in order to solicit a bribe from the citizen), we are also in the sphere of abuse of office.
Example of negligence in office
A clerk at the same counter forgets or negligently fails to process the citizen’s application for that document in due time, exceeding the statutory deadline, and the person therefore suffers harm (loses an opportunity because of the delay). In this case, the official did not intentionally seek to cause harm; his or her act results from inattention, overload or lack of skill – he or she breached a duty of service out of negligence, not intentionally.
This corresponds to the offence of negligence in office (Article 298 of the Criminal Code), which has content similar to abuse, but requires fault in the form of negligence (either slight or gross).[3] The Criminal Code provides for a much lighter penalty for negligence in office (imprisonment from 3 months to 3 years or a criminal fine) precisely because intent is lacking and the gravity is lower. Thus, the main difference between abuse and negligence lies in the perpetrator’s mental attitude: he or she knows and wishes/accepts to break the law (abuse) vs. does not envisage the result or does not wish it but causes it by mistake (negligence).
Administrative error (act without criminal relevance)
There are situations where an official makes a mistake or omission without intent and without serious negligence, which does not produce serious consequences. For example, incorrectly filling in a form, sending a letter to the wrong address, minor bureaucratic delays that can be easily remedied and do not effectively cause significant damage or an infringement of rights.
Such errors may at most give rise to disciplinary liability within the institution or may be forgiven as human oversights, without being of a criminal nature. Criminal law does not sanction minor imperfections or excusable errors of officials, but only those acts which exceed a certain threshold of gravity – when the official has flagrantly and culpably breached his or her duties, affecting the interests of others. Where there is no intent or at least serious negligence and no certain damage is found, there can be no question of an offence.
Thus, not every mistake by an official is abuse of office: abuse implies a deliberate departure from the law, whereas administrative error can be corrected internally without resorting to criminal law.
Limits and legal classification of acts
In practice, there are borderline cases between abuse and negligence, where intent may be difficult to prove. The prosecution authorities and the courts carefully analyse the circumstances in order to determine the form of fault. Sometimes, if an official is initially charged with abuse of office, but it is found in the course of proceedings that he or she acted merely negligently, the legal classification may be changed from abuse to negligence in office.[3] The distinction is essential because it affects both the perceived gravity of the act and the applicable penalty.
Moreover, the gravity of the breach of the law matters: abuse of office presupposes a clear, objective breach of an obligation imposed by a law or ordinance. The mere breach of general principles or vague internal rules should not, in principle, on their own, form the basis of a charge of abuse in the absence of a specific legal provision breached.
This has also been the basis for some acquittals: courts have held that criminal punishment for the breach of general principles in legislation (e.g. principles in government emergency ordinances on public procurement) would lead to “excessive unpredictability” of criminal law. Therefore, for the purposes of distinction, it is verified whether the official breached a concrete duty clearly laid down by a legal norm (not just a recommendation or an abstract principle).
Summary of the distinctions
In summary:
- Abuse of office is the intentional and unlawful act of the official, with harmful consequences.
- Negligence in office is the unintentional act (committed through negligence) of the official, which causes similar consequences but with diminished fault.
- Administrative error represents minor or excusable mistakes, without serious effects, which do not fall within the criminal sphere.
This distinction ensures that criminal liability (the most severe form) is applied only in genuinely serious and blameworthy cases, while at the same time protecting honest officials from the fear that any mistake could be treated as an offence.
Penalties provided by law and aggravating or mitigating circumstances
Basic penalties (Criminal Code)
The basic form of the offence of abuse of office (the standard variant, provided for in Article 297 (1) of the Criminal Code) is punishable by imprisonment from 2 to 7 years, plus a ban on the exercise of the right to hold a public office for a certain period, as a complementary penalty.
This reflects the medium gravity of the act: being an offence assimilated to the sphere of corruption, the law provides a relatively high minimum limit (2 years) in order to discourage such abuses. If the act is of very low gravity (for example, the prejudice is symbolic), but there is still fault and breach of the law, the court may apply the penalty in the form of a suspended sentence or even a criminal fine, taking into account the circumstances, but still within the legal framework of the offence.
The Criminal Code does not provide for a value threshold of damage below which the act would cease to be an offence – therefore, in principle, even small damage does not decriminalise the act. However, the reduced gravity may be taken into account for the individualisation of the penalty (application of the minimum limit, mitigating circumstances, etc.).
Penalties in the aggravated form (Law no. 78/2000)
If abuse of office is committed for the purpose of obtaining an undue benefit for oneself or for another, the special provision of Article 13² of Law no. 78/2000 applies. This increases by one third the limits of punishment laid down in the Criminal Code.
Specifically, the minimum limit becomes 2 years + 1/3 (approximately 2 years and 8 months), and the maximum limit about 9 years and 4 months. In practice, the sentencing range in these cases becomes approximately 2.8 – 9.3 years’ imprisonment. The court will set a penalty within this new increased range, taking into account that the act involved the corruption of the office for personal profit.
The one-third increase underscores the harsher criminal policy towards corruption and corruption-related offences (including abuse of office with undue benefit).[4] Moreover, these cases fall within the jurisdiction of the anti-corruption authorities – the National Anticorruption Directorate (DNA) – if the other jurisdictional conditions are also met.
Penalties for related variants
Paragraph (2) of Article 297 of the Criminal Code (abuse through discrimination) carries the same penalty as the basic variant, i.e. 2–7 years’ imprisonment. The legislator considered that restricting rights on discriminatory grounds is as serious as causing material damage; therefore, the sanction is identical.
However, if the discriminatory act is not committed by an official in the exercise of his or her duties (but, for example, by a private person), it does not fall under abuse of office, but could be classified under other offences (such as the obstruction of the exercise of certain rights, provided for in another Article).
By comparison, negligence in office (Article 298 of the Criminal Code) is sanctioned much more leniently, with imprisonment from 3 months to 3 years or a fine. This reflects the lower social danger of acts committed through negligence. Also, unlike abuse, in negligence the law explicitly allows the alternative of a fine and has a very low minimum (3 months), offering judges flexibility to apply symbolic penalties in cases of slight negligence.
Special aggravating circumstances
Beyond the aggravating circumstance provided for in Law no. 78/2000 (undue benefit), the legislation does not list other distinct aggravated forms for abuse of office. However, there may be situations which, in concreto, aggravate liability: for instance, the act committed by a high-ranking state official (minister, mayor, etc.) does not carry a different statutory penalty, but the status of the author may be taken into account by the court when individualising the sentence (e.g. a position of important authority – which may increase the gravity of the act).
Likewise, if the abuse was committed in a continued form (several successive acts, e.g. repeating the abuse several times), or if it was committed by a group of officials acting in concert, these aspects may lead to penalties closer to the maximum.
A special case concerns the jurisdiction of the DNA: if the damage caused by the abuse exceeds the equivalent of EUR 200,000 or if the official perpetrator has a certain high office (for example, MP, minister, judge, etc.), then the case falls within the jurisdiction of the DNA (the structure specialised in combating corruption). This does not change the statutory level of the penalty, but shows that the legislator considers acts with a very high financial stake or with high-ranking authors to be of greater gravity, requiring special treatment.
Indeed, the High Court of Cassation and Justice (ICCJ) has held, by a recurs în interesul legii (appeal in the interest of the law), that abuse of office causing damage below or equal to EUR 200,000, committed by an official who does not hold a position attracting the jurisdiction of the DNA, does not fall within the jurisdiction of the DNA, but remains with the ordinary prosecution offices. Conversely, if the damage exceeds EUR 200,000, the case will be taken over by the DNA under the special law.
Mitigating circumstances and individualisation
As in any offence, the existence of mitigating circumstances may reduce the penalty below the special minimum or may lead the court to a milder sanction. An important example is the repair of the damage: if the accused official fully covers the damage caused (voluntarily, before or during the trial) and shows efforts at redress, this may be regarded as a judicial mitigating circumstance.
In practice, when the damage is recovered, courts tend to reduce the penalty, sometimes even ordering suspension of its execution (giving the official a chance for rehabilitation). Another mitigating factor may be the defendant’s sincere attitude – admission of guilt, cooperation with the investigators – or the existence of moral constraints (if, for example, the official was pressured by superiors to commit the act). Also, if the act occurred in a complex context (legislative confusion, conflicting tasks), the degree of culpability may be considered lower.
Conversely, aggravating circumstances may be retained if, for example, the official abused a special position of trust, caused particularly serious consequences (very large damage or serious harm to a fundamental institution) or acted for ignoble purposes. These can push the penalty towards the statutory maximum, but cannot exceed the legal maximum.
Summary of the sanctioning regime
Abuse of office is generally punishable by imprisonment, reflecting the perceived seriousness of the act. The law does not allow a fine as the main sanction in the basic form (only in negligence is a fine possible). Through special provisions, the law aggravates the penalty if the act is corruption-related (undue benefit). However, the judge has the possibility to take into account particular circumstances in order to adjust the penalty – from applying the minimum with suspension to moving towards the maximum in scandalous cases.
The absence of a value threshold of the prejudice in the definition of the offence has generated debate, but the Constitutional Court has held that omitting such a threshold does not render the text unconstitutional (the legislator being free to decide whether a threshold is appropriate). Thus, any material damage or harm to a right is legally relevant, but in practice the size of the damage strongly influences the severity of the sentence.
Relevant decisions and interpretations of the Constitutional Court and the High Court of Cassation and Justice
Over the years, the Constitutional Court of Romania (CCR) and the High Court of Cassation and Justice (ICCJ) have played an important role in clarifying and unifying the application of the offence of abuse of office. Here are some milestones and notable decisions:
CCR, Decision no. 405/2016
This decision (already mentioned) addressed several constitutional challenges to Article 297 of the Criminal Code and Article 13² of Law no. 78/2000. The Constitutional Court held that the phrase “performs in a defective manner” in the definition of abuse of office is constitutional only if interpreted as “performs by breaching the law”. In its reasoning, the Court pointed out that the general notion of “defective” was too vague and could lead to arbitrary interpretations, infringing the principle of foreseeability of criminal law (Article 1 (5) of the Constitution and Article 7 of the ECHR).[5]
In practice, the Constitutional Court did not remove the offence, but imposed this mandatory interpretation. In its considerations, the Court stressed that “defective performance of an act” means “performing it otherwise than it should have been performed, i.e. in conditions other than those laid down by law”. Decision 405/2016 is crucial: after its publication, the judicial authorities had to check in each case whether the breach imputed to the official related to a law or an ordinance with the force of law. Any abuse based solely on the breach of internal regulations or unlawful provisions could no longer be sanctioned (this being equivalent to a partial decriminalisation of abuse – the constitutional challenges were upheld in part).
Subsequently, in 2023 Parliament amended Article 297 (1) of the Criminal Code to align the text with the Constitutional Court’s decision (explicitly introducing the phrase “breach of a provision contained in a law”).
CCR, Decision no. 392/2017
This decision examined the issue of whether a value threshold of the damage was necessary in the definition of abuse of office. It came after intense public debate (the case of Government Emergency Ordinance 13/2017, which had proposed a threshold of RON 200,000 for damage and had been repealed).
The Constitutional Court held that the legislator has the power to set value thresholds if it considers appropriate, but the absence of a threshold in the current text does not in itself infringe the Constitution. However, the Court noted that the State has the obligation to ensure the foreseeability and balance of criminalisation, hinting that a more precise definition of the limits of liability would be desirable.
In practice, CCR 392/2017 dismissed the constitutional challenge and did not impose a threshold, but invited Parliament to regulate more clearly if it deemed it appropriate. In the reasoning, the constitutional judges also referred to a dissenting opinion (Livia Stanciu), which underlined that introducing a threshold of prejudice falls within the criminal policy of the legislator, not within constitutional review. Parliament only came up with amendments in 2023, but even then did not introduce a general value threshold, maintaining the approach that any damage triggers liability, with the exception of DNA jurisdiction from a certain threshold upwards, as mentioned above.
CCR, Decision no. 518/2017
This decision concerned the offence of negligence in office (Article 298 of the Criminal Code), but is also relevant by analogy to abuse. In this judgment, the Constitutional Court unanimously held that the phrase “defective performance” in Article 298 is constitutional only if it means “performance by breaching the law”.[6] In other words, the same requirement of strict legality applies to the negligent variant of the offence.
Therefore, in both abuse and negligence, the official is criminally liable only if he or she has failed to perform a duty expressly provided by law. The Constitutional Court thus sought to ensure symmetry of interpretation and to avoid leaving negligence in office vaguely drafted (after clarifying abuse in 2016). Decision 518/2017 was also followed by the amendment of Article 298 of the Criminal Code in 2023, which now explicitly refers to the breach of the law.
Other relevant CCR decisions
Decision no. 650/2018 came in the continuation of discussions on redefining the offence. In the context of a bill amending the Criminal Code adopted by Parliament (which provided for a threshold of RON 50,000 for abuse of office), the Constitutional Court identified certain procedural and substantive constitutional flaws in that law, temporarily leaving the text of the Criminal Code unchanged.
In practice, CCR 650/2018 reiterated that ignoring the requirements of Decision 405/2016 would be unacceptable – in that bill, the proposed definition had omitted the condition “by breaching the law” – and again stressed that setting a minimum threshold must be done with due regard for the Constitution. As a result, the legislative amendments dragged on until 2023.
CCR, Decision no. 417/2019 (delivered in the context of challenges concerning the retroactive application of CCR decisions to final cases) clarified that Decision 405/2016 did not completely decriminalise abuse of office, but only narrowed the scope of the text, so that pending cases had to be decided taking into account the Constitutional Court’s interpretation, while previous convictions remained valid if the act involved breach of the law even under the new interpretation.
ICCJ, Decision no. 26/2021 (Appeal in the interest of the law – RIL)
Seised by the Prosecutor General, the High Court resolved a problem of non-uniform case-law concerning the jurisdiction of the DNA in cases of abuse of office. By Decision 26/2021, the High Court held that the offence of abuse of office provided for in Article 13² of Law no. 78/2000 in conjunction with Article 297 of the Criminal Code, which caused material damage of less than or equal to the equivalent of EUR 200,000, committed by a person who does not hold a position attracting the jurisdiction of the DNA, falls within the jurisdiction of non-specialised (ordinary) prosecution offices and not of the DNA.
The High Court also clarified that the legal provisions of Government Emergency Ordinance 43/2002 relating to the threshold of EUR 200,000 (for DNA jurisdiction in corruption matters) apply to the offence of abuse of office only in conjunction with Law no. 78/2000. In practice, this decision “cut out” of the DNA’s remit ordinary abuse-of-office cases (without high prejudice or without high-ranking officials involved), relieving the DNA and clarifying the competent forum. The RIL is binding, so from that moment prosecutors complied: if abuse of office involves damage below about RON 1 million and does not involve high-ranking office holders, it remains with local prosecution offices.
ICCJ, Preliminary ruling Decision no. 9/2023
Delivered for the clarification of a question of law, this decision held that a public institution (such as a military hospital) cannot have the capacity of author of corruption or service-related offences, such as bribery or abuse of office. This is an interesting nuance confirmed by the High Court: only natural persons acting as public officials can be active subjects of abuse of office – not public-law legal entities as such. Legal entities may, where appropriate, be civilly liable or be the passive subject of the offence, but not the author of the act, since the offence presupposes the exercise of duties of service by an empowered natural person. This interpretation was in any event widely accepted; the decision came to remove any doubt.
Judicial practice and other ICCJ decisions
In recent years, the High Court has delivered further decisions on abuse of office. For example, it has consistently held that intent is the key element differentiating abuse from negligence, rejecting attempts by defendants to reclassify their act from intentional to negligent where the evidence indicated otherwise.[7]
The supreme court has also applied CCR decisions: for instance, after Decision 405/2016, there have been acquittals where it was found that the alleged acts consisted only in breaching secondary norms or internal instructions, without breaching a law – the courts considered that, in the absence of the condition imposed by the CCR, the act is not typical (does not fulfil the elements of the offence).
In another decision from 2019, the High Court stressed that constitutional court decisions which narrow the scope of criminal law (such as 405/2016) have effects only for the future and for pending cases, and cannot be invoked to set aside past final convictions except under the conditions for revision or pardon (a matter of legal certainty).
Overall impact of case-law
In conclusion, the constitutional case-law and that of the supreme court have brought essential clarifications: they have specified the way in which the law must be interpreted (CCR 405/2016 – imposing the requirement of breach of the law; CCR 518/2017 – analogous for negligence), have delimited competences and subjects (ICCJ RIL 2021 – DNA jurisdiction threshold; ICCJ 2023 – only natural persons may be active subjects), and have confirmed the importance of the principles of legality and foreseeability in the application of the offence.
Any discussion of abuse of office in Romania must therefore take these case-law landmarks into account, as they effectively complement the letter of the law and guide the practice of judicial authorities.
International regulations: UN standards, ECtHR case-law, CJEU decisions
The offence of abuse of office, although defined by national law, falls within the broader category of corruption or misconduct in public office, which are the subject of international standards and instruments. Below is a brief overview of the perspective of the United Nations (through the Anti-Corruption Convention), the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) on this type of offence.
UN standards – United Nations Convention against Corruption (UNCAC)
At global level, the UN encourages the criminalisation of “abuse of functions”. Romania is a party to UNCAC (the Convention adopted in New York in 2003). Article 19 of UNCAC, entitled “Abuse of functions”, recommends that States criminalise the act of a public official who deliberately abuses his or her functions, either by act or omission, in order to obtain an undue advantage for himself or herself or for another person, by breaching the law.
This provision (which is not mandatory in the strict sense – States “shall consider” introducing the offence) reflects the international consensus that abuse of authority must be combated criminally as a form of corruption. In the legislation of various countries, equivalent offences exist under different names (abuse of office, malfeasance in office, etc.), and the Romanian model in Article 297 of the Criminal Code broadly corresponds to UNCAC requirements: it involves an act of a public agent, carried out contrary to the law, with an illicit purpose.
In Romania, Law no. 78/2000 on corruption offences includes abuse of office (with undue benefit) among the offences assimilated to corruption, precisely in order to align with international anti-corruption standards. Even though UNCAC does not expressly require a specific legislative wording, its recommendations have been invoked in public debate and even in CCR decisions as an argument for maintaining the offence of abuse of office in the Criminal Code at effective parameters.
In practice, under UN standards, a country must have criminal tools to sanction situations where officials breach their legal duty for an illicit purpose – which Romania has through Article 297 of the Criminal Code.
Case-law of the European Court of Human Rights (ECtHR)
From the perspective of human rights, the discussion on abuse of office is mainly linked to the principle of legality of criminalisation (nullum crimen sine lege, provided by Article 7 of the ECHR). The ECtHR has consistently held that criminal laws must be drafted with clarity and foreseeability, so that those concerned (in this case, officials) can adapt their conduct.
In the context of similar national laws, the Strasbourg Court has censured the lack of clarity in the definition of abuse of office. For example, in a case concerning the Estonian Penal Code, the ECtHR found that the excessively vague wording of the offence of “abuse of power” infringed Article 7 of the Convention due to the lack of foreseeability of the incriminating norm.[8]
In Romania’s case, there is, to date, no ECtHR judgment declaring abuse of office as such unclear, but the issue has reached the Court. For instance, in Bădeșcu and Others v. Romania (2022), three judges convicted for abuse of office and favouring the perpetrator argued before the ECtHR that the law had not been foreseeable and that criminal liability had affected their judicial independence. The European Court in that case dismissed the complaints, holding that sanctioning the judges (who had delivered judgments contrary to the law in exchange for benefits) had not infringed Article 7 and had not impaired the independence of the judiciary – in other words, the application of criminal law was considered legitimate and foreseeable in that context.
Nevertheless, the debates on the clarity of Romanian law have fuelled domestic reforms: CCR 405/2016 referred expressly to ECtHR case-law on foreseeability when it imposed the narrow interpretation of the term “defective”. The result was a more precise law, aligned with Convention standards.
Furthermore, the ECtHR has developed, through its case-law (e.g. Păduraru v. Romania), the principle of legal certainty, requiring that when decisions of ordinary courts or constitutional courts that change the interpretation of a criminal law intervene, they must be applied in a coherent and foreseeable manner for litigants. In our area, this means that persons accused of abuse of office are entitled to a clear legal framework (which has been clarified after 2016) and to consistent judicial practice (an aspect strengthened by ICCJ decisions discussed above).
The ECtHR also has extensive case-law on the right to a fair trial in criminal corruption cases, but these aspects (such as the right to defence, the presumption of innocence) do not concern the specific nature of the abuse-of-office offence, but the general procedural safeguards. It is relevant that, procedurally, abuse-of-office cases sometimes raise issues related to telephone interceptions, surveillance, etc., and the ECtHR has censured the disproportionate use of covert surveillance measures in the absence of safeguards – an example being Romania, where in 2020 the Constitutional Court (Decision 55/2020) banned the use of intelligence services in criminal investigations, drawing inspiration from earlier ECtHR cases.
In conclusion, from the ECtHR’s point of view, the main challenge is that the definition of abuse of office should be clear and applied in a non-arbitrary manner (which has been achieved through the intervention of the CCR), so that no one can be convicted under an unclear criminal law (which would infringe Article 7 ECHR). After the adjustments of recent years, Romania is now within the Convention parameters as regards this offence.
Decisions of the Court of Justice of the European Union (CJEU)
At EU law level, there is no offence explicitly named “abuse of office” in Union legislation, but Member States are under an obligation to combat corruption and fraud committed by public officials. In particular, the protection of the financial interests of the EU (EU funds) and the fight against corruption are the subject of directives and of the Cooperation and Verification Mechanism (CVM) applicable to Romania in past years.
The CJEU has had the opportunity to rule in the context of judicial reforms in Romania and attempts to amend criminal legislation on corruption. A landmark ruling is the CJEU judgment of 21 December 2021 (joined cases C-357/19, C-547/19 and others), in which the Court sent a strong message: EU law precludes any national measures – including constitutional court decisions – that create a risk of systemic impunity for corruption or fraud affecting EU funds.[9] The CJEU emphasised that the European Commission’s CVM recommendations (which included maintaining robust anti-corruption legislation) are binding on Romania.[10]
More specifically, the context was as follows: the CCR had delivered decisions (e.g. Decision 685/2018 on unlawfully composed panels of judges and Decision 417/2019 on limitation periods) which led to the annulment of certain corruption convictions and the closure of cases, invoking procedural defects and limitation rules. The CJEU held that rigid application of those CCR decisions, combined with Romanian rules on limitation, risked leaving serious fraud and corruption offences affecting the EU budget unpunished – contrary to Article 325 TFEU and the PIF Directive on combating financial fraud.[9]
Therefore, the CJEU effectively allowed national courts not to apply CCR decisions that conflict with EU law in this field, in order to avoid impunity (provided that the CCR itself does not meet the requirements of an independent court – the CJEU having raised concerns about political influence in some decisions).[11] This judgment had a strong impact, marking the first time the CJEU indicated the possibility of disregarding a constitutional court decision in criminal matters.
Although the CJEU did not refer directly to the offence of abuse of office, the general message was that Romania must ensure the liability of public officials who commit corruption or corruption-related offences. If a domestic decision (legislative or judicial) were to unjustifiably weaken this framework (for example, a disguised decriminalisation that would leave many acts unpunished), then its compatibility with EU obligations would be called into question. It is also worth recalling that, even earlier, in 2018, the European Commission had criticised attempts to amend the Criminal Code regarding abuse of office, warning that they would roll back the fight against corruption. The CJEU, through its 2021 judgment, reinforced the priority of ensuring that corruption offenders do not go unpunished.
Another aspect in which the CJEU has provided clarification concerns the notion of “public official” in the context of European anti-corruption legislation. In interpreting the PIF Directive (EU) 2017/1371 on combating fraud affecting the financial interests of the Union, the CJEU held that the notion of “national public official” has an autonomous EU meaning, covering any person who performs a public function according to national definitions, effectively corresponding to Article 175 of the Romanian Criminal Code. Thus, if a Romanian official commits abuse of office harming the EU’s financial interests (e.g. diversion of EU funds by breaching his duties), the Romanian State is obliged to sanction him criminally; otherwise, it would be considered in breach of its EU obligations.
In addition, the CJEU has held that national judges cannot be disciplinarily sanctioned for applying EU law over national law where protection of the EU’s financial interests is concerned.[12][13] This principle was laid down precisely in order to protect Romanian judges who, under the CJEU’s judgment, might set aside obstacles raised by the CCR or domestic legislation when adjudicating major corruption cases.
Conclusion at international level
Abuse of office is seen as a form of administrative corruption which international conventions and European institutions urge us to sanction firmly. UN standards require criminalisation, the ECtHR requires that criminalisation be precise and applied with respect for human rights, and the EU (CJEU) insists that such offences – especially when they affect the EU budget or the rule of law – should not be subject to “loopholes” leading to impunity.
Romania, as an EU Member State and a party to UNCAC, has adapted its legislation and practice accordingly: the offence of abuse of office exists and is applied (with the necessary constitutional clarifications), and the authorities are required to implement it rigorously, while avoiding abuses (in the sense of not extending this charge beyond the limits laid down by law).
The role of the lawyer in the investigation and defence in an abuse-of-office case
When a person (usually a public official) is charged with abuse of office, specialised legal assistance is essential, given the complexity of these cases and the high stakes involved (the person’s liberty, career, and the financial prejudice at issue). The role of the defence lawyer begins already at the investigation stage and continues throughout the proceedings.
Assistance in the investigation phase
As soon as a person becomes a suspect or accused in an abuse-of-office case, the criminal defence lawyer will act to protect his or her procedural rights. The lawyer will:
- accompany the client to hearings before the prosecution,
- monitor compliance with safeguards (the right to remain silent, the right not to be unlawfully detained/arrested, etc.), and
- request the taking of evidence in favour of the client.
Abuse-of-office cases often involve technical and documentary evidence (contracts, audit reports, administrative acts, interceptions), which the lawyer will analyse in detail. An experienced lawyer checks the lawfulness of the evidence gathered by the prosecution – for example, if searches or interceptions have been carried out, he or she will verify whether proper warrants existed. If procedural flaws are identified, the lawyer will file challenges and motions to exclude unlawfully obtained evidence.
Also at the investigation stage, the lawyer can bring counter-evidence: for example, alternative expert reports challenging the assessment of the damage, or statements from key witnesses explaining the context of the act. The defence strategy already takes shape at this stage, with the lawyer and client deciding whether it is better to cooperate (give detailed statements) or adopt a more reserved position (for example, if the charges are unclear, it is sometimes prudent not to make statements initially).
Preparing the case for trial
After the indictment, the lawyer has access to the entire prosecution file. He or she will literally go through the file page by page, to identify inconsistencies, gaps or errors in the prosecution’s case. An abuse-of-office file may be very voluminous (including applicable normative acts, financial documents, administrative correspondence, etc.), and the lawyer must understand both the facts and the relevant sectoral legislation (e.g. if it concerns public procurement, he or she must know in detail the legal procurement procedures in order to determine whether and how they were breached).
The lawyer’s role is to translate these technical aspects into legal arguments understandable to judges, showing either that the act does not fulfil the elements of the offence or that there are reasonable doubts as to guilt. The lawyer will draft any:
- motions for reclassification (if he or she considers that the act is negligence, not abuse – arguing lack of intent),
- motions to terminate the proceedings (if, for example, the limitation period has expired), or
- motions to refer issues to the CCR (if unresolved constitutional issues are raised, although the framework is now clear).
Representation before the court
Throughout the trial (whether at first instance, appeal or recourse), the defence lawyer is the defendant’s voice. He or she:
- appears at hearings and makes submissions,
- cross-examines prosecution witnesses, and
- presents oral and written arguments.
In an abuse-of-office trial, the key often lies in details: what exactly the job description of the official provided, what exactly the law allegedly breached states, whether there was any undue benefit.
The lawyer will focus, for instance, on showing that the act did not breach a primary legislative provision (if that is the case) or that there is no certain causal link between the defendant’s conduct and the damage (perhaps the damage would have occurred anyway, regardless of the act). The lawyer may also argue lack of intent: if the evidence shows that the defendant reasonably believed he or she was acting lawfully (for example, misinterpreting a law), intentional abuse cannot be retained, but at most an error.
A specialised lawyer will know how to use relevant case-law (including CCR and ICCJ decisions) in support of the defence – for example, if in the client’s case the breach concerned only a government decision, he or she will automatically invoke CCR Decision 405/2016 in favour of acquittal (since a government decision is not a “law” in the required sense).
The lawyer’s role is also to humanise the defendant before the court: in the closing arguments, he or she will highlight personal circumstances (age, honourable career up to the incident, possible pressures faced) and argue why a severe sentence would not be justified. If the damage has been repaired, the lawyer will ensure that the court takes note and attaches due weight to this gesture.
Negotiation and alternatives
In some situations, the lawyer may advise the client to change strategy – for example, if the evidence for the prosecution is overwhelming, the client may opt to admit guilt in an agreement with the prosecutor (a plea bargain, which in abuse-of-office cases is possible only for penalties below 7 years). The advantage is a one-third reduction of the sentence and a simplified procedure. The lawyer will assess whether such a plea is in the client’s interest.
Also, if the defendant decides to compensate the damage or to cooperate with the authorities (for example, uncovering a broader corruption network), the lawyer will facilitate these steps so that the client can obtain the status of cooperating witness or benefit from leniency.
Protecting rights throughout the proceedings
A fundamental aspect of the lawyer’s role is to continuously monitor respect for the client’s procedural rights. In abuse-of-office cases, investigations can be long and highly technical – the lawyer must ensure that the defendant:
- understands the charges,
- has access to the file, and
- can propose defence evidence.
If, during the trial, there are any irregularities (unlawful pressure, excessive media coverage infringing the presumption of innocence, etc.), the lawyer will take action (for example, by requesting the transfer of the case if he or she believes impartiality is affected).
Why specialised defence matters
In short, the criminal defence lawyer in abuse-of-office cases has a crucial role of analysis, strategy and protection: he or she meticulously analyses the evidence and legal framework, devises a defence strategy together with the client, vigorously represents the client’s interests before the prosecution and the courts, and ensures that none of the defendant’s rights are violated during the proceedings.
Because of the complex nature of these cases (which often involve aspects of administrative, financial or commercial law in addition to criminal law), specialised legal expertise makes a real difference: a lawyer experienced in corruption cases knows what to look for (for example, knows that lack of breach of a law will lead to acquittal, knows CCR and ICCJ practice, knows how to approach the calculation of the damage, etc.).
For the accused official, having a good lawyer means a real chance of a fair trial and an effective defence. A conviction for abuse of office has very serious consequences – in addition to the criminal penalty, it implies loss of the public office and a stain on one’s reputation that can destroy a career. This is why the law itself guarantees the right to defence, and courts give lawyers the time and opportunity to present their arguments.
A skilled lawyer can sometimes obtain an acquittal (if he or she succeeds in overturning the apparent legitimacy of the charge) or, if the evidence is against the client, at least mitigate the consequences – for example, by reclassifying the act as negligence (with much lower penalties) or obtaining a suspended sentence.
Overall conclusion on the lawyer’s role
The lawyer’s role in abuse-of-office cases is essential for maintaining the balance between prosecution and defence. The lawyer translates the language of the law and of the evidence in the client’s favour, counters the prosecution, argument by argument, and ensures that judges also receive the defendant’s perspective.
In an offence where the boundary between a wrong administrative decision and a criminal act can be open to debate, the lawyer is the one who highlights the favourable circumstances and ensures that only the official who has truly committed intentional abuse will bear the full rigour of the law, while the client is protected from any abusive interpretation of the law.
Ultimately, a well-managed case by the lawyer can make the difference between a severe conviction and a milder or even favourable outcome, ensuring proportionality and justice in such difficult cases.
Bibliography and legislative/judicial sources cited
Legislation and case-law:
- Article 297 and 298 of the Criminal Code
- Article 13² of Law no. 78/2000
- Decision of the Constitutional Court no. 405/2016
- CCR Decision no. 392/2017
- CCR Decision no. 518/2017[6]
- ICCJ Decision – RIL no. 26/2021
- ICCJ Decision – preliminary ruling no. 9/2023
- United Nations Convention against Corruption, Article 19
- ECtHR judgments on the foreseeability of criminal law[8]
- CJEU judgment of 21.12.2021 (joined cases C-357/19 et al.)[9]
Doctrine and further resources:
[1] [2] [3] [6] [7] Negligence in office – Sfatul Avocatului
https://blaj-law.ro/blog/neglijenta-in-serviciu/
[4] [5] DECISION 405 15/06/2016 – Legislative Portal
https://legislatie.just.ro/Public/DetaliiDocument/179919
[8] (PDF) Abuse of office in the regulation of other states …
https://www.revista.penalmente.ro/wp-content/uploads/2020/10/Ghica.pdf
[9] [10] [11] [12] [13] Court of Justice of the EU, landmark decision: national judges may refrain from applying Constitutional Court decisions that conflict with EU law / The judgment, adopted in the context of the sovereignist trends in Hungary, Poland and Romania / The decision has direct impact in the Udrea and Vâlcov cases
https://www.g4media.ro/curtea-de-justitie-a-ue-decizie-cu-impact-major-judecatorii-nationali-pot-lasa-neaplicate-deciziile-curtilor-constitutionale-care-se-opun-dreptului-ue-hotararea-luata-in-contextul-tendintelor-suv.html