Allegations concerning abuse of office require careful reading today, because Article 323 of the penal code has been repealed, but the name of the offense may still appear in documents, reports and reconstructions of past events. If you have received a notice, you are involved as a suspect or you believe you have suffered unfair behavior by a public official, it is natural to wonder whether the proceedings should stop and what a possible reference to moral complicity means.
I help you distinguish the label from the facts. We will see what the repeal entails, when an event cannot simply be renamed as another offense and what elements must emerge to speak of moral participation in another person's conduct. This distinction is important both to defend oneself against an accusation and to identify realistic protection when one believes they have suffered a loss.
Abuse of office is no longer provided as an offense
Article 323 of the penal code has been repealed since August 25, 2024. Law No. 114 of August 9, 2024 eliminated the offense of abuse of office: the effect concerns the crime, not the possibility that an administrative act is unlawful or that the same event contains facts attributable to different criminal rules. The text of the reform expressly indicates the repeal in Article 1 of Law No. 114 of 2024.
A fact contested solely as abuse of office is no longer punishable today, even if it was committed before the entry into force of the repeal. In criminal law, the principle of the most favorable subsequent law applies: if conduct is no longer described by the law as a crime, liability based exclusively on the eliminated rule cannot be maintained. In the proceedings, however, the specific measure depends on the phase in which the file is located.
Not every reference to abuse of office indicates a still valid allegation. The expression may remain in the account of a complaint, in an administrative communication or in documents formed before the reform. It is necessary to separate the language used to describe behavior deemed incorrect from the rules actually indicated by the public prosecutor or the judge. The title of the document never replaces the reading of the contested fact.
The constitutional challenges have not reinstated abuse of office. Following judgment No. 95 of 2025, which rejected challenges to the repeal, the Constitutional Court returned to the matter in order No. 117 of 2026. It declared some questions manifestly inadmissible and others manifestly unfounded, referring to its 2025 decision. Article 323 therefore remains repealed: these rulings did not reinstate it.
Another offense cannot automatically replace abuse of office
The same event may contain criminally different facts, but each offense requires its own elements. A decision that favors an individual, a violation of administrative rules or a conflict of interest do not automatically become corruption, forgery, disruption of a procedure or embezzlement. To support a different allegation, the conduct required by the single rule, the role of the offender, the intentional element and the other conditions provided must emerge.
Undue allocation of money or movable property
Article 314-bis has a circumscribed scope. It concerns the public official or person entrusted with a public service who, for reasons of office or service, possesses or has availability of money or another person's movable property and intentionally allocates it to a purpose other than that imposed by specific binding rules. The rule also requires an unjust financial advantage or unjust damage. The current text can be consulted in Article 9 of Decree-Law No. 92 of 2024.
A favorable administrative choice for someone is not enough. For Article 314-bis, money or movable property within the qualified availability of the public subject, a destination contrary to legislative rules devoid of margins of discretion, and the financial advantage or damage provided by the provision are required. If one of these elements is missing, it is incorrect to treat the new rule as a shorter version of the repealed abuse of office.
The date and description of the fact remain decisive. An allegation relating to conduct developed over time must clarify when the individual acts took place and which rule was applicable at that time. It is not sufficient to recall damage to the administration or an advantage for a private individual: it is necessary to identify the money or property concerned, the bond of destination and the action concretely attributed to the person involved.
Moral complicity presupposes an offense that still exists
Moral complicity is not an autonomous offense. Article 110 of the penal code governs the participation of multiple persons in the same crime. This expression indicates the contribution of those who do not directly perform the material action, but determine, reinforce or support in a criminally relevant way the decision to commit the act. Therefore, it is first necessary that a principal offense provided by law exists.
Complicity cannot exist in the repealed abuse of office alone. If the public agent is exclusively attributed the old provision of Article 323, the elimination of the crime also affects the position of the person who would have been accused of having morally participated in it. It would not be correct to maintain an accusation of participation by separating it from the principal fact that no longer constitutes a crime.
A personal relationship does not prove criminal contribution by itself. Knowing an official, reporting a person's name, asking for information or expressing a preference can have very different meanings. For complicity liability, a conscious and concrete contribution to the commission of a current crime and a causal link between that contribution and the conduct of the material author must emerge.
What the person did and knew counts. A generic request may be irrelevant; an agreement to obtain an undue benefit, direct pressure to guide a decision or an organization activity to carry out a crime can instead assume a different relevance. The logical step is not "there was contact, therefore there is complicity", but rather "what crime is alleged and what concrete contribution is attributed to each person".
How to deal with an investigation or a charge
A notice of investigation does not equal a conviction. It communicates that proceedings are underway for a fact and allows the exercise of defensive rights within the limits provided by law. If the document uses the words "abuse of office", the first point to clarify is whether it recalls only the repealed Article 323 or already indicates a different provision. The date of the fact, the attributed role and the phase of the proceedings also change the possible initiatives.
The allegation must be read in its entirety. It is necessary to identify the indicated rule, the described conduct, the time and place of the fact, the people involved and any advantage or damage that the prosecution believes was produced. An accusation formulated in a generic way is not completed with suppositions. On the contrary, an allegation mentioning multiple offenses requires distinguishing the elements of each, without relying on the repeal of Article 323 to neglect the rest.
The notice of conclusion of investigations opens specific rights. Article 415-bis of the code of criminal procedure indicates the provisional fact and the rules allegedly violated, warning of the possibility of examining the deposited documentation. Within twenty days, the suspect can submit briefs and documents, request investigative acts, make statements or request to be interrogated, in accordance with Article 415-bis of the code of criminal procedure.
Useful acts are those connected to a concrete point. Resolutions, determinations, delegations, minutes, communications, accounting documents and messages can clarify who had the power to act, which rule bound the choice or whether funds were truly available. With my staff, we can organize these elements around the contested facts, avoiding confusing an administrative irregularity with the proof of a crime.
The injured party must distinguish damage from criminal protection
Unfair behavior is not always a crime. A measure may be unlawful, a selection may be handled incorrectly or a public employee may violate internal rules without constituting a criminal offense. This distinction does not reduce the importance of the damage suffered: it serves to direct protection towards the appropriate remedy, which can be administrative, civil, accounting or disciplinary rather than criminal.
A report must describe verifiable facts. It is more useful to indicate who performed an act, what power they exercised, which documents show it and what consequence resulted from it, rather than relying on the label of abuse of office. If a crime still provided for emerges, the precise description helps the authority identify its elements. If instead the fact concerns only the lawfulness of the act, it will be necessary to consider a different venue.
Dismissal cannot be opposed with generic disagreement. The injured party who has asked to be informed may receive notice of the request for dismissal in the provided cases and may present opposition within the communicated deadline. The opposition must indicate specific reasons and, if necessary, useful investigations. After the repeal of Article 323, requesting further investigations only makes sense if facts capable of supporting a current crime or a point still to be clarified exist.
What changes in decisions already pronounced and pending proceedings
The phase of the proceedings affects the measure to be adopted. In investigations, if the fact is qualified solely pursuant to Article 323, the repeal may lead to dismissal. In pending trials, the judge must take into account the subsequent abolition of the crime. For a final conviction referring exclusively to abuse of office, the issue arises before the enforcement judge through the tool provided for the revocation of the sentence.
Non-criminal consequences do not disappear automatically. The elimination of the crime does not establish by itself whether an administrative measure is valid, whether compensable damage exists or whether disciplinary liabilities are applicable. These issues follow their own rules, with different prerequisites and deadlines. Confusing these levels can lead both to neglecting a necessary criminal defense and to focusing on a criminal complaint when the useful remedy is another.
Prudence consists in not anticipating conclusions. Saying that abuse of office has been repealed is correct; deducing from this that every connected file is devoid of criminal relevance is not. Likewise, arguing that every favoritism must correspond to a different crime would mean applying the law by analogy to the detriment of the accused. The answer depends on the current rule and the facts that can be proven.
Frequently asked questions
Can I still be investigated for abuse of office?
Not for Article 323 of the penal code alone, because the offense was repealed starting August 25, 2024. However, an act may describe the same facts while also recalling different and still current rules. To understand your position, it is necessary to read which provisions are indicated, what conduct is attributed and in which period the facts allegedly occurred.
Does the reform also affect a final conviction?
Yes, if the conviction concerns exclusively the repealed offense. In this case, the issue is presented to the enforcement judge according to the procedure provided by the code of criminal procedure. If the judgment contains additional offenses, civil obligations or autonomous rulings, one must instead distinguish what depended on Article 323 from what may remain effective.
Does a recommendation always constitute moral complicity?
No, a report is not automatically a criminal contribution. Moral participation requires a conscious and concretely relevant contribution to the commission of a crime. Simple personal contact, lawful requests for information, and pressure or agreements aimed at carrying out criminally provided conduct must be distinguished.
Does an official who acts improperly remain without consequences?
No, but the consequence is not necessarily criminal. Behavior may have administrative, disciplinary, civil or accounting relevance. It may also constitute a different offense if all its elements are met. The repeal of abuse of office precisely requires identifying the correct remedy, without using criminal law as an automatic response to every irregularity.
What can I do after a notice of conclusion of investigations?
The notice indicates rights that have a twenty-day deadline. You can examine the deposited acts with your defense counsel, submit briefs or documents, request further investigations, make statements or request an interrogation. The useful choice depends on the allegation and the elements already gathered: it is not advisable to adopt a standard response without distinguishing the repealed Article 323 from any different offenses.
A first orientation on the allegation received
The most important document is the one describing the fact. A notice, an information of investigation, a citation decree or a request for dismissal make it possible to understand whether the authority is still referring to abuse of office alone or to a different hypothesis. For the injured party as well, available administrative documents and communications must show specific facts, not just a judgment of unfairness.
If you have a document already available, you can contact me to understand which rules are effectively at play, what consequences the repeal of Article 323 has, and whether the matter requires a criminal defense or different protection.