Commentary on Judgment No. 38125 of 2023: New Developments on Abuse of Office

Judgment No. 38125, filed on September 18, 2023, represents an important milestone in the regulation of abuse of office. The Court of Cassation, with this decision, confirmed the effectiveness of the amendments introduced by decree-law No. 76 of 2020, analyzing the consequences of the so-called "abolitio criminis" in relation to conduct potentially punishable under Article 323 of the Criminal Code.

Regulatory Context

Law No. 120 of 2020 brought significant changes to Article 323 of the Criminal Code, narrowing the scope of the abuse of office offense. In particular, the new provision determined that the offense is no longer applicable if the contested conduct is based exclusively on the violation of general and abstract rules, which do not establish specific behavioral rules.

• Violation of general and abstract rules.
• Residual discretionary margins.
• Principles of impartiality and good administration.

The Ruling's Maxim

Amendments introduced by decree-law No. 76 of 2020 - Violation of regulatory, general, and abstract rules and of Article 97 of the Constitution - "Abolitio criminis" - Existence - Reasons - Factual circumstances. Regarding abuse of office, the amendment introduced by Article 23 of decree-law of July 16, 2020, No. 76, converted, with modifications, by Law of September 11, 2020, No. 120, has restricted the scope of application of Article 323 of the Criminal Code, determining the "abolitio criminis" of conduct, prior to the entry into force of the reform, carried out by violating general and abstract rules from which specific and express behavioral rules cannot be derived, or which in any case leave room for discretion, thus it must be excluded that the mere violation of the principles of impartiality and good administration referred to in Article 97, paragraph 3, of the Constitution constitutes the offense. (Factual circumstance in which it was held that the granting to the previous contractor of the so-called "technical extension" of the parking management service of a municipality, in order to allow him to complete essential formalities for participation in the tender for the award of the new contract, did not constitute a violation of any specific rule of conduct provided for by law).

Implications and Conclusions

The Court's decision clarified that the mere violation of the principles of impartiality and good administration, enshrined in Article 97 of the Constitution, is not sufficient to constitute the offense of abuse of office. This new jurisprudential orientation invites reflection on the importance of defining with greater precision the specific norms and rules of conduct that public officials must follow. Judgment No. 38125 therefore represents a step towards greater clarity and definition of the concept of abuse of office, limiting the risk of excessively broad interpretations and ensuring adequate protection for public officials in the exercise of their duties.