In the offense of breach of duty, a public official who breaches the duties of their service with intent or with the purpose of procuring an unlawful benefit for themselves or another, or in order to harm the State or any third party, is punished with imprisonment of up to two (2) years, Article 259 of the Penal Code (PK).
Breach of duty, as a provision laid down and punished within both Disciplinary and Criminal Law, has given rise to disputes and conflicts among legal scholars and within the judicial application of the relevant provisions. The matter of breach of duty is examined on the one hand as a service-related offense (Article 259 PK) and on the other as a disciplinary offense. In essence, when one speaks of the disciplinary offense of breach of duty, it is understood that this is an offense with a dual character, like a coin with two sides — one criminal and one disciplinary.
Unfortunately, public officials, in the course of carrying out their duties, often take decisions which a citizen does not like, and that citizen, attempting to apply pressure, files a criminal complaint against them for breach of duty or other possible offenses. On other occasions, however, there are indeed officials who, in order to procure a benefit for themselves or another, breach their duties and engage in unlawful acts that harm the interests of a citizen.
- See also article Defamation
- See also article Bodily Harm
- See also article Narcotics
- See also article Fraud
- See also article Forgery
- See also article Embezzlement
- See also article Negligent Homicide
- See also article Tax Evasion
FREQUENTLY ASKED QUESTIONS ON BREACH OF DUTY – LAWYER
1. What penalty does breach of duty carry for a public official?
Article 259 of the Penal Code (PK) provides for imprisonment of up to two years for a public official who intentionally breaches their duties, with the aim of obtaining an unlawful benefit for themselves or a third party, or of harming the State or another person. This is a misdemeanor and, as a rule, the sentence is converted into a monetary penalty or suspended on the basis of Articles 80 and 99 PK, particularly where the defendant has a clean criminal record. In parallel, disciplinary proceedings are also brought, which are independent and decided separately. The penalty ultimately imposed depends on the gravity of the act, the extent of the damage, the motives, and any mitigating circumstances (Article 84 PK).
2. How do I deal with a criminal complaint filed against me by a citizen?
Many criminal complaints for breach of duty are filed by citizens who disagree with a lawful decision taken by the official and seek to apply pressure. In such cases, the defense focuses on the fact that the conduct falls within the discretionary power of the service and on the absence of intent, which must be proved as direct and as relating to the purpose of obtaining a benefit or causing harm. Drafting a memorandum supported by service documents, circulars, and legislation that demonstrates the correctness of the action often leads to the case being closed already at the stage of the preliminary examination, without ever reaching trial.
3. Is there any chance of avoiding conviction altogether?
Yes, and indeed frequently. Breach of duty requires direct intent and a specific purpose; without these elements, the offense is not made out. The defense usually focuses on challenging intent, on proving that the official acted within the scope of their competence or pursuant to instructions from a superior, on the lack of clarity as to what exactly the duty required, as well as on the statute of limitations. The limitation period for this misdemeanor is five years, and cases have been closed due to the lapse of time. The principle of in dubio pro reo also applies where the evidence is weak.
4. Does the criminal prosecution affect my disciplinary proceedings?
The disciplinary and criminal proceedings are independent and run in parallel, but they interact. An acquittal in the criminal case does not automatically bind the disciplinary body; nevertheless, the factual findings accepted by the criminal court are taken seriously into account. Conversely, conviction to a custodial sentence may lead to automatic removal from public office, depending on the length of the sentence and whether it is final and irrevocable. For this reason, a coordinated defense in both proceedings is critical and requires careful planning from the outset.
5. How long do criminal proceedings for breach of duty last?
The overall duration depends on the workload of the Prosecutor’s Office and the court calendar, but as a rule the preliminary examination ranges from six months to two years. If a criminal prosecution is brought, a hearing date is set, usually one to two years away. In the event of a first-instance conviction, an appeal has suspensive effect and is heard after a considerable period. The five-year limitation period for the misdemeanor may operate in favor of the defendant in cases that are delayed. Timely intervention at the preliminary examination stage can substantially shorten the timeline through the closing of the case file.
6. What role does defense counsel play in such cases?
Our firm undertakes the defense of public officials, elected officeholders, and executives of the wider public sector from the very moment they are summoned to give explanations or to appear in a sworn administrative inquiry. We draft a detailed memorandum with legal and factual support, gather service documents and circulars, prepare the client for testimony, and represent them through every phase, from preliminary investigation to trial and any appeal. At the same time, we monitor the disciplinary proceedings so that the two lines of defense are coordinated. Experience in service-related offenses is decisive for the outcome.