Abuse of office by restriction of rights according to the new Penal Code

• Author: Gheorghe Ivan
• Position: Ph.D.Lecturer 'Dunarea de Jos' University of Galati, Legal Faculty of Social Policy
• Pages: 52-58

ABUSE OF OFFICE BY RESTRICTION OF RIGHTS ACCORDING TO

THE NEW PENAL CODE

Gheorghe Ivan

∗

∗∗

∗

Abstract

In the article 297 of the new Penal Code (Law no. 286/2009) the Romanian legislator

incriminated the abuse of office of two types. The first type was dedicated to the abuse of

office against personal rights when there is damage or violation of the legal rights or

interests of natural persons or public or private legal entities.

The second type refers to the abuse of office by the restriction of exercise of a right of

a natural person or a public or private legal entity by creating a situation of inferiority for

that person on grounds of nationality, race, ethnic origin, language, religion, sex, sexual

orientation, partisanship, fortune, age, disability, non-contagious chronic illness, HIV

infection.

Thus, the Romanian legislator has set up one of the penal means of protection of the

rights of the minorities and other social categories, taking into account, among others, the

provisions of the Frame-Convention regarding protection of the national minorities adopted

by the European Council at Strasbourg on February, 1

st

, 1995 ratified by Romania by Law

no. 33/1995.

It must be mentioned that the abuse of office by restriction of rights has been

incriminated by the Penal Code in force as well (since 1969) in article 247.

Key words: penal protection of the rights of the minorities, abuse of office, office.

Introduction

1. Notion and definition. Consistent with the protection of the minorities’ rights and

other social categories, the legislator of the new Penal Code (Law no. 286/2009

1

)

incriminated the abuse of office by restriction of exercise of several rights in article 297,

paragraph (2) as a type of the abuse of office.

According to this rule of incrimination, the action of a civil servant [or any other of

the persons mentioned in article 308, paragraph (1), the new Penal Code] who by exercising

job duties restricts the exercise of a right of a person or creates a situational inferiority for

that person on grounds of nationality, race, ethnic origin, language, religion, sex, sexual

orientation, partisanship, fortune, age, disability, non-contagious chronic illness or HIV

infection is an offence.

2. The main special legal object is made up by the social relations connected to the

work environment. The adjacent special legal object refers to the social relations related to

the capacity of exercise of natural persons and public or private legal entities, on the one hand

and the equality of citizens’ rights

2

, on the other hand.

3. The material object of this offence consists in the objectification of the job duties,

the material acts that include the attributions of the active subject.

There can also appear a concrete value corresponding to the adjacent legal object,

such as the existence of a right.

∗

Ph.D.Lecturer “Dunarea de Jos” University of Galati, Legal Facult y of Social Policy

ivan_gheorghe_p@yahoo.com, ivan.gheorghe@ugal.ro

1. Published in the Official Gazette, Part I, no. 510 on July, 24

th

2009. The new Penal Code will be in force at

the date decided upon by the law establishing its enforcement.

2. Gheorghe Ivan, Criminal Law. Special Part, C. H. Beck Publishing House, Bucharest, 2009, p. 347.