By Decision No 405/2016, the Romanian Constitutional Court (CCR) ruled that the provisions of Article 297 (1) of the Criminal Code (misfeasance in office or misconduct in office) are constitutional only if the sentence „fulfils wrongfully” has the meaning of „fulfils by breaching the law”.
However, in more than two years from the publication of this Constitutional Court Decision, it is worth to notice that the jurisprudence of the criminal courts knows diametrically opposed interpretations.
In one opinion, the Decision is interpreted as of the utmost generality, while a second opinion regards the CCR provisions as being of strict interpretation, whereas for the existence of the respective criminal offence is necessary that the public servant breach one of the laws that govern his activity or at least a provision that is part of its duties in office.
The article presents the jurisprudence of the Romanian courts related to the crime of „misfeasance in office” while examining it in the light of the requirements of the principle of legality and of the CCR Decision considerations.
