Abuse of office is no longer a crime, but this statement requires some important distinctions if you have received a notice of investigation, information regarding investigative guarantees, or a charge referring to the former Article 323 of the penal code. Is the contested act truly attributable solely to the repealed provision? Does it involve money or movable property of the entity? Or does the accusation also describe conduct that may constitute another offense?
I will explain what has changed, what role the financial advantage played in the previous abuse of office, and why today simply changing the name of the offense is not enough to maintain a criminal charge. We will also examine the difference between the former Article 323 and the current Article 314-bis of the penal code, which concerns a narrower scope.
Article 323 of the penal code has been repealed
Since August 25, 2024, the abuse of office provided for by Article 323 c.p. has been repealed. The repeal was ordered by Article 1, paragraph 1, letter b), of Law No. 114 of August 9, 2024. This is not simply a modification of the penalty or a reduction of the scope of application: the offense, in the text then in force, no longer exists. You can read the provision in the Law No. 114 of 2024 published in the Official Gazette.
The abolition also operates for prior facts, when those same facts do not constitute a different offense. Article 2 of the penal code governs the succession of criminal laws over time: if a subsequent law eliminates an offense, it is no longer possible to punish that fact based on the repealed norm; a conviction already pronounced can no longer continue to produce execution and penal effects for that title. The principle can be consulted in the text of Article 2 c.p. on Normattiva.
The repeal does not automatically erase every charge. A file may contain multiple hypotheses of offense, or describe conduct that the prosecution believes is attributable to a provision different from the former abuse of office. For this reason, the starting point is not merely the name used in the documents: what matters is which facts are contested, in which period they allegedly occurred, and what concrete elements are indicated.
The issue has not remained open on a constitutional level. The Constitutional Court, with judgment no. 95 of 2025, declared unfounded the questions raised against the repeal in relation to the invoked international obligations; in 2026 it then declared manifestly unfounded similar questions. As of September 21, 2026, therefore, Article 323 c.p. has not been reinstated. Useful for this passage are judgment no. 95 of 2025 and order no. 117 of 2026.
What the financial advantage meant in the old abuse of office
The financial advantage was a central element of the old provision, but it did not coincide with any administrative choice favorable to someone. In the wording of Article 323 in force until the repeal, the prosecution had to describe an undue economic advantage for the public official or a third party, or an undue loss caused to others. The advantage could concern, for example, a sum, an economically assessable utility, an expense savings, or the attribution of an asset.
However, demonstrating an administrative violation was not enough. The charge had to refer to a specific rule of conduct that left no room for discretion, or to the violation of an obligation to abstain in the presence of a personal interest or other provided situation. Furthermore, the advantage or loss had to be pursued intentionally: error, the questionable interpretation of a norm, or an administrative decision later annulled were not, by themselves, equivalent to the offense.
This reconstruction today has historical and defensive value. It serves to understand whether the charge contained in a document is based exclusively on the former Article 323 or whether the prosecution identifies further facts. A formula such as undue financial advantage does not allow keeping alive the charge for abuse of office: after repeal, it is necessary to verify whether the conduct satisfies all the elements of another still-in-force offense figure.
The decisive document is the concrete charge. A nomination decree, an assignment, an authorization, or a resolution may constitute the context of the affair, but it is necessary to distinguish the administrative act from the potential criminally relevant fact. The defense must be able to identify what advantage would have been procured, to whom, through what conduct, and on the basis of which norms the prosecution deems a crime different from the repealed Article 323 to be configurable.
The undue allocation of money or movable property: Article 314-bis c.p.
Article 314-bis does not entirely replace abuse of office. The offense of undue allocation of money or movable property concerns the public official or person entrusted with a public service who has, for reasons of their office or service, possession or availability of money or another movable property belonging to others. The provision was introduced by decree-law no. 92 of July 4, 2024, which entered into force on July 5, 2024, prior to the repeal of Article 323. The text is available in Article 9 of decree-law no. 92 of 2024 on Normattiva.
The money or asset must be allocated to a use different from that bound by law. It is not sufficient that the expense or employment appears questionable. The norm requires specific legal provisions, or acts having the force of law, that impose an allocation without leaving room for discretion. It is also required that the different allocation intentionally procures an undue financial advantage for oneself or others, or an undue loss to others.
The availability of the asset is an essential requirement. Article 314-bis concerns money and movable property that the subject has in their availability for office or service reasons. A decision on a selection procedure, an appointment, a building permit, or an organizational choice does not automatically fall within the scope simply because it may economically favor a private individual. It must first be established whether the material object of the conduct is indeed money or a movable property and whether the further requirements demanded by the norm are met.
The succession between norms must be examined without automatisms. In some events, the prosecution may believe that the use of public funds presents profiles attributable to Article 314-bis; in others, the original charge for abuse of office may now be devoid of an applicable incriminatory norm. The judge cannot transform conduct into a different offense without comparing it with all the elements provided by the new provision and with the defense guarantees applicable in the proceeding.
The dates of the facts and the formulation of the charge change the answer
July 5 and August 25, 2024 are different dates. Article 314-bis entered into force on July 5, 2024; the repeal of Article 323 became effective on August 25, 2024. If the contested facts cross those periods, their temporal placement can affect the legal classification. This is not a formal detail: it determines which norms were in force at the moment indicated by the prosecution.
A prior charge may need to be reassessed. The fact that an investigation was initiated when Article 323 still existed is not enough to preserve the charge after repeal. It is necessary to distinguish between a fact that no longer constitutes a crime today and a fact that, from the beginning or in light of its characteristics, can be governed by another norm. The description of facts cannot be replaced by generic labels such as favoritism or undue advantage.
Defense does not consist in abstractly denying the existence of an administrative problem. A measure may be contestable, annulable, or a source of liability elsewhere without necessarily constituting a crime. Likewise, the presence of an unlawful act does not in itself demonstrate either the availability of money required by Article 314-bis or the intention to procure an undue financial advantage.
It is useful to start from the documents already notified. The notice of investigation, the information on the right to defense, the charge, the head of accusation, and the referenced documents indicate the perimeter of the affair. It matters to verify whether only the repealed Article 323 is mentioned, whether there is an alternative charge, or whether further behaviors are attributed. With my staff, I can help you read these elements in an orderly manner, without confusing the criminal plane with the other possible consequences of the affair.
Other crimes and non-criminal liability: what the repeal does not decide
The cancellation of abuse of office does not render every conduct lawful. If the facts include elements proper to other offenses against public administration, document forgery, or other provisions, each crime maintains autonomous requirements that must be proven. It is incorrect to deduce a charge of corruption, embezzlement, or forgery from the mere existence of a financial advantage: for each hypothesis, its specific elements are required.
Administrative, disciplinary, accounting, and civil remedies remain distinct. The unlawfulness of a measure can affect its validity; the conduct of a public employee can have disciplinary relevance; damage to public finances can raise issues of accounting liability; anyone who has suffered damage can evaluate the protections provided by the legal system. The Constitutional Court expressly recalled the plurality of these instruments, distinct from the previous incrimination of abuse of office, in judgment no. 95 of 2025.
Plans must not be superimposed. The annulment of an administrative act is not equivalent to a criminal conviction, and the abolition of the offense does not retroactively validate the act nor exclude any other form of liability. This distinction helps avoid two opposite errors: considering a criminal charge inevitable for every irregularity, or believing that repeal closes any question connected to the facts.
How to navigate an investigation or pending trial
The first question is which offense is currently charged. If the act indicates exclusively Article 323 c.p., repeal is a central theme. If instead it also recalls Article 314-bis or other crimes, it is necessary to separate the charges and read the elements indicated by the prosecution for each. A clear defense does not treat a plurality of charges as if they were a single block.
The second question concerns the asset and the violated rule. For Article 314-bis, money or movable property belonging to others in the functional availability of the subject and an allocation contrary to legislative constraints devoid of discretion are relevant. If one of these prerequisites is missing, the absence cannot be filled by recalling the old abuse of office, which has been repealed.
The third question concerns the intentional element. The norm requires that the undue financial advantage or loss be procured intentionally. The reconstruction of the attributed powers, applicable constraints, decision-making path, and actual destination of resources serves to understand whether the prosecution truly describes criminally typical conduct or an affair that remains on a different plane.
Frequently Asked Questions
If I am under investigation for abuse of office for facts prior to August 25, 2024, must the proceeding be closed?
If the fact falls solely within the former Article 323, the repeal is applicable to prior facts as well. However, the entire charge must be read: the proceeding may concern multiple crimes, or the prosecution may put forward a different provision. The date of the fact and the precise content of the charge remain essential.
Is a financial advantage still enough to contest a crime?
No, the economic advantage alone is not enough. For Article 314-bis, availability of money or movable property for office reasons, a legal constraint without discretion, a destination different from that imposed, and an actual undue financial advantage or unjust harm, intentionally caused, are also required.
Does Article 314-bis apply to every unlawful administrative act?
No, it has a defined material scope. The norm concerns money or other movable property belonging to others available for office or service reasons. An appointment, an authorization, or an award are not automatically attributable to the crime, not even when a private individual obtains an economic benefit from the act.
Does the abolition of abuse of office also exclude corruption, embezzlement, or forgery?
No, each crime retains its own prerequisites. The repeal concerns Article 323 c.p. It does not exclude other charges when the acts describe and prove elements required by different norms. However, it is incorrect to presume a different crime simply because the prosecution can no longer use the old abuse of office.
Does an administrative measure become valid because abuse of office has been repealed?
No, the validity of the act and the crime are different issues. The repeal eliminates a specific criminal provision, but it does not automatically cure an eventually unlawful act. Administrative, disciplinary, accounting, or civil remedies may remain, to be evaluated according to their own rules and prerequisites.