THE CRIMINAL CODE

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The Criminal Code was published in the Official Bulletin No. 79-79 bis of 21 June 1968, republished in the Official Bulletin No. 55-56 of 23 April 1973 and republished in the Official Gazette No. 65 of 16 April 1997. Subsequently, it has been amended by: - Law No. 197/2000 (published in the Official Gazette No. 568 of 15 November 2000); - Government Emergency Ordinance No. 207/2000 (published in the Official Gazette No.594 of 22 November 2000), approved with amendments and supplements by Law No. 456/2001 (published in the Official Gazette No. 410 of 25 July 2001); - Government Emergency Ordinance No. 10/2001 (published in the Official Gazette No. 62 of 6 February 2001), approved with amendments and supplements by Law No. 20/2002 (published in the Official Gazette No. 59 of 28 January 2002); - Government Emergency Ordinance No. 89/2001 (published in the Official Gazette No. 338 of 26 June 2001), approved with amendments and supplements by Law No. 61/2002 (published in the Official Gazette No. 65 of 30 January 2002); - Law No. 169/2002 (published in the Official Gazette No. 261 of 18 April 2002); - Emergency Ordinance No. 58/2002 (published in the Official Gazette No. 351 of 27 May 2002); - Emergency Ordinance No. 93/2002 (published in the Official Gazette No. 453 of 27 June 2002), approved by Law No. 574/2002 (published in the Official Gazette No. 783 of 30 October 2002); - Emergency Ordinance No. 143/2002 (published in the Official Gazette No. 804 of 5 November 2002) approved by Law No. 45/2003 (published in the Official Gazette No. 51 of 29 January 2003).

Table of Contents Art. No. THE GENERAL PART TITLE I. CRIMINAL LAW AND ITS APPLICATION RESTRICTIONS...........1-16 Chapter I. PRELIMINARY PROVISIONS........................................................1-2 Chapter II. CRIMINAL LAW APPLICATION RESTRICTIONS.......................3-16 Section I. Spatial application of Criminal Law..................................................3-9 Section II. Temporal application of Criminal Law.........................................10-16 Title II. OFFENCES...............................................................................................17-51 Chapter I. GENERAL PROVISIONS.........................................................17-19 Chapter II. ATTEMPT.................................................................................20-22 Chapter III. PARTICIPATION.....................................................................23-31 Chapter IV. PLURALITY OF OFFENCES..................................................32-43 Chapter V. CAUSES THAT REMOVE THE CRIMINALITY OF ACTS.........................................................................44-51 Title III. PENALTIES................................................................................................5289 Chapter I. GENERAL PROVISIONS................................................................52 Chapter II. CATEGORIES AND GENERAL LIMITS OF PENALTIES..............53 Chapter III. MAIN PENALTIES....................................................................54-631 Section I. Life imprisonment...................................................................... 54-552 Section II. Imprisonment.............................................................................56-62 Section III. Fine...........................................................................................63-631 Chapter IV. COMPLEMENTARY PENALTIES AND ACCESSORY PENALTIES...............................................................64-71 Section I. Complementary penalties.............................................................64-70 Section II. Accessory penalties..........................................................................71 Chapter V. PENALTY PERSONALISATION................................................72-89 Section I. General provisions.............................................................................72 Section II. Mitigating and aggravating circumstances...................................73-80 Section III. Conditional suspension of penalty service..................................81-86 Section III1. Supervised suspension of penalty service...............................861-866 Section III2. Penalty service at the workplace............................................867-8611 Section IV. Penalty calculation......................................................................87-89 TITLE IV. REPLACEMENT OF CRIMINAL LIABILITY..................................90-98 TITLE V. MINORITY...................................................................................99-1101 TITLE VI. SECURITY MEASURES..........................................................111-1181 Chapter I. GENERAL PROVISIONS........................................................111-112 Chapter II. RULES FOR SECURITY MEASURES...................................113-1181 TITLE VII. CAUSES THAT REMOVE CRIMINAL LIABILITY OR THE CONSEQUENCES OF CONVICTION....................119-139 Chapter I. AMNESTY AND PARDON........................................................119-120
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Chapter II. PRESCRIPTION......................................................................121-130 Chapter III. LACK OF PRIOR COMPLAINT AND RECONCILIATION OF THE PARTIES.........................................131-132 Chapter IV. REHABILITATION..................................................................133-139 TITLE VIII. THE MEANING OF CERTAIN TERMS OR PHRASES IN CRIMINAL LAW..............................................................140-154 THE SPECIAL PART TITLE I. OFFENCES AGAINST STATE SECURITY................................155-173 TITLE II. OFFENCES AGAINST PERSONS............................................174-207 Chapter I. OFFENCES AGAINST LIFE, CORPORAL INTEGRITY AND HEALTH..................................................174-188 Section I. Murder.......................................................................................174-179 Section II. Hitting and damage to corporal integrity or to health...............180-184 Section III. Abortion...................................................................................185-188 Chapter II. OFFENCES AGAINST THE FREEDOM OF PERSONS.........189-196 Chapter III. OFFENCES REGARDING SEXUAL LIFE......................197-204 Chapter IV. OFFENCES AGAINST DIGNITY............................................205-207 TITLE III. OFFENCES AGAINST PROPERTY..........................................208-222 TITLE IV. OFFENCES AGAINST PUBLIC PROPERTY............................223-235 TITLE V. OFFENCES AGAINST AUTHORITY..........................................236-245 TITLE VI. OFFENCES THAT INFRINGE UPON ACTIVITIES OF PUBLIC INTEREST OR UPON OTHER ACTIVITIES REGULATED BY THE LAW.......................................................................246-281 Chapter I. OFFENCES AT THE WORKPLACE OR RELATED TO THE WORKPLACE..................................................246-258 Chapter II. OFFENCES THAT PREVENT THE ACCOMPLISHMENT OF JUSTICE.......................................................259-272 Chapter III. OFFENCES AGAINST RAILWAY TRAFFIC SAFETY...........273-278 Chapter IV. OFFENCES REGARDING THE LEGAL TREATMENT ESTABLISHED FOR CERTAIN LAW-REGULATED ACTIVITIES .........279-281 TITLE VII. OFFENCES OF FORGERY.....................................................282-294 Chapter I. FORGERY OF COINAGE, STAMPS OR OTHER VALUES....282-285 Chapter II. FORGERY OF AUTHENTICATION OR MARKING INSTRUMENTS.............................................................286-287 Chapter III. FORGERY OF DOCUMENTS................................................288-294 TITLE VIII. OFFENCES AGAINST THE LEGAL RULES ESTABLISHED FOR CERTAIN ECONOMIC ACTIVITIES...................295-3022 TITLE IX. OFFENCES INFRINGING UPON RELATIONS THAT CONCERN SOCIAL COMMUNITY LIFE....................................303-330
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Chapter I. OFFENCES AGAINST FAMILY...............................................303-307 Chapter II. OFFENCES AGAINST PUBLIC HEALTH...............................308-313 Chapter III. OFFENCES REGARDING ASSISTANCE TO THOSE IN PERIL.............................................................................314-316 Chapter IV. OTHER OFFENCES THAT INFRINGE UPON RELATIONS THAT CONCERN SOCIAL COMMUNITY LIFE...............317-330 TITLE X. OFFENCES AGAINST ROMANIAS CAPACITY OF DEFENSE.....................................................................331-355 Chapter I. OFFENCES COMMITTED BY THE MILITARY.......................331-352 Section I. Offences against military order and discipline..........................331-337 Section II. Offences on the battlefield.......................................................338-339 Section III. Offences specific of military aviation and navy.......................340-347 Chapter II. OFFENCES COMMITTED BY MEMBERS OF THE MILITARY OR BY CIVILIANS...............................................................348-352 Chapter III. OFFENCES COMMITTED BY CIVILIANS.............................353-355 TITLE XI. OFFENCES AGAINST PEACE AND HUMANKIND.................356-361 FINAL PROVISIONS.................................................................................362-363

THE GENERAL PART TITLE I CRIMINAL LAW AND ITS APPLICATION RESTRICTIONS
Chapter I PRELIMINARY PROVISIONS The purpose of criminal law Art.1. Criminal law defends Romania, sovereignty, independence, State unity and indivisibility, persons, the rights and freedoms of persons, property, as well as the entire legal order, against offences. Art.2. The law provides which acts are offences, the penalties to be applied to the offenders and the measures that can be taken if these acts are committed. Chapter II CRIMINAL LAW APPLICATION RESTRICTIONS Section I Spatial application of Criminal Law Territorial nature of Criminal Law Criminal Law personality Art.3. Criminal Law shall apply to offences committed on Romanian territory. Art.4. Criminal law shall apply to offences perpetrated outside the Romanian territory, if the perpetrator is a Romanian citizen or if he/she, while having no citizenship, domiciles in this country. Decisions of the Constitutional Court: 1. The final decision No. 233 of 5 July 2001, final, published in the Official Gazette No. 554 of 5 September 2001, rejected the plea of unconstitutionality on Art. 4 of the Criminal Code raised in relation to Art. 123 para. (1) and Art. 130 para. (1) of the Constitution. The decision is essentially motivated by the fact that according precisely to the principle of legality, law courts are obliged to apply the criminal law to all Romanian citizens or stateless persons domiciling in Romania and who have committed criminal acts outside the territory of our country and that the personality of criminal law does not stand for a breach in the role of the Public Ministry, but, quite the contrary, it is an exercise of this role, since both the general interests of society, the legal order, as well as the citizens rights and freedoms require the criminal prosecution and the bringing to the criminal court of those Romanian citizens or stateless persons domiciling in our country, who commit offences outside
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Legality of incrimination

Reproduced as it has been amended by Law No. 140/1996. 5

the territory of our country. Criminal law reality Art.5. (1) Criminal law shall apply to offences committed outside Romanian territory, against the security of the Romanian State or against the life of a Romanian citizen, or which have caused serious injury to the corporal integrity or health of a Romanian citizen, when they are committed by a foreign citizen or by a person with no citizenship who does not domicile on the territory of our country. (2) The initiation of criminal action for the offences provided in the previous paragraph shall be done solely with prior authorisation from the General Prosecutor. Art.6. (1) Criminal law shall apply also to offences other than those in Art. 5 para.(1), committed outside Romanian territory, by a foreign citizen or by a person with no citizenship who does not domicile on Romanian territory, if: a) the act is provided as an offence also by the criminal law of the country where it was perpetrated; b) the perpetrator is in our country. (2) For offences against the interests of the Romanian State or against a Romanian citizen, the offender can be tried also in the case when his/her extradition has been obtained. (3) The previous paragraphs shall not apply when, according to the law of the State where the offender committed the offence, there is any cause that prevents the initiation of criminal action or the continuation of the criminal lawsuit or the service of the penalty, or when the penalty has been served or it is considered to have been served. If the penalty has not been served or has been served only partly, the course of action shall be in accordance with the legal stipulations regarding the recognition of foreign judgements. Art.7. Articles 5 and 6 shall apply, if no international convention ordains otherwise. Art.8. Criminal law does not apply to offences committed by diplomatic representatives of foreign States or by other persons who, according to international conventions, are not subject to criminal jurisdiction in Romania. Art.9. (1) Extradition shall be granted or may be requested based on an international convention, based on reciprocity and, in their absence, based on the law. Section 2 Temporal application of Criminal Law Force of the Criminal Art.10. The criminal law shall apply to offences committed
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Criminal law universality

Criminal law and international conventions Jurisdiction immunity

Extradition

Law Criminal Law NonRetro-activeness Criminal Law Retroactiveness

while it is in force. Art.11. Criminal law does not apply to acts that were not provided as offences by the law at the moment of their perpetration. Art.12. (1) Criminal law does not apply to actions committed under the former law if they are no longer mentioned in the new law. In this case, the service of penalties, security and educational measures, handed down based on the former law, as well as all criminal consequences of court decisions concerning these acts, shall cease by the entry into force of the new law. (2) The law that provides security measures or educational measures shall apply also to offences the judgement of which is not completed by the entry into force of the new law. Art.13. (1) In the case where from, perpetration of the offence to the final judgement of the cause, one or more criminal laws have emerged, the most favourable law shall apply. (2) When the previous law is more favourable, the complementary penalties that have correspondents in the new criminal law shall be applied with the contents and limits provided by the latter, and those that are no longer provided by the new criminal law shall no longer be applied. Decisions of the Supreme Court of Justice:

Application of the most favourable Criminal Law

1. In the decision No. 113 of 14 December 1992 of the Supreme Court of Justice, the judgement formation provided by Art. 39 para. (2) and (3) of the Law on judicial organisation, deemed that, of the provisions of the Decree No. 218/1977, in force at the date when the offence of infanticide was committed, and the provisions of the Criminal Code regarding the consequences of the criminal responsibility of minors, the more favourable law is the Decree No. 218/1977. Mandatory application of the most favourable Criminal Law for final penalties Art.14. (1) When, from the time when the conviction decision remains final to the complete service of a penalty of imprisonment or fine, a law has emerged providing a lighter penalty, the sanction applied, if it exceeds the special maximum provided in the new law for the offence committed, shall be reduced to this maximum. (2) If, from the time when a decision of life imprisonment remains final to its service, a law has emerged providing the penalty of imprisonment for the same act, the penalty of life imprisonment shall be replaced with the maximum of the penalty of imprisonment provided for that offence. (3) Should the new law provide instead of the penalty of imprisonment only the fine, the penalty applied shall be replaced with fine, without exceeding the special maximum provided in the new law. Taking into account the part of the imprisonment already
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According to Art. 2 of the Decree-Law No. 6/1990 (published in the Official Gazette No. 4 of 8 January 1990), all the provisions regarding the death penalty in the Criminal Code, in the Criminal Procedure Code, and in other normative acts, shall be deemed as referring to the penalty of life imprisonment. 7

served, the service of the fine may be removed, either wholly or in part. (4) Complementary punishments, security measures as well as educative measures not served and not provided in the new law, shall no longer be served, and those having a correspondent in the new law shall be served according to the contents and restrictions provided in this new law. (5) When a stipulation from the new law refers to punishments applied finally, the penalty reduced or replaced according to the previous paragraphs shall be taken into account for penalties served prior to the entry into force of the new law. Optional application of the most favourable criminal law in the case of final penalties Art. 15. (1) When, from the time when the conviction decision remains final to the complete service of a penalty of imprisonment, a law has emerged that provides a lighter penalty, and the sanction applied is below the special maximum provided in the new law, one may ordain either the maintaining, or the reduction of the penalty, while taking into account the offence committed, the person of the convict, his/her conduct after the pronunciation of the decision or during the service of the penalty and the time that he/she served from the penalty. The penalty applied cannot be reduced below the limit that would be the result of the reduction of this penalty proportionally with the reduction of the special maximum provided for the offence committed. (2) Art. 14 para. (5) shall apply also for convictions shown in the present chapter, served until the date when the new law enters force, while reducing the penalty in the judgement, by one third. Art.16. A temporary criminal law shall apply to offences committed while it was in force, even if the act was not prosecuted or tried during that time interval.

Application of temporary criminal law

Title II OFFENCES
Chapter I GENERAL PROVISIONS Essential features of offences The social danger of acts Art.17. (1) An offence is an act that represents a social danger, is committed in guilt and is provided in the criminal law. (2) Offences are the only grounds for criminal liability. Art.18. An act that represents a social danger as understood by the criminal law is any action or inaction that infringes upon one of the values shown in Art. 1 and for the sanctioning of which a penalty needs to be applied.
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Acts that do not have

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Art. 181 .(1) An act provided in the criminal law shall not be
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Art. 18 is reproduced as it was amended by Law No. 6/1973.

the degree of social danger of an offence

an offence if by the minimal harm inflicted upon one of the values that the law defends and by its concrete content, as it manifestly lacks importance, does not have the degree of social danger of an offence. (2) When establishing concretely the degree of social danger, one shall take into account the manner and the means of perpetration of the act, the purpose intended, the circumstances under which the act was committed, the consequences produced or that could have been produced, as well as the perpetrators person and conduct. (3) In case of acts provided in the present Article, the prosecutor or the court shall apply one of the administrative sanctions provided in Art. 91. Art.19. (1) There is guilt when an act that represents a social danger is committed with intent or out of negligence. 1. An act was committed with intent when the offender: a) foresaw the outcome of his/her act, and intended for this outcome to take place by the commission of that act; b) foresaw the outcome of his/her act and, although he/she did not intend it, accepts the possibility for it to take place. 2. An act was committed out of negligence when the offender: a) foresaw the outcome of his/her act, but did not accept it, because he/she unfoundedly deemed it unlikely to take place; b) did not foresee the outcome of his/her act, although he/she ought and would have been able to. (2) An act that resides in an action committed out of negligence shall be an offence only when the law provides this expressly. (3) An act consisting of inaction shall be an offence regardless of whether it was committed with intent or out of negligence, unless the law sanctions only its commission with intent. Decisions of the Supreme Court of Justice:

Guilt

1. See decision No. 19 of 8 April 1996 of the Supreme Court of Justice joint sections, reproduced, in excerpt, with Art. 176.

Chapter II ATTEMPT
Contents of attempt Art. 20. (1) Attempt is the realisation of a resolution to commit an offence, a realisation which was interrupted or did not take effect. (2) There is attempt also when the occurrence of the offence was impossible because of the insufficiency or faults of the means used, or because of the circumstance that, while the acts that

Art. 181 was inserted by Law No. 6/1973, and para. (3) has been reproduced as amended by Law No. 104/1992.
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make up the realisation were being committed, the object was missing from the place where the perpetrator thought it to be. (3) There is no attempt when the impossibility of occurrence of the offence is because of how the execution was conceived. Decisions of the Supreme Court of Justice: 1. The decision No. 6 of 7 October 1996 of the Supreme Court of Justice the panel of 9 judges, deemed that: the motivation of the court of appeal in points of law, stating that attempt would be inconceivable in case of indirect intent cannot be accepted; even if Art. 20 para. (1) of the Criminal Code conditions the existence of attempt with the realisation of a resolution to commit the offence, such a realisation can take place also when the defendant, while foreseeing the occurrence of the outcome, accepted it, even if he/she did not intend its occurrence. Punishment of attempt Art.21. (1) Attempt to an offence shall be punished only when the law provides this expressly. (2) Attempt shall be sanctioned by a penalty between the half of the minimum and the half of the maximum provided in the law for an offence that did occur, while the minimum cannot be below the general minimum of the penalty. (3) If the penalty provided in the law is life imprisonment, the penalty of imprisonment from 10 to 25 years shall be applied. Art.22. (1) A perpetrator who divested him/herself or who prevented the occurrence of the outcome before the act was discovered shall not be punished. (2) If the acts accomplished up to the moment of divestment or prevention of outcome occurrence represent another offence, the penalty for that offence shall be applied. Chapter III PARTICIPATION Participants Art.23. Persons who contribute to the commission of an act provided in the criminal law as authors, instigators or accomplices are participants. Art. 24. A person directly committing an act provided in the criminal law is an author. Art.25. An instigator is a person who intentionally determines another person to commit an act provided in the criminal law. Art.26. (1) An accomplice is a person who intentionally facilitates or helps in any way in the commission of an act provided in the criminal law. A person who promises, either before or during the commission of the offence, to conceal the proceeds emerging from it or to favour the perpetrator, even if after commission of the offence the promise is not kept, shall also be an accomplice.
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Divestment and prevention of result occurrence

Authors Instigators Accomplices

Reproduced as amended by the Decree-Law No. 6/1990 and by Law No. 140/1996.

Penalty for participation

Art.27. Instigators and accomplices to an act provided in the criminal law committed with intent shall be sanctioned by the penalty provided in the law for authors. In establishing the penalty, each persons contribution to the commission of the offence, as well as Art. 72, shall be taken into account. Art.28. (1) Circumstances relating to the person of a participant shall not be transmitted onto the others. (2) Circumstances relating to the act shall be transmitted onto the participants only to the extent that they were aware of them or foresaw them. Art. 29. (1) Acts of instigation that are not followed by the realisation of the act, as well as acts of instigation followed by the authors divestment or by his/her preventing the occurrence of the outcome, shall be sanctioned with a penalty between the special minimum of the penalty for offences to the commission of which the instigation was made and the general minimum. If the penalty provided in the law is life imprisonment, the penalty of imprisonment from 2 to 10 years shall be applied. (2) The acts shown in the previous paragraph shall not be sanctioned if the penalty provided in the law for the offence to the commission of which the instigation was made is 2 years or less, unless the acts performed by the author until the moment of divestment make up another act provided in the criminal law. Art.30. A participant shall not be punished if he/she prevents the occurrence of the act, during execution, but before the act is discovered. If the acts committed until the moment of prevention make up another act provided in the criminal law, the participant shall be punished for this act. Art. 31. (1) The act of determining, facilitating or helping in any other manner, with intent, another persons commission, out of negligence, of an act provided in the criminal law, shall be sanctioned with the penalty that the law provides for the act committed with intent. (2) The act of determining, facilitating or helping in any other manner, with intent, the commission of an act provided in the criminal law, by a person who commits that act without guilt, shall be sanctioned with the penalty that the law provides for that offence. (3) Art. 28-30 shall apply accordingly. Chapter IV PLURALITY OF OFFENCES

Personal and actual circumstances

Instigation not followed by realisation

Prevention of perpetration of the act

Improper participation

Forms of plurality

Art.32. Plurality of offences shall be, according to each case, either concurrence of offences or relapse.
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Concurrence of offences

Art.33. There is concurrence of offences: a) when two or more offences have been committed by the same person, before being finally convicted for any one of them. There is concurrence even if one of the offences was committed in order to perpetrate or conceal another offence; b) when an action or inaction, committed by the same person, because of the circumstances under which it took place and because of the consequences it produced, contains the elements of several offences. Art.34. (1) In case of concurrence of offences, the penalty for each offence is established separately, and from among these the penalty shall be applied in one of the following ways: a) when a penalty of life imprisonment and one or more penalties of imprisonment or fine have been established, the penalty of life imprisonment shall be applied; b) when only penalties of imprisonment have been established, the heaviest penalty shall be applied, which can be increased up to its special maximum, and when this maximum is not sufficient, an increase of up to 5 years can be added; c) when only fines have been established, the heaviest penalty shall be applied, which can be increased up to its special maximum, and when this maximum is not sufficient, an increase of up to half of that maximum can be applied; d) when a penalty of imprisonment and a penalty of fine have been established, the penalty of imprisonment shall be applied, to which the fine can be added, either wholly or in part; e) when several penalties of imprisonment and several penalties of fine have been established, the penalty of imprisonment shall be applied, according to letter b), to which the fine can be added, according to letter c). (2) The application of the previous paragraph cannot exceed the total of the penalties established by the court for concurrent offences. Art.35. (1) If for one of the concurrent offences a complementary penalty has also been established, it shall apply together with the penalty of imprisonment. (2) If several complementary penalties of a different nature or even of the same nature, but having different contents, have been established, they shall be applied together with the penalty of imprisonment. (3) If several complementary penalties have been established having the same nature and the same contents, the heaviest of them shall be applied. (4) Security measures of different types, taken in case of concurrent offences, shall be cumulated.
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Main penalty for concurrence of offences

Complementary penalties and security measures for concurrence of offences

1 2

Reproduced as amended by Law No. 140/1996. Reproduced as amended by Law No. 140/1996. 12

Merging penalties for concurrent offences

Art. 36. (1) If an offender who has been convicted by final decision is subsequently tried for a concurrent offence, Art. 34 and 35 shall apply. (2) Art. 34 and 35 shall apply also if, after a sentence has remained final, it is discovered that the convict had been the subject of a final sentence for a concurrent offence also. (3) If the offender has served the penalty applied by the previous sentence wholly or in part, the length of the penalty applied for the concurrent offences shall be reduced by the time served. (4) The provisions regarding the application of penalties for concurrence of offences shall apply also if the sentence to life imprisonment has been commuted with or replaced by that of imprisonment. Art.37. (1) There is relapse in the following cases: a) when, after a sentence to imprisonment that exceeds 6 months has remained final, the convict commits a new offence with intent, before the commencement of the penalty service, during its service or as an escaped convict, and the penalty provided in the law for the second offence is imprisonment of over one year; b) when, after serving a penalty of imprisonment of over 6 months, after total pardon or pardon for the rest of the penalty, or after the term for prescription of the service of such a penalty has expired, the convict commits, with intent, a new offence for which the law provides a penalty of imprisonment longer than one year; c) when, after being sentenced to at least three penalties of imprisonment of up to 6 years or after service, after total pardon or pardon of the rest of the penalty, or after prescription of the service of at least three such penalties, the convict commits, with intent, a new offence for which the law provides a penalty of imprisonment longer than one year; (2) There is relapse also when one of the penalties in para. (1) is life imprisonment. (3) In order to establish the relapse in the cases in para. (1), a) and b) and para. (2), one may take into account also the decision of conviction handed down abroad, for an act provided also in Romanian law, if the decision of conviction has been recognized according to the law. Art. 38. (1) When establishing relapse, one shall not take into account the decisions of conviction regarding: a) offences committed during minority; a1) offences committed out of negligence; b) offences amnestied;
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Relapse

Convictions that do not entail relapse

1 2

Art. 37 was amended by Law No. 6/1973 and by Law No. 140/1996. Art. 38 a1) was inserted by Law No. 6/1973. 13

c) acts no longer provided as offences by the criminal law. (2) Also, one shall not take into account the convictions for which rehabilitation has occurred, or regarding which the term for rehabilitation is due. Penalty for relapse Art.39. (1) For the relapse provided in Art.37 para.(1) a), the penalty established for the offence committed subsequently and the penalty applied for the previous offence shall be merged according to Art. 34 and 35. The increase in Art. 34 para. (1) b) may be augmented up to 7 years. (2) If the previous penalty has been served in part, the merging shall be made between the remaining penalty and the penalty applied for the subsequent offence. (3) In case an offence is committed after escaping, the previous penalty means the penalty that is being served, cumulated with the penalty for escape. (4) For the relapse in Art. 37 para. (1) b), one may apply a penalty up to the special maximum. Should the special maximum be insufficient, in case of imprisonment an increase of up to 10 years can be added, and in case of a fine an increase of no more than two thirds of the special maximum can be added. (5) For the relapse in Art. 37 c), the provisions from the previous paragraphs shall apply accordingly. (6) If, after the decision of conviction remains final, and before the penalty is served or deemed as served, it is discovered that the convict is in relapse, the court shall apply para. (1) in case of the relapse in Art. 37 a) and para. (4) in case of the relapse in Art. 37 b). (7) The previous paragraph shall apply also if the sentence to the penalty of life imprisonment was commuted with or replaced by the penalty of imprisonment. Art.40. When after final conviction the person convicted commits a new offence, before the commencement of the penalty service, during service or as an escaped convict, and the legal requirements for relapse are not met, the penalty shall be applied according to the rules for concurrence of offences. Art.41. (1) For continued offences and for complex offences there is no plurality of offences. (2) An offence is continued when a person commits, at various time intervals, but for the realisation of the same resolution, actions or inactions each having the content of the same offence. (3) An offence is complex when its contents include, as an element or as an aggravating circumstance, an action or an inaction that is in itself an act provided in the criminal law. Art. 42. A continued offence shall be sanctioned by the
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1

Penalty for certain cases where there is no relapse

Unity of a continued offence and of a complex offence

Penalty for continued

1

Art. 39 was amended by Law No. 6/1973, the Decree-Law No. 6/1990 and Law No. 140/1996.

offences Recalculation of the penalty for continued or complex offences

penalty provided in the law for the offence committed, to which an increase can be added according to Art. 34. Art.43. If an offender who received a final conviction for a continued or complex offence is tried afterwards also for other actions or inactions included in the contents of the same offence, taking into account the offence committed as a whole, an appropriate penalty shall be established, and it cannot be lighter than the one previously handed down.

Chapter V CAUSES THAT REMOVE THE CRIMINALITY OF ACTS Self-defence Art. 44. (1) An act provided in the criminal law, which is committed in self-defence, shall not be an offence. (2) A person is in self-defence when he/she commits the act in order to remove a material, direct, immediate and unjust attack, directed against him/her, against another or against a public interest, and which seriously jeopardises the person or the rights of the person attacked or the public interest. (21) A person shall be presumed to have been in self-defence also when he/she commits the act in order to reject another persons penetration without right, by violence, villainy, force or other such means, into an abode, a room, outbuildings, or an enclosed place attached to these. (3) A person was in self-defence also when, because of confusion or fear, exceeded the limits of a defence that is proportional to the seriousness of the danger and to the circumstances under which the attack took place. Art. 45. (1) An act provided in the criminal law, which was committed in a state of necessity, shall not be an offence. (2) A person was in a state of necessity when he/she committed the act in order to save his/her life, corporal integrity or health, or that of another, or an important asset belonging to him/her or to another, or a public interest, from imminent danger. (3) A person was not in a state of necessity if, at the time of perpetration, he/she was aware that he/she was causing consequences that were obviously more serious than those that could have occurred had the danger not been removed. Art.46. (1) An act provided in the criminal law committed because of physical coercion which the perpetrator could not resist shall not be an offence. (2) Also, an act provided in the criminal law committed because of moral coercion, exercised by threat with a serious danger for the person of the perpetrator or for another person and that could not be removed otherwise shall not be an offence.
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State of necessity

Physical coercion and moral coercion

Paragraph 2 was inserted by Law No. 169/2002. 15

Fortuitous case

Art.47. An act provided in the criminal law, the outcome of which is the consequence of unforeseeable circumstances shall not be an offence. Art.48. An act provided in the criminal law shall not be an offence if the perpetrator, at the time of perpetration, either because of mental alienation, or for other reasons, was unaware of his/her actions or inactions, or could not master them. Art.49. (1) An act provided in the criminal law shall not be an offence if the perpetrator, was, at the time of perpetration, due to circumstances beyond his/her will, in a state of total inebriety caused by alcohol or other substances. (2) A state of voluntary total inebriety caused by alcohol or other substances shall not remove the criminality of acts. It can be, according to case, either a mitigating or an aggravating circumstance. Art.50. An act provided in the criminal law committed by a minor who, at the perpetration date, did not meet the legal conditions for criminal responsibility, shall not be an offence. Art.51. (1) An act provided in the criminal law shall not be an offence if the perpetrator, at time of perpetration, was unaware of the existence of a state, situation or circumstance on which the criminality of the act depends. (2) A circumstance not known by the perpetrator at the time of perpetration shall not be an aggravating circumstance. (3) Para.(1) and (2) shall apply also to acts committed out of negligence that are punished by criminal law, only if the unawareness of the state, situation or circumstance concerned is not in itself the result of negligence. (4) Lack of knowledge or improper knowledge of the criminal law shall not remove the criminality of acts.

Irresponsibility

Inebriety

Perpetrators minority Error de facto

Title III PENALTIES

Chapter I GENERAL PROVISIONS Penalties and their purpose Art.52. (1) A penalty is a measure of coercion and a means to re-educate convicts. The purpose of penalties is that of preventing the commission of new offences. (2) The service of a penalty is intended to shape a correct attitude towards work, towards the legal order, and towards the rules of social community life. The service of a penalty must not cause physical suffering, nor humiliate the person of the convict. Chapter II
16

CATEGORIES AND GENERAL LIMITS OF PENALTIES Types of penalties Art.53. Penalties are main, complementary or accessory. 1. The main penalties are: a) life imprisonment; b) imprisonment from 15 days to 30 years; c) fine from 1.000.000 lei to 500.000.000 lei. 2. The complementary penalties are: a) the prohibition of certain rights from one to 10 years; b) military degradation; 3. The accessory penalty is the prohibition of certain rights expressly provided in the law. Chapter III MAIN PENALTIES Section I Life imprisonment Rules on life imprisonment Art.54. (1) Life imprisonment shall be served in prisons expressly destined for this purpose, or in special sections of other prisons. (2) The service of life imprisonment is regulated by the Law on the service of penalties. Art.55. (1) Life imprisonment shall not be applied to those who, at the date when the sentence is handed down, have completed the age of 60. In this case, the penalty of life imprisonment shall be replaced by the penalty of imprisonment for 25 years and the penalty of prohibition of certain rights, the latter for its maximum duration. (2) If a person sentenced to life imprisonment has reached the age of 60 during the service of the penalty, life imprisonment shall be replaced by imprisonment for 25 years. Art. 551 (1) Persons convicted to life imprisonment can be released on parole after the actual service of 20 years of imprisonment, if he/she is consistent at work, well disciplined and shows serious improvement, while also taking into account his/her criminal antecedents. (2) Male convicts over the age of 60 and female convicts over the age of 55 can be released on parole after the actual service of 15 years of imprisonment, if the other conditions provided in para.(1) are also met. (3) A penalty shall be deemed as served if within 10 years from parole the convict has not committed any new offence. If during this interval the convict has committed a new offence, Art. 61 shall apply accordingly.
1 2

Non-application of the penalty of life imprisonment

Parole

Reproduced as amended by Law No. 140/1996 and by Law No. 169/2002. Section I was inserted by Law No. 140/1996. 17

Calculating the penalty in case of commutation or replacement

Art 552 In cases of commutation or replacement of life imprisonment with the penalty of imprisonment, the period of imprisonment served shall be considered a part served from the penalty of imprisonment. Section II Imprisonment

The general rules for the service of this penalty

Art. 56. (1) The rules for the service of imprisonment are based upon the convicts obligation to perform useful work, if they are able to do so, upon the convict education action, upon the convicts respect for discipline at work and for the inner order of the places of detention, as well as upon stimulating and rewarding those who are consistent in their work, well-disciplined and who show clear signs of correction. (2) All these means must be used in such a manner as to lead to the re-education of the convicts. (3) After reaching the age of 60, in the case of males, and 55 for females, convicts are no longer obliged to work during the service of the penalty; they can be allowed to work if they request it. Art. 57. (1) Service of the penalty of imprisonment shall take place according to the Law on penalty service, in places of detention destined expressly for this purpose. (2) Females who are sentenced to imprisonment shall serve this penalty separately from the males. (3) Minors who are sentenced to imprisonment shall serve the penalty separately from adult convicts or in special places of detention, and they shall be provided with the possibility to continue the mandatory general education and to acquire professional training according to their skills. Art. 58. (1) Work performed by convicts is remunerated, except for work of maintenance and housekeeping which are necessary for the place of detention. The Law on penalty service shall establish the cases in which these types of work are remunerated as well. (2) The norms, the work hours and the remuneration for the convicts work are those established by the law. (3) From the remuneration of a convicts work, one share belongs to him/her, and the other belongs to the administration of the place of detention. The Law on penalty service shall establish these shares, as well as the manner of using them. Art. 59. (1) After having served at least two thirds of the penalty, in the case of imprisonment not exceeding 10 years or at least three fourths of imprisonment that exceeds 10 years,
1

The rules of imprisonment

Rules for work

Parole

Reproduced as amended by Law 140/1996. 18

convicts who are consistent in their work, well-disciplined and show serious improvement, while taking into account also his/her criminal antecedents, can be released on parole before the full service of the penalty. (2) In the calculation of fractions of the penalty provided in para.(1) the part of the penalty that can be considered, according to the law, as served based on the work carried out, shall be taken into account. In this case however, parole cannot be granted before the actual service of at least half of the penalty of imprisonment under 10 years or of at least two thirds for imprisonment over 10 years. (3) When the convict is serving several penalties of imprisonment that are not to be merged, the penalty fractions shown in para. (1) shall be calculated according to the total of the penalties. (4) When applying the previous paragraphs, one shall take into account the length of the penalty being served by the convict. Parole for offences committed out of negligence Art. 591 (1) Persons sentenced for the commission of one or several offences out of negligence can be released on parole before the full service of the penalty, after they have served at least half of the penalty length in case of imprisonment under 10 years and at least two thirds in case of imprisonment over 10 years, if they meet also the other conditions in Art. 59 para (1). (2) Art. 59 para. (2) shall apply accordingly; parole cannot be granted before the actual service of at least one third of the penalty in case of imprisonment under 10 years and of at least half in case of imprisonment over 10 years. (3) If the penalty being served is the result of concurrence of offences committed out of negligence and intentional offences, Art. 59 shall apply. (4) Art. 59 para. (3) and (4) shall apply accordingly. Art. 60. (1) A convict who, because of his/her health or for other reasons, was never or is no longer used for work, can be released on parole after the service of the penalty fractions shown in Art. 59 or, the case being, in Art. 591, if he/she shows clear signs of discipline and improvement. (2) Persons convicted during minority who reach the age of 18, as well as convicts that have reached the age of 60 in the case of males and 55 for females, can be released on parole, after the service of one third of the penalty in case of imprisonment under 10 years or of one half in case of imprisonment over 10 years, if they meet the other conditions in Art. 59 para. (1). (3) Persons in para. (2) who were sentenced for the commission of an offence out of negligence, can be released on
2 1

Parole in special cases

1 2

Inserted by Law No. 140/1996. Reproduced as amended by Law No. 140/1996. 19

parole after serving one fourth of the length of the penalty of imprisonment under 10 years or of one third of the penalty of imprisonment over 10 years, if they meet the other conditions in Art. 59 para. (1). (4) If the penalty that is being served is the result of concurrence of offences committed out of negligence and intentional offences, the provisions on parole for intentional offences shall apply. (5) When the convict is serving several penalties of imprisonment, which are not to be merged, the penalty fractions shall be calculated according to the total of penalties. (6) In all cases, when calculating the penalty fraction, one shall take into account the part of the penalty length that is deemed as served based on the work performed, according to the law. (7) Art. 59 para. (4) shall apply accordingly. Decisions of the Constitutional Court: 1. The decision No. 128 of 16 November 1994, published in the Official Gazette No. 86 of 8 May 1995, partly allowed the plea of unconstitutionality and found that the provisions regarding convictions for offences against public property in Art. 60. para. (1) of the Criminal Code are partially abrogated according to Art. 150 para. (1) of the Constitution, and they shall be applied only to convictions for offences regarding the assets in Art. 135 para (4) of the Constitution, assets which are exclusively the object of public property, with prior application of Art. 26 para. (2) of Law No. 47/1992. The decision No. 34 of 28 March 1995, also published in the Official Gazette No.86 of 8 May 1995, rejected the appeal in points of law lodged by the Public Ministry against the decision No. 128 of 16 November 1994. We mention that the abovementioned decisions took into account Art. 60 of the Criminal Code prior to the amendment operated by Law No. 140/1996, published in the Official Gazette No. 289 of 14 November 1996. 2. The decision No. 141 of 13 July 2000, final, published in the Official Gazette No. 508 of 17 October 2000, rejected the plea of unconstitutionality on Art. 60 para. (3) of the Criminal Code, raised in relation to Art. 16 of the Constitution. To motivate the decision, it is shown that in its case law, the Constitutional Court has constantly emphasised that equality does not mean uniformity and that different situations call for different legal solutions, that it is natural and equitable for the lawmaker to stimulate convicts who perform useful work, are consistent in their work and thus show that they have improved. It is also shown that: Hence, one cannot claim that Art. 60 para. (3) of the Criminal Code, in its previous version, and, accordingly, Art. 60 para (1) in the version given by Law No. 140/1996, are contrary to Art. 16 para. (1) of the Constitution. Effects of parole Art. 61. (1) A penalty shall be deemed as served if during the time interval between parole release and the expiry of the penalty length, the person convicted has not committed a new offence. If within the same interval the person released on parole has committed a new offence, the court, while taking into account its seriousness, can ordain either the maintenance of parole or its
20
1

Reproduced as amended by Law No. 140/1996.

revocation. In this latter case, the penalty established for the ulterior offence and the rest of the penalty to be executed from the previous penalty shall be merged, and an increase of up to 5 years can be added. (3) Revocation of parole is obligatory when the act committed is an offence against State security, an offence against peace and humankind, an offence of murder, an offence committed with intent that resulted in the death of a person or an offence that produced particularly serious consequences. The service of penalties in military prisons Art. 62. (1) The service of the penalty of imprisonment not exceeding 2 years, by active members of the military, shall be done in a military prison in the cases provided in the law, as well as in the cases where the law court, while taking into account the circumstances of the cause and the person of the convict, so ordains. (2) If the person convicted has served half of the duration of the penalty and has shown serious improvement, the part of the penalty left to be served shall be reduced by a third, and if the convicts behaviour was outstanding, the reduction can exceed a third; it can even include the entire rest of the penalty. (3) If during the service of penalty the person convicted becomes unable for service, he/she shall be released on parole. (4) If during service of penalty the person convicted commits a new offence, the court that pronounces the sentence for this offence shall apply, according to each case, either Art. 39 para. (1) and (2) or Art. 40. The penalty thus established shall be served in a place of detention. (5) After service of the penalty according to para.(1)-(3) or after total pardon or after pardon of the rest of the penalty, the person convicted shall be rehabilitated de jure. (6) The previous paragraphs shall apply also for those who have begun military service after the conviction decision remained final. (7) In case that, before commencement of the service of the penalty in a military prison, the convict has been put in reserve, the penalty shall be served in a place of detention. Section III Fine Establishing the fine Art. 63. (1) The penalty of fine consists of the sum of money that an offender is obliged to pay. (2) Whenever the law provides solely the penalty of fine for an offence, while not showing its limits, its special minimum shall be 1.500.000 lei and its maximum shall be 100.000.000 lei. (3) When the law provides the penalty of fine without
2 1

1 2

Reproduced as amended by Law No. 104/1992. Reproduced as amended by Law No. 6/1973, by Law No. 104/1992, by Law No. 140/1996 and by Law No. 169/2002. 21

showing its limits, as an alternative for the penalty of imprisonment of up to one year, the special minimum of the fine shall be 3.000.000 lei, and the special maximum shall be 150.000.000 lei, and when it provides the penalty of fine in alternation with the penalty of imprisonment of more than one year, the special minimum shall be 5.000.000 lei and the special maximum shall be 300.000.000 lei. (4) In case that the causes for mitigation or aggravation of penalties are applied, the fine cannot exceed the general limits shown in Art. 53 indent 1 c). (5) The fine shall be established while taking into account Art. 72, however while not making it impossible for the offender to fulfil his/her duties regarding the support, raising, education and professional training of persons towards whom he/she is legally obliged. Replacing the penalty of fine Art. 631. Should the person sentenced elude in bad faith the payment of the fine, the court may replace this penalty by the penalty of imprisonment within the limits provided for the offence committed, while taking into account any parts of the fine that have been paid. Chapter IV COMPLEMENTARY AND ACCESSORY PENALTIES Section 1 Complementary penalties The prohibition of certain rights Art. 64. (1) The complementary penalty of prohibition of certain rights resides in the prohibition of one or some of the following rights: a) the right to elect and be elected into public authorities or as elected public officials; b) the right to hold an office involving the exercise of State authority; c) the right to hold an office or to exercise a profession or to carry out an activity, of the nature of the one that was used by the convict to commit the offence; d) parental rights; e) the right to be a guardian or a curator. (2) Prohibition of exercising the rights provided in b) cannot be handed down unless it is accompanied by the prohibition of the rights provided in a), unless the law provides otherwise. Decisions of the Constitutional Court:
2 1

1 2

Inserted by Law No. 6/1973. Reproduced as amended by Law No. 140/1996 and by the G.E.O. No. 93/1992, approved by Law No. 574/2002. 22

1. The decision No. 172 of 10 December 1998, final, published in the Official Gazette No. 3 of 11 January 1999, rejected as inadmissible the plea of unconstitutionality on Art. 64 para. (1) c) of the Criminal Code, motivating with the fact that the provisions that are claimed to be unconstitutional are not pertinent to the cause. We mention that, to motivate the plea, it was claimed that Art. 64 para. (1) c) of the Criminal Code were in contradiction with Art. 38 para. (1) of the Constitution. 2. The decision No. 184 of 14 June 2001, final, published in the Official Gazette No. 509 of 28 August 2001, rejected the plea of unconstitutionality on Art. 64 of the Criminal Code, raised in relation to Art. 34 of the Constitution. To motivate the decision, the Court deems that: The fact that the law has provided for a person sentenced to a penalty of detention is at the same time convicted also to the prohibition of rights exhaustively provided In Art. 64 of the Criminal Code, until the complete service of the main penalty or until it is deemed as served, is an option of criminal policy of the lawmaker, who deemed that while the convict is deprived of freedom he/she is also unworthy of exercising the rights in Art. 64 of the Criminal Code. This does not infringe upon any provision or principle of the Constitution. Application of the penalty of prohibition of certain rights Art. 65. (1) The complementary penalty of the prohibition of certain rights can be applied, if the main penalty established is imprisonment of at least 2 years and the court finds that, with regard to the nature and seriousness of the act, the circumstances of the cause and the person of the perpetrator, this penalty is necessary. (2) The application of the prohibition of certain rights is obligatory when the law provides this penalty. (3) The condition provided in para.(1) concerning the quantum of the main penalty must be met also for the case when the application of the penalty provided in that paragraph is compulsory. Art. 66. The service of the penalty of prohibiting certain rights shall commence after service of the penalty of imprisonment, after total pardon or pardon of the rest of the penalty, or after prescription of penalty service. Art. 67. (1) The complementary penalty of military degradation consists of loss of rank and of the right to wear a uniform. (2) Military degradation shall be applied obligatorily to convicts in the armed forces, either active or in reserve, if the main penalty established is imprisonment over 10 years or life imprisonment. (3) Military degradation can be applied to members of the military, either active or in reserve, for offences committed with intent, if the main penalty established is imprisonment for at least 5 years and no more than 10 years.
1

Service of the penalty of prohibition of certain rights Military degradation

Art. 68 Abrogated by Law No. 140/1996. Art. 69 Abrogated by Law No. 140/1996.
1

Reproduced as amended by Law No. 140/1996. 23

Art. 70 Abrogated by Law No. 140/1996. Section II Accessory penalties Contents and service of accessory penalties Art. 71. (1) The accessory penalty consists of the prohibition of all rights provided in Art.64. (2) Conviction to a penalty of life imprisonment or imprisonment entails de jure the prohibition of rights provided in the previous paragraph from the moment when the decision of conviction remained final to the completion of penalty service, to total pardon or pardon of the rest of the penalty or to completion of the prescription term for the service of the penalty. (3) Para. (1) and (2) shall apply also in cases when the service of the penalty at the workplace was ordained, with the exceptions in Art. 868, while the prohibition of the rights in Art. 64 d) and e) being left to the appreciation of the court. Decisions of the Constitutional Court: 1. The decision No. 184 of 14 June 2001, final, published in the Official Gazette No. 509 of 28 August 2001, rejected the plea of unconstitutionality on Art. 71 of the Criminal Code raised in relation to Art. 34 of the Constitution. To motivate this decision, it is shown that the instatement of penalties applicable and of the conditions of application and service for these penalties, be they main, complementary or accessory penalties, is the exclusive prerogative of the lawmaker, and that this does not infringe upon any constitutional provision or principle. Chapter V PENALTY PERSONALISATION Section 1 General provisions General criteria for personalisation Art. 72. (1) When establishing and applying penalties, one shall take into account the provisions of the general part of this code, the penalty limits set forth by the special part, the degree of social danger of the act committed, the person of the offender and the circumstances that mitigate or aggravate criminal liability. (2) When, for the offence committed, the law provides alternative penalties, one shall take into account the previous paragraph, both in choosing one of the alternative penalties, as well as in setting its proportional size. Section II Mitigating and aggravating circumstances Mitigating
1

Art. 73. The following situations shall be mitigating

24

Amended by Law No. 6/1973, by Law No. 104/1992 and by Law No. 140/1996.

circumstances

circumstances: a) exceeding the limits of legitimate self defence or state of necessity; b) commission of the offence during powerful confusion or emotion, determined by a challenge of the person injured, caused either by violence, by a serious infringement of the persons dignity or by other serious illicit actions. Decisions of the Constitutional Court:

1. The decision No. 220 of 11 July 2002, final, published in the Official Gazette No. 720 of 4 October 2002, rejected the plea of unconstitutionality on Art. 73 of the Criminal Code raised in relation to Art. 22 para. (1) of the Constitution and Art. 2 indent 1 of the Convention on the defence of human rights and fundamental freedoms. In the ending of the motivation of the decision, it is stated that .the provision by the lawmaker of states, situations, circumstances that are mitigating circumstances is precisely a safeguard of the right to life and to physical and psychical integrity.

Situations that can be mitigating circumstances

Art. 74. (1) The following situations can be deemed as mitigating circumstances: a) the offenders good conduct before committing the offence; b) the offenders endeavour to remove the result of the offence or to repair the damage caused; c) the offenders attitude after committing the offence, shown by his/her appearance before the authority, the sincere behaviour during the trial, the facilitation of the discovery or arrest of participants. (2) The situations enumerated in the present Article are examples. Art. 75. The following situations shall be aggravating circumstances: a) commission of the act by three or more persons together; b) commission of the offence by acts of cruelty, by violence against family members or by methods or means that represent a public danger; c) commission of the offence by an adult perpetrator, if it was committed together with a minor; d) commission of the offence for ignoble reasons; e) commission of the offence in a state of inebriety expressly inflicted in order to commit the act; f) commission of the offence by a person who took advantage of the situation caused by calamity. (2) The court may deem as aggravating circumstances also other situations that ascribe a serious nature to the act.
1

Aggravating circumstances

Letter b) of para. (1) of Art. 75 is reproduced as amended by Law No. 197/2000. 25

Effects of mitigating circumstances

Art. 76. (1) In case of mitigating circumstances the main penalty shall be reduced or changed as follows: a) when the special minimum of the penalty of imprisonment is 10 years or more, the penalty shall be brought below the special minimum, however not lower than 3 years; b) when the special minimum of the penalty of imprisonment is 5 years or more, the penalty shall be brought below the special minimum, but not lower than one year; c) when the special minimum of the penalty of imprisonment is 3 years or more, the penalty shall be brought below the special minimum, however not lower than 3 months; d) when the special minimum of the penalty of imprisonment is one year or more, the penalty shall be brought below this minimum, not lower than the general minimum; e) when the special minimum of the penalty of imprisonment is 3 months or more, the penalty shall be brought below this minimum, to the general minimum, or a fine can be applied, which cannot be lesser than 2.500.000 lei, and when the special minimum is below 3 months, a fine not lesser than 2.000.000 lei shall be applied. f) When the penalty provided in the law is the fine, it shall be reduced under its special minimum, and it can be reduced down to 1.500.000 lei when its special minimum is 5.000.000 lei or more, or down to its general minimum, when the special minimum is less than 5.000.000 lei. (2) In the case of offences against State security, of offences against peace and humankind, of offences of murder, of offences committed with intent that resulted in the death of a person, or of offences that produced particularly serious consequences, if any mitigating circumstances are found, the penalty of imprisonment may be brought down to no less than a third of its special minimum. (3) When there are mitigating circumstances, the complementary penalty of deprivation of rights, provided in the law for the offence committed, may be removed. Art. 77. When the law provides the penalty of life imprisonment for the offence committed, if there are any mitigating circumstances, the penalty of imprisonment from 10 to 25 years shall be applied. Art. 78. (1) In case of aggravating circumstances, one may apply a penalty up to the special maximum. Should the special maximum not suffice, in the case of imprisonment, an increase of up to 5 years can be added, while not exceeding one third of this maximum, and in the case of fine an increase of no more than half of the special maximum can be added.
1

Mitigating circumstances in case of life imprisonment Effects of aggravating circumstances

Reproduced as amended by Law No. 140/1996. 26

Indication of circumstances Concurrence between aggravating and mitigating causes

Art. 79. Any circumstance that is deemed as mitigating or aggravating must be shown in the court decision. Art. 80. (1) In case of concurrence of aggravating and mitigating causes, the penalty shall be established while taking into account the aggravating circumstances, the mitigating circumstances and the state of relapse. (2) In case of concurrence of aggravating and mitigating circumstances, it is not obligatory to bring the penalty below its special minimum. (3) In case of concomitant application of the provisions on aggravating circumstances, relapse and concurrence of offences, the penalty of imprisonment shall not exceed 25 years, if the special maximum for each offence is 10 years or less, and 30 years, if the special maximum for at least one of the offences exceeds 10 years. Section III Conditional suspension of penalty service
1

Conditions for applying the conditional suspension

Art. 81. (1) The court may ordain the conditional suspension of penalty service for a certain duration, if the following conditions are met: a) the penalty applied is imprisonment of no more than 3 years or a fine; b) the offender has not been previously sentenced to a penalty of imprisonment of more than 6 months, except for cases when the conviction falls under the cases provided in Art. 38; c) it is deemed that the purpose of the penalty can be attained even without it being served. (2) Conditional suspension of penalty service can be granted also for concurrence of offences, if the penalty applied is imprisonment of no more than 2 years and the conditions of para. (1) b) and c) are met. (3) Conditional suspension of penalty service cannot be granted for intentional offences for which the law provides the penalty of imprisonment exceeding 15 years, as well as in the case of offences provided in Art. 182, Art. 183, Art. 197 para. (1) and (2) and Art. 2671 para. (1) and (2). 3 (4) In case of conviction for an offence that caused damages, the court can ordain conditional suspension of penalty service only if, until the handing down of the decision, the damages have been fully repaired or the payment of the compensation is guaranteed by an insurance company.4 company

1 2

Reproduced as amended by Law No. 140/1996. Reproduced as amended by Law No. 104/1992, by Law No. 140/1996 and by the G.E.O. No. 207/2000, approved, with amendments and supplements, by Law No. 456/2001. 3 In the version established by the G.E.O. No. 207/2000, paragraph (3) had the following text: Conditional suspension of penalty service cannot be ordained in case of intentional offences for which the law provides the penalty of imprisonment exceeding 15 years, as well as in case of offences of serious bodily harm, rape and torture. 27

(5) Conditional suspension of penalty service does not entail the suspension of service of security measures and of civil obligations provided in the decision of conviction. (4) Conditional suspension of penalty service must be motivated. Decisions of the Constitutional Court: 1. The decision No. 463 of 13 November 1997, final, published in the Official Gazette No. 53 of 6 February 1998, allowed the plea of unconstitutionality and found that the provisions of Art. 81 para. (4) of the Criminal Code are unconstitutional. 2. The decision No. 23 of 10 February 1998, final, published in the Official Gazette No. 143 of 8 April 1998, the plea of unconstitutionality of the provisions of Art. 81 para. (4) of the Criminal Code was rejected as inadmissible, based on Art. 23 para. (3) of Law No. 47/1992, according to which a text that was declared unconstitutional once can no longer be the object of a new plea of unconstitutionality. 3. Also, the decision No. 25 of 10 February 1998, final, published in the Official Gazette No. 143 of 8 April 1998, the plea of unconstitutionality on Art. 81 para. (4) was rejected as inadmissible. 4. The decision No. 25 of 23 February 1999, final, published in the Official Gazette No. 136 of 1 April 1999 rejected the plea of unconstitutionality on Art. 81 para. (3) of the Criminal Code, motivating, inter alia, that the constitutional texts called upon (Art. 4 and 16) concern equality of rights among the citizens in what regards the recognition in their favour of certain rights and fundamental freedoms, and not also the identity of legal treatment on the application of certain measures, regardless of their nature. Thus is justified not only the admissibility of a different legal treatment towards certain categories of persons, but also its necessity. 5. The decision No. 79 of 20 May 1999, final, published in the Official Gazette No. 323 of 6 July 1999 rejected the plea of unconstitutionality on Art. 81 para. (3) of the Criminal Code, motivating that no new elements have emerged that could determine the amendment of the case law of the Constitutional Court, the solution handed down by the decision No. 25 of 23 February 1999 is therefore still valid. 6. The decision No. 95 of 17 June 1999, final, published in the Official Gazette No. 357 of 28 July 1999 rejected the plea of unconstitutionality raised in relation to Art. 123 para. (2) of the Constitution. Essentially, the criticism brought by the author of the plea, claiming that the lawmaker had established arbitrarily the limits of penalties that deprive of freedom and the offences for which the application of personalisation measures is prohibited, is deemed as unfounded, and also unfounded is the claim regarding the independence of judges, because judges cannot be independent with regard to the law, and the judicial personalisation of penalties, which they are called upon to perform, can take place only within the legal personalisation, which is the work of the lawmaker. 7. The decision No. 111 of 8 July 1999, final, published in the Official Gazette No. 506 of 19 October 1999, rejected the plea of unconstitutionality on Art. 81 para. (3) of the Criminal Code raised in relation to Art. 16 of the Constitution. Essentially, it is shown that since no new elements have emerged, which would justify the amendment of the case law of the Constitutional Court, both the reasons, as well as the solution handed down shall maintain their validity in the present cause as well. The solution referred to is that in the decision No. 25 of 23 February 1999 and the decision No. 79 of 20 May 1999. 8. The decision No. 119 of 23 September 1999, final, published in the Official Gazette No. 554 of 12 November 1999, rejected the plea of unconstitutionality on Art. 81 para. (3) of the Criminal Code raised in relation to Art. 22 para. (2), Art. 23 para. (1) and (9), Art. 49 para. (1) and (2) and Art. 123 para. (1) and (2) of the Constitution. To motivate the decision, it is shown, basically, that the constitutionality of this text has been checked before, and the Court handed down the decision No. 25 of 23 February 1999, stating that
4

Unconstitutional provisions. 28

although, in the legal text that is being criticised, the lawmaker did restrict the application of the measure of penalty personalisation, this is not a breach of the constitutional provisions of Art. 4 para. (2), of Art. 16 para. (1) and of Art. 49. Regarding the call upon Art. 22 para. (2), of Art. 23 para. (1) and (2) and of Art 123 of the Constitution, we find that this criticism is not conclusive for the resolution of this plea, therefore they cannot be accepted. 9. The decision No. 166 of 21 October 1999, final, published in the Official Gazette No. 585 of 30 November 1999, rejected the plea of unconstitutionality on Art. 81 para. (3) of the Criminal Code, raised in relation to Art. 22 para. (2), Art. 23 para. (1) and (9), Art. 49 para. (1) and Art. 123 para. (1) and (2) of the Constitution. It is stated that, regarding the constitutionality of Art. 81 para. (3) of the Criminal Code, the Constitutional Court has handed down its judgement in the decision No. 25 of 23 February 1999, and, since no new elements had emerged that would determine an amendment in the case law, the solution handed down shall remain valid also for the present cause. 10. Also, the decision No. 167 of 21 October 1999, final, published in the Official Gazette No. 585 of 30 November 1999, rejected the plea of unconstitutionality on Art. 81 para. (3) of the Criminal Code, raised in relation to Art. 4 para. (2) and Art. 16 of the Constitution. 11. The decision No. 188 of 18 November 1999, final, published in the Official Gazette No. 64 of 14 February 2000 rejected the plea of unconstitutionality on Art. 81 para. (3) of the Criminal Code, raised in relation to Art. 22 para. (2) of the Constitution. The motivation shows that the claim of the author of the plea regarding the unconstitutionality of Art. 81 para. (3) of the Criminal Code, in relation to Art. 22 para. (2) of the Constitution, cannot be accepted, because the service of a penalty cannot be a transgression of the constitutional provision mentioned. 12. The decision No. 202 of 25 November 1999, final, published in the Official Gazette No. 68 of 16 February 2000 rejected the plea of unconstitutionality on Art. 81 para. (3) of the Criminal Code, raised in relation to Art. 16 para. (1), Art. 20 and Art. 123 para. (2) of the Constitution. It was motivated that, in connection to the provisions of Art. 81 para. (3) of the Criminal Code, the case law of the Constitutional Court is constant, and it has been stated in several decisions that these provisions are constitutional. 13. The same motivation accompanied the handing down of the decision No. 62 of 6 April 2000, final, published in the Official Gazette No. 280 of 21 June 2000, the plea being raised in relation to Art. 4 and 16 of the Constitution. 14. The decision No. 116 of 15 June 2000, final, published in the Official Gazette No. 341 of 21 July 2000, rejected the plea of unconstitutionality on Art 81. para. (3) of the Criminal code, raised in relation to Art. 16 of the Constitution, motivating that no new elements have emerged that would justify a change in the case law of the Constitutional Court. 15. The decision No. 182 of 14 June 2001, final, published in the Official Gazette No. 521 of 30 August 2001, rejected the plea of unconstitutionality on Art. 81 para. (3) of the final thesis of the Criminal Code, raised in relation to Art. 15 para. (1), Art. 16 para. (1), Art. 20 para. (2), Art. 29 para. (6) and Art. 49 para (2) of the Constitution, the Universal Declaration of Human Rights, as well as Art. 5 of the European Convention on Human Rights. To motivate the decision, it is shown that no new elements likely to justify a change in the case law have emerged, and the other criticism of unconstitutionality has no significant connection to the resolution of the plea. Decisions of the Supreme Court of Justice: The decision No. VI of 19 October 1998 (decision in the interest of the law), the joint sections of the Supreme Court of Justice stated that in the case of juvenile offenders, the penalty provided in the law according to Art. 81 para. (3) of the Criminal Code means the penalty that is the result of applying the
29

provisions of reduction in Art. 109 para. (1) of the Criminal Code to the penalty provided in the law for the offence committed. Hence, minors can be subject to conditional suspension of penalty service of up to 3 years, and, respectively, of up to 2 years in case of concurrence of offences, when the limit of up to 12 years of the penalty provided in the law is determined by the application of the reduction in Art. 109 para. (1) of the Criminal Code. Trial period Art. 82. (1) The length of conditional suspension of penalty service shall be a trial period for the convict and is made up of the quantum of the penalty of imprisonment applied, to which 2 years are added. (2) If the penalty suspended consists of a fine, the trial period shall be one year. (3) The trial period shall be calculated from the date when the decision on suspension remained final. Art. 83. (1) If during the trial period the convict has committed a new offence, form which a final conviction has been handed down even after the expiry of this period, the court shall revoke conditional suspension, ordaining the full service of the penalty, which shall not be merged with the penalty applied for the new offence. (2) However, revocation of conditional suspension shall not take place if the offence committed afterwards was discovered after expiry of the trial period. (3) Should the ulterior offence have been committed out of negligence, the conditional suspension can be applied even if the offender was previously convicted with conditional suspension of penalty service. In this case, revocation of the first suspension no longer takes place. (4) When establishing the penalty for the offence committed after the decision on suspension remained final, the increase provided in the law for relapse shall no longer apply. Decisions of the Constitutional Court: 1. The decision No. 215 of 15 May 2003, final, published in the Official Gazette No. 421 of 16 June 2003, rejected the plea of unconstitutionality on Art. 83 of the Criminal Code raised in relation to Art. 16, Art. 24 and Art. 20 of the Constitution, with reference to Art. 6 of the Convention for the protection of human rights and fundamental freedoms. To motivate the decision, it is shown that: the legal provisions that is being criticised does not establish discrimination, but it instates equal legal treatment for all persons who are in the same situation, without distinction, and also, the reference to the categorical nature of the provision on revocation, to the violation of the right to defence and a fair trial, are unfounded. Revocation in case of failure to fulfil civil obligations Art. 84. If, by the expiry of the trial period the convict has not fulfilled the civil obligations established in the convictional decision, the court can ordain revocation of suspension, except in cases when the convict proves that he/she was unable to fulfil
30

Revocation in case of commission of an offence

those obligations. Cancellation of suspension for offences committed previously Art. 85. (1) If it is discovered that the convict had committed an offence before the pronunciation of the decision ordaining suspension, or by the time it stayed final, for which offence a penalty of imprisonment was applied even after expiry of the trial period, conditional suspension shall be cancelled, applying, according to case, the provisions on concurrence of offences or relapse. (2) The suspension shall not be cancelled if the offence that could have incurred the cancellation was discovered after expiry of the trial period. (3) In the cases provided in para.(1), if the penalty emerging from the merging does not exceed 2 years, the court can apply Art. 81. If the conditional suspension of penalty service is ordained, the trial period shall be calculated from the date when the previous decision of suspension remained final. Art. 86. The convict shall be rehabilitated de jure, if he/she has not committed a new offence during the trial period and the revocation has not been ordained according to Art. 83 and 84. Section III1 Supervised suspension of penalty service Conditions for application of supervised suspension of penalty service Art. 861 (1) The court can ordain the supervised suspension of penalty service, if the following conditions are met: a) the penalty applied for the offence is imprisonment of no more than 4 years; b) the perpetrator has not been previously convicted to a penalty of imprisonment of over one year, except for cases when the conviction falls within the provisions of Art. 38; c) it is deemed, judging by the convicts person and behaviour after commission of the act, that the pronunciation of the conviction is a warning for him/her and, even without serving the penalty, the convict will no longer commit offences. (2) Supervised suspension of penalty service can be granted also for concurrence of offences, if the penalty applied is imprisonment of no more than 3 years and the conditions in para. (1) b) and c) are met. (3) Supervised suspension of penalty service cannot be ordained in case of intentional offences for which the law provides the penalty of more than 15 years imprisonment, as well as in case of the offences in Art. 182, Art. 183, Art. 197 para. (1) and (2), and Art. 2671 para. (1) and (2). Supervised suspension of penalty service can be ordained in case of the offence of first3 2 1

Rehabilitation in case of conditional suspension of penalty service

1 2

Amended by Law No. 104/1992. Inserted by Law No. 6/1973, amended by Decree No. 218/1977 and Law No. 104/1992. 3 Reproduced as amended by Law No. 140/1996 and the G.E.O No. 207/2000, approved, with amendments and supplements, by Law No. 456/2001. 31

degree theft provided in Art. 209 para. (3), if the penalty applied is imprisonment of no more than 2 years.4 (4) Art. 81 para. (4) and (5) shall apply also in the case of supervised suspension of penalty service.5. service Decisions of the Constitutional Court: 1. The decision No. 25 of 10 February 1998, final, published in the Official Gazette No. 143 of 8 April 1998, allowed the plea of unconstitutionality on Art. 861 para. (4) of the Criminal Code and found that these provisions are unconstitutional in what regards the reference to Art. 81 para. (4) of the same code. 2. The decision No. 95 of 17 June 1999, final, published in the Official Gazette No. 357 of 28 July 1999, rejected the plea of unconstitutionality on Art. 861 para. (3) of the Criminal Code, raised in relation to Art. 123 para. (2) and Art. 20 of the Constitution. Essentially, the criticism belonging to the author of the plea is deemed as unfounded. The author claimed that the lawmaker established arbitrarily the limits of penalties that deprive of freedom and the offences for which the application of personalisation measures is prohibited, is deemed as unfounded, and also unfounded is the claim regarding the independence of judges, because judges cannot be independent with regard to the law, and the judicial personalisation of penalties, which they are called upon to perform, can take place only within the legal personalisation, which is the work of the lawmaker. 3. The decision No. 111 of 8 July 1999, final, published in the Official Gazette No. 506 of 19 October 1999, rejected the plea of unconstitutionality on Art. 861 para. (3) of the Criminal Code raised in relation to Art. 16 of the Constitution. To motivate the decision, it is shown that in the decision No. 95 of 17 June 1999 the Court rejected the plea, motivating that the restriction of the scope of this measure is an option of legislative policy, and the lawmaker is the only one competent to choose the solution that he/she judges appropriate in order to combat criminality at a certain time.; since no new elements have emerged that would determine an amendment in the case law, the same solution shall be valid also for the present cause. 4. The decision No. 167 of 21 October 1999, final, published in the Official Gazette No. 585 of 30 November 1999 rejected the plea of unconstitutionality on Art. 861 para. (3) of the Criminal Code, raised in relation to Art. 4 para. (2) and 16 of the Constitution. It was deemed that no new elements had emerged that would determine an amendment in the case law, and the plea had been previously rejected by decision No. 95 of 17 June 1999. 5. The decision No. 202 of 25 November 1999, final, published in the Official Gazette No. 68 of 16 February 2000 rejected the plea of unconstitutionality on Art. 861 para. (3) of the Criminal Code, raised in relation to Art. 16 para. (1), Art. 20 and Art. 123 para. (2) of the Constitution. It was motivated that, regarding the plea of unconstitutionality on Art. 86 1 para. (3) of the Criminal Code, the Constitutional Court handed down the decision No. 95 of 17 June 1999, which remains valid also for the present cause. 6. The decision No. 62 of 6 April 2000, final, published in the Official Gazette No. 280 of 21 June 2000, rejected the plea of unconstitutionality on Art. 861 para. (3) of the Criminal Code, raised in relation to Art. 4 and 16 of the Constitution, motivating that between the legal restriction of the application of means of legal personalisation of penalty service and the criteria for equality provided in the constitutional texts mentioned, no connection can be seen, therefore the constitutional texts mentioned are not pertinent for the resolution of the plea raised.
According to the version established by the G.E.O. No. 207/2000, paragraph (3) of Art. 861 had the following text: Supervised suspension of penalty service cannot be ordained in case of intentional offences for which the law provides the penalty of more than 15 years imprisonment, as well as in case of offences of serious bodily harm, rape and torture. Supervised suspension of penalty service can be ordained in case of the offence of first-degree theft provided in Art. 209 para. (3), if the penalty applied is imprisonment of no more than 2 years. 5 Unconstitutional provisions in what regards the reference to Art. 81 para. (4). 32
4

7. The decision No. 116 of 15 June 2000, final, published in the Official Gazette No. 341 of 21 July 2000 rejected the plea of unconstitutionality on Art. 861 para. (3) of the Criminal Code, raised in relation to Art. 16 of the Constitution, motivating that no new elements have emerged that would determine an amendment in the case law of the Constitutional Court. 8. With the same motivation, the Court handed down the same solution also in the decision No. 131 of 6 July 2000, final, published in the Official Gazette No. 393 of 23 August 2000. Trial period Art. 862 (1) The trial period for supervised suspension is made up of the quantum of the penalty of imprisonment applied, to which 2 to 5 years are added, as decided by the court. (2) Art. 82 para. (3) shall apply accordingly. Art. 863 (1) During the trial period, the convict must submit to the following supervision measures: a) to present him/herself, on the dates fixed, before the judge designated to supervise him/her or before other bodies established by the court; b) to notify, beforehand, any change of domicile, residence or habitation and any departure for more than 8 days, as well as his/her return; c) to notify and justify changes of workplace; d) to provide information for the control of his/her means of subsistence. (2) The information in para.(1) b), c) and d) shall be notified to the persons or bodies established in para.(1) a). (3) The court can demand the convict to observe one or more of the following obligations: a) to carry out an activity or to attend a course of education or qualification; b) not to change domicile or residence or not to exceed the territorial limit established, except on the conditions established by the court; c) not to frequent certain places established; d) not to come into contact with certain persons; e) not to drive any vehicle or certain vehicles; f) to submit to measures of control, treatment or care, in particular for rehabilitation. (4) Supervision of fulfilment of the obligations established by the court according to para.(3) a)-f) shall be done by the bodies provided in para.(1) a) and the same bodies shall notify the court in case of failure to fulfil the obligations, so that measures can be taken according to Art. 864 para.(2). Art. 864 (1) Art. 83 and 84 shall apply accordingly also for supervised suspension. (2) Should the convict not comply with the measures of supervision provided in the law or with the obligations established by the court, the latter can revoke the supervised suspension ordaining the full service of the penalty, or prolong the trial period by up to 3 years.
33

Supervision measures and obligations of the convict

Revocation of supervised suspension of penalty service

Cancellation of supervised suspension of service

Art. 865 (1) Art. 85 para.(1) and (2) shall apply accordingly also for supervised suspension. (2) In cases provided in Art. 85 para.(1), if the penalty emerging from merger does not exceed 3 years, the court can apply Art. 861. When supervised suspension is ordained, the trial period shall be calculated from the date when the decision that previously pronounced the conditional suspension remained final. Art. 866 The convict shall be rehabilitated de jure, if he/she has not committed a new offence during the trial period and revocation has not been ordained according to Art. 864. Section III2 Penalty service at the workplace

Rehabilitation in case of supervised suspension of penalty service

Conditions for application

Art. 867 (1) If the court, while taking into account the seriousness of the act, the circumstances under which it was committed, the perpetrators professional and general conduct and the possibilities for him/her to be re-educated, deems that there are sufficient reasons for the purpose of the penalty to be attained without deprivation of freedom, it may ordain that the penalty be served in the unit where the convict carries out his/her activity or in another unit, in all cases with the written approval of the unit and if the following conditions are met: a) the penalty applied is imprisonment of no more than 5 years; b) the person concerned has not been previously sentenced to imprisonment for more than one year, unless the sentence is one of the cases in Art. 38. (2) Penalty service at the workplace can be ordained also in case of concurrence of offences, if the penalty applied for concurrence of offences is no more than 3 years imprisonment, and the other conditions in the previous paragraph are met. (3) Penalty service at the workplace cannot be ordained in case of intentional offences for which the law provides the penalty of more than 15 years imprisonment, as well as in case of the offences in Art. 182, Art. 183, Art. 197 para. (1) and (2), and Art. 2671 para. (1) and (2). Penalty service at the workplace can be ordained in case of the offence of first-degree theft provided in Art. 209 para. (3), if the penalty applied is imprisonment of no more than 2 years.1 (4) Para. (1) and (2) shall apply even if the convict is not carrying out any activity at the time of penalty application.

According to the version established by the G.E.O. No. 207/2000, paragraph (3) of Art. 867 had the following text: Penalty service at the workplace cannot be ordained in case of intentional offences for which the law provides the penalty of more than 15 years imprisonment, as well as in case of offences of serious bodily harm, rape and torture. Penalty service at the workplace can be ordained in case of the offence of first-degree theft provided in Art. 209 para. (3), if the penalty applied is imprisonment of no more than 2 years. 34
1

Decisions of the Constitutional Court: 1. The decision No. 95 of 17 June 1999, final, published in the Official Gazette No. 357 of 28 July 1999 rejected the plea of unconstitutionality on Art. 867 para. (3) raised in relation to Art. 123 para. (2) and Art. 20 of the Constitution. Essentially, the criticism brought by the author of the plea, claiming that the lawmaker had established arbitrarily the limits of penalties that deprive of freedom and the offences for which the application of personalisation measures is prohibited, is deemed as unfounded, and also unfounded is the claim regarding the independence of judges, because judges cannot be independent with regard to the law, and the judicial personalisation of penalties, which they are called upon to perform, can take place only within the legal personalisation, which is the work of the lawmaker. 2. The decision No. 167 of 21 October 1999, final, published in the Official Gazette No. 585 of 30 November 1999, rejected the plea of unconstitutionality on Art. 867 para. (3) of the Criminal Code, raised in relation to Art. 4 para. (2) and Art. 16 of the Constitution. It is stated that no new elements have emerged that would determine an amendment in the case law of the Constitutional Court, as the plea was rejected by the decision No. 95 of 17 June 1999. 3. The decision No. 202 of 25 November 1999, final, published in the Official Gazette No. 68 of 16 February 2000 rejected the plea of unconstitutionality on Art. 867 para. (3) of the Criminal Code, raised in relation to Art. 16 para. (1), Art. 20 and Art. 123 para. (2) of the Constitution. It was motivated that, in connection to the plea of unconstitutionality on Art. 867 para. (3) of the Criminal Code, the Constitutional Court has uttered its solution by the decision No. 95 of 17 June 1999, which remains valid also for the present cause. 4. The decision No. 62 of 6 April 2000, final, published in the Official Gazette No. 280 of 21 June 2000 rejected the plea of unconstitutionality on Art. 867 para. (3) of the Criminal Code, raised in relation to Art. 4 and 16 of the Constitution, motivating that between the legal restriction of the application of means of legal personalisation of penalty service and the criteria for equality provided in the constitutional texts mentioned, no connection can be seen, therefore the constitutional texts mentioned are not pertinent for the resolution of the plea raised. 5. The decision No. 116 of 15 June 2000, final, published in the Official Gazette No. 341 of 21 July 2000 rejected the plea of unconstitutionality on Art. 867 para. (3) of the Criminal Code, raised in relation to Art. 16 of the Constitution, motivating that no new elements have emerged that would determine an amendment in the case law of the Constitutional Court. 6. With the same motivation, the Court handed down the same solution also in the decision No. 131 of 6 July 2000, published in the Official Gazette No. 393 of 23 August 2000. The service Art. 868 (1) For the duration of penalty service, the convict is obliged to fulfil all his/her duties at the workplace, with the following restrictions of his/her legal rights: a) of the total amount of income due to him/her for the work performed, except for increases granted for activity performed in workplaces with conditions that are harmful or dangerous, a share of 15-40% shall be held according to the law, in relation to the total revenues and to the convicts duties to support other persons, which shall be transferred to the State budget. In case of juvenile convicts, the limits of this share shall be reduced by half; b) the social insurance benefits shall be established according to the legally applied percentages applied to the net income due to the convict, after the transfer of the share provided in a); c) the duration of penalty service shall not count as length of service at the workplace;
35

d) the workplace cannot be changed by the convicts request, without a decision of the law court; e) the convict cannot be promoted; f) the convict cannot hold offices of leadership, and, depending on the act committed, he/she cannot hold offices that involve the exercise of State authority, training-educatory offices or accounting offices. (2) For the duration of penalty service, the convicts right to be elected shall be prohibited. (3) The court may ordain that the convict observe also one or several of the obligations in Art. 863. (4) The penalty shall be served at the workplace based on a warrant for penalty service. (5) During penalty service in the unit where the convict was performing activity at the time when the penalty was applied, the work contract shall be suspended. (6) In case the penalty is served in a unit other than the one where the convict was performing activity at the time when the penalty was applied, the work contract shall cease. The penalty shall be served without concluding a work contract. (7) Para. (6) shall apply accordingly also in case of convicts who are not performing any activity at the time of penalty application. (8) If the convict begins the mandatory military service during the trial or after the decision of conviction remains final, the penalty shall be served at the workplace, after the convict is placed in military reserve. Revocation of penalty service at the workplace Art. 869 (1) If, after the decision that ordained penalty service at the workplace remains final, the convict commits a new offence, either before the commencement of the service or during the service of the penalty, the court shall revoke penalty service at the workplace. The penalty shall be applied according to Art. 39 para. (1) and (2) or, the case being, according to Art. 40. (2) Should the ulterior offence have been committed out of negligence, the court may ordain penalty service at the workplace also for this offence. In this case, the revocation no longer takes place and the penalty shall be applied according to the rules on concurrence of offences. (3) If the convict eludes the performing of his/her activity in the unit or fails to properly fulfil his/her duties at the workplace, or if he/she fails to observe the supervision measures or the obligations established by the decision of conviction, the court can revoke penalty service at the workplace, and ordain the service of the penalty in a place of detention. (4) If the convict is no longer able to perform the work because of total loss of working ability, the court shall revoke penalty service at the workplace and, taking into account the circumstances that determined the inability to work and Art. 72,
36

shall ordain conditional suspension of penalty service even if the conditions in Art. 81 or 861 are not met. (5) If penalty service at the workplace is revoked according to para (1) or (3), the penalty applied or, the case being, the rest of the penalty shall be served in a place of detention. Cancellation of penalty service at the workplace Art. 8610 (1) If the convict had committed another offence by the date when the sentence remained final and this offence is discovered before the penalty is served at the workplace or deemed as served, the court can cancel penalty service at the workplace, if the conditions in Art. 867 are not met. (2) Cancellation shall be ordained also if the convictional decision for the offence discovered subsequently is handed down after the penalty has been served at the workplace or has been deemed as served. The penalty shall be established, as the case requires, according either to the rules on concurrence of offences or those on relapse. (3) When reducing by the penalty served in full or in part, or, the case being, when merging the penalties, one shall apply the provisions on the penalty of imprisonment, regardless of whether or not one of the penalties is being served at the workplace. The penalty thus established shall be served in a place of detention. Art. 8611 (1) If the convict has served at least two thirds of the length of the penalty, has shown clear proof of correction, has had good conduct, has been well-disciplined and consistent in his/her work, the court may ordain the cessation of penalty service at the workplace, upon request either from the unit where the convict is performing his/her activity, or from the convict. (2) The penalty shall be deemed as served if, within the time interval between the cessation of penalty service at the workplace and the expiry of the length of the penalty, the convict has not committed a new offence. If, within the same interval, the convict has committed a new offence, the court can revoke cessation of penalty service at the workplace, and Art. 61 and 86 10 para. (3) shall apply accordingly. Section IV Penalty calculation Length of penalty service Art. 87. (1) The length of service for penalties of imprisonment shall be established beginning with the day when the convict began service of the final decision of conviction. (2) The day when the penalty service commences and the day it ceases shall be calculated as part of the length of penalty service. (3) The time during which the convict, in the course of penalty service, is ill in a hospital, shall be considered a part of the length of service, except for cases when the illness is
37
1

Cessation of penalty service

Art. 87 para. (4) was inserted by Law No. 6/1973 and amended by Law No. 140/1996.

deliberately self-inflicted, and this circumstance is found during the penalty service. (4) The length of penalty service at the workplace shall not include the time during which the convict is missing from the workplace. Calculating custody and preventive arrest Art. 88. (1) The time spent in custody and preventive arrest shall be deducted from the duration of the penalty handed down. Deduction shall be made also when the convict has been prosecuted or tried, at the same time or separately, for several concurrent offences, even if he/she was removed from prosecution, if the criminal prosecution has ended or he/she was acquitted or the criminal trial for the act that determined the custody or preventive arrest has concluded. (2) Deduction of custody and preventive arrest shall be made also in case of conviction to fine, by wholly or partly removing the service of the fine.

Calculation of Art. 89. For offences committed according to Art. 4, 5 or 6, deprivation of freedom the part of the penalty, as well as the custody or preventive arrest served outside the served outside the country shall be deducted from the duration of country the penalty applied for the same offence by Romanian courts.

TITLE IV REPLACEMENT OF CRIMINAL LIABILITY

Conditions for replacement Art. 90. (1) The court can ordain the replacement of criminal liability by the liability that entails an administrative sanction, if the following conditions are met: a) the penalty provided in the law for the offence committed is imprisonment of no more than one year or a fine or the offences in Art. 208, 213, 215 para (1), Art. 215 1 para. (1), Art. 217 para. (1), Art. 219 para. (1) were committed, if the value of the damage does not exceed 100.000 lei, or in case of the offence in Art. 249, if the value of the damage does not exceed 500.000 lei; b) the act, by its actual contents and by the circumstances under which it was committed, represents a low degree of social danger and has not caused serious consequences; c) the damage caused by the offence has been repaired in full until the handing down of the decision; d) the perpetrators attitude after commission of the offence shows that he/she regrets having committed the act; e) there are sufficient indications that the perpetrator can be corrected without applying a penalty. (2) Replacement of criminal liability cannot be ordained if the perpetrator has previously been convicted or administrative sanctions have been applied for him/her twice before. The conviction shall be deemed as non-existent in the cases in Art.
1

Amended by Law No. 104/1992 and by Law No. 140/1996. 38

38. Decisions of the Constitutional Court: 1. The decision No. 22 of 11 February 1999, final, published in the Official Gazette No. 178 of 26 April 1999, rejected the plea of unconstitutionality on Art. 90 para. (1) a) of the Criminal Code. To motivate the plea, it was claimed that Art. 90 para. (1) a) of the Criminal Code is in contradiction with Art. 16 para. (1) of the Constitution, which consecrates the principle of equality of all citizens before the law and the public authorities. The Constitutional Court deemed that it is a right of the lawmaker to establish, by organic law, in which cases and on what conditions the criminal liability for the commission of an offence can be replaced with the liability that entails administrative sanctions, provided in the criminal law.. Administrative sanctions Art. 91. When the court ordains the replacement of criminal liability, it shall apply one of the following administrative sanctions: a) reprimand; b) reprimand with warning; c) fine from 100.000 lei to 10.000.000 lei.
1

Art. 92 Abrogated by Law No. 104/1992. Art. 93 Abrogated by Law No. 104/1992. Art. 94 Abrogated by Law No. 104/1992. Art. 95 Abrogated by Law No. 104/1992. Art. 96 Abrogated by Law No. 104/1992. Art. 97 Abrogated by Law No. 104/1992. Replacement in case of plurality of offenders or of offences Art. 98. (1) In case of participation, the replacement of criminal liability can take place only for those perpetrators towards whom the conditions provided in the present title are met. (2) Replacement of criminal liability can be ordained also in case of concurrence of offences, if the conditions for replacement of criminal liability are met for each offence that is in concurrence.

TITLE V MINORITY
Limits of criminal responsibility Art. 99. (1) A minor under the age of 14 shall not be criminally responsible. (2) A minor aged from 14 to 16 shall be criminally responsible, only if it is proven that he/she committed the act in discernment.

Art. 91 is reproduced as amended by the G.E.O. No. 207/2000, approved, with amendments and supplements, by Law No. 456/2001. 39

(3) A minor over the age of 16 shall be criminally responsible. Consequences of criminal responsibility Art. 100. (1) With regard to a minor who is criminally responsible, one can take an educatory measure or can apply a penalty. In choosing the sanction, one shall take into account the degree of social danger of the act committed, the physical condition, the intellectual and moral development of the minor, his/her behaviour, the conditions in which he/she was raised and lived and any other elements likely to characterise the minors person. (2) The penalty shall be applied to minors only if it is deemed that educatory measures would not be sufficient for correcting the minors behaviour. Art. 101. Educatory measures that can be taken with regard to minors shall be: a) reprimand; b) supervised freedom; c) admission into a re-education centre; d) admission into a medical-educatory institute. Art. 102. The educatory measure of reprimand consists of scolding the minor, of showing him/her the degree of seriousness of the act committed, of advising the minor to behave in such a way as to show correction, while at the same time warning him/her than if he/she commits a new offence, a more severe measure shall be taken or a penalty shall be applied in his/her case. Art. 103. (1) The educatory measure of supervised freedom consists of giving freedom to the minor for one year under special supervision. Supervision can be entrusted, as the case requires, to the minors parents, to the person who adopted him/her or to the legal guardian. If they are unable to ensure satisfactory supervision, the court shall entrust the minors supervision, for that period, to a trustworthy person, preferably a close relative, upon request from the latter, or to an institution legally charged with the supervision of minors. (2) The court shall warn the person entrusted with supervision, that he/she has the duty to watch closely over the minor, in order to correct him/her. Also, he/she shall be warned that he/she is obliged to notify the court at once, should the minor elude supervision or behave inappropriately or commit a new act provided in the criminal law. (3) The court can demand that the minor observes one or several of the following obligations:
2 1

Educatory measures

Reprimand

Supervised freedom

1 2

Amended by Decree No. 545/1972. Reproduced as amended by Law No. 140/1996. 40

a) not to frequent certain places established; b) not to come into contact with certain persons; c) to carry out an unremunerated activity in an institution of public interest decided by the court, from 50 to 200 hours, for no more than 3 hours per day, after school, and during holidays. (4) The court shall warn the minor of the consequences of his/her behaviour. (5) After taking the measure of supervised freedom, the court shall notify the school where the minor attended or the unit where he/she was hired and, the case being, the institution where he/she is carrying out the activity decided by the court. (6) If during the time provided in para.(1) the minor eludes supervision or behaves inappropriately or commits an act provided in the criminal law, the court shall revoke supervised freedom and take with regard to the minor the measure of admission into a re-education centre. If the act provided in the criminal law is an offence, the court shall take the measure of admission or apply a penalty. (7) The term of one year in para.(1) shall begin its course at the date when service of supervised freedom commences. Admission into a reeducation centre Art. 104. (1) The educatory measure of admission into a reeducation centre shall be taken in order to re-educate the minor, who shall be provided with the possibility to acquire the necessary education and professional training according to his/her skills. (2) The measure of admission into a re-education centre shall be taken towards minors regarding whom the other educatory measures are insufficient. Art.105. The measure of admission into a medicaleducatory institute shall be taken for minors who, because of their physical or mental condition, need medical treatment and special education. Art. 106. (1) The measures in Art. 104 and 105 shall be taken for an indeterminate period, however, they can only last until the minor reaches the age of 18. The measure in Art. 105 must be removed as soon as the reason that called for it disappears. The court can, while ordaining the removal of the measure in Art. 105, if necessary, take the measure of admission into a re-education centre. (2) Upon the date when the minor comes of age, the court can ordain the prolongation of admission for no longer than 2 years, if it is necessary in order to achieve the purpose of admission.

Admission into a medicaleducatory institute The length of the measures

41

Release of the minor before coming of age

Art. 107. If at least a year has passed from the date of admission into a re-education centre and the minor has shown clear signs of correction, of seriousness in study and in acquiring professional training, one can ordain his/her release before his/her coming of age. Art. 108. (1) If during release granted according to the previous Article, the minor behaves inappropriately, the court can ordain revocation of release. (2) If during admission into a re-education centre or a medical-educatory institute or release before coming of age, the minor commits a new offence for which it is deemed that the penalty of imprisonment should be applied, the court shall revoke admission. In case that a penalty is not necessary, the measure of admission shall be kept and release shall be revoked. Art. 109. (1) Penalties applicable to minors shall be the imprisonment or the fine provided in the law for the offence committed. The limits of penalties shall be reduced by half. Following the reduction, in no case shall the minimum of the penalty exceed 5 years. (2) When, for the offence committed, the law provides the penalty of life imprisonment, the minor shall receive the penalty of imprisonment from 5 to 20 years. (3) No complementary penalties shall apply to minors. (4) Convictions handed down for acts committed during minority shall not incur any incapacitation or loss of rights. Decisions of the Supreme Court of Justice:
1

Revocation of the minors release or admission

Penalties for minors

1. See decision No. VI of 19 October 1998 (decision in the interest of the law), reproduced, in excerpt, with Art. 81. Conditional suspension of penalty service Art. 110. In case of conditional suspension of penalty service applied to minors, the trial period shall consist of the length of the penalty of imprisonment, to which 6 months to 2 years are added, as the court ordains. If the penalty applied resides in a fine, the trial period is 6 months. Art. 1101 (1) Together with conditional suspension of penalty service for imprisonment applied to minors according to Art. 110, the court may ordain, for the duration of the trial period, however, until the minor reaches the age of 18, that the minors supervision be entrusted to a person or an institution of those in Art. 103, and it can also establish for the minor one or several of the obligations in Art. 103 para. (3), and after reaching the age of 18, the court may ordain that he/she observe the supervision
3 2

Supervised or controlled suspension of penalty service

1 2

Reproduced as amended by Law No. 104/1992. Amended by Law No. 6/1973 and by Law No. 140/1996. 3 Inserted by Law No. 140/1996. 42

measures or the obligations in Art. 863. (2) Art. 81 para. (3) and (4), Art. 82 para. (3), Art. 83, 84 and 86 shall apply accordingly. (3) The minors eluding the observance of the obligations in Art. 103 para. (3) may entail revocation of conditional suspension. In case of non-compliance with the supervision measures or the obligations established by the court, according to Art. 863, Art. 864 para. (2) shall apply accordingly. (4) The previous paragraphs shall apply accordingly also in case of conditional release of the minor.

TITLE VI SECURITY MEASURES

Chapter I GENERAL PROVISIONS Purpose of security measures Art. 111. (1) Security measures are aimed at overcoming a state of danger and preventing the commission of acts provided in criminal law. (2) Security measures are taken with regard to persons who committed acts provided in criminal law. (3) Security measures can be taken even if no penalty was applied to the perpetrator, except for the measure in Art.112 d). a) b) c) d) e) f) g) Art. 112. Security measures are: obligation to undergo medical treatment; admission into a medical facility; prohibition to hold a certain office or to exercise a certain profession, a trade or another activity; prohibition to be in certain towns or cities; expulsion of foreigners; special confiscation; prohibition to return to the family home for a determinate period. Chapter II RULES FOR SECURITY MEASURES Obligation to undergo medical treatment Art. 113. (1) If the perpetrator, because of illness or chronic intoxication by alcohol, drugs or other such substances, represents a danger to society, he/she can be obliged to regularly attend medical treatment until he/she regains health. (2) When the person with regard to whom this measure was ordained does not regularly attend treatment, hospitalisation can be ordained. (3) If the person obliged to undergo treatment is
2 1

Types of security measures

1 2

Letter g) of Art. 112 is reproduced as inserted by Law No. 197/2000. Reproduced as amended by Law No. 140/1996. 43

sentenced to a penalty of life imprisonment or imprisonment, treatment shall be undergone during penalty service also. (4) The measure of obligation to undergo medical treatment can be taken provisionally also during criminal prosecution or trial. Admission into a medical facility Art. 114. (1) When the perpetrator is mentally ill or a drug addict and he/she is in a state that represents danger to society, the measure of admission into a specialised medical institute can be taken, until the person regains health. (2) This measure can be taken provisionally also during criminal prosecution or trial. Art. 115. (1) When the perpetrator has committed the act because of incapacity, lack of training or other reasons that make him/her unfit to hold a certain office, or to exercise a certain profession, trade or another occupation, one can take the measure of prohibition to hold that office or to exercise that profession, trade or occupation. (2) This measure can be revoked by request, after a period of at least one year, if it is found that the reasons that called for it have ceased to exist. A new request can be made only after at least one year from the date of rejection of the previous request. Art. 116. (1) If a person convicted to imprisonment of at least one year has been convicted before for other offences, if the court finds that the presence of this person in the place where he/she committed the offence or in other places is a serious danger to society, it can ordain the prohibition for the convict to be in that place or in other places specified by the decision of conviction. (2) The condition for the perpetrator to have been previously convicted for other offences is not required when a conviction for more than 5 years is handed down. (3) This measure can be taken for up to 5 years and can be prolonged if the social danger persists. Prolongation cannot exceed the length of the initial measure. (4) In case of offences of theft, robbery, profiteering, outrage against good usage and disturbance of public calm, begging, prostitution, rape, sexual relations between persons of the same sex and sexual perversion, the security measure can be taken regardless of the penalty applied, of its length or amount and even if the perpetrator has not been previously convicted for other offences. (5) The security measure can be revoked by request or ex officio, after at least one year, however, only if the grounds that called for it have ceased. A new request can be made only after at least one year from the date of rejection of the previous
44
1

Prohibition of an office or a profession

Prohibition to be in certain towns or cities

Amended by Law No. 6/1973.

request. Expulsion Art. 117. (1) A foreign citizen who has committed an offence can be forbidden to stay on Romanian territory. (2) The previous paragraph shall apply also to persons with no citizenship who do not domicile in our country. (3) If expulsion is accompanying the penalty of imprisonment, the accomplishment of expulsion shall take place after service of the penalty. (4) Persons provided in the present Article shall not be expelled if there are serious reasons to believe that they risk being subjected to torture in the State to which they are to be expelled. Art. 118. (1) The following are subject to special confiscation: a) goods produced by an act provided in the criminal law; b) goods that have served or that were meant to serve in the commission of an offence, if they belong to the perpetrator; c) goods given away to determine the commission of an offence or to reward the perpetrator; d) goods obviously acquired through commission of the offence, if they are not returned to the person injured and to the extent that they do not serve to compensate the latter; e) goods possessed in violation of legal provisions. Art. 1181 In the case of a person convicted to imprisonment of at least one year for hitting or any other acts of violence causing physical or mental suffering, committed against family members, if the court finds that his/her presence in the family home represents a serious danger for the other family members, it can take, with regard to this person, the measure of prohibition to return to the family home, upon request from the injured party. This measure can be taken for up to 2 years.
2 1

Special confiscation

Prohibition to return to the family home for a determinate period

TITLE VII CAUSES THAT REMOVE CRIMINAL LIABILITY OR THE CONSEQUENCES OF CONVICTION
Chapter I AMNESTY AND PARDON Effects of amnesty Art. 119. (1) Amnesty removes criminal liability for the act committed. If it occurs after conviction, it removes also the service of the penalty handed down, as well as the other consequences of the conviction. The fine paid before amnesty shall not be returned.
3

1 2

Amended by Law No. 20/1990. Art. 1181 was inserted by Law No. 197/2000. 3 Amended by Law No. 140/1996. 45

(2) Amnesty does not take effect upon security measures, educatory measures and rights of the injured person. Effects of pardon Art. 120. (1) Pardon totally or partially cancels the service of the penalty or commutes this penalty with a lighter one. (2) Pardon takes effect also upon penalties the service of which is suspended conditionally. In this case, the part of the trial period that represents the length of the penalty handed down by the court shall be reduced accordingly. Should the conditional suspension be revoked or cancelled, only the part of the penalty that was not pardoned shall be served. (2) Pardon does not take effect upon complementary penalties, unless the court decides otherwise in the pardon act. (3) Pardon does not take effect upon security and educatory measures. Chapter II PRESCRIPTION Prescription of criminal liability Art. 121. (1) Prescription removes criminal liability. (2) Prescription does not remove criminal liability for offences against peace and humankind. Decisions of the Constitutional Court: 1. The decision No. 287 of 1 November 2001, final, published in the Official Gazette No. 14 of 11 January 2002, rejected the plea of unconstitutionality on Art. 121 para. (1) of the Criminal Code, raised in relation to Art. 21, Art. 16 para. (1), Art. 123 para. (1) and Art. 125 para. (1) of the Constitution. To motivate the decision, it is stated, essentially, that terms of prescription are established according to the criterion of seriousness of the penalty provided in the law or, in case of prescription of penalty service, of the penalty applied, and the legal provisions that are under criticism do not instate any privileges, that free access to justice is not prevented, and the accomplishment of justice means not only the resolution of causes in first instance, but also their resolution by means of pleas. It is also stated that the legal provisions being criticised have no connection to the provisions of Art. 125 para. (1) of the Constitution.
2 Terms of prescription Art. 122. (1) The terms of prescription for criminal liability for criminal liability are: a) 15 years, when the law provides life imprisonment or imprisonment for more than 15 years for the offence committed; b) 10 years, when the law provides imprisonment from 10 to 15 years for the offence committed; c) 8 years, when the law provides imprisonment for more than 5 years, while not exceeding 10 years, for the offence committed; 1

Amended by the Decree-Law No. 6/1990. See Law No. 546/1992 on pardon and the proceedings for granting pardon, published in the annex to the present edition. 2 Amended by the Decree-Law No. 6/1990. 46

d) 5 years, when the law provides imprisonment from one year to 5 years for the offence committed; e) 3 years, when the law provides imprisonment not exceeding one year or a fine; (2) The terms provided in the present Article shall be computed from the date of commission of the offence. For continuous offences, the term starts at the date of termination of the action or inaction, and for continued offences, at the date of commission of the last action or inaction. Interruption in the course of prescription Art. 123. (1) The course of the term of prescription in Art. 122 shall be interrupted by the accomplishment of any act that, according to the law, must be notified to the accused or defendant in the course of the criminal trial. (2) After each interruption a new term of prescription begins. (3) Interruption in the course of prescription shall take effect with regard to all participants in the offence, even if the act of interruption concerns only some of them. Art. 124. Prescription removes criminal liability regardless of how many interruptions may occur, if the term for prescription in Art. 122 is exceeded by one more half. Decisions of the Constitutional Court: 1. The decision No. 287 of 1 November 2001, final, published in the Official Gazette No. 14 of 11 January 2002, rejected the plea of unconstitutionality on Art. 124 of the Criminal Code, raised in relation to Art. 21, Art. 16 para. (1), Art. 123 para. (1) and Art. 125 para. (1) of the Constitution. To motivate the decision, it is stated, essentially, that terms of prescription are established according to the criterion of seriousness of the penalty provided in the law or, in case of prescription of penalty service, of the penalty applied, and the legal provisions that are under criticism do not instate any privileges, that free access to justice is not prevented, and the accomplishment of justice means not only the resolution of causes in first instance, but also their resolution by means of pleas. It is also stated that the legal provisions being criticised have no connection to the provisions of Art. 125 para. (1) of the Constitution. 2. The decision No. 30 of 31 January 2002, final, published in the Official Gazette No. 123 of 15 February 2002, rejected the plea of unconstitutionality on Art. 124 of the Criminal Code raised in relation to Art. 21 and Art. 16 of the Constitution. To motivate the decision, it is stated, essentially, that Art. 124 of the Criminal Code does not contradict the principle of equality, consecrated by Art. 16 para. (1) of the Constitution, because it does not involve a different legal treatment for persons who are in the same situation, and it does not contradict Art. 21 of the Constitution, because it does not prevent access to justice for the person injured by the offence. Prescription of penalty service Art. 125. (1) Prescription removes the service of the main penalty. (2) Prescription does not remove the service of main penalties handed down for offences against peace and humankind.
47

Special prescription

Terms for prescription of penalty service

Art. 126. (1) The terms for prescription of penalty service are: a) 20 years, when the penalty to be served is life imprisonment or imprisonment for more than 15 years; b) 5 years, plus the length of the penalty to be served, while not exceeding 15 years, in case of the other penalties of imprisonment; c) 3 years, if the penalty is a fine. (2) The term for prescription of service for the administrative sanctions in Art. 181 and in Art. 91 shall be one year. (3) The terms in para. (1) shall be calculated from the date when the decision of conviction remains final, and those in para. (2) shall begin their course from the date when the decision remains final or, the case being, the date when the ordinance that applied the sanction can be enforced according to the law. (4) In case of revocation of conditional suspension of penalty service, of supervised suspension of penalty service or, the case being, of penalty service at the workplace, the term for prescription shall begin its course from the date when the decision of revocation remains final. (5) Security measures are not subject to prescription. Art.127. (1) The course of the term for prescription in Art. 126 shall be interrupted by the commencement of penalty service or by the commission of a new offence. (2) The act of eluding service, after commencement of penalty service, shall entail the beginning of a new term of prescription, from the date of elusion. Decisions of the Constitutional Court:

Interruption in the course of service prescription

1. The decision No. 110 of 12 April 2001, final, published in the Official Gazette No. 296 of 6 June 2001, rejected the plea of unconstitutionality on Art. 127 of the Criminal Code, raised in relation to Art. 16 para. (1) and (2) of the Constitution. To motivate the decision, it is shown that the situation of persons who are serving a penalty of imprisonment and elude its service after commencement of service, is obviously different by comparison to the situation of persons towards whom penalty service has been postponed or interrupted, and precisely the different situation in which the two categories of convicts are justifies the different legal treatment regarding penalty service prescription, while not transgressing in this manner the constitutional principle of equality of rights. Suspension in the course of prescription Art. 128. (1) The course of the prescription term in Art. 122 is suspended whilst a legal provision or an unforeseeable or irremovable circumstance is hindering the initiation of criminal action or the continuation of the criminal trial. (2) The course of the prescription term in Art. 126 shall be suspended in the cases and on the conditions provided in the Criminal Procedure Code. (3) Prescription shall resume its course on the day when the
48

Reproduced as amended by Law No. 140/1996.

cause for suspension ceases to exist. Decisions of the Constitutional Court: 1. The decision No. 110 of 12 April 2001, final, published in the Official Gazette No. 296 of 6 June 2001, rejected the plea of unconstitutionality on Art. 128 para. (2) of the Criminal Code, raised in relation to Art. 16 para. (1) and (2) of the Constitution. To motivate the decision, it is shown that the reference in Art. 128 para. (2) of the Criminal Code is being made to the interruption of penalty service in case of imprisonment or life imprisonment (Art. 455-457 of the Criminal Procedure Code) or to the suspension of penalty service during the resolution of extraordinary means of judicial review (Art. 390, 400 and 412 of the Criminal Procedure Code). Decisions of the Supreme Court of Justice: 1. The decision No. 26 of 19 June 1995, the joint sections of the Supreme Court of Justice stated that the fact of holding an office of high dignity during a totalitarian State is an irremovable circumstance, as understood by Art. 128 of the Criminal Code, which hindered the initiation of criminal action against the defendant, and suspended the course of prescription until the date of overthrowing the totalitarian regime.

Terms of prescription Art. 129. Terms of prescription of criminal liability and of penalty for minors service shall be reduced by half for those who were minors at the date of offence commission. Prescription of service for a penalty that replaced life imprisonment Art. 130. The service of the penalty of imprisonment when it replaces life imprisonment shall be prescribed after 20 years. The prescription term shall begin its course when the decision of conviction to life imprisonment remains final.
1

Chapter III LACK OF PRIOR COMPLAINT AND RECONCILIATION OF PARTIES Lack of prior complaint Art. 131. (1) In case of offences for which the initiation of criminal action is conditioned by the lodging of a prior complaint from the injured person, the lack of such a complaint removes the criminal responsibility. (2) Also, withdrawal of prior complaint removes criminal liability. (3) An act that injured several persons entails criminal liability regardless of whether the prior complaint was lodged or is being maintained only by one of these injured persons. (4) An act shall entail criminal liability of all participants in its commission, even if the prior complaint was lodged or is being maintained only with regard to one of them.
2

Art. 130 was abrogated by the Decree-Law No. 6/1990 and reinserted, in its current version, by Law No. 140/1996. 2 Amended by Law No. 6/1973. 49

(5) If the injured person lacks exercising capacity or has a limited exercising capacity, the criminal trial can be initiated ex officio. Decisions of the Constitutional Court: 1. The decision No. 183 of 20 June 2002, final, published in the Official Gazette No. 750 of 15 October 2002, rejected the plea of unconstitutionality on Art. 131 para. (3) and (4) of the Criminal Code, raised in relation to Art. 16 para. (1) of the Constitution. To motivate the decision, it is stated that the provisions that are under criticism do not instate privileges or discrimination, as they apply to all persons who are in similar situations; hence, the issue of breaching Art. 16 para. (1) of the Constitution cannot discussed. 2. The decision No. 12 of 16 January 2003, final, published in the Official Gazette No. 109 of 20 February 2003, rejected the plea of unconstitutionality on Art. 131 para. (4) of the Criminal Code, raised in relation to Art. 16 para. (1) and Art. 22 para. (1) of the Constitution. In the ending of the decision motivation, it is shown that there are no grounds for a change in the case law of the Court in this matter. Reconciliation of parties Art. 132. (1) Reconciliation of parties in cases provided by the law removes criminal responsibility and ends the civil action also. (2) Reconciliation is personal and takes effect only if it occurs until the decision remains final. (3) For persons with no exercising capacity, reconciliation is performed only by their legal representatives. Persons who have limited exercising capacity can be reconciled with the approval of the persons provided in the law. Reconciliation takes effect also if the criminal trial began ex officio. Chapter IV REHABILITATION Effects of rehabilitation Art. 133. (1) Rehabilitation terminates loss of rights and prohibitions, as well as incapacitation resulting from conviction. (2) Rehabilitation does not result in the obligation of reintegrating the offender into the office from where he/she was removed because of the conviction, or of re-summoning him/her to the permanent armed forces or of reassigning him/her the military rank that was lost. (3) Also, rehabilitation does not take effect upon security measures, except the one in Art. 112 d). Art. 134. (1) Rehabilitation de jure occurs in case of conviction to fine or to imprisonment not exceeding one year, if during 3 years the convict has not committed any new offences.
0 3 2 1

Rehabilitation de jure

Rehabilitation by the
1 2

Art. 135. (1) A convict can be rehabilitated, by request,

Reproduced as amended by Law No. 6/1973. Reproduced as amended by Law No. 140/1996. 3 Reproduced as amended by Law No. 140/1996. 0 Reproduced as amended by Law No. 140/1996 and by Law No. 142/1997. 50

court

by the law court: a) in case of conviction to imprisonment for more than a year and less than 5 years, after 4 years, to which half of the penalty length handed down shall be added; b) in case of conviction to imprisonment for more than 5 years and less than 10 years, after 5 years, to which half of the penalty length handed down shall be added; c) in case of conviction to imprisonment for more than 10 years, after 7 years, to which half of the penalty length handed down shall be added; d) in case of life imprisonment commuted or replaced with imprisonment, after 7 years, to which half of the penalty of imprisonment shall be added. (2) In exceptional cases, the General Prosecutor of the Prosecutors Office attached to the Supreme Court of Justice can ordain the reduction of the terms in this Article. Art. 136. (1) The terms in Art. 134 and 135 shall be calculated starting with the date when the service of the main penalty was completed or when this service was prescribed. (2) For persons convicted to a fine the term shall start with the moment when the fine was paid or its service was extinguished in any other way. (3) In case of total pardon or pardon of the rest of the penalty, the term shall start with the date of the pardon act. Art. 137. (1) Requests for rehabilitation by the court are admitted if the convict meets the following requirements: a) has not been convicted again during the interval provided in Article 135; b) is able to provide for him/herself through work or other honest means, as well as the case when the convict has the age for retirement or is unable to work; c) he/she has had good conduct; d) he/she has paid in full the court costs and civil compensations that he/she was bound by, unless the injured party dropped the compensations, or when the court finds that the convict has regularly fulfilled the obligations regarding the civil provisions in the conviction decision. (2) When the court finds that the requirement in d) is not met, but this is not because of the convicts bad will, the court can ordain rehabilitation. Art. 138. (1) In case of rejection of the rehabilitation request, a new request can be lodged only after 3 years, in case of conviction to imprisonment for more than 10 years, and after 2 years in case of conviction to imprisonment for more than 5 years, and after one year in all other cases; these terms starting at rejection date. (2) The requirements mentioned in Art. 137 must be met
51

Calculating the rehabilitation term

Conditions for rehabilitation by the court

Renewal of request for rehabilitation

also for the time interval that preceded the new request. (3) A request rejected because of failure to meet formal conditions can be renewed according to the Criminal Procedure Code. Cancelling rehabilitation Art. 139. Rehabilitation by the court shall be cancelled when, after granting it, it is discovered that the person rehabilitated had been previously convicted and, had this been known, the request for rehabilitation would have been rejected.

TITLE VIII THE MEANING OF CERTAIN TERMS OR PHRASES IN CRIMINAL LAW

General provisions Art. 140. Any time that the criminal law uses a term or a phrase of those shown in the present title, their meaning shall be the one provided in the following Articles, unless the criminal law provides otherwise. Art. 141. Criminal law means any criminal provision comprised in laws or decrees. Art. 142. The term territory in the phrases Romanian territory and the territory of our country means the surface of land and water that is comprised by the borders, with the subsoil and the aerial space, as well as the territorial sea with its soil, subsoil and aerial space. Art. 143. (1) Offence committed on the territory of our country means any offence committed on the territory shown in Art. 142 or on Romanian ships or aircraft. (2) An offence shall be deemed as committed on the territory of our country also when only an act of realisation was performed or only the result of the offence occurred on this territory or on Romanian ships or aircraft. Art. 144. Commission of an offence or perpetration of an offence means the commission of any of the acts punished by the law as offences realised or as attempts, as well as participation in their commission as an author, an instigator or an accomplice. Art. 145. The term public means all that concerns public authorities, public institutions, institutions or other legal entities of public interest, the administration, the use or the exploitation of assets of public property, the services of public interest, as well as assets of any kind that are of public interest, according to the law.
1

Criminal law Territory

Offence committed on the territory of our country

Commission of an offence

Public

Reproduced as amended by Law No. 140/1996. 52

Decisions of the Constitutional Court: 1. The decision No. 13 of 8 March 1994, final, allowed, partly, the appeal in points of law lodged by the Public Ministry, and amended the decision No. 54 of 13 October 1993, as follows: The decision of the Constitutional Court No. 33 of 26 May 1993, final by the decision of the Constitutional Court No. 63/1993, found that Art. 224 of the Criminal Code was partially abrogated, according to Art. 150 para. (1) of the Constitution, and it is to be applied only with regard to assets provided in Art. 135 para. (4) of the Constitution, assets which are the sole object of public property. We reject the plea of unconstitutionality as lacking an object. 2. The decision No. 53 of 2 May 1996, final, published in the Official Gazette No. 293 of 19 November 1996 rejected the plea of unconstitutionality on Art. 145 of the Criminal Code as unfounded. The decision No. 97 of 24 September 1996, final, published in the Official Gazette No. 293 of 19 November 1996 found that the appeal in points of law lodged against the decision No. 53 of 2 May 1996. 3. The decision No. 178 of 17 December 1998, final, published in the Official Gazette No. 77 of 24 February 1999 rejected the plea of unconstitutionality on Art. 145 of the Criminal Code. To motivate the decision, it is stated, essentially, that the criticism brought against Art. 145 of the Criminal Code is unfounded. In this Article, the lawmaker did not set out to explain the notions of public property, but to explain the meaning of public, in relation not only to property, but also to the following notions: authorities, institutions, services of public interest and others. This is why Art. 145 of the Criminal Code are not in contradiction with Art. 41 para. (2) or Art. 135 para. (2) of the Constitution, 4. The decision No. 139 of 5 October 1999, final, published in the Official Gazette No. 540 of 4 November 1999, rejected the plea of unconstitutionality on Art. 145 of the Criminal Code, raised in relation to Art. 135 para. (2) and (4) and to Art. 41 para. (2) of the Constitution. To motivate the decision, it is shown that the criticism against Art. 145 of the Criminal Code is unfounded, as this Article is in accordance with the constitutional provisions called upon. 5. The decision No. 276 of 24 October 2002, final, published in the Official Gazette No. 832 of 19 November 2002, rejected the plea of unconstitutionality on Art. 145 of the Criminal Code, raised in relation to Art. 58-133 of the Constitution. In the ending of the decision, it is mentioned that no new elements have emerged that would justify a review of the Courts case law. Particularly serious consequences Art. 146. Very serious consequences means a material prejudice exceeding 2.000.000.000 lei or a particularly serious disturbance in activity, inflicted upon a public authority or upon any of the units referred to in Art. 145, or to another legal entity or natural person.2 Decisions of the Constitutional Court: 1. The decision No. 148 of 27 October 1998, final, published in the Official Gazette No. 99 of 9 March 1999, rejected the plea of unconstitutionality on Art. 146 of the Criminal Code. To motivate the decision, it is shown that indeed, judging by the high inflation rate, the limit of 50.000.000 lei provided in Art. 146, which defines the aggravating circumstance particularly serious consequences, no longer represents a fixed value towards which a more severe type of sanctions is
1

Art. 146 is reproduced as amended by the G.E.O. No. 207/2000, approved, with amendments and supplements, by Law No. 456/2001. 2 In the regulation established by the G.E.O. No. 207/2000, Art. 146 had the following text: Particularly serious consequences means a material prejudice that exceeds 1.000.000.000 lei or a particularly serious disturbance of activity, inflicted upon a public authority or upon any of the units referred to in Art. 145, or upon another legal or natural person. 53

required. However, this does not mean that the provisions that are being contested are in any contradiction with Art. 20 of the Constitution. Also, it is shown that the Constitutional Court cannot replace the Parliament in order to amend the amount limit provided in Art. 146 of the Criminal Code. 2. The decision No. 65 of 22 April 1999, final, published in the Official Gazette No. 280 of 18 June 1999, rejected the plea of unconstitutionality on Art. 146 of the Criminal Code, raised in relation to Art. 1 para. (3), Art. 23 para. (9), Art. 123 and Art. 150 para. (1) of the fundamental law. With respect to the constitutionality of this text, we have found that there are no new elements in this cause, so as to determine a change in the case law. 3. The decision No. 77 of 20 May 1999, final, published in the Official Gazette No. 323 of 6 July 1999, rejected the plea of unconstitutionality on Art. 146 of the Criminal Code. We need to mention that the author of this plea did not point to any constitutional norm in relation to which Art. 146 were unconstitutional. Essentially, the Constitutional Court stated that following the devaluation of the national currency, the limit of 50.000.000 lei provided in Art. 146 of the Criminal Code that determines the meaning of the phrase particularly serious consequences is no longer a value in relation to which a more severe type of sanctions is required. This can be solved by amending this legal norm, in order to adapt it to the current social realities. The amendment of the contents of a legal norm is however an exclusive prerogative of the legislative authority in the light of Art. 58 para. (1) of the Constitution 4. The decision No. 78 of 20 May1999, final, published in the Official Gazette No. 323 of 6 July 1999, rejected the plea of unconstitutionality on Art. 146 of the Criminal Code, raised in relation to Art. 16 para. (1) of the Constitution. The Constitutional Court considered that the review of the criterion of the amount of 50.000.000 lei and the request for an appropriate form to be provided for this criterion have the meaning of a request for an amendment to the text that is being criticised. 5. The decision No. 140 of 5 October 1999, final, published in the Official Gazette No. 540 of 4 November 1999, rejected the plea of unconstitutionality on Art. 146 of the Criminal Code, raised in relation to Art. 123 para. (2) of the Constitution. It was stated that the decision No. 148 of 27 October 1998, as well as other ulterior decisions rejected the plea of unconstitutionality on Art. 146 of the Criminal Code and since no new elements have emerged in this cause that would justify a change in this case law, the plea is to be rejected. 6. The decision No. 164 of 21 October 1999, final, published in the Official Gazette No. 64 of 14 February 2000 rejected the plea of unconstitutionality on Art. 146 of the Criminal Code, raised in relation to Art. 123 para. (2) of the Constitution. In Art. 146 of the Criminal Code states the motivation of the decision - , the lawmaker provided two criteria for establishing the seriousness of consequences caused by offences against public property. The first criterion is the value of the material prejudice caused, and the second is the seriousness of the disturbance of activity, inflicted upon a public authority, or upon any of the units referred to in Art. 145, or upon another legal or natural person. By regulating these criteria, the lawmaker did not transgress the constitutional principle of the independence of judges, consecrated in Art. 123 para. (2) of the fundamental law. 7. The decision No. 125 of 29 June 2000, final, published in the Official Gazette No. 393 of 23 August 2000, rejected the plea of unconstitutionality on Art. 146 of the Criminal Code, raised in relation to Art. 1 para. (3), Art. 23 para. (9), Art. 123 and Art. 150 para. (1) of the Constitution, motivating that no new elements had emerged that would determine a change in the case law of the Court. 8. The same motivation accompanied also the solution handed down by the Court in decision No. 140 of 13 July 2000, final, published in the Official Gazette No. 393 of 23 August 2000. 9. The decision No. 156 of 21 September 2000, final, published in the Official Gazette No. 527 of 26

54

October 2000, rejected the plea of unconstitutionality on Art. 146 of the Criminal Code, raised in relation to Art. 16 para. (1) of the Constitution. At the ending of the motivation, it is shown that no new elements had emerged that would determine a change in the case law of the Court. 10. The decision No. 246 of 23 November 2000, final, published in the Official Gazette No. 95 of 23 February 2001 rejected the plea of unconstitutionality on Art. 146 of the Criminal Code, raised in relation to Art. 23 para. (9) of the Constitution. The Court deemed that the legal text in question is not in contradiction with the constitutional provisions. It was also stated that Art. 146 was amended by Art. I indent 5 of the G.E.O. No. 207/2000. 11. The same motivation accompanied the decision No. 247 of 23 November 2000, final, published in the Official Gazette No. 97 of 26 February 2001, which rejected the plea of unconstitutionality on Art. 146 of the Criminal Code, raised in relation to Art. 24 para. (1) and Art. 49 of the Constitution. 12. The decision No. 57 of 22 February 2001, final, published in the Official Gazette No. 125 of 13 March 2001, rejected as inadmissible the plea of unconstitutionality on Art. 146 of the Criminal Code. To motivate the decision, it is shown that the fact that the author of a plea did not point to any constitutional norm in relation to which he/she deems that the text being criticised is unconstitutional, is a reason for rejecting the notification. 13. The decision No. 17 of 18 January 2001, final, published in the Official Gazette No. 279 of 30 May 2001, rejected as inadmissible the plea of unconstitutionality on Art. 146 of the Criminal Code, stating that the fact that the plea of unconstitutionality was not motivated and that the author did not point to any constitutional norm in relation to which he/she deems that the text being criticised is unconstitutional, is a reason for rejecting the notification. Public servant and clerk Art. 147. Public servant means any person exercising, either permanently or temporarily, under any title, regardless of the manner of investiture, a charge of any kind, be it remunerated or not, at the service of one of the units in Art. 145. (2) Clerk means the person in para. (1) as well as any other employee who exercises a service duty for a legal entity other than those provided in that paragraph. Decisions of the Constitutional Court: 1. The decision No. 130 of 16 November 1994, final, published in the Official Gazette No. 169 of 2 August 1995, rejected as obviously unfounded the plea of unconstitutionality on Art. 147 para. (1) of the Criminal Code, motivating that the provisions of the decision of the Constitutional Court No. 35/1994 relating to the notion of clerk remains valid also regarding the present plea, meaning that the legal regulations on the notion of clerk are at the level of the law. This solution is all the more appropriate in what regards the notion of other employees. The appeal in points of law lodged against the decision No. 130 of 16 November 1994 was rejected by the decision No. 28 of 21 March 1995, published in the Official Gazette No. 169 of 2 August 1995. 2. The decision No. 178 of 17 December 1998, final, published in the Official Gazette No. 77 of 24 February 1999, rejected the plea of unconstitutionality on Art. 147 of the Criminal Code. We mention that the author of the plea claimed that Art. 147 was contrary to Art. 16, 20 and 21 of the Constitution. 3. The decision No. 256 of 5 December 2000, final, published in the Official Gazette No. 5 of 5 January 2001 rejected the plea of unconstitutionality on Art. 147 of the Criminal Code, raised in relation to Art. 72 para. (3) f) and i), as well as to Art. 134 para. (1) of the Constitution. The Court deemed that, essentially, the notions of public servant and clerk are at the level of the
1

Reproduced as amended by Law No. 140/1996. 55

law, and not at the constitutional level, hence, it is the exclusive prerogative of the lawmaker to determine the contents of these notions, and the constitutional provision in Art. 134 para. (1) has no connection to the matter of constitutionality or unconstitutionality of Art. 147 of the Criminal Code. 4. The decision No. 192 of 12 October 2000, final, published in the Official Gazette No. 11 of 9 January 2001 rejected the plea of unconstitutionality on Art. 147 para. (1) and (2) of the Criminal Code, raised in relation to Art. 72 para. (3) i) and l) of the Constitution. At the ending of the motivation, it is shown that no new elements had emerged that would determine a change in the case law of the Court. 5. The decision No. 138 of 8 May 2001, final, published in the Official Gazette No. 272 of 25 May 2001, rejected the plea of unconstitutionality on Art. 147 para. (2) of the Criminal Code, raised in relation to Art. 72 para. (3) i) and l) of the Constitution, motivating that no new elements had emerged that would determine the reviewing of the case law of the Court. 6. The decision No. 152 of 10 May 2001, final, published in the Official Gazette No. 463 of 14 August 2001, rejected the plea of unconstitutionality on Art. 147 para. (2) of the Criminal Code, raised in relation to Art. 72 para. (3) i) of the Constitution, motivating that no new elements had emerged that would determine the reviewing of the case law of the Court. 7. The decision No. 124 of 26 April 2001, final, published in the Official Gazette No. 466 of 15 August 2001 rejected the plea of unconstitutionality on Art. 147 of the Criminal Code, raised in relation to Art. 72 para. (3) i) of the Constitution. To motivate the decision, it is shown that the regulations on the notions of public servant and clerk, including the incriminations that presuppose such a capacity of the active subject, are not a problem to be dealt with by the constitutional jurisdiction. 8. The decision No. 257 of 20 September 2001, final, published in the Official Gazette No. 842 of 28 December 2001, rejected the plea of unconstitutionality on Art. 147 para. (2) of the Criminal Code, raised in relation to Art. 72 para. (3) i) and l) of the Constitution, deeming that no new elements had emerged that would determine a change in the case law of the Court. 9. The decision No. 176 of 18 June 2002, final, published in the Official Gazette No. 542 of 24 July 2002 rejected the plea of unconstitutionality on Art. 147 of the Criminal Code, raised in relation to Art. 72 para. (3), Art. 16, Art. 125 and Art. 128 of the Constitution. The motivation refers to the reasons in the decision No. 124 of 26 April 2001 of the Constitutional Court. 10. The decision No. 276 of 24 October 2002, final, published in the Official Gazette No. 832 of 19 November 2002 rejected the plea of unconstitutionality on Art. 147 of the Criminal Code, raised in relation to Art. 58-133 of the Constitution. At the ending of the motivation, it is shown that no new elements had emerged that would determine a change in the case law of the Court. Decisions of the Supreme Court of Justice: 1. The decision No. III of 2 December 2002, the joint sections of the Supreme Court of Justice allowed the appeal in the interest of the law lodged by the General Prosecutor of the Prosecutors Office attached to the Supreme Court of Justice, establishing that a superintendent of an association of owners or of tenants is a clerk. Other employees Art.148. Abrogated by Law No. 140/1996.

56

Close relatives

Art.149. (1) Close relatives are ascendants and descendants, brothers and sisters, their children, as well as persons who gained this statute through adoption, according to the law. (2) Provisions in the criminal law with regard to close relatives, within the limits of the previous paragraph, shall apply in case of adoption with full effects, both for the adopted person, as well as for his/her descendants and with regard to the natural relatives, and in case of adoption, with restricted effects, to the adopted person as well as to his/her descendants and in relation to the adopters relatives.1 Art. 1491 Family member means the spouse or the close relative, if living and sharing a household with the perpetrator. Art.150. (1) State secrets are those documents and data that show this character in an obvious manner, as well as those declared or designated as such by Government decision. (2) Official document is any written document issued by a unit in Art. 145 or belonging to such a unit. Art.151. (1) Weapons are the instruments, spare parts or devices declared as such by legal stipulations. (2) Any other objects likely to be used as weapons and that have been used for an attack are equated with weapons. Art.152. An act is committed in public when it has been committed: a) in a place that, by its nature or purpose, is always accessible to the public, even if there is no person present; b) in any other place accessible to the public, if two or more persons are present; c) in a place not accessible to the public, but with the intent of the act being heard or seen and if this result was produced with regard to two or more persons; d) in a gathering or reunion of several persons except reunions that can be judged as family reunions, because of the nature of the relations between the persons partaking in them; e) by any means with regard to which the perpetrator realised that the act could be made known to the public. Art.153. Wartime is the period between the date when mobilisation is declared or when war operations begin and the date when the army enters the state of peace. Art.154. When calculating time, days are calculated with
3 2

Family member

State secret and official documents

Weapons

Act committed in public

Wartime

Calculation of time
1

See the G.E.O. No. 25/1997 on the legal treatment of adoption, approved, with amendments and supplements, by Law No. 87/1998. 2 Art. 1491 was inserted by Law No. 197/2000. 3 Reproduced as amended by Law No. 140/1996. 57

24 hours and weeks with 7 days. Months and years are considered completed one day before the day that corresponds to the date when they started.

THE SPECIAL PART TITLE I OFFENCES AGAINST STATE SECURITY

Treason Art.155. The act of a Romanian citizen, or of a person with no citizenship domiciling in Romania, of establishing connections with a foreign power or organisation or with its agents, in order to suppress or undermine the State unity, indivisibility, sovereignty or independence, by actions instigating to war against the country or facilitating foreign military occupation, or economic or political undermining of the State, or submission to a foreign power, or of helping a foreign power to carry out an activity against State security, shall be punished by life imprisonment or imprisonment from 15 to 25 years and the prohibition of certain rights. Art.156. (1) The act of a Romanian citizen, or of a person with no citizenship domiciling in Romania, during wartime: a) of surrendering territories, towns, defence locations, storage facilities or installations belonging to the Romanian armed forces or that are used for defence; b) of surrendering ships, aircraft, cars, devices, weapons or any other material that can be used in waging a war; c) procuring people, values and materials of any kind for the enemy; d) fraternising with the enemy or carrying out any other actions likely to favour the enemys activity or to weaken the Romanian armed forces or the allied armed forces capacity to fight, shall be punished by life imprisonment or by imprisonment from 15 to 25 years and the prohibition of certain rights. (2) The same penalty shall sanction also a Romanian citizen or a person with no citizenship domiciling in Romania who, during wartime, fights in or is part of groups fighting against the Romanian State or its allies. Art. 157. (1) Transmission of State secrets to a foreign power or organisation or to its agents, as well as obtaining documents or data of State secrecy or possession of such documents by a person who was not qualified to know them, in order to transmit them to a foreign power or organisation or to its agents, committed by a Romanian citizen or by a person with no citizenship domiciling in Romania, shall be punished by life
3 2 1

Treason by helping the enemy

Treason by transmission of secrets

1 2

Reproduced as amended by Law No. 140/1996. Reproduced as amended by Law No. 140/1996. 3 Reproduced as amended by Law No. 140/1996. 58

imprisonment or by imprisonment from 15 to 25 years and the prohibition of certain rights. (2) The same acts, if they concern other documents or data which, by their character and importance, make the act committed likely to jeopardise State security, shall be punished by imprisonment from 5 to 20 years and the prohibition of certain rights. Treason by refusal to return to our country Hostile actions against the Romanian State
1

Art. 1571 Abrogated by Law No. 6/1973.

Art. 158. Acts in Art. 155 and Art. 156, when committed by a foreign citizen or by a person with no citizenship not domiciling in Romania shall be punished by life imprisonment or by imprisonment from 15 to 25 years and the prohibition of certain rights. Art. 159. Acts in Art. 157, when committed by a foreign citizen or by a person with no citizenship not domiciling in Romania, shall be punished by life imprisonment or by imprisonment from 15 to 25 years and the prohibition of certain rights. Art. 160. An attempt upon the life, corporal integrity or health of a person who performs an important State activity or another major public activity, under circumstances that make this act jeopardise national security, shall be punished by life imprisonment or by imprisonment from 15 to 25 years and the prohibition of certain rights. Art. 161. An attempt committed against a community by mass poisoning, causing epidemics or by any other means, likely to weaken State power, shall be punished by life imprisonment or by imprisonment from 15 to 25 years and the prohibition of certain rights. Art. 162. (1) An armed action likely to weaken State power shall be punished by life imprisonment or by imprisonment from 15 to 25 years and the prohibition of certain rights. (2) Any other violent action committed by several persons together, likely to entail the same consequences, shall be punished by imprisonment from 5 to 20 years and the prohibition of certain rights.
6 5 4 3 2

Espionage

Attempt that jeopardises national security

Attempt against a community

Undermining the State power

Acts of diversion
1 2

Art. 163. The act of destroying, damaging or making unfit

Reproduced as amended by Law No. 140/1996. Reproduced as amended by Law No. 140/1996. 3 Reproduced as amended by Law No. 140/1996. 4 Reproduced as amended by Law No. 140/1996. 5 Reproduced as amended by Law No. 140/1996. 59

for use, be it wholly or partly, through explosion, arson or in any other manner, factories, industrial installations, machines, ways of communication, means of transportation, means of telecommunication, buildings, industrial or agricultural products or other assets, if it is likely to in any way infringe upon national security, shall be punished by life imprisonment or imprisonment from 15 to 25 years and the prohibition of certain rights. Sabotage Undermining the national economy Art. 164. Abrogated by the Decree-Law No. 12/1990. Art. 165. (1) The act of using one of the units in Art. 145, or of preventing its normal activity, if it is likely to undermine the national economy, shall be punished by imprisonment from 5 to 20 years and the prohibition of certain rights. (2) If the act in the previous paragraph caused major prejudice to the national economy, the penalty shall be life imprisonment or imprisonment from 15 to 25 years and the prohibition of certain rights. Art. 166. (1) Propaganda for the foundation of a totalitarian State, committed by any means, in public, shall be punished by imprisonment from 6 months to 5 years and the prohibition of certain rights. (2) Propaganda resides in the systematic dissemination of or praise for an idea, view or doctrine, aiming at convincing and attracting new adepts. Art. 1661 (1) The act of initiating, organising, committing or supporting actions that can jeopardise in any manner the constitutional order, the national, sovereign, independent, unitary and indivisible nature of the Romanian State, shall be punished by imprisonment from 5 to 15 years and the prohibition of certain rights. (2) The act of urging the public to commit the acts in para. (1) shall be punished by imprisonment from 2 to 7 years. (3) If the act in para. (2) resulted in the commission of the offence urged to, the penalty shall be the one provided in the law for that offence. (4) The undertaking of any action in order to violently change the constitutional order shall be punished by imprisonment from 10 to 20 years and the prohibition of certain rights. Art. 167. (1) The initiation or creation of an association or group in order to commit any of the offences in Art. 155-163, 165 and 1661, or adhesion to or any kind of support of such an association or a group, shall be punished by life imprisonment or
6 1

Propaganda in favour of a totalitarian State

Actions against constitutional order

Plots

Reproduced as amended by Law No. 140/1996. Reproduced as amended by Law No. 140/1996. 2 Reproduced as amended by Law No. 140/1996. 3 Inserted by Law No. 140/1996. 4 Reproduced as amended by Law No. 140/1996. 60

imprisonment from 15 to 25 years and the prohibition of certain rights. (2) The penalty for plotting cannot exceed the sanction provided in the law for the most serious of the offences intended by the association or group. (3) If the acts in para.(1) were followed by the commission of an offence, the rules on concurrence of offences shall apply. (4) A person who, having committed the act provided in para.(1) or (3) denounces it before it is discovered, shall not be punished. Compromising of State interests Art. 168. The act of destroying, altering or concealing a document that establishes rights of the Romanian State with regard to a foreign power, if it is likely to compromise State interests, shall be punished by imprisonment from 5 to 15 years and the prohibition of certain rights. Art. 1681 The act of communicating or disseminating, by any means, false news, data or information or forged documents, if it is likely to infringe upon State security or upon the international relations of Romania, shall be punished by imprisonment from one to 5 years. Decisions of the Constitutional Court: 1. The decision No. 273 of 20 December 2000, final, published in the Official Gazette No. 101 of 28 February 2001, rejected the plea of unconstitutionality on Art. 1681 of the Criminal Code, raised in relation to Art. 30 and 31 of the Constitution. To motivate this decision, it is shown that Art. 30 of the Constitution is not relevant in this cause, since the contents of the offence regulated in Art. 1681 of the Criminal Code concerns the communication or dissemination, by any means, of false news, data or information or of forged documents, and not the freedom of expression of thoughts, opinions or beliefs or their dissemination by any means of communication. Also, it is shown that the text under criticism is not in contradiction with Art. 31 of the Constitution either, that it does not restrict the freedom of the press, either directly or indirectly and that it is not a threat to journalists, as they cannot be held criminally liable for publishing data, information or documents the authenticity of which they did not have the possibility to be aware of because, from the point of view of the subjective side, guilt, as an ingredient of offence, can only exist, in the case of the act in Art. 1681, in the form of intent. Revealing secrets that jeopardise State security Art. 169. (1) The act of revealing documents or data that are State secrets or other documents or data, committed by a person who knows them thanks to his/her service prerogatives, if it is likely to jeopardise State security, shall be punished by imprisonment from 7 to 15 years and the prohibition of certain rights. (2) The possession, outside service duties, of a State secret document, if the act is likely to jeopardise State security, shall be punished by severe imprisonment from 5 to 10 years.
61
1

Giving false information

Inserted by Law No. 140/1996.

(3) The penalty in para.(2), shall also sanction the possession, outside service duties, of other documents, in order to reveal them, if the act is likely to jeopardise State security. (4) If the acts in the previous paragraphs are committed by any other person, the penalty shall be imprisonment from one to 7 years. Non-denunciation Art. 170. (1) The act of not denunciating at once the commission of any of the offences provided in Art. 155-163, 165, 1661 and 167 shall be punished by imprisonment from 2 to 7 years. (2) Non-denunciation committed by a spouse or a close relative shall not be punished. (3) A person who, before commencement of the criminal prosecution for the offence not denunciated, notifies the qualified authorities with regard to that offence or who, even after commencement of the criminal prosecution or after the perpetrators have been discovered, has facilitated their arrest, shall not be punished. Art. 171. (1) Offences against life, corporal integrity, health, freedom or dignity, committed against a representative of a foreign State, shall be sanctioned by the penalty provided in the law for the act committed, the maximum of which shall be increased by 2 years. (2) Criminal action is initiated upon wish expressed by the foreign government.
1

Offences against repres entati ves of foreig n States

Some causes for Art. 172. (1) A participant in the offences provided in the non-punishment or present title shall not be punished if he/she denounces, in good reduction of time, the commission of the offence, in order for its consumption to penalty be prevented, or if he/she him/herself prevents the offence from being consumed and then denunciates it. A participant who, after commencement of the criminal prosecution, or after discovery of the offenders, facilitates their arrest, shall be punished by a penalty the limits of which shall be reduced by half. Sanctions for attempt, concealment and support Art. 173. (1) Attempt to the offences in the present title is punishable. (2) The act of producing or obtaining the means or the instruments, as well as of taking measures in order to commit the offences in Art. 156, 157, 159-163, 165, 166, 1661 and Art. 158 with regard to the offence of treason by helping the enemy shall also be considered attempt. (3) Concealment or support with regard to the offences provided in this title shall be punished by imprisonment from 3 to 10 years. (4) The penalty applied to concealers or supporters cannot
2

1 2

Reproduced as amended by Law No. 140/1996. Reproduced as amended by Law No. 140/1996. 62

be greater than the penalty provided in the law for the author. (5) Concealment or support committed by a spouse or a close relative for the offences in Art. 155-163, 165, 166 1 and 167 are punishable. The limits of the penalty in para.(3) shall be reduced by half, and in case of the other offences, concealment and support shall not be punished. TITLE II OFFENCES AGAINST PERSONS Chapter I OFFENCES AGAINST LIFE, CORPORAL INTEGRITY AND HEALTH Section I Homicide Murder Art. 174. (1) The killing of a person shall be punished by imprisonment from 10 to 20 years and the prohibition of certain rights. (2) Attempt is punishable. Decisions of the Supreme Court of Justice: 1. The decision No. 94 of 1 July 1991 of the Supreme Court of Justice by the panel provided in Art. 39 para. 2 and 3 of Law No. 58/1968 deemed that the fact of having applied upon the victim, in a vital anatomical region such as the head, a powerful strike with a thick champagne bottle, therefore an object likely to cause death, and inflicting an acute craniocerebral trauma with right-side temporal fracture, which by ulterior complications caused death, is the offence of murder, and not that of strikes causing death; by proceeding in the manner shown above, and since such acts of violence usually cause the most serious consequences, the defendant undoubtedly foresaw the possible outcome of his/her act and even if he/she did not intend it, he/she accepted its occurrence, and hence he/she acted with the intent of killing and not of causing bodily harm, for which death would have been a praeterintentional outcome. Also, it is mentioned that: the circumstance that death occurred not as a direct result of the cranial lesions suffered, but because of acute bronchopneumonia and meningo-encephalitis, is not relevant in what concerns the legal categorisation, since these conditions were in direct connection to the cranial lesions mentioned in the forensic report, which were caused by the defendant through his/her act of aggression. 2. The decision No. 18 of 7 March 1994 of the Supreme Court of Justice, by the panel provided in Art. 39 para. 2 and 3 of Law No. 58/1968, it was deemed that: the repeated hitting of the victim, aged 81, with fists and feet and the intense compression of the body, with the consequence of particularly severe lesions to vital regions of the body, call for the conclusion that the defendant was able to foresee the outcome of his/her aggression, which he/she accepted. Thus, the defendant acted with indirect intent to kill, and the act is the offence of murder and not that of strikes causing death 3. The decision No. 1 of 29 January 1996, by the joint sections of the Supreme Court of Justice, deemed that The defendants act, during service as a sentinel, while noticing in the dark that another member of the armed forces was approaching him/her, of removing the safety of the machine gun with which he/she was armed, inserting a cartridge in the barrel and, without a warning, from a distance of approximately 2 metres, shooting that person in the head and causing death, is the offence of murder, and not that of homicide by negligence. Since it would have been impossible for the bullet to be expelled instantaneously, and it was
63

necessary to perform several operations of manoeuvring the shooting mechanisms, among which also the insertion of a cartridge into the barrel, the commission of the act by easiness or carelessness, which defines, in the subjective aspect, the offence of homicide by negligence, the defendants subjective position is characterised by indirect intention to kill. 4. The decision No. 5 of 7 October 1996 by the panel of 9 judges of the Supreme Court of Justice, found that the defendants act of repeatedly and powerfully hitting the victim, with the consequence of the victims death occurring because of cerebral coma and haemorrhagic shock through the haemoperioneum, with ruptured spleen and rib fractures, is the offence of murder committed with indirect intent, and not that of strikes causing death, which is characterised by exceeded intent. First degree murder Art. 175. (1) Murder committed in one of the following circumstances: a) with premeditation; b) out of a material interest; c) against the spouse or a close relative; d) taking advantage of the victims inability of defence; e) by means that jeopardise the life of several persons; f) connected to the victims accomplishment of service or public duties; g) in order to elude or to elude another persons prosecution, arrest or penalty service; h) in order to facilitate or conceal the commission of another offence; i) in public, shall be punished by imprisonment from 15 to 25 years and the prohibition of certain rights. (2) Attempt is punishable. Art. 176. (1) Murder committed in one of the following circumstances: a) by means of cruelties; b) against two or more persons; c) by a person who has previously committed another murder; d) in order to commit or to conceal the commission of a robbery or piracy; e) against a pregnant woman; f) against a magistrate, police officer, gendarme or member of the military, during or in connection to the fulfilment of their service or public duties, shall be punished by life imprisonment or imprisonment from 15 to 25 years and the prohibition of certain rights. (2) Attempt is punishable. Decisions of the Supreme Court of Justice: 1. The decision No. 19 of 8 April 1996, the joint sections of the Supreme Court of Justice found that the act of hitting all areas of a persons body with ones fists and feet, and causing rib fractures, ruptures of internal organs and other severe lesions that resulted in the death of the person is the offence of murder, and not that of
1 2

Particularly serious murder

Reproduced as amended by Law No. 140/1996. Reproduced as amended by Law No. 140/1996. 64

strikes or injury causing death, and the possibility for the defendant not to have foreseen the victims death is ruled out. The victims death it is shown further is, therefore, the consequence of an aggression the outcome of which was foreseen and intended by the defendant, the act being committed with intent in the form provided by Art. 19 indent 1 a) of the Criminal Code, and being likely to be deemed as the offence of particularly serious murder provided in Art. 176 a) of the Criminal Code. 2. The decision No. 11 of 5 February 2001, by the panel of 9 judges of the Supreme Court of Justice, stated that the killing of a person, by applying 32 powerful strikes with a knife into the face, neck, thorax, abdomen and limbs, is the offence of particularly serious murder, provided in Art. 147 relating to Art. 176 a) of the Criminal Code, because particular suffering was inflicted upon the victim, and the act was committed ferociously and it is likely to cause a feeling of horror. Infanticide Art. 177. The killing of a newborn infant, committed immediately after birth by the mother who is in a state of confusion caused by birth, shall be punished by imprisonment from 2 to 7 years. Art. 178. (1) The killing of a person out of negligence shall be punished by imprisonment from one to 5 years. (2) Homicide out of negligence because of failing to observe legal provisions or precaution measures for the exercise of a profession or a trade, or by carrying out a certain activity, shall be punished by imprisonment from 2 to 7 years. (3) When homicide out of negligence is committed by a person driving a vehicle with mechanical traction, with a level of alcohol concentration in the blood that exceeded the legal limits or who was inebriated, the penalty shall be imprisonment from 5 to 15 years. (4) The same penalty shall sanction also homicide out of negligence committed by any other person in the exercise of his/her profession or trade and who is inebriated. (5) If the act committed caused the death of two or more persons, the maximum of the penalties in the previous paragraphs can be supplemented by an increase of up to 3 years. Decisions of the Supreme Court of Justice: 1. The decision No. 89 of 8 October 1990 of the Supreme Court of Justice by the panel provided in Art. 39 para. 2 and 3 of Law No. 58/1968, found that by the abrogation of the Decree No. 770/1966 and of Art. 185 of the Criminal Code, the incrimination for the offence of abortion was removed. Regarding the complex offence of abortion followed by the death of a pregnant woman, the incrimination for the offence of homicide out of negligence, has not been removed, as it is the second component of the abovementioned offence. Hence, the court cannot hand down an acquittal, but it must change the legal categorisation into the provisions of Art. 178 para. (2) of the Criminal Code. 2. The decision No. 29 of 18 February 1991 of the Supreme Court of Justice by the panel provided in Art. 39 para. 2 and 3 of Law No. 58/1968, deemed that: The act of a soldier of
1

Homicide out of negligence

Reproduced as amended by Law No. 140/1996. 65

performing, in the presence of another, repeated manoeuvres of insertion and expulsion of the cartridges in and out of the barrel of his/her machine gun, the barrel being pointed at the other person, and pulling the trigger with the consequence of lethally shooting the victim, is not, in itself, a sufficient ground for the legal categorisation of murder. If it is proven that the manoeuvring of the pistol was playful, and the defendant pulled the trigger while believing that the safety was on, and after shooting the victim he/she showed despair, as he/she was in good relations with the victim, one cannot find an indirect intention to kill; his/her subjective position is characterised by negligence, and the correct categorisation of the act is the offence of homicide by negligence, provided in Art. 178 para. (2) of the Criminal Code. 3. The decision No. 1 of 29 January 1996 of the joint sections of the Supreme Court of Justice deemed that The defendants act, during service as a sentinel, while noticing in the dark that another member of the armed forces was approaching him/her, of removing the safety of the machine gun with which he/she was armed, inserting a cartridge in the barrel and, without a warning, from a distance of approximately 2 metres, shooting that person in the head and causing death, is the offence of murder, and not that of homicide by negligence. Further in the motivation of the decision, it is shown that since it would have been impossible for the bullet to be expelled instantaneously, and it was necessary to perform several operations of manoeuvring the shooting mechanisms, among which also the insertion of a cartridge into the barrel, the commission of the act by easiness or carelessness, which defines, in the subjective aspect, the offence of homicide by negligence, the defendants subjective position is characterised by indirect intention to kill. Determining or facilitating suicide Art. 179. (1) The act of determining or facilitating a persons suicide, if the suicide or attempt to suicide took place, shall be punished by imprisonment from 2 to 7 years. (2) When the act in the previous paragraph was committed against a minor or against a person who was unable to be aware of his/her act, or who was not in control of his/her actions, the penalty shall be imprisonment from 3 to 10 years. Section II Hitting and harm to corporal integrity or to health Hitting or other forms of violence Art. 180. (1) Hitting or any other act of violence causing physical suffering shall be punished by imprisonment from one month to 3 months or by fine. (11) Acts in para.(1) committed against family members shall be punished by imprisonment from 6 months to one year or by fine. (2) Hitting or acts of violence that caused an injury needing medical care of up to 20 days shall be punished by imprisonment from 3 months to 2 years or by fine. (2 1) Acts in para.(2) committed against family members shall be punished by imprisonment from one to 2 years or by fine. (3) Criminal action is initiated upon prior complaint of the injured person. For acts in para.(11) and (21) criminal action can be initiated also ex officio. (4) Reconciliation of parties removes criminal liability, and it takes effect also in case that the criminal action was initiated ex
66
1

Reproduced as amended by Law No. 6/1973 and by Law No. 197/2000.

officio. Bodily harm Art. 181. (1) Acts causing to corporal integrity or health a harm needing medical care of up to 60 days shall be punished by imprisonment from 6 months to 5 years. (1 1) The act provided in para.(1) committed against family members shall be punished by imprisonment from one to 5 years. (2) Criminal action is initiated upon prior complaint of the injured person. For acts in para.(11) criminal action can be initiated also ex officio. (3) Reconciliation of parties removes criminal liability, and it takes effect also in case that the criminal action was initiated ex officio. Art. 182. (1) Acts causing to corporal integrity or health a harm needing medical care of more than 60 days shall be punished by imprisonment from 2 to 7 years. (2) If the act caused one or more of the following consequences: loss of a sense or of an organ, cessation of their functioning, a permanent physical or mental disability, mutilation, abortion or jeopardy on the persons life, the penalty shall be imprisonment from 2 to 10 years. (3) When the act has been committed in order to cause the consequences in para.(1) and (2), the penalty shall be imprisonment from 3 to 12 years. (4) Attempt to the act in para. (3) is punishable. Decisions of the Constitutional Court: 1. The decision No. 65 of 28 February 2002, final, published in the Official Gazette No. 258 of 17 April 2002 rejected the plea of unconstitutionality on Art. 182 of the Criminal Code, raised in relation to Art. 22 para. (1) and to Art. 33 para. (1) of the Constitution. To motivate the decision, it is stated that, in what concerns the provisions criticised not only do they not come into any contradiction with the constitutional provisions called upon by the author of the plea, but they are the legal-criminal safeguard for them, that for reasons of criminal policy, the lawmaker allowed exceptions from the official nature of criminal acts in case of offences of low social danger, providing the possibility for the initiation of criminal action to take place upon prior complaint of the injured person, and for the criminal trial to end by reconciliation of the parties and that the lawmakers option in these cases is not restricted by the Constitution. Decisions of the Supreme Court of Justice: 1. The decision No. II of 28 October 2002 of the joint sections of the Supreme Court of Justice, rejected the appeal in the interest of the law, lodged by the General Prosecutor of the Prosecutors Office attached to the Supreme Court of Justice, regarding the application of Art. 182 para. 2 of the Criminal Code in case of acts of bodily harm perpetrated with intent, and resulting in the loss of one or several teeth.
1 2

Serious bodily harm

Reproduced as amended by Law No. 140/1996 and by Law No. 197/2000. Reproduced as amended by Law No. 169/2002. 67

To motivate the solution, the following were stated: It is true that, anatomically, each tooth is a hard organ made of dentin covered by enamel, planted into one of the alveoli existing at the level of alveolar ridges on the jawbones. However, this meaning cannot be accepted also from the point of view of the legal meaning ascribed to the term organ by Art. 182 para. 2 of the Criminal Code, because it would be unacceptable to equate the importance of a single tooth, and particularly those at the edges of the segment of the digestive apparatus that ensure the function of mastication, with the solitary or paired organs, such as the eyes or the kidneys. From this point of view, if it is impossible to believe that the act of depriving a person of a small number of teeth is always equivalent with the loss of a sense or of an organ or with the cessation in their functioning, we must however examine to what extent the wringing off, tearing off or injuring of one or several teeth, caused by violent action, is not a state of permanent disability or a mutilation as understood by the legal text in question. We must take into account the fact that the current possibilities for tooth replacement and prosthesis limit the number of cases in which their loss obviously affects the function of mastication, which would justify the statement of a permanent disability. However, in what concerns the consequence of mutilation, which is also referred to in Art. 182 para. 2 of the Criminal Code, when establishing mutilation, one may consider not only the meaning that is usually ascribed to this notion, but also the context in which it is used by the lawmaker. For this reason, mutilation, according to Art. 182 para. 2 of the Criminal Code, must be determined not only in relation to the current meaning of this notion, that is disfigurement, defacement, maiming, with the consequence of creating a hideous, distasteful, repulsive, very ugly appearance, but also taking into account the equivalent that can be given to that notion by comparison to the other serious consequences that the legal text in question refers to. And, in order for it to be equated with harm that resulted in the loss of a sense or of an organ or the cessation in their functioning, the causing of a permanent physical or psychical disability, abortion or jeopardising a persons life, the seriousness of bodily harm must be determined only based on an evaluation of all the changes that occur in the victims anatomical structure and of their influence upon the persons ability to masticate. Hence, whenever bodily harm, committed with intent, results in the loss of one or several teeth, or only in damage to the teeth, one needs to establish, based on conclusive evidence, whether the harm in question caused a change in the victims physiognomy or a reduction of his/her physiological functions that is comparable, in terms of importance, to the other consequences in Art. 182 para. 2 of the Criminal Code. Naturally, one must consider anatomical and physiological criteria that are specific of humans, such as the position of the lost tooth, as it is widely acknowledged that the absence of an incisor and even that of a canine, particularly of those of the upper jaw, essentially modifies the physiognomy of the injured person, giving it a repulsive look, or can have irreversible negative effects upon the physiological function of mastication. Also, in order to determine more exactly the aesthetical prejudice inflicted upon the physiognomy of a person who has been harmed by loss of teeth, one can take into account also certain specific criteria, such as the persons age, sex or profession. Obviously, when establishing whether the loss of teeth resulted in mutilation of the uninjured person, one must consider, first of all, the actual seriousness of the immediate result caused by the act of violence, and not the situation improved by replacement of the lost teeth or by prosthetics. Such an interpretation is required not only because the use of artificial procedures cannot guarantee the restoration of all anatomical and physiological features of a natural tooth, but also because of the fact that, for a certain period, the person injured was deprived of his/her natural
68

appearance. Hence, we must conclude that the violent action resulting in the wringing off, the tearing off or the damaging of teeth must be categorised as the offence of serious bodily harm, provided in Art. 182 para. 2 of the Criminal Code, whenever this harm can, by the nature of its consequences, be considered to have resulted in the loss of the entire organ that ensures mastication, or the cessation of its functioning, a permanent disability or a change in the physiognomy serious enough to be mutilation. However, the great diversity of consequences that can be caused upon the victims physiognomy or upon the function of mastication, determined not only by the manner in which the aggressor acts, but also by each individuals anatomical and physiological particularities, makes it difficult, if not impossible, to generalise the effects judging by the number or the position of the harmed teeth. For these reasons, since one cannot reach a conclusion generally valid on the consequences of damaged dentition by the harm inflicted, it is obvious that the consequences referred to in Art. 182 para. 2 of the Criminal Code can be established only according to each case, depending on the nature of each cause, which cannot achieved only by the courts that have competence to judge each actual trial. This being the case and since the decisions appealed against, by which the courts have given different legal categorisations for acts of bodily harm that resulted in the loss of an approximately equal number of teeth, refers however to non-hygienic situations, determined either by the actual consequences caused by each act of violence, or by the particularities in the anatomical structure of the victims, we find that they cannot be judged as cases of non-unitary application of the law. The particularity of acts of violence that resulted in loss of certain teeth makes it impossible for one to find a non-unitary application of Art. 182 para. 2 of the Criminal Code. Since, according to Art. 4142 para. 1 of the Criminal Procedure Code, it is only in case of different resolution of legal issues by the courts of appeal in points of law that the Supreme Court of Justice can be requested, by means of appeal in the interest of the law, to decide upon such issues in order to provide an unitary interpretation and application of laws, this extraordinary means of judicial review is to be rejected. Hitting or injury causing death Art. 183. Should one of the acts in Art. 180-182 result in the victims death, the penalty shall be imprisonment from 5 to 15 years. Decisions of the Supreme Court of Justice: 1. See the decision No. 5 of 7 October 1996 of the panel of 9 judges of the Supreme Court of Justice, reproduced, in excerpt, with Art. 147. 2. See the decision No. 19 of 8 April 1996 of the joint sections of the Supreme Court of Justice, reproduced in excerpt with Art. 176. Bodily harm by negligence Art. 184. (1) Acts provided in Art. 180 para.(2) and (21) causing harm that needs medical care of more than 10 days, as well as the one provided in Art. 181, when committed by negligence, shall be punished by imprisonment from one month to 3 months or by fine. (2) Should the act have one of the consequences in Art. 182 para. (1) or (2), the penalty shall be imprisonment from 3 months to
2 1

1 2

Reproduced as amended by Law No. 140/1996. Reproduced as amended by Law No. 6/1973 and by Law No. 169/2002. 69

2 years or a fine. (3) When commission of the act in para.(1) is the result of non-abidance by legal provisions or precaution measures for the exercise of a profession or trade, or for the accomplishment of a certain activity, the penalty shall be imprisonment from 3 months to 2 years or a fine. (4) The act in para.(2), if it is the result of non-abidance by the legal provisions or precaution measures in the previous paragraph, shall be punished by imprisonment from 6 months to 3 years. (41) Should the acts in para.(3) and (4) have be committed by an inebriated person, the penalty shall be imprisonment from one to 3 years, for para.(3), and imprisonment from one to 5 years, for para.(4). (5) For acts in para.(1) and (3), criminal action is initiated upon prior complaint by the person injured. Reconciliation of parties removes criminal liability. Section III Abortion Illegal causing of abortion Art. 185. (1) The act of interrupting the course of pregnancy, by any means, committed in one of the following circumstances: a) outside medical institutions or medical offices authorised for this purpose; b) by a person who is not a specialised physician; c) if the age of the embryo has exceeded fourteen weeks; shall be punished by imprisonment from 6 months to 3 years. (2) Interruption in the course of pregnancy, committed in any conditions, without the pregnant womans consent, shall be punished by imprisonment from 2 to 7 years and the prohibition of certain rights. (3) If the acts in para.(1) and (2) caused the pregnant woman serious bodily harm, the penalty shall be imprisonment from 3 to 10 years and the prohibition of certain rights, and if the act resulted in the pregnant womans death, the penalty shall be imprisonment from 5 to 15 years and the prohibition of certain rights. (4) If the act provided in para.(2) or (3) has been committed by the physician, the penalty of imprisonment shall be supplemented by the prohibition to exercise the profession of physician, according to Art. 64 c). (5) Attempt is punishable. (6) Interruption in the course of pregnancy by a physician shall not be punished in the following situations: a) if interruption in the course of pregnancy was necessary in order to save the pregnant womans life, health or corporal integrity, from serious and imminent danger that could not have been otherwise removed;
1

Art. 185-188, which regulated abortion, have been abrogated by the Decree-Law No. 1/1989, and by Law No. 140/1996 Art 185 was reinserted, with the current regulation. 70

b) in the case in para.(1) c), when interruption in the course of pregnancy was called for by therapeutical reasons, according to legal provisions; c) in the case in para.(2) when the pregnant woman was unable to express her will, and the interruption was called for by therapeutical reasons, according to legal provisions. Art. 186. Abrogated by the Decree-Law No. 1/1989. Art. 187. Abrogated by the Decree-Law No. 1/1989. Art. 188. Abrogated by the Decree-Law No. 1/1989. Chapter II OFFENCES AGAINST THE FREEDOM OF PERSONS Illegal deprivation of freedom Art. 189. (1) Illegal deprivation of freedom against a person shall be punished by imprisonment from 3 to 10 years. (2) If the act is committed by simulating official capacities, by abduction, by a person who is armed, by two or more persons together, or if in exchange for release a material or other benefit is requested, as well as if the victim is a minor or is subjected to suffering or his/her health or life is jeopardised, the penalty shall be imprisonment from 7 to 15 years. (3) The penalty of imprisonment from 7 to 15 years shall sanction also deprivation of freedom for the purpose of forcing the person to practise prostitution. (4) If for the persons release it is demanded, in any way, that the State, legal entity, an international or intergovernmental organisation or a group of persons should accomplish or should not accomplish a certain act, the penalty shall be imprisonment from 7 to 18 years. (5) If the acts in para. (1)-(4) are committed by a person who is part of an organised group, the penalty shall be imprisonment from 5 to 15 years, for para. (1), imprisonment from 7 to 18 years, for para. (2) and (3), and imprisonment from 10 to 20 years for para. (4). (6) If the act resulted in the victims death or suicide, the penalty shall be imprisonment from 15 to 25 years. (7) Attempt to the acts in para. (1)-(4) is punishable. (8) The act of producing or obtaining the means or the instruments, as well as of taking measures in order to commit the act in para. (4) shall be deemed as attempt. Art. 190. (1) Placing or keeping a person in slavery, as well as trafficking in slaves, shall be punished by imprisonment from 3 to 10 years and the prohibition of certain rights. (2) Attempt is punishable.
1

Slavery

Reproduced as amended by Law No. 169/2002. 71

Subjection to forced or obligatory labour

Art. 191. The act of subjecting a person, in other cases than those provided in the law, to any kind of labour against his/her will or to any kind of obligatory labour, shall be punished by imprisonment from 6 months to 3 years. Art. 192. (1) The act of penetrating, without right, in any manner, into an abode, a room, an outbuilding or a enclosed space annexed to these, without consent of the person using them, or of refusing to leave them at the latters request, shall be punished by imprisonment from 6 months to 4 years. (2) If the act is committed by an armed person, by two or more persons together, at night or by use of deceitful capacities, the penalty shall be imprisonment from 3 to 10 years (3) For the act in para.(1), criminal action is initiated upon prior request from the injured person. Reconciliation of parties removes criminal liability. Decisions of the Constitutional Court:
1

Violation of domicile

1. The decision No. 238 of 5 June 2003, final, published in the Official Gazette No. 478 of 4 July 2003, rejected the plea of unconstitutionality on Art. 192 para. 2 and 3 of the Criminal Code, raised in relation to Art. 41 para. (2) of the Constitution. The court deemed that these provisions are not contrary to the constitutional stipulations of Art. 41 para. (2), because the text incriminates, regardless of the holder and of the form of property or of legal use, the penetration without right, in any manner, into a home, a room, into outbuildings or enclosed space annexed to these, without the consent of the person using them, or refusal to leave them at the latters request, hence the principle of equality in the protection of private property is not being transgressed. Threat Art. 193. (1) The act of threatening a person with the commission of an offence or of a damaging act against him/her, his/her spouse or a close relative, if it is likely alarm this person, shall be punished by imprisonment from 3 months to 3 years or by fine, while the penalty applied cannot exceed the sanction provided in the law for the offence that was the object of the threat. (2) Criminal action is initiated upon prior complaint from the injured person. (3) Reconciliation of parties removes criminal liability. Decisions of the Constitutional Court: 1. The decision No. 293 of 8 July 2003, final, published in the Official Gazette No. 562 of 5 August 2003, rejected the plea of unconstitutionality on Art. 193 para. 2 of the Criminal Code, raised in relation to Art. 12 para. (3), Art. 4, 11, 15, 16, 20, 21, 24, 51 and Art. 144 c) of the Constitution.
1 2

Reproduced as amended by Law No. 140/1996 and by Law No. 169/2002. Reproduced as amended by Law No. 140/1996. 72

To motivate the decision, it is shown that the fact that the initiation of criminal action for the offence of threat occurs only upon prior complaint by the injured person, directly before the law court, is not likely to lead to the conclusion that the defendants in these causes have less rights or less procesual safeguards than those against whom criminal action is initiated of office by the prosecutor, and the difference in regulating the manner of initiating criminal action does not transgress the principle of equality of all citizens before the law or the right to defence, or any other right provided in the Constitution. 2. The decision No. 292 of 8 July 2003, final, published in the Official Gazette No. 629 of 3 September 2003, rejected the plea of unconstitutionality on Art. 193 of the Criminal Code, raised in relation to Art. 16 para. (1) and (2), to Art. 21 and Art. 23 para. (8) of the Constitution, as well as in relation to Art. 6 indent 1 and 2 and Art. 7 of the Convention for the protection of human rights and fundamental freedoms. To motivate the decision, it is shown that a criminal trial distributed into two stages the stage of criminal prosecution and the stage of judgement does not involve supplementary safeguards when only one of these stages takes place and the fact that the initiation of criminal action for the offence of threat occurs only upon prior complaint by the injured person, directly before the law court, is not likely to lead to the conclusion that the defendants in these causes have less rights or less procesual safeguards than those against whom criminal action is initiated of office by the prosecutor. Blackmail Art. 194. (1) Coercion of a person, either by violence or by threat, to give, to do, or not to do or to suffer something, if the act is committed in order to obtain an unlawful benefit, for oneself or for another, shall be punished by imprisonment from 6 months to 5 years. (2) When coercion resides in a threat to reveal a real or imaginary act, which is likely to compromise the person threatened, his/her spouse, or a close relative, the penalty shall be imprisonment from 2 to 7 years. Decisions of the Constitutional Court: 1. The decision No. 73 of 7 March 2002, final, published in the Official Gazette No. 257 of 17 April 2002, rejected the plea of unconstitutionality on Art. 194 of the Criminal Code, raised in relation to Art. 24 and Art. 16 of the Constitution. The Court found no transgression of the constitutional provisions. Violation of postal secrecy Art. 195. (1) The act of opening correspondence addressed to another person or of intercepting a conversation or communication by telephone, telegraph or by other means of remote transmission, without right, shall be punished by imprisonment from 6 months to 3 years. (2) The same penalty shall sanction also the stealing, destruction or detainment of correspondence, as well as the act of revealing the contents of correspondence, even when it was sent open or it was opened by mistake, or revealing the contents of an intercepted conversation or communication, even if the perpetrator
2 1

1 2

Reproduced as amended by Law No. 6/1973 and by Law No. 140/1996. Reproduced as amended by Law No. 140/1996. 73

listened to it by mistake or by accident. (3) Criminal action is initiated upon prior complaint from the injured person. (4) Reconciliation of parties removes criminal liability. Disclosure of professional secrecy Art. 196. (1) Disclosure, without right, of data by a person to whom they were entrusted, or which he/she learned by virtue of profession or office, if the act is likely to cause prejudice to a person, shall be punished by imprisonment from 3 months to 2 years or by fine. (2) Criminal action is initiated upon prior complaint from the injured person. (3) Reconciliation of parties removes criminal liability. Chapter III OFFENCES REGARDING SEXUAL LIFE Rape Art. 197. (1) Sexual intercourse, of any kind, with a person of the opposite sex or of the same sex, by coercion of this person or by taking advantage of the persons inability to defend him/herself or to express volition, shall be punished by imprisonment from 3 to 10 years and the prohibition of certain rights. (2) The penalty shall be imprisonment from 5 to 18 years and the prohibition of certain rights, if: a) the act has been committed by two or more persons together; b) the victim is under the care, protection, education, guard or treatment of the perpetrator; 1 b ) the victim is a family member; c) the victim suffered serious injury to corporal integrity or health. 3 (3) If the victim was under the age of 15, the penalty shall be 10 to 25 years imprisonment and the prohibition of certain rights , and if the act resulted in the victims death or suicide, the penalty shall be imprisonment from 15 to 25 years and the prohibition of certain rights. (4) Criminal action for the act provided in para.(1) is initiated upon prior complaint by the person injured. (5) Abrogated by Law No. 197/2000.
4 2 1

Sexual intercourse
1 2

Art. 198. (1) Sexual intercourse, of any nature, with a

Reproduced as amended by Law No. 6/1973. Reproduced as amended by the Decree No. 365/1976, by Law No. 140/1996, by Law No. 197/2000, by the G.E.O. No. 89/2001, approved, with amendments and supplements, through Law No. 61/2002 and the G.E.O. No. 143/2002, approved by Law No. 45/2003. 3 In the version previous to the amendment by the G.E.O. No. 143/2002, paragraph 3 of Art. 197 had the following text: (3) If the victim was under the age of 15 the penalty shall be imprisonment from 10 to 20 years and the prohibition of certain rights, and if the act resulted in the victims death or suicide, the penalty shall be imprisonment from 15 to 25 years and the prohibition of certain rights. 4 Reproduced as amended by the G.E.O. No. 143/2002, approved by Law No. 45/2003. Prior to the amendment, Art. 198 had the following text: Art. 198. (1) Sexual intercourse, of any nature, with a person of the other sex or of the same sex, who has not reached the age of 15, shall be punished by 74

with a minor

Seduction

person of the other sex or of the same sex, who has not reached the age of 15, shall be punished by imprisonment from 3 to 10 years and the prohibition of certain rights. (2) This penalty shall sanction also sexual intercourse, of any nature, with a person of the opposite sex or of the same sex aged 15 to 18, if the act is committed by the persons guardian or curator or by his/her supervisor, by the person in charge of his/her care, by his/her physician, teacher, professor or educator, while taking advantage of their capacity, or if the perpetrator has abused the victims confidence or his/her own authority or influence over the victim. (3) If the sexual intercourse, of any nature, with a person of the opposite sex or of the same sex, who has not reached the age of 18, was determined by the perpetrators offering or giving the victim money or other benefits, either directly or indirectly, the penalty shall be imprisonment from 3 to 12 years and the prohibition of certain rights. (4) If the acts stipulated in para.(1)-(3) were committed for the purpose of producing pornographic material, the penalty shall be imprisonment from 5 to 15 years and the prohibition of certain rights, and if for the accomplishment of such a purpose coercion was used, the penalty shall be imprisonment from 5 to 18 years and the prohibition of certain rights. (5) When the act in para.(1) has been committed under the circumstances provided in Art. 197 para.(2) b) or if the acts in para. (1)-(4) have had the consequences provided in Art. 197 para.(2) c), the penalty shall be imprisonment from 5 to 18 years and the prohibition of certain rights. (6) If the act resulted in the victims death or suicide, the penalty shall be imprisonment from 15 to 25 years and the prohibition of certain rights. Art. 199. (1) The act of one who, through promises of marriage, determines a female person under the age of 18 to have sexual intercourse with him/her, shall be punished by imprisonment from one to 5 years. (2) Reconciliation of parties removes criminal liability.
1

Sexual relations

Art. 200. Abrogated by the G.E.O. No. 89/2001.

imprisonment from 2 to 7 years and the prohibition of certain rights. (2) This penalty shall sanction also sexual intercourse, of any nature, with a person of the opposite sex or of the same sex aged 15 to 18, if the act is committed by the persons guardian or curator or by his/her supervisor, by the person in charge of his/her care, by his/her physician, teacher, professor or educator, while taking advantage of their capacity. (3) If the act in para. (1) was committed under the circumstances in Art. 197 para. (2) b) or if the acts in para. (1) and (2) have had the consequences in Art. 197 para. (2) c), the penalty shall be imprisonment from 3 to 15 years and the prohibition of certain rights. (4) If the act resulted in the victims death, the penalty shall be imprisonment from 7 to 18 years and the prohibition of certain rights. (5) Abrogated by Law No. 197/2000. 1 The G.E.O. No. 89/2001 abrogated Art. 200 of the Criminal Code. This is the text of the former Article: Art. 200 (1) sexual relations between persons of the same sex, committed in public, or if they caused public scandal, shall be punished by imprisonment from one to 5 years. 75

between persons of the same sex Sexual perversion Art. 201. (1) Acts of sexual perversion committed in public or that caused a scandal shall be punished by imprisonment from one to 5 years. (2) Acts of sexual perversion involving a person under the age of 15 shall be punished by imprisonment from 3 to 10 years and the prohibition of certain rights. (3) The same penalty shall sanction also acts of sexual perversion with a person aged 15 to 18, if the act is committed by the guardian or curator, or by the person charged with his/her supervision or care, by the physician, teacher/professor or educator, using their capacity, or if the perpetrator abused the victims confidence or his/her authority or influence over him/her.2 (31) If the acts of sexual perversion with a person under the age of 18 were determined by the perpetrators offering or giving the victim money or other benefits, either directly or indirectly, the penalty shall be imprisonment from 3 to 12 years and the
1

(2) An adult who commits the act of sexual intercourse with a minor of the same sex shall be punished by imprisonment from 2 to 7 years and the prohibition of certain rights. (3) Sexual relations with a person of the same sex who is unable to defend him/herself or to express volition or by coercion shall be punished by imprisonment from 3 to 10 years and the prohibition of certain rights. (4) If the act in para. (2) and (3) resulted in serious injury upon corporal integrity or health, the penalty shall be imprisonment from 5 to 15 years and the prohibition of certain rights, and if it resulted in the victims death or suicide, the penalty shall be imprisonment from 15 to 25 years and the prohibition of certain rights. (5) The act of instigating or attracting a person for sexual relations between persons of the same sex, as well as the propaganda or association or any other form of proselitism committed for the same purpose, shall be punished by imprisonment from one to 5 years. According to Art. II of the G.E.O. No. 89/2001, :The acts in Art. 200 para. 2-4 which are in the course of prosecution or trial, if they are provided in other texts of the Criminal Code or of special laws, shall be subject to the texts mentioned. If a final decision of conviction has been handed down for the acts in Art. 200 para. 2-4 and penalty service is in progress, if these acts are provided in other texts of the Criminal Code or in special laws, the court that ordered the penalty service will proceed at once to the categorisation of those acts according to the texts mentioned above, either of office or upon request of the prosecutor or of the person convicted. Decisions of the Constitutional Court: 1. The decision No. 303 of 8 November 2001 of the Constitutional Court, final, published in the Official Gazette No. 809 of 17 December 2001, allowed the plea of unconstitutionality on Art. II para. (2) and, by extension, also on Art. II para. (1) of the G.E.O. No. 89/2001, finding that these provisions are in contradiction with Art. 15 para. (2) of the Constitution. 2. The decision No. 343 of 6 December 2001, final, published in the Official Gazette No.53 of 25 January 2002, rejected as inadmissible the pleas of unconstitutionality on Art. II para. 1 and 2 of the G.E.O. No. 89/2001, motivating that a previous decision had allowed the pleas of unconstitutionality. 1 Reproduced as amended by Law No. 140/1996, by the G.E.O. No. 89/2001 (as approved, with amendments and supplements, by Law No. 61/2002) and the G.E.O. No. 143/2002, approved by Law No. 45/2003. 2 According to the version prior to amendment by the G.E.O. No. 143/2002, paragraphs (2) and (3) had the following texts: (2) Acts of sexual perversion with a person under the age of 15 shall be punished by imprisonment from 2 to 7 years and the prohibition of certain rights. (3) The same penalty shall sanction also acts of sexual perversion with a person aged 15 to 18, if the act is committed by the guardian or curator, or by the person charged with his/her supervision or care, by the physician, teacher/professor or educator, using their capacity. 76

prohibition of certain rights. (32) If the acts in para.(2), (3) and (31) were committed for the production of pornographic material, the penalty shall be imprisonment from 5 to 15 years and the prohibition of certain rights, and if for this purpose coercion was used, the penalty shall be imprisonment from 5 to 18 years and the prohibition of certain rights. 1 (4) Acts of sexual perversion involving a person unable to defend him/herself or to express will or by coercion, shall be punished by imprisonment from 3 to 10 years and the prohibition of certain rights. (5) If the act in para.(1)-(4) resulted in serious injury to corporal integrity or health, the penalty shall be imprisonment from 5 to 18 years and the prohibition of certain rights, and if it resulted in the victims death or suicide the penalty shall be imprisonment from 15 to 25 years and the prohibition of certain rights. Sexual corruption Art. 202. (1) Acts of an obscene nature committed against minors or in the presence of a minor shall be punished by imprisonment from 6 months to 5 years. (2) When the acts in para.(1) were committed in the family, the penalty shall be imprisonment from one to 7 years.3 (21) If the acts in para.(1) and (2) were committed to produce pornographic material, the special maximum of the penalty shall be increased by 2 years.4 (3) The act of alluring a person in order to commit sexual intercourse with a minor of the opposite sex or of the same sex shall be punished by imprisonment from one to 5 years. Art. 203. Sexual intercourse between persons directly related or between siblings shall be punished by imprisonment from 2 to 7 years. Art. 2031 (1) The act of harassing a person by threat or coercion in order to obtain sexual satisfaction, committed by a person abusing his/her authority or influence provided by the office held at the workplace, shall be punished by imprisonment from 3 months to 2 years or by fine. Art. 204. Attempt to the offences in Art. 197, 198 and 2012032 is punishable.
5 2

Incest

Sexual harassment

Sanctions for attempt 1

2

Paragraphs (31) and (3 ) were inserted by the G.E.O. No. 143/2002. Reproduced as amended by Law No. 6/1973, by Law No. 197/2000, by the G.E.O. No. 89/2001 (as approved, with amendments and supplements, by Law No. 61/2002) and by the G.E.O. No. 143/2002, approved through Law No. 45/2003. 3 According to the version prior to the amendment by the G.E.O. No. 143/2002, paragraphs (1) and (2) had the following text: (1) Acts of an obscene nature committed against minors or in the presence of a minor shall be punished by imprisonment from 3 months to 2 years or by fine. (2) When the acts in para.(1) were committed in the family, the penalty shall be imprisonment from one to 3 years. 4 Paragraph 21 was inserted by the G.E.O. No. 143/2002, approved by Law No. 45/2003. 5 Reproduced as amended by the G.E.O. No. 89/2001, approved with amendments and supplements by Law No. 61/2002. 77

Chapter IV OFFENCES AGAINST DIGNITY Insult Art. 205. (1) Attacks against the honour or reputation of a person through words, gestures or by any other means, or exposure to mockery, shall be punished by a fine. (2) The same penalty shall apply also when a person is ascribed a fault, an illness or a disability which, even if they were real, should not be revealed. (3) Criminal action is initiated upon prior complaint from the person injured. (4) Reconciliation of parties removes criminal liability. Decisions of the Constitutional Court: 1. The decision No. 200 of 25 November 1999, final, published in the Official Gazette No. 58 of 8 February 2000, rejected the plea of unconstitutionality on Art. 205 para. (4) of the Criminal Code, raised in relation to Art. 20 para. (1) and Art. 30 para. (1) of the Constitution, as well as in relation to Art. 19 of the Universal Declaration of Human Rights. To motivate the decision, it is stated that: The instatement of the offence of insult is an expression of the will of the lawmaker who, in accordance with the provisions of the Constitution, evaluated the seriousness of the act and stipulated the penalty deemed as necessary in order to prevent and combat it. The latest evaluation was made through Law No. 140/1996 on amending and supplementing the Criminal Code, when the lawmaker not only maintained the incrimination of the act of insult, but also increased the maximum for the penalty. And that Art. 205 of the Criminal Code is not contrary to Art. 30 para. (1) of the Constitution, because, according to para. (6) of the same Article, freedom of expression must not prejudice the dignity, honour, private life and right to ones own image. The text that is being criticised is not contrary to Art. 19 of the Universal Declaration of Human Rights either, because, according to Art. 12 of the declaration, no person can be the object of infringement upon his/her honour or reputation. 2. The decision No. 258 of 5 December 2000, final, published in the Official Gazette No. 194 of 18 April 2001, rejected the plea of unconstitutionality on Art. 205 of the Criminal Code, raised in relation to Art. 29 and 30 of the Constitution, as well as to Art. 10 of the Convention for the protection of human rights and fundamental freedoms. To motivate the decision, it is shown that: when assessing the constitutionality of Art. 205 and of Art. 207 of the Criminal Code, the author of the plea ignored those provisions of the Constitution and of the international conventions that restrict the exercise of the freedom of thought and of expression. Thus, the following provisions are ignored: Art. 29 para. (2) of the Constitution, according to which freedom of conscience () must be manifested according to a spirit of tolerance and reciprocal respect, Art. 30 para. (6) of the Constitution, according to which Freedom of expression cannot prejudice the dignity, honour, private life and right to ones own image, Art. 10 indent 2 of the Convention for the protection of human rights and fundamental freedoms, according to which the exercise of freedom of expression may be restricted in order to protect, inter alia, the reputation or rights of others; Art. 54 of the Constitution, that state: the exercise of rights and fundamental freedoms must take place in good faith, while not transgressing the rights and freedoms of others. 3. The decision No. 272 of 20 December 2000, final, published in the Official Gazette No. 219 of 27 April 2001, rejected the plea of unconstitutionality on Art. 205 of the Criminal Code, raised in
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relation to Art. 30, Art. 29 para. (1), Art. 31 para. (1) and Art. 49 of the Constitution, to Art. 19 indent 2 of the International Pact on civil and political rights, as well as to Art. 10 of the Convention for the protection of human rights and fundamental freedoms. At the ending of the motivation for this decision, it is stated that no new elements have emerged, that would determine an amendment in the practice of the Court. 4. The decision No. 308 of 5 November 2001, final, published in the Official Gazette No. 21 of 16 January 2002, rejected the plea of unconstitutionality on Art. 205 of the Criminal Code, raised in relation to Art. 23 para. (8) and Art. 20 of the Constitution, connected to Art. 11 paragraph 1 of the Universal Declaration of Human Rights and Art. 6 indent 2 of the Convention for the protection of human rights and fundamental freedoms. Essentially, the Court stated that Art. 205 of the Criminal Code does not instate a presumption of guilt and does not derogate from the constitutional principle called upon. 5. The decision No. 337 of 29 November 2001, final, published in the Official Gazette No. 75 of 31 January 2002, rejected the plea of unconstitutionality on Art. 205 of the Criminal Code, raised in relation to Art. 20 and Art. 23 para. (8) of the Constitution, Art. 11 indent 1 of the Universal Declaration of Human Rights and Art. 6 indent 2 of the Convention for the protection of human rights and fundamental freedoms. The Court stated that the incrimination of insult does not contradict the presumption of innocence in any manner. 6. The decision No. 32 of 31 January 2002, final, published in the Official Gazette No. 136 of 21 February 2002, rejected the plea of unconstitutionality on Art. 205 of the Criminal Code, raised in relation to Art. 29 para. (1), Art. 30 para. (1) and Art. 23 para. (9) of the Constitution. It was deemed that no new elements had emerged that would determine the reviewing of the Courts case law. 7. The decision No. 40 of 7 February 2002, final, published in the Official Gazette No. 243 of 10 April 2002 rejected the plea of unconstitutionality on Art. 205 of the Criminal Code, raised in relation to Art. 23 para. (8) and Art. 20 of the Constitution, to Art. 11 indent 1 of the Universal Declaration of Human Rights and to Art. 6 indent 2 of the Convention for the protection of human rights and fundamental freedoms. In the ending of the motivation for this decision, the Court states that there is no evidence of new elements that could determine a review of its case law, and therefore the solutions from the previous decisions shall remain valid also for the present cause. 8. The decision No. 95 of 21 March 2002, final, published in the Official Gazette No. 301 of 8 May 2002, rejected the plea of unconstitutionality on Art. 205 of the Criminal Code, raised in relation to Art. 23 para. (8) and Art. 20 of the Constitution, as well as to Art. 11 indent 1 of the Universal Declaration of Human Rights and to Art. 6 indent 2 of the Convention for the protection of human rights and fundamental freedoms. In the ending of the motivation for this decision, it is stated that no new elements have emerged that would determine a change in the case law of the Constitutional Court in this matter. 9. The decision No. 298 of 7 November 2002, final, published in the Official Gazette No. 912 of 14 December 2002 rejected the plea of unconstitutionality on Art. 205 of the Criminal Code, raised in relation to Art. 20 and Art. 23 para. (8) of the Constitution, to Art. 11 indent 1 of the Universal Declaration of Human Rights and to Art. 6 indent 2 of the Convention for the protection of human rights and fundamental freedoms. In the ending of the motivation for this decision, it is stated that no new elements have emerged that would determine a review of the case law of the Court. 10. The decision No. 318 of 21 November 2002, final, published in the Official Gazette No. 127 of 27 February 2003, rejected the plea of unconstitutionality on Art. 205 of the Criminal Code, raised in relation to Art. 16, Art 21 and Art. 23 para. (8) of the Constitution, as well as to Art. 6
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indents 1 and 2 and to Art. 7 of the Convention for the protection of human rights and fundamental freedoms. To motivate the decision, it is shown that there are no reasons for a review of the Courts case law in this matter. 11. The decision No. 298 of 8 July 2003, final, published in the Official Gazette No. 581 of 14 August 2003, rejected the plea of unconstitutionality on Art. 205 para. (1) and (2) of the Criminal Code, raised in relation to Art. 16 para. (1), Art. 21, Art. 23 para. (8), Art. 29 para. (1) and (2), Art. 30 para. (1) and para. (8) final thesis, to Art. 49 and Art. 150 of the Constitution, as well as to Art. 6 paragraphs 1 and 2 and Art. 7, 9 and 10 of the Convention for the protection of human rights and fundamental freedoms. In the ending of the motivation for this decision, it is stated that no new elements have emerged that would determine a review of the case law of the Court. Slander Art. 206. (1) Stating or imputing in public, by any means, a determinate act regarding a person, which act, if it were true, would expose that person to a criminal, administrative or disciplinary sanction or to public disgrace, shall be punished by imprisonment from 2 months to 2 years or by fine. (2) Criminal action is initiated upon prior complaint from the injured person. (3) Reconciliation of parties removes criminal liability. Decisions of the Constitutional Court: 1. The decision No. 51 of 8 April 1999, final, published in the Official Gazette No. 262 of 9 June 1999, rejected the plea of unconstitutionality on Art. 206 of the Criminal Code. It was claimed that the provisions of Art. 206 of the Criminal Code were in contradiction with Art. 20 para. (1) and Art. 30 para. (1) of the Constitution. Essentially, the Constitutional Court deemed that the legal establishment of restrictions or sanctions is not a measure that is incompatible with freedom of expression, that it is necessary to sanction those who, through an abusive exercise of their freedom of expression, infringe upon the dignity and honour of other persons and that one needs to take into account also Art. 54 of the Constitution, according to which the constitutional rights and freedoms must be exercised in good faith, while not infringing upon the rights and freedoms of others. 2. The decision No. 308 of 15 November 2001, final, published in the Official Gazette No. 21 of 16 January 2002, rejected the plea of unconstitutionality on Art. 206 of the Criminal Code, raised in relation to Art. 23 para. (8) and Art. 20 of the Constitution, connected to Art. 11 indent 1 of the Universal Declaration of Human Rights and to Art. 6 indent 2 of the Convention for the protection of human rights and fundamental freedoms. Essentially, the Court stated that Art. 206 of the Criminal Code does not instate a presumption of guilt and does not derogate from the constitutional principle called upon. 3. The decision No. 337 of 29 November 2001, final, published in the Official Gazette No. 75 of 31 January 2002, rejected the plea of unconstitutionality on Art. 206 of the Criminal Code, raised in relation to Art. 20 and Art. 23 para. (8) of the Constitution, Art. 11 indent 1 of the Universal Declaration of Human Rights and Art. 6 indent 2 of the Convention for the protection of human rights and fundamental freedoms. The Court stated that the incrimination of slander does not contradict the presumption of innocence in any manner. 4. The decision No. 32 of 31 January 2002, final, published in the Official Gazette No. 136 of 21
1

Reproduced as amended by Law No. 140/1996 and by the G.E.O. No. 58/2002. 80

February 2002, rejected the plea of unconstitutionality on Art. 206 of the Criminal Code, raised in relation to Art. 29 para. (1), Art. 30 para. (1) and Art. 23 para. (9) of the Constitution, deeming that no new elements had emerged that would determine the reviewing of the Courts case law. 5. The decision No. 40 of 7 February 2002, final, published in the Official Gazette No. 243 of 10 April 2002 rejected the plea of unconstitutionality on Art. 206 of the Criminal Code, raised in relation to Art. 23 para. (8) and Art. 20 of the Constitution, to Art. 11 indent 1 of the Universal Declaration of Human Rights and to Art. 6 indent 2 of the Convention for the protection of human rights and fundamental freedoms. In the ending of the motivation for this decision, the Court states that there is no evidence of new elements that could determine a review of its case law, and therefore the solutions from the previous decisions shall remain valid also for the present cause. 6. The decision No. 95 of 21 March 2002, final, published in the Official Gazette No. 301 of 8 May 2002, rejected the plea of unconstitutionality on Art. 206 of the Criminal Code, raised in relation to Art. 23 para. (8) and Art. 20 of the Constitution, as well as to Art. 11 indent 1 of the Universal Declaration of Human Rights and to Art. 6 indent 2 of the Convention for the protection of human rights and fundamental freedoms. In the ending of the motivation for this decision, it is stated that no new elements have emerged that would determine a change in the case law of the Constitutional Court in this matter. 7. The decision No. 129 of 16 April 2002, final, published in the Official Gazette No. 399 of 11 June 2002 rejected the plea of unconstitutionality on Art. 206 of the Criminal Code, raised in relation to Art. 11 para. (2) and Art. 20 of the Constitution, as well as to Art. 10 indent 1 of the Convention for the protection of human rights and fundamental freedoms and to Art. 19 indent 1 and 2 of the International Pact on civil and political rights. In the ending of the motivation for this decision, it is stated that no new circumstances have emerged, that would determine a change in the case law of the Constitutional Court in this matter. 8. The decision No. 267 of 17 October 2002, final, published in the Official Gazette No. 773 of 24 October 2002, rejected the plea of unconstitutionality on Art. 206 of the Criminal Code, raised in relation to Art. 30 of the Constitution, as well as to Art. 10 paragraph 1 of the Convention for the protection of human rights and fundamental freedoms. In the ending of the motivation for this decision, it is stated that no new elements have emerged that would determine a review of the case law of the Court. 9. The decision No. 297 of 7 November 2002, final, published in the Official Gazette No. 881 of 6 December 2002, rejected the plea of unconstitutionality on Art. 206 of the Criminal Code, raised in relation to Art. 23 para. (8), Art. 30 and Art. 31 of the Constitution. Since no new circumstances have been indicated that would determine a change in the case law for this matter it is shown in the ending of the decision motivation the solutions adopted and the reasons that ground them shall be maintained. 10. The decision No. 298 of 7 November 2002, final, published in the Official Gazette No. 912 of 14 December 2002 rejected the plea of unconstitutionality on Art. 206 of the Criminal Code, raised in relation to Art. 20 and Art. 23 para. (8) of the Constitution, to Art. 11 indent 1 of the Universal Declaration of Human Rights and to Art. 6 indent 2 of the Convention for the protection of human rights and fundamental freedoms. In the ending of the motivation for this decision, it is stated that no new elements have emerged that would determine a review of the case law of the Court. 11. The decision No. 318 of 21 November 2002, final, published in the Official Gazette No. 127 of 27 February 2003, rejected the plea of unconstitutionality on Art. 206 para. (2) of the Criminal Code, raised in relation to Art. 16, Art 21 and Art. 23 para. (8) of the Constitution, as well as to Art. 6 indents 1 and 2 and to Art. 7 of the Convention for the protection of human
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rights and fundamental freedoms. To motivate the decision, it is shown that there are no reasons for a review of the Courts case law in this matter. 12. The decision No. 258 of 17 June 2003, final, published in the Official Gazette No. 478 of 4 July 2003, rejected the plea of unconstitutionality on Art. 206 para. (1) of the Criminal Code, raised in relation to Art. 24 para. (1), Art. 16 para. (1), Art. 1 para. (3) and Art. 21 of the Constitution. The court deemed that the syntagma by any means comprised in the text of the incrimination of slander does not contradict any constitutional provision, because the statement or imputation in public, by any means, a specific act regarding a person, which act, if it were true, would entail upon this person the dangerous consequences mentioned in the text, is in all cases the offence of slander. 13. The decision No. 298 of 8 July 2003, final, published in the Official Gazette No. 581 of 14 August 2003, rejected the plea of unconstitutionality on Art. 206 para. (1) of the Criminal Code, raised in relation to Art. 16 para. (1), Art. 21, Art. 23 para. (8), Art. 29 para. (1) and (2), Art. 30 para. (1) and para. (8) final thesis, to Art. 49 and Art. 150 of the Constitution, as well as to Art. 6 paragraphs 1 and 2 and Art. 7, 9 and 10 of the Convention for the protection of human rights and fundamental freedoms. In the ending of the motivation for this decision, it is stated that no new elements have emerged that would determine a review of the case law of the Court. Decisions of the European Court of Human Rights: 1. The decision of 28 September 1999, handed down in the case Dalban versus Romania, published in the Official Gazette No. 277 of 20 June 2000, the European Court of Human Rights decided that, in the case brought to judgement, there has been a breach of Art. 10 of the convention, which provides the following: 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. To motivate the decision, regarding the grounds for the plea, the following are stated: 46. It was not disputed before the Court that the applicants conviction constituted interference by public authority with the applicants right to freedom of expression under the first paragraph of Article 10. It was likewise common ground that the interference had been prescribed by law and had pursued a legitimate aim, the protection of the reputation of others, thus fulfilling two of the requirements for it to be regarded as justified under the second paragraph of Article 10. The Court, like the Commission before it, finds accordingly. 47. On the issue whether the interference was necessary in a democratic society, the Court reiterates its settled case-law that this depends on whether the interference complained of corresponded to a pressing social need, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient (see, among other authorities, Bladet Troms and Stensaas v. Norway [GC], no. 21980/93, 58, ECHR 1999-III). The Courts task is not to take the place of the national courts
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but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken pursuant to their power of appreciation (ibid., 60, and, among many other authorities, Fressoz and Roire v. France [GC], no. 29183/95, 45, ECHR 1999-I). 48. The articles in issue concerned a matter of public interest: the management of State assets and the manner in which politicians fulfil their mandate. The first article provided information taken from the files of a criminal investigation carried out by the Fraud Squad into the running of FASTROM, of which G.S. was the chief executive and on whose board of directors R.T. sat as the representative of the State. The second article referred to the salary received by Senator R.T. in that capacity and his use of a vehicle put at his disposal by the company (see paragraphs 13 and 14 above). 49. One factor of particular importance for the Courts determination of the present case is therefore the essential function the press fulfils in a democratic society. Although the press must not overstep certain bounds, in particular in respect of the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart in a manner consistent with its obligations and responsibilities information and ideas on all matters of public interest. In addition, the Court is mindful of the fact that journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation. In cases such as the present one, the national margin of appreciation is circumscribed by the interest of democratic society in enabling the press to exercise its rightful role of public watchdog in imparting information of serious public concern (see Bladet Troms and Stensaas cited above, 59). It would be unacceptable for a journalist to be debarred from expressing critical value judgments unless he or she could prove their truth (see the Lingens v. Austria judgment of 8 July 1986, Series A no. 103, p. 28, 46). 50. In the instant case the Court, like the Commission, observes that there is no proof that the description of events given in the articles was totally untrue and was designed to fuel a defamation campaign against G.S. and Senator R.T. Mr Dalban did not write about aspects of R.T.s private life, but about his behaviour and attitudes in his capacity as an elected representative of the people (see paragraphs 13 and 14 above). The manner in which the applicant expressed his opinion of the senators practices and the way in which the latter was carrying out his duties as an elected representative was held by the national courts not to reflect reality and, therefore, to be defamatory. As regards G.S., the courts held that the fact that the public prosecutors office had on two occasions decided that he had no case to answer was sufficient to establish that the information contained in the articles was false. The courts reached that conclusion without examining the evidence put forward by the applicant (see paragraphs 17 and 20 above). 51. The Government did not challenge the Commissions conclusion that, even having regard to the duties and responsibilities incumbent on a journalist who avails himself of the right set out in Article 10 of the Convention, the applicants conviction cannot be considered necessary in a democratic society . 52. The Court takes notice of this and decides that, in relation to the legitimate aim pursued, convicting Mr Dalban of a criminal offence and sentencing him to imprisonment amounted to disproportionate interference with the exercise of his freedom of expression as a journalist. Accordingly, there has been a violation of Article 10. 2. The judgment of 27 June 2000, handed down in the case Constantinescu vs. Romania, published in the Official Gazette No. 279 of 30 May 2001, the European Court of Human Rights found a violation of Art. 6 paragraph 1 of the Convention. The motivation of the decision stated the following: II. ALLEGED VIOLATION OF ARTICLE 6 1 OF THE CONVENTION 1. The applicant alleged that he had not had a fair trial in the Bucharest County Court, contrary to Article 6 1 of the Convention, which provides:
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In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ... 2. The applicant complained that he had been convicted by the Bucharest County Court without evidence being heard from him in person. He submitted that the County Court had ruled solely on the basis of the evidence put before the Court of First Instance, consisting of witness statements and his own statement summarised in five lines. During the hearing on 26 September 1994, which had lasted at the very most four minutes, neither he nor his lawyer had been able to address the court. In that connection, he maintained that the record of the hearing of 26 September 1994 did not in any way reflect the reality of the case because his lawyer had not been able to make submissions, but had merely been authorised to file written pleadings. 3. The applicant also disputed the accuracy of the wording of the rectifying judgment delivered on 28 January 1997, alleging that he had not addressed the court at the hearing of 26 September 1994 and that the prosecutor had requested that he be acquitted, not convicted as the Government maintained. He also submitted that the judgment of 28 January 1997 had never been served on him, but that he had learned of it when the Commission had sent it to him. 4. Lastly, the applicant complained that the judgment of the Bucharest County Court of 10 October 1994 referred solely to the statements of the prosecution witnesses and omitted the statements of the four defence witnesses, whose evidence was crucial, however, because they had stated that the three teachers had not returned the money or documents belonging to the union and that the applicant had been instructed by the union to retrieve them. 5. The Government submitted that the finding of guilt in relation to the applicant, reached solely on the basis of the evidence put before the Court of First Instance, did not breach the requirements of a fair trial within the meaning of Article 6 1 of the Convention. That Article did not require evidence to be heard from an accused in person by an appellate court whose remit was exclusively to examine questions of law. Although the Bucharest County Court did, in theory, have jurisdiction to examine questions of fact and of law, it had not been required in the instant case to determine questions of fact, since the facts, as established by the Bucharest Court of First Instance, had not been in dispute between the parties. The Bucharest County Court had thus been required to rule only on a question of law relating to the subjective element of the offence, that is, whether there had been an intention to defame. In order to establish whether that element had been made out, the court had not in any way needed to hear evidence from the applicant. 6. The Government contended that, in any event, the applicant had addressed the court last, as was clear from the rectifying judgment of 28 January 1997. 7. They also contested the applicant's claim that the prosecutor had requested that the appeal be dismissed. They referred in that connection to the judgment of 28 January 1997, which showed that the prosecutor had asked for the appeal to be upheld and the applicant convicted. The Government submitted that the courts were independent and that the position of the prosecutor during a trial could not influence them. 8. Lastly, the Government insisted that the applicant's lawyer had addressed the court during the hearing of 26 September 1994 and submitted that, in any event, he had filed written pleadings. 9. The Court reiterates that the manner of application of Article 6 to proceedings before courts of appeal depends on the special features of the proceedings involved; account must be taken of the entirety of the proceedings in the domestic legal order and of the role of the appellate court therein. Where a public hearing has been held at first instance, the absence of such a hearing may be justified at the appeal stage by the special features of the proceedings at issue, having regard to the nature of the domestic appeal system, the scope of the appellate court's powers and to the manner in which the applicant's interests were actually presented and protected
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before the court of appeal, particularly in the light of the nature of the issues to be decided by it (see the Botten v. Norway judgment of 19 February 1996, Reports of Judgments and Decisions 1996-I, p. 141, 39). 10. Before a court of appeal exercising jurisdiction as to both facts and law, Article 6 does not necessarily guarantee the right to a public hearing or, if such a hearing is held, the right to participate in person in the proceedings (see, for example, the Fejde v. Sweden judgment of 29 October 1991, Series A no. 212-C, pp. 69-70, 33). 11. However, the Court has held that where an appellate court is called upon to examine a case as to the facts and the law and to make a full assessment of the question of the applicant's guilt or innocence, it cannot, as a matter of fair trial, properly determine those issues without a direct assessment of the evidence given in person by the accused who claims that he has not committed the act alleged to constitute a criminal offence (see the Ekbatani v. Sweden judgment of 26 May 1988, Series A no. 134, p. 14, 32). 12. Accordingly, in order to determine whether there has been a violation of Article 6 in the instant case, an examination must be made of the role of the Bucharest County Court and the nature of the issues which it was called upon to try. 13. The Court reiterates that in the instant case the scope of the Bucharest County Court's powers, sitting as an appellate court, is set out in Articles 385-15 and 385-16 of the Code of Criminal Procedure. In accordance with Article 385-15, the County Court, sitting as an appellate court, was not required to give a fresh judgment on the merits, but could do. On 10 October 1994 the Bucharest County Court quashed the decision of 18 March 1994 and gave a fresh judgment on the merits. According to the above-mentioned legal provisions, the effect of this was that the proceedings in the Bucharest County Court were full proceedings governed by the same rules as a trial on the merits, with the court being required to examine both the facts of the case and questions of law. The County Court could decide either to uphold the applicant's acquittal or convict him, after making a thorough assessment of the question of his guilt or innocence, taking fresh evidence if applicable (see paragraph 37 above). 14. In the instant case the Court notes that, having quashed the decision to acquit reached at first instance, the Bucharest County Court determined a criminal charge against the applicant, convicting him of criminal libel, without hearing evidence from him. The Court is not satisfied with the Government's argument according to which the fact that the accused addressed the court last was sufficient in the present case. It notes, first, that the Government and the applicant disagree as to whether the applicant did in fact address the court last. Secondly, it stresses that, although an accused's right to address the court last is certainly of importance, it cannot be equated with his right to be heard by the court during the trial. 15. Accordingly, the Court finds that the Bucharest County Court determined a criminal charge against the applicant and found him guilty of libel without his having the opportunity to give evidence and defend himself. It considers that the Bucharest County Court should have heard evidence from the applicant, having regard, in particular, to the fact that it was the first court to convict him in proceedings brought to determine a criminal charge against him. 16. Since that requirement was not satisfied, the Court considers that there has been a violation of Article 6 1. In the circumstances, it does not consider it necessary to examine, additionally, whether other aspects of the proceedings in the Bucharest County Court did or did not comply with that provision. 17. There has therefore been a violation of Article 6 1 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 18. The applicant argued that his conviction for libel had infringed his right to freedom of expression guaranteed by Article 10 of the Convention, which provides: 1. Everyone has the right to freedom of expression. This right shall include freedom to hold
85

opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. 19. The applicant contended that his conviction was contrary to the provisions of Article 10 of the Convention. The Bucharest County Court had not allowed him to prove the truth of his assertions and the prosecution's decision to discontinue the proceedings against the three teachers (which had never been served on him by the authorities) did not in any way mean that the teachers had returned the money belonging to the union. 20. The Government submitted that the applicant's conviction complied with the requirements of the second paragraph of Article 10 of the Convention. Firstly, the intention had been to protect the reputation and rights of others because the applicant had called the three teachers delapidatori despite the fact that they had not been convicted by a court. The sentence he had been given was not in any way excessive, given the reasonable amount of the fine and damages he had been ordered to pay. 21. The Commission had found that the interference was necessary in a democratic society because the applicant could have expressed his criticism otherwise than by calling the teachers delapidatori when they had not been convicted by a court. 22. The Court notes that it is not disputed in the instant case that the applicant's conviction for libel constitutes an interference by the public authorities with the applicant's exercise of freedom of expression for the purposes of Article 10 of the Convention. 23. The issue is whether that interference can be justified under paragraph 2 of that provision. It is therefore necessary to examine whether it was prescribed by law, pursued a legitimate aim under that paragraph and was necessary in a democratic society (see the Lingens v. Austria judgment of 8 July 1986, Series A no. 103, pp. 24-25, 34-37). 24. The Court considers that the interference was prescribed by law, which, moreover, has not been disputed before it; the applicant's conviction was based on Article 206 of the Romanian Criminal Code (see paragraph 36 above). That restriction pursued a legitimate aim under paragraph 2 of Article 10, that is, the protection of the reputation and rights of others. It remains to be examined whether the restriction complained of was necessary in a democratic society to achieve that aim. 25. According to the Court's established case-law, it must therefore be determined whether the interference complained of corresponded to a pressing social need, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient. The Court's task is not to take the place of the national courts but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken pursuant to their power of appreciation (see Dalban cited above, 47). The Court must therefore examine the comments in question in their correct context, having regard to the circumstances of the case. 26. The Court notes that there are two aspects to the applicant's statements: criticism of the police and the prosecution, whom the applicant criticised for not wanting to conclude the investigation in connection with the complaint lodged against A.P., R.V. and M.M., and the applicant's assertion that the latter were delapidatori. 27. The Court notes that the infringement of the applicant's freedom of expression concerns only the second aspect. The Bucharest County Court based its decision to convict him on the
86

term used by Mr Constantinescu to describe the three teachers, which was considered to be defamatory, and not on the fact that the applicant had expressed criticism of the functioning of the courts' handling of union disputes. 28. Even if the context in which the applicant's comments were made was within a debate on the independence of the unions and the functioning of the courts, and was thus of public interest, there are limits to the right to freedom of expression. Notwithstanding the particular role played by the applicant in his capacity as union representative, he had a duty to react within limits fixed, inter alia, in the interest of protecting the reputation or rights of others, including the presumption of innocence. It therefore needs to be determined whether he overstepped the limits of permissible criticism. 29. In the Court's opinion, the term delapidatori, which refers to persons found guilty of the offence of fraudulent conversion, was of a kind to offend the three teachers because they had not been convicted by a court. 30. The Court considers that the applicant could perfectly well have expressed his criticism and thus contributed to free public debate of union affairs without using the word delapidatori. 31. Accordingly, the legitimate interest of the State in protecting the reputation of the three teachers did not conflict with the applicant's interest in contributing to the above-mentioned debate. 32. The Court is therefore satisfied that the grounds relied on by the national authorities were relevant and sufficient for the purposes of paragraph 2 of Article 10. 33. It also notes that, in the circumstances of the case, the resulting interference was proportionate to the legitimate aim pursued. The Court considers that the penalty imposed, that is, a fine of ROL 50,000 and an order to pay ROL 500,000 for non-pecuniary damage to each teacher, was not disproportionate. 34. Accordingly, since it does not appear that the Bucharest County Court exceeded the margin of appreciation left to the national authorities, no violation of Article 10 of the Convention has been established. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 35. Article 41 of the Convention provides: If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party. A. Damage 36. The applicant sought an award of one hundred million United States dollars in compensation for the non-pecuniary damage sustained as a result of being discredited following his conviction. Under the head of pecuniary damage, the applicant requested repayment of the criminal fine he had paid following his conviction and of the sums paid to the three teachers. He also claimed that he had sustained loss of earnings because, having regard to the stress and anxiety caused by the various proceedings in which he had been involved, he had been unable to publish a book he had written which had been accepted by a publishing house. He accordingly requested two thousand million Romanian lei (ROL) for pecuniary damage. 37. The Government submitted that the finding of a violation constituted in itself just satisfaction. 38. The Court notes, firstly, that the applicant has not in any way supported his allegation that he sustained loss of earnings. It notes that the only basis on which an award of just satisfaction can be calculated in the present case is the fact that the applicant did not have a fair trial in the Bucharest County Court. Admittedly, the Court cannot speculate as to the outcome of the trial had the position been otherwise, but it does not find it unreasonable to regard the
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applicant as having suffered a loss of real opportunity in the said trial (see Plissier and Sassi v. France [GC], no. 25444/94, 80, ECHR 1999-II). Ruling on an equitable basis, as provided by Article 41, the Court awards the applicant 15,000 French francs (FRF) to be converted into Romanian lei at the rate applicable on the date of settlement. B. Costs and expenses 39. The applicant claimed reimbursement of the costs and expenses of all the proceedings before the national authorities, that is, the equivalent of ROL 200,000 in 1994. 40. The Government did not make any observation on the question. 41. The Court notes that the applicant defended himself before the Commission and that, before the Court, he was represented at the hearing. It also notes that the Council of Europe paid Mr Constantinescu FRF 10,806.10 in legal aid. Having regard to the finding of a violation of Article 6 1 of the Convention, the Court, ruling on an equitable basis, awards the applicant FRF 20,000, less the above-mentioned sum already paid by the Council of Europe. The balance is to be converted into Romanian lei at the rate applicable on the date of settlement. C. Default interest 42. The Court considers it appropriate to use the statutory rate of interest applicable in France on the date of adoption of the present judgment, that is, 2.47% per annum. Proof of truthfulness Art. 207. The proof of truthfulness for statements or imputations is admissible, if the statement or imputation was committed for the defence of a legitimate interest. An act regarding which the proof of truthfulness is provided shall not be the offence of insult or slander. Decisions of the Constitutional Court: 1. The decision No. 134 of 6 July 2000, final, published in the Official Gazette No. 393 of 23 August 2000, rejected the plea of unconstitutionality on Art. 207 of the Criminal Code, raised in relation to Art. 23 para. (8) and Art. 24 para. (1) of the Constitution. To motivate the decision, it is shown that Art. 207 of the Criminal Code is in full agreement with Art. 23 para. (8) and with Art. 30 para. (6) of the Constitution, as well as with Art. 10 indent 2 of the Convention for the protection of human rights and fundamental freedoms, and the establishment, in every criminal trial, of the existence or non-existence of a legitimate interest is of the exclusive competence of the law courts. Also, it was deemed that Art. 207 of the Criminal Code does not contradict Art. 24 para. (1) of the Constitution; that it is true that the accused does not have the possibility to defend him/herself by proving the truthfulness of his/her statements or imputations, if they were not made in order to defend a legitimate interest, but this is justified by the fact that the statements or imputations made infringed upon constitutional rights of another person, for which the author must assume the responsibility, including, if the case requires, the criminal liability. 2. The decision No. 227 of 16 November 2000, final, published in the Official Gazette No. 70 of 9 February 2001, rejected the plea of unconstitutionality on Art. 207 of the Criminal Code, raised in relation to Art. 16 para. (1), Art. 21, Art. 23 para. (8) and Art. 24 para. (1) of the Constitution, as well as to Art. 10 indent 2 of the Convention for the protection of human rights and fundamental freedoms. To motivate the decision, it is shown that the criticism is unfounded, inter alia, because: the provisions that are being criticised do not create privileges or discriminations; the principle of equality does not exclude, but it presupposes the adoption of different solutions for different situations; Art. 21 of the Constitution has no connection to Art. 207 of the Criminal Code; Art. 207 of the Criminal Code instates only the possibility for the defendant to prove the
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truthfulness of the statements or imputations made, the proof of truthfulness is not the only manner of defence for persons who could be tried for the statements or imputations made, and the defence of freedom of expression, as well as that of the right to information requires, in certain cases, criminal sanctions for their statement or imputation, even if they refer to true facts, but they were not made in order to defend a legitimate interest. 3. The decision No. 231 of 16 November 2000, final, published in the Official Gazette No. 78 of 15 February 2001, rejected the plea of unconstitutionality on Art. 207 of the Criminal Code, raised in relation to Art. 23 para. (8) and Art. 24 para. (1) of the Constitution. The motivation for this decision states that: this legal text instates the possibility for the defendant to prove the truthfulness of his statements or imputations when they were committed for the defence of a legitimate interest, the proof of truthfulness being a special case of removal of criminal liability of the act, and that: One cannot find a breach of the right to the right of defence, because the defendant enjoys, in this case as well, all the rights and safeguards that are comprised in the fundamental right to defend oneself, and the proof of truthfulness is not the only means of defence for those who could be tried for the statements or imputations that they made. 4. The decision No. 56 of 22 February 2001, final, published in the Official Gazette No. 154 of 29 March 2001, rejected the plea of unconstitutionality on Art. 207 of the Criminal Code, raised in relation to Art. 16 para. (1), Art. 23 para. (8), Art. 29 para. (1) and (2), Art. 30 para. (1) and Art. 31 para. (1) of the Constitution. To motivate the decision, it is shown that the reasons and the solution adopted through the decision No. 134 of 6 July 2000 maintain their validity also for the present cause, as there are no new elements, which would justify a review of the case law. Also, it was deemed that the calling upon the case law of the European Court of Human Rights regarding the distinction between facts and judgements upon value (the judgement in the case Lingens versus Austria, 1986) is not conclusive in this cause, since Art. 207 refers to determinate facts regarding a person, therefore to actual elements that can be proven, and not to judgements upon value, the proving of which is not possible. 5. The decision No. 271 of 20 December 2000, final, published in the Official Gazette No. 193 of 18 April 2001 rejected the plea of unconstitutionality on Art. 207 of the Criminal Code, raised in relation to Art. 29, 30, 31 and 24 of the Constitution. At the ending of the motivation for this decision, it is shown that no new elements have emerged, that would determine a change in the Courts practice. 6. The decision No. 258 of 5 December 2000, final, published in the Official Gazette No. 194 of 18 April 2001, rejected the plea of unconstitutionality on Art. 207 of the Criminal Code, raised in relation to Art. 29 and 30 of the Constitution, as well as to Art. 10 of the Convention for the protection of human rights and fundamental freedoms. At the end of the motivation, it is mentioned that no new elements have emerged, that would determine a change in the Courts practice. 7. The decision No. 272 of 20 December 2000, final, published in the Official Gazette No. 219 of 27 April 2001, rejected the plea of unconstitutionality on Art. 207 of the Criminal Code, raised in relation to Art. 30, Art. 29 para. (1), Art. 31 para. (1), Art. 49 and Art. 24 of the Constitution, as well as to Art. 19 indent 2 of the International Pact on civil and political rights, as well as to Art. 10 indent 2 of the Convention for the protection of human rights and fundamental freedoms. At the end of the motivation, it is mentioned that no new elements have emerged, that would determine a change in the Courts practice. 8. The decision No. 308 of 15 November 2001, final, published in the Official Gazette No. 21 of 16 January 2002, rejected the plea of unconstitutionality on Art. 207 of the Criminal Code, raised in relation to Art. 23 para. (8) of the Constitution, to Art. 11 indent 1 of the Universal Declaration of Human Rights and to Art. 6 indent 2 of the Convention for the protection of human rights and fundamental freedoms.
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It was deemed that no new elements have emerged, that would determine a review of the Courts case law. 9. The decision No. 309 of 15 November 2001, final, published in the Official Gazette No. 32 of 18 January 2002 rejected the plea of unconstitutionality on Art. 207 of the Criminal Code, raised in relation to Art. 30 para. (8) of the final thesis and Art. 31 of the Constitution. At the end of the motivation, it is shown that no new elements have emerged, that would determine a review of the Courts case law. 10. The decision No. 310 of 15 November 2001, final, published in the Official Gazette No. 35 of 18 January 2002, rejected the plea of unconstitutionality on Art. 207 of the Criminal Code, raised in relation to Art. 23 para. (8), Art. 29 and Art. 30 of the Constitution. At the end of the motivation, it is shown that no new elements have emerged, that would determine a review of the Courts case law. 11. The decision No. 337 of 29 November 2001, final, published in the Official Gazette No. 75 of 31 January 2002, rejected the plea of unconstitutionality on Art. 207 of the Criminal Code, raised in relation to Art. 20 and Art. 23 para. (8) of the Constitution, to Art. 11 indent 1 of the Universal Declaration of Human Rights and to Art. 6 indent 2 of the Convention for the protection of human rights and fundamental freedoms. To motivate the decision, it is shown that no new elements have emerged, that would determine a review of the Courts case law., and that Art. 207 of the Criminal Code refers to determinate facts regarding a person, therefore to actual elements that can be proven, and not to the accusation of a person before it is proven according to the legal requirements, in a trial.... 12. The decision No. 40 of 7 February 2002, final, published in the Official Gazette No. 243 of 10 April 2002, rejected the plea of unconstitutionality on Art. 207 of the Criminal Code, raised in relation to Art. 23 para. (8) and Art. 20 of the Constitution, and to Art. 11 indent 1 of the Universal Declaration of Human Rights and to Art. 6 indent 2 of the Convention for the protection of human rights and fundamental freedoms. At the end of the motivation, the Court stated that there was no evidence of new elements that could determine a review of the case law, hence the solutions from the previous decisions were valid also for the current cause. 13. The decision No. 95 of 21 March 2002, final, published in the Official Gazette No. 301 of 8 May 2002, rejected the plea of unconstitutionality on Art. 207 of the Criminal Code, raised in relation to Art. 23 para. (8) and Art. 20 of the Constitution, as well as to Art. 11 indent 1 of the Universal Declaration of Human Rights and to Art. 6 indent 2 of the Convention for the protection of human rights and fundamental freedoms. At the end of the motivation, it is stated that no new circumstances have emerged, that would determine a change in the case law of the Constitutional Court in this matter. 14. The decision No. 298 of 7 November 2002, final, published in the Official Gazette No. 912 of 14 December 2002 rejected the plea of unconstitutionality on Art. 207 of the Criminal Code, raised in relation to Art. 20 and Art. 23 para. (8) of the Constitution, as well as to Art. 11 paragraph 2 of the Universal Declaration of Human Rights and to Art. 6 indent 2 of the Convention for the protection of human rights and fundamental freedoms. At the end of the motivation, it is shown that no new elements have emerged, that would determine a review of the Courts case law. 15. The decision No. 318 of 21 November 2002, final, published in the Official Gazette No. 127 of 27 February 2003, rejected the plea of unconstitutionality on Art. 207 of the Criminal Code, raised in relation to Art. 16, Art. 21 and Art. 23 para. (8) of the Constitution, as well as to Art. 6 indents 1 and 2 of the Convention for the protection of human rights and fundamental freedoms. To motivate the decision, it is shown that there are no grounds for a review of the Courts case law in this matter.
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Decisions of the European Court of Human Rights: 1. See the Judgement of 27 June 2000, handed down in the cause Constantinescu vs. Romania, published in the Official Gazette No. 279 of 30 May 2001, mentioned with Art. 206 of the Criminal Code.
1

TITLE III OFFENCES AGAINST PROPERTY

Theft

Art. 208. (1) The act of taking a movable asset from another persons possession or use, without the latters consent, in order to make it ones own without right, shall be punished by imprisonment from one to 12 years. (2) Any form of energy that has an economic value, as well as documents, shall be deemed as movable assets. (3) The act is a theft even if the asset belongs fully or partly to the perpetrator, if at the time of commission that asset was in the legitimate possession or use of another person. (4) Also, the act of taking, under the circumstances in para. (1), a vehicle in order to use it without right shall be a theft. Art. 209. (1) Theft committed under the following circumstances: a) by two or more persons together; b) by a person holding a weapon, or a narcotic substance; c) by a person wearing a mask or disguise; d) against a person who is unable to express volition or to defend him/herself; e) in a public place; f) in means of public transportation; g) during night time; h) during a disaster; i) by forced entry, scaling or by use without right of a real key or a false key, shall be punished by imprisonment from 3 to 15 years. (2) The same penalty shall sanction also theft with regard to: a) an asset that is part of the cultural heritage; b) a document proving civil status, used for identification; 4 (3) Theft regarding the following categories of assets: a) crude oil, gasoline, condensate, liquid ethane, petrol, Diesel oil,
3

First degree theft

1 2

Denomination reproduced as amended by Law No. 140/1996. Amended by Law No. 6/1973 and by Law No. 140/1996. 3 Reproduced as amended by the G.E.O. No. 207/2000 (approved, with amendments and supplements, through Law No. 456/2001) and by the G.E.O. No. 10/2001 (approved, with amendments and supplements, through Law No. 20/2002). According to Art. 3 of the G.E.O. No. 10/2001, approved, with amendments and supplements, through Law No. 20/2002, Criminal prosecution and judgement for the offence in Art. 209 para. (3) a) of the Criminal Code of Romania, republished, with its ulterior amendments, shall take place in emergency procedure, according to Law No. 83/1992 on the emergency procedure for the prosecution and judgement of certain offences of corruption. 4 According to Law No. 456/2001, Art. 209 para. (3) shall have the following text: Theft regarding the following categories of assets: 91

other oil products or natural gasses from pipes, storage houses, tanks or tank wagons;1 b) components of irrigation systems; c) components of electrical networks; d) a device or system for signalling, for alarm or alert in case of fire or other public emergencies; e) a means of transportation or any other means of intervention for a fire, for railway, road, naval or air accidents, or in case of disaster; f) installations for railway, road, naval, air traffic safety and control, and their components, as well as the components of the related means of transportation; g) assets the appropriation of which jeopardises the safety of traffic and persons on public roads; h) cables, lines, equipment and installations of telecommunication, radio communication, as well as communication components; shall be punished by imprisonment from 4 to 18 years. (4) Theft that caused particularly serious consequences shall be punished by imprisonment from 10 to 20 years and the prohibition of certain rights. (5) In the case in para. (3) a), the act of digging the land in the protected area near pipes that convey crude oil, gasoline, condensate, liquid ethane, petrol, Diesel oil, other oil products or natural gasses, as well as the possession, in those places or in the vicinity of storage facilities, tanks or tank wagons, of connection hoses, installations or any other devices for clasping or perforation, shall also be considered an attempt.2 Decisions of the Constitutional Court: 1. The decision No. 156 of 21 September 2000, final, published in the Official Gazette No. 527 of 26
a) crude oil, oil products, gasoline, condensate, liquid ethane, or natural gasses from pipes, storage houses, tanks or tank wagons; b) components of irrigation systems; c) components of electrical networks; d) a device or system for signalling, for alarm or alert in case of fire or other public emergencies; e) a means of transportation or any other means of intervention for a fire, for railway, road, naval or air accidents, or in case of disaster; f) installations for railway, road, naval, air traffic safety and control, and their components, as well as the components of the related means of transportation; g) assets the appropriation of which jeopardises the safety of traffic and persons on public roads; h) cables, lines, equipment and installations of telecommunication, radio communication, as well as communication components shall be punished by imprisonment from 4 to 18 years. Offences in Art. 209 para. (3) of the Criminal Code shall be prosecuted and judged according to the procedure established in Art. 467-479 of the Criminal Procedure Code. 1 Prior to the amendment by the Law No. 20/2002, Art. 209 para. (3) a) had the text established by the G.E.O. No. 10/2001, which is: a) crude oil, oil products, gasoline, condensate, liquid ethane, or natural gasses from pipes, storage houses, tanks or tank wagons; 2 According to the version established by the G.E.O. No. 10/2001, paragraph 5 had the following text: In the case in para. (3) a), the act of digging the land in the protected area near pipes that convey crude oil, oil products, gasoline, condensate, liquid ethane or natural gasses, as well as the possession, in those places or in the vicinity of storage facilities, tanks or tank wagons, of connection hoses, installations or any other devices for clasping or perforation, shall also be considered an attempt 92

October 2000, rejected the plea of unconstitutionality on Art. 209 last paragraph of the Criminal Code, raised in relation to Art. 16 para. (1) of the Constitution. The decision is motivated by the fact that although it is true that the limit of 50.000.000 lei no longer represents a constant value with regard to which more severe sanctions are required, nevertheless, the amendment of texts of legal norms, by changing the conditions they impose, is of the exclusive competence of the Parliament, which is the only lawmaking authority of our country, according to Art. 58 para. (1) of the Constitution. Punishment for certain cases of theft upon prior complaint Art. 210. (1) Theft committed between spouses or close relatives, or by a minor against his guardian, by a person living together with the injured person or is a guest in the latters house, shall be prosecuted only upon prior complaint from the injured person. (2) Reconciliation of parties removes criminal liability. Art. 211. (1) Theft committed by use of violence or threat, or by making the victim unconscious or unable to defend him/herself, as well as theft followed by the use of such means in order to keep the stolen goods or to remove the traces of the offence, or to ensure the perpetrators escape, shall be punished by imprisonment from 3 to 18 years. (2) Robbery committed under the following circumstances: a) by a person wearing a mask or disguise; b) during night time; c) in a public place or in a means of public transportation; shall be punished by imprisonment from 5 to 20 years. (21) The penalty shall be imprisonment from 7 to 20 years if the robbery was committed: a) by two or more persons together; b) by a person carrying a weapon, a narcotic or paralysing substance; c) in a dwelling place or the outbuildings attached to it; d) during a disaster; e) if the act had any of the consequences in Art. 182. (3) Robbery that caused particularly serious consequences or that resulted in the victims death shall be punished by imprisonment from 15 to 25 years and the prohibition of certain rights. Decisions of the Supreme Court of Justice: 1. The decision No. 63 of 6 May 1991, by the Supreme Court of Justice in the form provided in Art. 39 para. 2 and 3 of Law No. 58/1968, deemed that: In this case, the theft of the hats off the heads of the injured persons was perpetrated while they could not resist it, as they knew nothing of the actions that were to be committed against them, because the defendant drew close to them in the dark, and they were suddenly dispossessed of the hats that they were wearing, and realised what had happened after the exhaustion of the material element of the action of theft, while the offender was running away from the place where he committed the acts. Hence, the theft of a hat off the head of the person who is wearing it, under the aforementioned
1

Robbery

Amended by Law No. 6/1973, by Law No. 140/1996 and by Law No. 169/2002. 93

circumstances, was not committed by a form of coercion to defeat the latters resistance, and the dispossession did not cause any physical or moral suffering to the latter, during the course of the offence of theft. In relation to these grounds, the defendants act has the elements that make up the offence of first-degree theft, provided in Art. 208 related to Art. 209 a), c) and e) of the Criminal Code. Piracy Art. 212. (1) The act of plundering by acts of violence committed for personal purposes, perpetrated by the crew on a ship or by the passengers on a ship against persons or goods on that ship, or against another ship, if the ships are in the open sea or in a place that is not in the jurisdiction of any State, shall be punished by imprisonment from 3 to 18 years. (2) If the piracy had any of the consequences in Art. 182, the penalty shall be imprisonment from 5 to 20 years. (3) Piracy that caused particularly serious consequences or that resulted in the death of the victim shall be punished by imprisonment from 15 to 25 years and the prohibition of certain rights. (4) The previous paragraphs shall apply accordingly also when the offence of piracy was committed on aircraft or between aircraft and ships. Art. 213. (1) The act of taking a movable asset belonging to another person, held with any title, or the unjust use of this asset, or the refusal to return it, shall be punished by imprisonment from 3 months to 4 years or by a fine. (2) If the asset is private property, except for the case when it is wholly or partly State property3, criminal action is initiated upon prior complaint from the injured person. Reconciliation of parties removes criminal liability. Decisions of the Constitutional Court: 1. The decision No. 177 of 15 December 1998, final, published in the Official Gazette No. 77 of 24 February 1999, allowed the plea of unconstitutionality and found that the provision except for the case when it is wholly or partly State property stipulated in Art. 213 para. 2 of the Criminal Code, is unconstitutional. The Constitutional Court deemed that the provision in question is unconstitutional in relation to Art. 41 para. (2) of the fundamental law. 2. The decision No. 230 of 3 June 2003, final, published in the Official Gazette No. 501 of 10 July 2003, rejected the plea of unconstitutionality on Art. 213 para. (2) of the Criminal Code, raised in relation to Art. 1 para. (3), Art. 4, 11, 15, 16, 20, 21, 24, 51 and 144 para. (1) c) of the Constitution. To motivate the decision, it is stated, essentially, that the instatement by the law of the procedure for prior complaint is determined by reasons of criminal policy.
2 1

Breach of trust

1 2

Reproduced as amended by Law No. 140/1996. Reproduced as amended by Law No. 140/1996. 3 Unconstitutional provision. 94

Fraudulent management

Art. 214. (1) The act of causing prejudice to a person, in bad faith, on occasion of administering or preserving his/her assets, committed by the person charged with the administration or preservation of those assets, shall be punished by imprisonment from 6 months to 5 years. (2) Fraudulent management committed in order to acquire a material benefit shall be punished by imprisonment from 3 to 10 years, if the act is not a more serious offence. (3) If the asset is in private property, except for the case when it is wholly or partly State property2, criminal action for the act in para.(1) is initiated upon prior complaint from the injured person. Decisions of the Constitutional Court:

1. The decision No. 5 of 4 February 1999, final, published in the Official Gazette No. 95 of 5 March 1999, allowed the plea of unconstitutionality and found that the provision except for the case when it is wholly or partly State property, stipulated in Art. 214 para. (3) of the Criminal , Code, is unconstitutional. The motivation states, essentially, that the provisions in question contradict Art. 41 para. (2) of the Constitution, which ensures equal protection to property belonging to natural persons or to legal entities of private law, as well as to the States private property. Thus, with respect to the assets that are the object of private property, the State cannot enjoy legal protection that is different from the one of legal entities of private law. 2. The decision No. 39 of 11 March 1999, final, published in the Official Gazette No. 199 of 7 May 1999, rejected the plea of unconstitutionality on Art. 214 para. (3) of the Criminal Code, motivating that the plea was raised at a date prior to the handing down of the decision No. 5 of 4 February 1999, and hence, although the Court was legally notified, the plea has become inadmissible, because of the obligatory nature of the abovementioned decision. 3. The decision No. 105 of 8 June 2000, final, published in the Official Gazette No. 393 of 23 August 2000, rejected as inadmissible the plea of unconstitutionality on Art. 214 para. (3) of the Criminal Code. To motivate the decision, it is shown that inadmissibility is in force because, by the decision No. 5 of 4 February 1999, the plea was allowed. Deceit Art. 215. (1) The act of deceiving a person, by presenting a false fact as being true or a true fact as being false, in order to obtain unjust material benefit for oneself or for another and if damage was caused, shall be punished by imprisonment from 6 months to 12 years. (2) Deceit committed by using untruthful names or capacities or other fraudulent means, shall be punished by imprisonment from 3 to 15 years. If the fraudulent means is in itself an offence, the rules for concurrence of offences shall apply. (3) The act of deceiving or maintaining the deceit of a person, when concluding or executing a contract, if without this
1 2

Amended by Law No. 6/1973 and by Law No. 140/1996. Unconstitutional provision. 3 Amended by Law No. 6/1973 and by Law No. 140/1996. 95

deceit the person would not have concluded or executed the contract in the conditions stipulated, shall be sanctioned by the penalty provided in the previous paragraphs, according to the distinctions shown there. (4) The act of issuing a cheque with regard to a credit institution or a person, while being aware that the supply or cover necessary for its realisation does not exist, as well as the act of withdrawing the supply, wholly or in part, after the issuing, or of prohibiting the acceptor from paying before expiry of the presentation term, for the purpose in para.(1), if damage was caused against the owner of the cheque, shall be sanctioned by the penalty provided in para.(2). (5) Deceit that resulted in particularly serious consequences shall be punished by imprisonment from 10 to 20 years and the prohibition of certain rights. Decisions of the Constitutional Court: 1. The decision No. 173 of 4 November 1999, final, published in the Official Gazette No. 624 of 21 December 1999, rejected the plea of unconstitutionality on Art. 215 para. (4) of the Criminal Code, raised in relation to Art. 20 of the Constitution and to Art. 11 of the International Pact on civil and political rights. Essentially, it is stated that the criticism on unconstitutionality is unfounded, since deceit, in any of its variants, is a serious offence against property, as it resides in deceiving the confidence of participants in the property-related judicial relations, which is absolutely intolerable within these judicial relations, that in all the legal systems, deceit or fraud is an act incriminated and severely sanctioned; the offence of deceit cannot be mistaken for the nonfulfilment of a contractual obligation and this is why, calling upon Art. 11 of the International Pact on civil and political rights, which prohibits the criminal sanctions of failure to fulfil contractual obligations is completely not pertinent., hence, the plea of unconstitutionality is unfounded. 2. The decision No. 58 of 23 March 2000, final, published in the Official Gazette No. 228 of 23 May 2000, rejected the plea of unconstitutionality on Art. 215 para. (3) of the Criminal Code, raised in relation to Art. 49 and 54 of the Constitution. To motivate the decision, it is stated, mainly, that the legal text in question does not restrict, by breaching Art. 49, the exercise of any right or fundamental freedom and that Art. 54 of the Constitution does not comprise the presumption, but the obligation of every person to exercise in good faith his/her constitutional rights and freedoms, while not violating the rights and freedoms of others, and not only does Art. 215 of the Criminal Code not breach this fundamental duty, but it gives an expression to it, by criminally sanctioning precisely those acts that violate the fundamental obligation mentioned above, by deceitful manoeuvres. 3. The decision No. 106 of 8 June 2000, final, published in the Official Gazette No. 328 of 14 July 2000, rejected the plea of unconstitutionality on Art. 215 para. (2) of the Criminal Code, raised in relation to Art. 16 para. (1) and Art. 23 para. (9) of the Constitution. The motivation states that Art. 215 para. 2 of the Criminal Code is not contrary to Art. 16 para. (1) of the Constitution, which refers to the equality of rights for citizens before the law and the public authorities, without any privileges or discriminations, and no more is it contrary to Art. 23 para. (9) of the Constitution. 4. The decision No. 50 of 14 February 2002, final, published in the Official Gazette No. 144 of 25 February 2002, rejected the plea of unconstitutionality on Art. 215 para. (2) of the Criminal
96

Code, raised in relation to Art. 4 indent 1 of the Protocol No. 7 to the Convention for the protection of human rights and fundamental freedoms and to Art. 6 indent 1 sentence 1 of the Convention. To motivate the decision, it is stated that since two offences are being discussed, it is natural for the offender to be applied two penalties, according to the rules on concurrence of offences, while this does not affect in any way the right to a fair trial. 5. The decision No. 58 of 6 February 2003, final, published in the Official Gazette No. 194 of 26 March 2003, rejected the plea of unconstitutionality on Art. 213 para. (3) of the Criminal Code, raised in relation to Art. 11, 20, Art. 23 para. (9) and Art. 134 para. (2) a) of the Constitution, as well as to Art. 1 of the Additional Protocol No. 4 to the Convention for the protection of human rights and fundamental freedoms. To motivate the decision, it is shown that the legal text in question does not sanction the failure to pay a debt ... but it sanctions the fraud practised when concluding or executing a contract, as an attempt against the persons assets by delusion..., hence, the claims of the author of this plea are unfounded. Embezzlement Art. 2151 (1) The act, committed by a clerk, either for him/herself or for another, of appropriating, using or trafficking money, values or other assets in his/her management, shall be punished by imprisonment from one to 15 years. (2) In case the embezzlement had particularly serious consequences, the penalty shall be imprisonment from 10 to 20 years and the prohibition of certain rights. Decisions of the Supreme Court of Justice: 1. The decision No. III of 2 December 2002, by the Joint Sections of the Supreme Court of Justice, allowed the appeal in the interest of the law lodged by the General Prosecutor of the Prosecutors Office attached to the Supreme Court of Justice, and established that the act, committed by a superintendent of an association of owners or tenants, of using or trafficking, either for him/herself or for another, money, values or other assets in his/her management, is the offence of embezzlement, as the person concerned is a clerk, according to Art. 147 para. 2 of the Criminal Code. Appropriation of assets found Art. 216. (1) The act of not handing over within 10 days an asset found to the authorities or to the person who lost it, or of using that asset as if it were ones own, shall be punished by imprisonment from one to 3 months or by a fine. (2) The same penalty shall sanction also the unjust appropriation of a movable asset belonging to another person, which came through error into the perpetrators possession. Art. 217. (1) The act of destroying, damaging or making unfit for use an asset belonging to another, or hindering the taking of measures of preservation or rescue for such an asset, as well as removing the measures taken, shall be punished by imprisonment from one month to 3 years or by a fine. (2) If the asset has a particular artistic, scientific, historical,
2 1

Destruction

1 2

Inserted by Law No. 140/1996, as a replacement for Art. 223. Reproduced as amended by Law No. 140/1996. 97

archive value or any other such value, the penalty shall be imprisonment from one to 10 years. (3) The act of destroying, damaging or making unfit for use an oil or a gas pipe, a high voltage cable, equipment or installations for telecommunication or for broadcasting radio and television programs, or water supply systems and main water supply pipes, shall be sanctioned by imprisonment from one to 10 years. (4) If the act of destruction, damaging or making unfit for use is committed by arson, explosion or by any other such means and it results in a public danger, the penalty shall be imprisonment from 3 to 15 years. (7) Para.(2), (3) and (4) shall apply even if the asset belongs to the perpetrator. (8) If the asset is private property, except for the case when it is wholly or partly State property1, criminal action for the offence in para. (1) is initiated upon prior complaint from the injured person. Reconciliation of parties removes criminal liability. Decisions of the Constitutional Court: 1. The decision No. 150 of 7 October 1999, final, published in the Official Gazette No. 605 of 10 December 1999, allowed the plea of unconstitutionality and found that the provision except for the case when it is wholly or partly State property stipulated in Art. 217 para. 6 of the Criminal Code, is unconstitutional. The Court deemed that the provision in question is unconstitutional in relation to Art. 41 para. (2) of the fundamental law, and the initiation of criminal action, based on Art. 217 para. 6 of the Criminal Code, can occur only upon prior complaint from the injured person, not only when the asset belongs to natural persons or legal entities of private law, but also when it is wholly or partly State private property. 2. The decision No. 71 of 20 April 2000, final, published in the Official Gazette No. 286 of 26 June 2000, rejected the plea of unconstitutionality on Art. 217 para. (6) of the Criminal Code, because it has become inadmissible since the decision No. 150 of 7 October 1999 has allowed the plea. 3. The decision No. 218 of 11 July 2002, final, published in the Official Gazette No. 720 of 3 October 2002, rejected the plea of unconstitutionality on Art. 217 para. (1) of the Criminal Code, raised in relation to Art. 22 para. (2), Art. 23 para. (9), Art. 41 para. (1) and (2) and Art. 135 para. (6) of the Constitution. The motivation states that the legal categorisation of the act according to the subjective side of the offence, namely of whether it was committed with intent or out of negligence, is a matter of application of the law, which exceeds the control of constitutionality. First degree destruction Art. 218. (1) If the acts in Art. 217 resulted in particularly serious consequences, the penalty shall be imprisonment from 10 to 20 years and the prohibition of certain rights, and if they resulted in disaster, the penalty shall be life imprisonment or imprisonment from 15 to 25 years and the prohibition of certain rights. (2) Disaster consists of the destruction or damaging of means
2

1 2

Unconstitutional provisions. Reproduced as amended by Law No. 140/1996. 98

of public transportation either for persons or merchandise, or of installations or work, and that resulted in the death or serious injury on the corporal integrity or health of several persons. Destruction out of negligence Art. 219. (1) The act of destroying, damaging, or making an asset unfit for use, out of negligence, even if it belongs to the perpetrator, if the act is committed by arson, explosion or by any other such means and if it resulted in public danger, shall be punished by imprisonment from one month to 2 years or by a fine. (2) The same penalty shall sanction the act of destroying or damaging, out of negligence, an oil or gas pipe, a high voltage cable equipment or installations for telecommunication or for broadcasting radio and television programs, or water supply systems and main water supply pipes, if this made them unfit to use. (3) The destruction, damage or making unfit for use, out of negligence, of a good, even if it belongs to the perpetrator, if it had particularly serious consequences, shall be punished by imprisonment from one to 6 years, and if it resulted in disaster the penalty shall be imprisonment from 3 to 12 years. (4) When the disaster or the particularly serious consequences were produced because of leaving the post or the commission of any other act by the staff driving a means of public transportation, or by the staff directly ensuring the security of such transport, the penalty shall be imprisonment from 5 to 15 years. Art. 220. (1) The act of occupying, either wholly or in part, without right, a building in the property of another, shall be punished by imprisonment from one month to 2 years or by a fine. (2) If the act in para. (1) was committed by violence or threat or by the destruction or moving of border signs and marks, of an immovable asset belonging to another, shall be punished by imprisonment from 6 months to 5 years. (3) If the act in para. (2) was committed by two or more persons together, the penalty shall be imprisonment from one to 7 years. (4) If the immovable asset is in the possession of a private person, except for the case when it is wholly or partly State property3, criminal action is initiated upon prior complaint from the injured person. Reconciliation of parties removes criminal liability Decisions of the Constitutional Court: 1. The decision No. 124 of 21 May 1997, final by rejection of the appeal in points of law, according to the decision No. 714 of 19 December 1997, published in the Official Gazette No. 105 of 6 March 1998, rejected as manifestly unfounded the plea of unconstitutionality on Art. 220 of the Criminal Code, motivating that between the provisions of Art. 16 para. (2) and of Art. 51 of the Constitution,
1 2

Disturbance of possession

Reproduced as amended by Law No. 140/1996. Reproduced as amended by Law No. 140/1996. 3 Unconstitutional provision. 99

on the one hand, and the provisions of Art. 220 of the Criminal Code, on the other hand, there is no contradiction. 2. The decision No. 165 of 21 October 1999, final, published in the Official Gazette No. 624 of 21 December 1999, allowed the plea of unconstitutionality and found that the provision except for the case when it is wholly or partly State property stipulated in Art. 220 para. 4 of the Criminal Code, is unconstitutional. It is motivated that the provisions of Art. 220 para. 4 of the Criminal Code create a legal treatment that is favourable to the possession of immovable assets of State private property, by comparison to immovable assets in private property of natural persons or legal entities of private law, which indirectly entails the favouring of one of the forms of private property. Thus, such regulations, which distinguish between the defence, by means of criminal law, of social values (peaceful and undisturbed possession of an immovable asset) depending on the holder of the proprietary right over that immovable asset (the State or, respectively, another legal entity or a natural person) are violating, when we are not dealing with assets of public property, the principle consecrated by Art. 41 para. (2) of the Constitution... 3. The decision No. 238 of 27 December 1999, final, published in the Official Gazette No. 64 of 14 February 2000, rejected the plea of unconstitutionality on Art. 220 para. (4) of the Criminal Code, finding that the plea had become inadmissible since the decision No. 165 of 21 October 1999 allowed the plea. 4. The same solution, with the same motivation, was handed down also by the decision No. 239 of 27 December 1999, final, published in the Official Gazette No. 86 of 24 February 2000. 5. The decision No. 23 of 10 February 2000, final, published in the Official Gazette No. 149 of 11 April 2000, rejected the plea of unconstitutionality on Art. 220 para. (4) of the Criminal Code, finding that the plea had become inadmissible since the decision No. 165 of 21 October 1999 allowed the plea. 6. The same solution, with the same motivation, was handed down also by the decision No. 24 of 10 February 2000, final, published in the Official Gazette No. 161 of 18 April 2000. 7. The decision No. 31 of 31 January 2002, final, published in the Official Gazette No. 125 of 15 February 2002, rejected the plea of unconstitutionality on Art. 220 para. 1-3 of the Criminal Code, and rejected as inadmissible the plea of unconstitutionality on Art. 220 para. 4 of the Criminal Code, raised in relation to Art. 41 of the Constitution. Regarding the unconstitutionality of Art. 220 para. 1-3 of the Criminal Code, the Court motivates that no new elements have emerged that would determine a change in the case law, and regarding para. 4 of the same legal text, the Court mentioned that there is a cause of inadmissibility, since the unconstitutionality of this paragraph was found by a previous decision. Concealment Art. 221. (1) The act of receiving, acquiring or converting an asset, or facilitating its realisation, in awareness of the fact that the asset emerges from the commission of an act provided in the criminal law, if by this the obtainment of material benefits for oneself or for another was intended, shall be punished by imprisonment from 3 months to 7 years, while the sanction applied cannot exceed the penalty provided in the law for the offence from which the concealed asset has emerged. (2) Concealment committed by a spouse or a close relative is not punishable.
2 1

Sanctions for
1 2

Art. 222. Attempt to the offences in Art. 208-212, 215, 215 1,

Amended by Law No. 6/1973 and by Law No. 140/1996. Reproduced as amended by Law No. 140/1996. 100

attempt

217 and 218, is punishable. TITLE IV OFFENCES AGAINST PUBLIC PROPERTY Art. 223. Abrogated by Law No. 140/1996. Art. 224. Abrogated by Law No. 140/1996. Art. 225. Abrogated by Law No. 140/1996. Art. 226. Abrogated by Law No. 140/1996. Art. 227. Abrogated by Law No. 140/1996. Art. 228. Abrogated by Law No. 140/1996. Art. 229. Abrogated by Law No. 140/1996. Art. 230. Abrogated by Law No. 140/1996. Art. 231. Abrogated by Law No. 140/1996. Art. 232. Abrogated by Law No. 140/1996. Art. 233. Abrogated by Law No. 140/1996. Art. 234. Abrogated by Law No. 140/1996. Art. 235. Abrogated by Law No. 140/1996. TITLE IV OFFENCES AGAINST AUTHORITY

Affront to signs or symbols

Art. 236. (1) Any display of contempt for the symbols of Romania shall be punished by imprisonment from 6 months to 3 years. (2) Displays of contempt for signs and symbols used by the authorities shall be punished by imprisonment from 3 months to one year or by a fine. Art. 2361 Public manifestations committed with the intent to defame the Romanian country or nation shall be punished by imprisonment from 6 months to 3 years. Art. 237. Abrogated by the Decree-Law No. 1/1989. Art. 238. Abrogated by the G.E.O. No. 58/2002. Art. 239. (1) Insult or slander committed either directly or by means of direct communication against a public servant holding an office that involves the exercise of State authority, who is in the exercise of his/her office or for acts performed during the exercise of office, shall be punished by imprisonment from 3 months to 3 years. (11) A threat committed either directly or by any means of direct communication against a public servant holding an office
2 1

Defamation of our country or nation Defamation of an organisation Affront to authority Outrage

1 2

Inserted by Law No. 140/1996. Amended by Law No. 6/1973, by Law No. 140/1996 and by the G.E.O. No. 58/2002. 101

that involves the exercise of State authority, who is in the exercise of office or for acts committed during the exercise of office, shall be punished by imprisonment from 3 months to 4 years. (2) Hitting or any other acts of violence, as well as bodily harm committed against persons in para.(1), who are in the exercise of office or for acts committed in the exercise of office, shall be punished by imprisonment from 6 months to 7 years, and if serious bodily harm was caused, the penalty shall be imprisonment from 3 to 12 years. (3) If the acts in the previous paragraphs were committed against a magistrate, a police officer or a gendarme or another member of the military, the special maximum of the penalty shall be increased by 3 years. Decisions of the Constitutional Court: 1. The decision No. 26 of 23 February 1999, final, published in the Official Gazette No. 136 of 1 April 1999, rejected the plea of unconstitutionality on Art. 239 para. (1) of the Criminal Code, motivating that the legal regulation in question does not violate the freedom of expression of ideas and opinions, which is provided in the international documents called upon by the author of the plea and criminal protection for authorities is a safeguard of the exercise of prerogatives that belong to it and not by any means a privilege, as its legitimacy is derived from the very legitimacy of the existence of authority. It is also stated that different legal treatment applied to different conditions is justifiable and admissible precisely because of the need for equality before the law not to create privileges or discriminations. 2. The decision No. 81 of 8 March 2001, final, published in the Official Gazette No. 176 of 6 April 2001, rejected as inadmissible the plea of unconstitutionality on Art. 239 para. (1) of the Criminal Code, raised in relation to Art. 16 para. (1) of the Constitution, as related to Art. 6 of the Universal Declaration of Human Rights. The Court found that the decision No. 26 of 23 February 1999 has the authority of res judicata, since the object, the cause and the parties are the same both for the previous plea, as well as for the plea that is the object of the present decision. Special cases of punishment Art. 2391 For the offences in Art. 180-182, 189 and 193 committed against the spouse, the children or the parents of persons in Art. 239 para. (4), for purposes of intimidation or revenge for acts committed during exercise of office, the maximum of the penalty shall be increased by one third. Art. 240. The use without right of an official capacity, accompanied or followed by the accomplishment of an act connected to that capacity, shall be punished by imprisonment from 6 months to 3 years. Art. 241. (1) The act of wearing, without right, decorations, uniforms or distinctive signs belonging to a body of the State, shall be punished by imprisonment from one month to 3 months or by a fine.
1

Usurpation of official capacity

Illegal wearing of decorations or distinctive signs

Inserted by Law No. 140/1996 and amended by the G.E.O. No. 58/2002. 102

(2) The act of wearing, without right, military uniforms, rank marks or badges, shall be punished by imprisonment from 3 months to 2 years or by a fine. (3) If the act in the previous paragraph was committed during wartime, the penalty shall be imprisonment from one to 5 years. Stealing or destroying documents Art. 242. (1) The act of stealing or destroying a file, record, document or any other written act kept or owned by a body or institution of the State, or by another of the units in Art. 145, shall be punished by imprisonment from 3 months to 5 years. (2) Destruction out of negligence of any of the written documents in the previous paragraph, having an artistic, scientific, historical, archive or other such value, shall be punished by imprisonment from 3 months to 2 years or by a fine. (3) If the acts in para.(1) and (2) are committed by a public servant in the exercise of service prerogatives, the maximum for the penalties in these paragraphs shall be increased by one year. (4) Attempt to the offence in para. (1) is punishable. Art. 243. (1) The act of removing or destroying a legally applied seal shall be punished by imprisonment from one month to 1 year or by a fine. (2) If the act was committed by the caretaker, the penalty shall be imprisonment from 3 months to 2 years or a fine. Art. 244. (1) The stealing of an asset that is legally under distraint shall be punished by imprisonment from one month to 1 year or by a fine. (2) If the act was committed by the caretaker, the penalty shall be imprisonment from 3 months to 2 years or a fine.
4 3 2 1

Breaking of seals

Stealing from under distraint

Fraudulent crossing of the border

5

Art. 245. Abrogated by the Decree-Law No. 12/1990.

TITLE VI OFFENCES THAT INFRINGE UPON ACTIVITIES OF PUBLIC INTEREST OR UPON OTHER ACTIVITIES REGULATED BY THE LAW Chapter I OFFENCES AT THE WORKPLACE OR RELATED TO THE WORKPLACE

Malfeasance and nonfeasance

1 2

Art. 246. The act of a public servant who, in the exercise of service prerogatives, knowingly fails to perform an act or

Reproduced as amended by Law No. 140/1996. Reproduced as amended by Law No. 6/1973. 3 Reproduced as amended by Law No. 6/1973. 4 This act was re-incriminated by Law No. 56/1992. 5 Denomination reproduced as amended by Law No. 140/1996. 6 Amended by Law No. 6/1973 and Law No. 140/1996. 103

against persons interests

performs it erroneously and by this harms the legal interests of a person, shall be punished by imprisonment from 6 months to 3 years. Decisions of the Constitutional Court:

1. The decision No. 176 of 18 June 2002, final, published in the Official Gazette No. 542 of 24 July 2002, rejected the plea of unconstitutionality on Art. 246 of the Criminal Code, raised in relation to Art. 72 para. (3), Art. 16, Art. 125 and Art. 128 of the Constitution. To motivate the decision, it is shown that the decision No. 124 of 26 April 2001, ..., stated that regulations regarding the notions of public servant and clerk, including the incriminations that presuppose such a capacity of the active subject, are not a matter of the constitutional jurisdiction. Decisions of the Supreme Court of Justice: 1. The decision No. 43 of 1 April 1991 of the Supreme Court of Justice in the formation provided by Art. 39 para. 2 or 3 of Law No. 58/1968 deemed that, had the defendant sold overpriced beer and forcemeat, which goods were not in short supply at the date of the sale, the act does not have all the elements that make up the offence of profiteering, as provided in Art. 1 para. 2 of the Decree-Law No. 15/1990, but it has those of the offence of malfeasance, as provided in Art. 246 of the Criminal Code Malfeasance or nonfeasance by restriction of certain rights Malfeasance and nonfeasance against public interests Art. 247. The act, committed by a public servant, of restricting the use or exercise of the rights of any citizen or of creating for a citizen situations of inferiority based on nationality, race, sex or religion, shall be punished by imprisonment from 6 months to 5 years. Art. 248. The act of a public servant who, in the exercise of service prerogatives, knowingly fails to perform an act or performs it erroneously and by this causes significant disturbance in the proper operation of a body or institution of the State or of another unit of those in Art. 145, or causes prejudice to its property, shall be punished by imprisonment from 6 months to 5 years. Decisions of the Constitutional Court: 1. The decision No. 11 of 8 March 1994, final, published in the Official Gazette No. 126 of 23 May 1994, allowed the appeal in the interest of the law and amended the decision No. 52 of 13 October 1993, in the following manner: The Court allows the plea of unconstitutionality on Art. 248 of the Criminal Code and finds that its provisions regarding the prejudice to public property are partially abrogated according to Art. 150 para. (1) of the Constitution, and they are to be applied only in relation to the assets in Art. 135 para. (4) of the Constitution, which assets are exclusively the object of public property. 2. The decision No. 50 of 18 May 1994, final by rejection of appeal in points of law, according to the decision No. 97 of 21 October 1994, published in the Official Gazette No. 333 of 1 December 1994,
1 2

Reproduced as amended by Law No. 140/1996. Reproduced as amended by Law No. 140/1996. 104

rejected as lacking an object the plea of unconstitutionality on Art. 248 para. (1) of the Criminal Code, and found that, according to the Constitutional Courts decision No. 11 of 8 March 1994, the provisions of Art. 248 of the Criminal Code, that regard prejudice to public property, are partially abrogated according to Art. 150 para. (1) of the Constitution, and they are to be applied only in relation to the assets in Art. 135 para. (4) of the Constitution, which assets are exclusively the object of public property. 3. The decision No. 36 of 27 April 1994, final by rejection of appeal in points of law, according to the decision No. 115 of 16 November 1994, published in the Official Gazette No. 36 of 17 February 1995, rejected as lacking an object the plea of unconstitutionality on Art. 248 para. (1) of the Criminal Code, and found that the provisions of Art. 248 of the Criminal Code are partially abrogated according to Art. 150 para. (1) of the Constitution, and they are to be applied only in relation to the assets in Art. 135 para. (4) of the Constitution, which assets are exclusively the object of public property. 4. The decision No. 93 of 17 October 1995, final by lack of appeal, published in the Official Gazette No. 281 of 4 December 1995, rejected as obviously unfounded the plea of unconstitutionality on Art. 248 para. (1) of the Criminal Code, as it was deprived of object, motivating that the plea of unconstitutionality on Art. 248 para. (1) of the Criminal Code had previously been the object of control by the Constitutional Court by the decision No. 11/1994. 5. The decision No. 35 of 27 April 1994, final by rejection of appeal in points of law, according to the decision No. 108 of 9 November 1994, published in the Official Gazette No. 339 of 7 December 1994, rejected the plea of unconstitutionality on Art. 248 para. (1) of the Criminal Code. We mention that the plea was raised in relation to Art. 41 of the Constitution. 6. The decision No. 38 of 27 April 1994, final by the decision No. 11 of 25 January 1995 (that found the appeal in points of law to be void), published in the Official Gazette No. 36 of 17 February 1995, rejected the plea of unconstitutionality on Art. 248 para. (2) of the Criminal Code. 7. The decision No. 15 of 6 February 1995, final by rejection of the appeal in points of law according to the decision No. 103 of 31 October 1995, published in the Official Gazette No. 296 of 22 December 1995, rejected the plea of unconstitutionality on Art. 248 para. (2) of the Criminal Code. 8. The decision No. 178 of 17 December 1998, final, published in the Official Gazette No. 77 of 24 February 1999, rejected the plea of unconstitutionality on Art. 248 of the Criminal Code. To motivate the decision, it is stated that: The lighter sanction, according to Art. 258 of the Criminal Code, of malfeasance or nonfeasance committed by clerks, by comparison with that for the same act committed by public servants, is explained not by the fact that, in the latter case, there would be prejudice to public property, which prejudice is not even obligatory in order for the offence to exist, while, in case of the act being committed by a clerk, the prejudice would be to private property, but by the fact that malfeasance or nonfeasance committed by a public servant, hence within a legal entity of public law, represents a more serious social danger because of the importance of the activity of a public authority or institution, or of another legal entity of public law. The significant disturbance in the proper course of the work of a body or of an institution of the State usually has greater negative social consequences than the disturbance in the proper course of work of a trade company. The sanctioning of malfeasance or nonfeasance by a clerk according to Art. 248 of the Criminal Code, and not based on Law No. 31/1990, as it is claimed by the author of the plea, cannot be considered unconstitutional, because it is an option of legislative policy, and it is of the exclusive competence of the Parliament, which option cannot be censored by the Constitutional Court. Having generally examined the plea of unconstitutionality we find that Art. 248 and 2481 of the Criminal Code do not contradict any constitutional provisions. We mention that in the distinct opinion it is deemed that, in relation to Art. 41 para. (2) thesis I of the Constitution, Art. 248 of the Criminal Code is unconstitutional. 9. The decision No. 139 of 5 October 1999, final, published in the Official Gazette No. 540 of 4
105

November 1999, rejected the plea of unconstitutionality on Art. 248 of the Criminal Code. It was stated that Art. 248 of the Criminal Code had previously been examined by the Constitutional Court, which, by the decision No. 178/1998, found that it is constitutional and, since no new elements have emerged in this cause that would justify a change in the case law of the Constitutional Court, the plea is to be rejected. 10. The decision No. 124 of 26 April 2001, final, published in the Official Gazette No. 466 of 15 August 2001, rejected the plea of unconstitutionality on Art. 248 of the Criminal Code, raised in relation to Art. 72 para. (3) of the Constitution. To motivate the decision, it is shown that the regulations on the notions of public servant and clerk, including the incriminations that presuppose such a capacity of the active subject, are not a problem to be dealt with by the constitutional jurisdiction. 11. The decision No. 294 of 8 July 2003, final, published in the Official Gazette No. 571 of 8 August 2003, rejected the plea of unconstitutionality on Art. 248 of the Criminal Code, raised in relation to Art. 41 para. (2) thesis I of the Constitution. At the end of the motivation, it is shown that the contents of Art. 248 do not contradict the constitutional principle of equal protection of private property, regardless of the type of owner. First degree malfeasance or nonfeasance Art. 2481 If the acts in Art. 246, 247 and 248 have had particularly serious consequences, they shall be punished by imprisonment from 5 to 15 years and the prohibition of certain rights. Decisions of the Constitutional Court: 1. The decision No. 178 of 17 December 1998, final, published in the Official Gazette No. 77 of 24 February 1999, rejected the plea of unconstitutionality on Art. 2481 of the Criminal Code, deeming that it does not contradict any constitutional provision. Negligence at the workplace Art. 249. (1) A public servants transgression, out of negligence, of a service duty by its non-accomplishment or by its erroneous accomplishment, if it has caused significant disturbance in the proper operation of a body or an institution of the State or of another unit referred to in Art. 145 or caused prejudice to its property or major prejudice to the legal interests of a person, shall be punished by imprisonment from one month to 2 years or by a fine. (2) If the act in para.(1) resulted in particularly serious consequences, it shall be punished by imprisonment from 2 to 10 years. Decisions of the Constitutional Court: 1. The decision No. 18 of 14 March 1994, final by rejection of appeal in points of law, according to the decision No. 95 of 21 October 1994, published in the Official Gazette No. 343 of 12 December 1994, partly allowed the plea of unconstitutionality and found that the provisions of Art. 249 of the Criminal Code that regard prejudice to the public property are partially abrogated according to Art. 150 para. (1) of the Constitution, and hence they shall be applied only to the assets in Art. 135 para
1 2

Inserted by Law No. 140/1996. Reproduced as amended by Law No. 140/1996. 106

(4) of the Constitution, assets which are exclusively the object of public property. 2. The decision No. 101 of 1 November 1994, final by lack of appeal, published in the Official Gazette No. 348 of 15 December 1994, rejected as obviously unfounded the plea of unconstitutionality on Art. 249 of the Criminal Code, motivating that the decision No. 18/1994, final by the decision No. 95/1994, found that the provisions of Art. 249 of the Criminal Code that regard prejudice to the public property are partially abrogated according to Art. 150 para. (1) of the Constitution, and hence they shall be applied only to the assets in Art. 135 para (4) of the Constitution. 3. The decision No. 52 of 18 May 1994, final by rejection of appeal in points of law, according to the decision No. 117 of 16 November 1994, published in the Official Gazette No. 29 of 8 February 1995, allowed the plea of unconstitutionality and found that the provisions of Art. 249 of the Criminal Code that regard prejudice to the public property are partially abrogated according to Art. 150 para. (1) of the Constitution, and hence they shall be applied only to the assets in Art. 135 para (4) of the Constitution, assets which are exclusively the object of public property. Abusive conduct Art. 250. (1) The use of offensive language with regard to a person, committed by a public servant in the exercise of service prerogatives, shall be punished by imprisonment from 3 months to 3 years or by a fine. (2) Hitting or other acts of violence committed under the circumstances in para.(1), shall be punished by imprisonment from 6 months to 5 years. Art. 251. Abrogated by the Decree-Law No. 12/1990.
1

Revealing secrets concerning public interests Negligence in keeping State secret information

Art. 252. Negligence that results in the destruction, damage, loss or stealing of a document that is a State secret, as well as negligence that gave the occasion to another person to find out such a secret, if the act is likely to infringe upon the States interests, shall be punished by imprisonment from 3 months to 3 years. Art. 253. Abrogated by the Decree No. 154/1970, reinserted by Law No. 6/1973 and abrogated by the Decree-Law No. 9/1989. Art. 254. (1) The act of a clerk who, either directly or indirectly, claims or receives money or other undue benefits, or accepts the promise of such benefits or does not reject it, in order to perform, not to perform or to delay the accomplishment of an act with regard to his service duties or in order to perform an act that is contrary to these duties, shall be punished by imprisonment from 3 to 12 years and the prohibition of certain rights. (2) The act in para.(1), if it has been committed by a clerk
2

Refusal to return to the country Bribe taking

1 2

Amended by Law No. 6/1973 and by Law No. 140/1996. Amended by Law No. 65/1992 and by Law No. 140/1996. Art. 7 of Law No. 12/1990 increased the minimum and the maximum for the penalty , each by two years, for the offences in Art. 254, 256 and 257 of the Criminal Code. Law No. 83/1992 provided that Art. 254257 Criminal Code shall be judged according to the emergency procedure. 107

having prerogatives of control, shall be punished by imprisonment from 3 to 15 years and the prohibition of certain rights. (3) The money, values or any other goods that were the object of bribe taking shall be confiscated, and of they cannot be found, the convict shall be obliged to pay their equivalent in money. Decisions of the Constitutional Court: 1. The decision No. 138 of 7 December 1994, final by lack of appeal, published in the Official Gazette No. 68 of 14 April 1995, rejected the plea of unconstitutionality on Art. 254 of the Criminal Code, motivating that the plea does not raise a matter of constitutional concern, but a matter of legal interpretation, which is of the exclusive competence of the law court. Decisions of the Supreme Court of Justice: 1. The decision No. 78 of 24 May 1993, by the Supreme Court of Justice in the formation in Art. 39 para. 2 and 3 of the Law on judicial organisation, stated: According to Art. 147 and 254 of the Criminal Code, a physician employed by a sanitary institution has the capacity of a clerk and therefore can be an active subject of the offence of bribe taking. Bribe giving Art. 255. (1) The act of promising, offering or giving money or other benefits in the manners and for the purposes shown in Art. 154, shall be punished by imprisonment from 6 months to 5 years. (2) The act in the previous paragraph shall not be an offence when the bribe-giver was coerced by any means by the bribe-taker. (3) The bribe-giver shall not be punished if he/she denunciates the act to the authorities before the body of prosecution is notified for that offence. (4) Art. 254 para.(3) shall apply accordingly, even if the offer was not followed by acceptance. (5) The money, values or any other goods shall be returned to the person who gave them, in the cases provided in para.(2) and (3). Art. 256. (1) The act, committed by a clerk, of receiving, either directly or indirectly, money or other benefits after having accomplished an act by virtue of his/her office and which was incumbent upon him/her because of this office, shall be punished by imprisonment from 6 months to 5 years. (2) The money, values or other goods received shall be confiscated, and if they cannot be found, the convict shall be obliged to pay their equivalent in money. Decisions of the Constitutional Court:
1 2

Receipt of undue advantage

See the note from Art. 254. Amended by Law No. 65/1992 and by Law No. 140/1996. See also the note for Art. 254. 108

1. The decision No. 138 of 7 December 1994, final by lack of appeal, published in the Official Gazette No. 68 of 14 April 1995, rejected the plea of unconstitutionality on Art. 254 of the Criminal Code, motivating that the plea does not raise a matter of constitutional concern, but a matter of legal interpretation, which is of the exclusive competence of the law court. Influence peddling Art. 257. (1) The receipt of or request of money or other benefits, or the acceptance of promises, gifts, be it directly or indirectly, for oneself or for another, committed by a person who is influential or who gives to believe that he/she is influential upon a clerk, in order to determine him/her to perform or not to perform an act included within his/her service prerogatives, shall be punished by imprisonment from 2 to 10 years. (2) Art. 256 para. (2) shall apply accordingly. Decisions of the Supreme Court of Justice: 1. The decision No. 15 of 5 February 2001, by the panel of 9 judges of the Supreme Court of Justice, deemed that, in order for the requirement that the perpetrator call upon the influence that he/she has upon a clerk, it is not necessary that the perpetrator specify the name and prerogative of this clerk; in order for the offence to exist, it suffices that the office and authority, and respectively the institution that is competent to perform an act in relation to the service prerogatives in question, are named. Also, the Court deemed that the receipt of money, with the promise to influence police officers in order to obtain the release of a person arrested or for not bringing an accused to justice, meets the requirement in Art. 257 Criminal Code, namely that the act refer to the service prerogatives of the clerk upon whom the perpetrator claims to have an influence, because the police officer, although he/she does not have the prerogative of revoking arrest or of solving a cause, can perform the investigations in such a manner as to determine the taking of such a measure or the adoption of certain solutions by the prosecutor. Acts committed by other clerks Art. 258. The provisions of Art. 246-250 that regard public servants shall apply also to other clerks, in this case reducing the maximum of the penalty by one third. Decisions of the Constitutional Court: 1. The decision No. 81 of 15 July 1996, final by rejection of appeal in points of law, according to the decision No. 76 of 22 April 1997, published in the Official Gazette No. 236 of 10 September 1997, rejected as obviously unfounded the plea of unconstitutionality on Art. 258 para. (1) and (2) of the Criminal Code (raised in relation to Art. 134 para. (1) of the fundamental law), stating that the notions of clerk and other employees used in certain provisions of criminal law have previously been the object of constitutionality control, and the Constitutional Court has constantly stated that, regulations regarding these notions are of the level of the law and not of the constitutional level. 2. The decision No. 192 of 12 October 2000, final, published in the Official Gazette No. 11 of 9 January 2001, rejected the plea of unconstitutionality on Art. 258 of the Criminal Code, raised in relation to Art. 72 para. (3) i) and l) of the Constitution.
1 2

Amended by Law No. 65/1992 and by Law No. 140/1996. See also the note for Art. 254. Amended by Law No. 65/1992 and by Law No. 140/1996. 109

It is motivated that there are no new elements that would determine a review of the Courts case law. 3. The decision No. 138 of 8 May 2001, final, published in the Official Gazette No. 272 of 25 May 2001, rejected the plea of unconstitutionality on Art. 258 of the Criminal Code, raised in relation to Art. 72 para. (3) i) and l) of the Constitution, motivating that no new elements have emerged that would justify a review of the Courts case law. 4. The decision No. 152 of 10 May 2001, final, published in the Official Gazette No. 463 of 14 August 2001, rejected the plea of unconstitutionality on Art. 258 of the Criminal Code, raised in relation to Art. 72 para. (3) i) of the Constitution, motivating that no new elements have emerged that would justify a review of the Courts case law. 5. The decision No. 124 of 26 April 2001, final, published in the Official Gazette No. 466 of 15 August 2001, rejected the plea of unconstitutionality on Art. 258 of the Criminal Code, raised in relation to Art. 72 para. (3) i) of the Constitution. To motivate the decision, it is shown that the regulations on the notions of public servant and clerk, including the incriminations that presuppose such a capacity of the active subject, are not a matter pertaining to the field of constitutional jurisdiction. 6. The decision No. 257 of 20 September 2001, final, published in the Official Gazette No. 842 of 28 December 2001, rejected the plea of unconstitutionality on Art. 258 of the Criminal Code, raised in relation to Art. 72 para. (3) i) and l) of the Constitution, motivating that no new elements have emerged that would justify a review of the Courts case law. Chapter II OFFENCES THAT PREVENT THE ACCOMPLISHMENT OF JUSTICE Slanderous denunciation Art. 259. (1) The act of deceitful blaming, committed either by denunciation or complaint, concerning the commission of an offence by a certain person, shall be punished by imprisonment from 6 months to 3 years. (2) The production or devising of deceitful evidence, to support unjust blaming, shall be punished by imprisonment from one to 5 years. (3) If the person who accomplished the act declares, before the commencement of the criminal action with regard to the person against whom the denunciation or complaint was made, or against whom the evidence was brought, that the denunciation, complaint or evidence was deceitful, the penalty shall be reduced according to Art. 76. Art. 260. (1) The act of a perpetrator who, in a criminal, civil or disciplinary cause or in any other cause in which witnesses are heard, makes false statements, or does not tell everything he/she knows regarding the essential circumstances concerning which he/she was questioned, shall be punished by imprisonment from one to 5 years. (2) The act in the previous paragraph shall not be punished if, in criminal causes, before the defendants arrest, or in all causes, before a decision is uttered or another solution is given following the false testimony, the witness withdraws his/her testimony. (3) If withdrawal of testimony occurs, in criminal causes,
110

False testimony

after the defendants arrest, or in all causes, after a decision is pronounced or another solution is given following the false testimony, the court shall reduce the penalty according to Art. 76. (4) Para.(1)-(3) shall apply accordingly also to experts or interpreters. Attempt to determine false testimony Art. 261. (1) The attempt to determine a person, either by coercion or corruption, to make false statements in a criminal, civil, disciplinary cause or in any other cause in which witnesses are heard, shall be punished by imprisonment from 3 months to 2 years or by a fine. (2) The previous paragraph shall apply accordingly also if the act is committed with regard to an expert or interpreter. Art. 2611 (1) The act of preventing the participation of a witness, expert, interpreter or defender in a criminal, civil, disciplinary cause or in any other cause, committed by violence, threat or by any other means of coercion against them or their spouse or a close relative, shall be punished by imprisonment from 6 months to 7 years. (2) Attempt is punishable. Art. 262. (1) The act of not denouncing immediately the commission of any of the offences provided in Art. 174, 175, 176, 211, 212, 2151, 217 para. (2)-(4), Art. 218 para. (1) and Art. 276 para. (3) shall be punished by imprisonment from 3 months to 3 years. (2) The act in para.(1) shall not be punished when committed by the spouse or a close relative. (3) A person who, before commencement of criminal prosecution for the offence not denounced, notifies the qualified authorities concerning that offence or who, even after commencement of the criminal prosecution or after the perpetrators have been discovered, facilitated their arrest, shall not be punished. Art. 263. (1) The act of a public servant who, taking cognizance of the commission of an offence connected to the service where he/she works, fails to immediately notify the prosecutor or the body of criminal prosecution, according to the law on criminal procedure, shall be punished by imprisonment from 3 months to 5 years. (2) If the act is committed by a public servant having prerogatives of leadership or control, the penalty shall be imprisonment from 6 months to 7 years.
5 4 3 2 1

Preventing participation in a trial

Non-denunciation of certain offences

Failure to notify the judicial bodies

Supporting
1 2

Art. 264. (1) Help given to an offender, without prior

Reproduced as amended by Law No. 6/1973. Inserted by Law No. 140/1996. 3 Reproduced as amended by Law No. 140/1996. 4 Reproduced as amended by Law No. 140/1996. 111

offenders

agreement made before or during the commission of the offence, in order to hinder or prevent criminal prosecution, trial or penalty service or in order to provide the offender with the use or the proceeds of the offence, shall be punished by imprisonment from 3 months to 7 years. (2) The penalty applied to the supporter cannot exceed the penalty provided in the law for the author. (3) Support by a spouse or a close relative shall not be punished. Art. 265. (1) The act of not bringing to the cognizance of judicial bodies certain circumstances that, were they known, would lead to establishing the innocence of a person brought before justice or convicted unjustly or to the release of a person from unjust preventive arrest, shall be punished by imprisonment from 3 months to 1 year or by fine. (2) The act in the previous paragraph shall not be punished if by informing, the person having this obligation would cause prejudice to him/herself, for his/her spouse or for a close relative. Art. 266. (1) The act of illegally placing in custody or arresting, or subjecting a person to the service of a penalty, to safety or educatory measures, in other ways than those provided in the law, shall be punished by imprisonment from 6 months to 3 years. (2) The use of promises, threats or violence against a person undergoing investigation, criminal prosecution or trial, in order to obtain statements, shall be punished by imprisonment from one to 5 years. (3) The same penalty shall sanction also the use of promises, threats or violence upon a witness, an expert or an interpreter. Art. 267. Subjection to ill treatment of a person in a state of custody, imprisonment or serving a security or educatory measure, shall be punished by imprisonment from one to 5 years. Art. 2671 (1) An act deliberately causing a person pain or intense suffering, either physically or mentally, in order to obtain from that person or from a third party information or confessions, to punish him/her for an act committed by him/her or a third party or that he/she or a third party is suspected to have committed, to intimidate or exercise pressure on him/her or on a third party, or for any other reason based on a form of discrimination, regardless of its nature, when such pain or suffering is applied by an agent of public authority or by any other person acting in official capacity or upon the instigation of or with the express or tacit consent of such
3 2 1

Failure to inform judicial bodies

Illegal arrest and abusive prosecution

Subjection to ill treatment Torture

5 1

Reproduced as amended by Law No. 140/1996. Reproduced as amended by Law No. 6/1973. 2 Reproduced as amended by Law No. 140/1996. 3 Inserted by Law No. 20/1990 and amended by Law No. 140/1996. 112

persons shall be punished by imprisonment from 2 to 7 years. (2) If the act in para.(1) resulted in any of the consequences in Art. 181 or Art. 182, the penalty shall be imprisonment from 3 to 10 years. (3) Torture that resulted in the victims death shall be punished by life imprisonment or by imprisonment from 15 to 25 years. (4) Attempt is punishable. (5) No exceptional circumstance, whatever its nature may be, regardless of whether it is a state of war or of war threats, of internal political instability or any other exceptional state, can be called upon to justify torture; also, the order of the superior or of a public authority cannot be called upon either. (6) Acts in para.(1) shall not be the offence of torture if the pain or suffering are the exclusive result of legal sanctions and are inherent to these sanctions or caused by them. Unjust repression Art. 268. The act of initiating criminal action against, of ordaining the arrest of, of bringing before justice or of convicting a person, while aware that he/she is not guilty, shall be punished by imprisonment from 2 to 7 years. Art. 269. (1) Escape from the legal state of custody or imprisonment shall be punished by imprisonment from 6 months to 2 years. (2) If the act is committed using violence, weapons or other instruments, or by two or more persons together, the penalty shall be imprisonment from 2 to 8 years. (3) The penalty applied for the offence of escape shall be added to the penalty being served, without exceeding the general maximum of imprisonment. (4) Attempt is punishable. Art. 270. (1) The act of facilitating escape by any means shall be punished by imprisonment from one to 5 years, and if the act was committed by a person in charge of guarding the person who escaped, the penalty shall be imprisonment from 2 to 7 years. (2) The act of facilitating escape according to Art. 269 para. (2) shall be punished by imprisonment from 2 to 8 years, and if the act was committed by a person in charge of guarding the person who escaped, the penalty shall be imprisonment from 3 to 10 years. (3) The act of facilitating escape of a person held in custody, arrested or convicted for an offence for which the law provides a penalty of more than 10 years, shall be punished by imprisonment from 3 to 10 years, and if the act was committed by a person charged with guarding the person who escaped, the penalty shall be imprisonment from 3 to 12 years. (4) The act of facilitating escape committed out of
113
1

Escape

Facilitating escape

Reproduced as amended by Law No. 140/1996.

negligence, by a person charged with guarding the person who escaped, shall be punished by imprisonment from 3 months to 2 years. (5) Attempt to the acts in para. (1), (2) and (3) is punishable. Non-abidance by court decisions Art. 271. (1) The act of resisting the enforcement of a court decision, by threat against the body of enforcement, shall be punished by imprisonment from 6 months to 3 years, and if the act was committed by violence, the penalty shall be imprisonment from one to 7 years. (2) The act of preventing a person from using a house or part of a house or building, which is held based on a court decision, shall be punished by imprisonment from 3 months to 2 years or by fine. (3) If the act in para.(2) was committed by threat, the penalty shall be imprisonment from 6 months to 3 years, and if the act was committed by violence, the penalty shall be imprisonment from one to 5 years. (4) Non-abidance by court decisions, by eluding the service of security measures provided in Art. 112 c) and d), shall be punished by imprisonment from one month to 3 months or by fine. Art. 272. The act of stealing or destroying a document issued by a body of criminal prosecution, by a law court or by another body of jurisdiction, or preventing in any way the receipt by one of the bodies aforementioned of a document sent to them, when such documents are necessary for the resolution of a cause, shall be punished by imprisonment from 6 months to 3 years. Chapter III OFFENCES AGAINST RAILWAY TRAFFIC SAFETY Failure to fulfil service duties or their erroneous fulfilment, out of negligence Art. 273. (1) Failure to fulfil service duties or their erroneous fulfilment out of negligence, committed by railway employees, if it could have jeopardised the safety of means of rail transportation, shall be punished by imprisonment from 6 months to 3 years. (2) When the act in the previous paragraph resulted in disturbance in the railway transport activity or a rail accident, the penalty shall be imprisonment from 3 to 7 years, and if a railway disaster occurred, the penalty shall be imprisonment from 5 to 15 years. Art. 274. (1) Non-fulfilment of service duties or their erroneous fulfilment in awareness committed by railway employees, if it could jeopardise the safety of means of rail transportation, shall be punished by imprisonment from one to 5 years. (2) If the erroneous fulfilment or non-fulfilment in awareness
2 1

Stealing or destroying documents

Non-fulfilment of service duties or their erroneous fulfilment, in awareness

1 2

Amended by Law No. 6/1973 and by Law No. 140/1996. Reproduced as amended by Law No. 169/2002. 114

shown in para.(1) resulted in disturbance in the railway transport activity or a rail accident, the penalty shall be imprisonment from 3 to 10 years, and if a railway disaster occurred, the penalty shall be imprisonment from 10 to 15 years and the prohibition of certain rights. Leaving the post, and Art. 275. (1) The act of leaving the post, in any manner and inebriety during in any form, committed by employees in direct charge of ensuring service rail transportation safety, if it could have jeopardised the safety of means of rail transportation, shall be punished by imprisonment from 2 to 7 years. (2) The same penalty shall sanction also the exercise of service prerogatives while inebriated, committed by employees in direct charge of ensuring rail transportation safety. (3) If the acts in the previous paragraphs caused disturbance in the railway transport activity or a rail accident, the penalty shall be imprisonment from 5 to 15 years, and if a railway disaster occurred, the penalty shall be imprisonment from 10 to 20 years and the prohibition of certain rights. Destruction and false signalling Art. 276. (1) The act of destroying, damaging or making unfit for use the railway or the rail installations, or of placing obstacles on the railway, if this could have jeopardised the safety of rail transportation, shall be punished by imprisonment from 3 to 12 years. (2) The same penalty shall sanction the commission of acts of false signalling or the commission of any acts likely to mislead the rail personnel during the exercise of service, if these acts could have caused a railway accident or disaster. (3) If the acts in the previous paragraphs caused disturbance in the transport activity or a rail accident, the penalty shall be imprisonment from 10 to 15 years and the prohibition of certain rights, and when a railway disaster occurred, the penalty shall be life imprisonment or imprisonment from 15 to 25 years and the prohibition of certain rights. (4) The commission, out of negligence, of the acts in para. (1), (2) and (3) shall be punished, for para.(1) and (2), by imprisonment from one to 5 years, and for para.(3) by imprisonment from 3 to 7 years, if disturbance in the transport activity or a rail accident occurred, and by imprisonment from 10 to 15 years if a railway disaster occurred. (5) If any of the acts in this article is committed by a railway employee, the maximum of the penalty provided for the act committed can be increased by up to 2 years, while not exceeding the general maximum of the penalty. (6) Attempt to the acts in para. (1)-(3) is punishable. Art. 277. (1) A railway accident is the significant destruction or damaging of the rolling stock or of other railway installations
115
1

Railway accidents and disasters

1

Reproduced as amended by Law No. 140/1996.

during circulation or during manoeuvres with means of railway transportation. (2) A railway disaster is the derailment, overturn or crash of a means of railway transportation, or the occurrence of a similar result, as well as the collision of two means of railway transportation or of a means of railway transportation with a different vehicle, if this caused particularly serious consequences by the death or harm to the corporal integrity of persons, or by destroying or damaging means of railway transportation, railway installations or the merchandise entrusted for conveyance. Initiation of criminal action Art. 278. Criminal action for acts in Art. 273 para. (1), Art. 274 para. (1) and Art. 275 para. (1) and (2) shall be initiated only upon notification from qualified bodies of the railway company.

Chapter IV OFFENCES REGARDING THE LEGAL TREATMENT ESTABLISHED FOR CERTAIN LAW -REGULATED ACTIVITIES Non-compliance with the legal treatment of weapons and ammunition Art. 279. (1) The act of possessing, carrying, manufacturing, transporting, as well as any operation concerning the circulation of weapons and ammunition or the operation of workshops for repairing weapons, without right, shall be punished by imprisonment from 2 to 8 years. (2) The same penalty shall sanction also the failure to hand over the weapon or ammunition within the term appointed by the law to the qualified body, by the person whose request for prolongation of license validity has been rejected. (3) The following shall be punished by imprisonment from 3 to 10 years: a) possession, alienation or carrying, without right, of hidden weapons or military weapons, as well as of ammunition for such weapons; b) possession, alienation or carrying, without right, of several weapons except those in a), as well as panoply weapons or the respective ammunition in large quantities. (31) The act of carrying weapons without right, in the premises of units of the State or in the premises of other units referred to in Art. 145, at public meetings or in election premises, shall be punished by imprisonment from 5 to 15 years. (4) Attempt is punishable. Art. 2791 (1) The act of receiving, possessing, using, surrendering, altering, alienating, disseminating, displaying, transporting or diverting nuclear material or other radioactive material, as well as any other operation related to their
2 1

Non-compliance with the legal treatment of nuclear material or of other radioactive

1 2

Reproduced as amended by Law No. 169/2002. Inserted by Law No. 140/1996. 116

materials

circulation, without right, shall be punished by imprisonment from 3 to 10 years and the prohibition of certain rights. (2). If the acts in para.(1) caused public danger, had any of the consequences in Art. 181 or 182, or caused material prejudice, the penalty shall be imprisonment from 4 to 12 years and the prohibition of certain rights. (3). Stealing or destruction of nuclear material or of other radioactive materials shall be punished by imprisonment from 5 to 15 years and the prohibition of certain rights. (4) If the acts in para.(3) caused public danger or had any of the consequences in Art. 181 or 182, the penalty shall be imprisonment from 5 to 20 years and the prohibition of certain rights. (5) If the acts in para.(1) and (3) had particularly serious consequences, the penalty shall be imprisonment from 10 to 20 years and the prohibition of certain rights, and if they caused the death of one or more persons, the penalty shall be life imprisonment or imprisonment from 15 to 25 years and the prohibition of certain rights. (6) The act of threatening a State, an international organisation, a natural person or a legal entity, with the use of nuclear material or of other radioactive materials, in order to cause bodily harm or death to persons or material prejudice, shall be punished by imprisonment from 3 to 12 years. (7) If the act in para.(6) is conditioned by the accomplishment or non-accomplishment of an act or if, by threat, in any form, one demands the handing over or surrendering of nuclear material or of other radioactive materials, the penalty shall be imprisonment from 5 to 15 years and the prohibition of certain rights. (8) Attempt is punishable. Art. 280. (1) The act of producing, experimenting with, processing, possessing, transporting or using explosive material or any other operations related to these materials, without right, shall be punished by imprisonment from 3 to 10 years and the prohibition of certain rights. (2) The stealing of explosives shall be punished by imprisonment from 5 to 15 years and the prohibition of certain rights. (3) When the acts in para.(1) and (2) concern an amount exceeding 1 kg TNT equivalent or when the amount of explosive is accompanied by instructions for use, the penalty shall be imprisonment from 5 to 20 years and the prohibition of certain rights. (4) Acts in para.(1) and (2), if they have caused public danger or have had any of the consequences in Art. 181 or 182, shall be punished by imprisonment from 5 to 20 years and the prohibition of certain rights. The same penalty shall sanction also the act in para. (1) if it caused material prejudice.
117

Non-compliance with the legal treatment of explosives

(5) If the acts in the previous paragraphs have resulted in particularly serious consequences, the penalty shall be imprisonment from 10 to 20 years and the prohibition of certain rights, and if they caused the death of one or more persons, the penalty shall be life imprisonment or imprisonment from 15 to 25 years and the prohibition of certain rights. (6) The act of threatening a State, an international organisation, a natural person or a legal entity, with the use of explosives in order to cause bodily harm or death to persons or material prejudice, shall be punished by imprisonment from 3 to 12 years. (7) The act of threatening with the use of explosives, when committed under the conditions in Art. 2791 para. (7), shall be sanctioned with the penalty provided in that paragraph. (8) Attempt is punishable. Non-compliance with the legal protection of certain assets Art. 2801 (1) Alienation, concealment or any other act that causes the loss, to the national cultural heritage or to the national archival fund, of an asset that, according to the law, is a part of that heritage or fund, shall be punished by imprisonment from 2 to 7 years. (2) If loss of the asset from the heritage or fund in the previous paragraph was caused by the commission of an act that is in itself another offence, the penalty shall be the one provided in the law for the offence committed, the maximum of which shall be increased by 3 years. (3) The act in para.(1) shall not be punished, and for the acts in Art. (2) the penalty shall not be increased, if before the decision remains final, the perpetrator removes the result of the offence, returning the asset to that heritage or fund. Art. 281. The exercise without right of a profession or of any other activity requiring authorisation according to the law, or exercise in other conditions than the legal ones, if the special law provides that the commission of such acts shall be sanctioned according to criminal law, shall be punished by imprisonment from one month to one year or by fine.
1

The exercise of a profession without right

Decisions of the Constitutional Court: 1. The decision No. 49 of 13 February 2001, final, published in the Official Gazette No. 250 of 16 May 2001, rejected the plea of unconstitutionality on Art. 281 of the Criminal Code, raised in relation to Art. 37, 38 and 134 of the Constitution. To motivate the decision, it is stated that the incrimination and sanction of acts of exercise without right of certain professions or activities for which a certain training is required, and hence, they are subject to authorisation, expresses the need to protect social values of particular importance, including the life and physical and psychical integrity of persons, as well as their property-related interests and that society cannot allow for certain professions to be
1

Inserted by the Decree- Law No. 365/1976. 118

practised by persons with no qualification and without the necessary responsibility in case of dangerous or prejudicial consequences.

TITLE VII OFFENCES OF FORGERY

Chapter I FORGERY OF COINAGE, STAMPS OR OTHER VALUES
1 Forgery of coinage or Art. 282. (1) The act of forging metallic coinage, paper of other values coinage, public bills of exchange, cheques, bonds/securities of any kind for payment, issued by a bank or by other competent credit institutions, or of forging any other similar bonds/securities, shall be punished by imprisonment from 3 to 12 years and the prohibition of certain rights. (2) The same penalty shall sanction also the act of placing in circulation, in any manner, the forged values in the previous paragraph, or of possessing them in order to place them in circulation. (3) If the acts in the previous paragraphs could have caused significant prejudice to the financial system, the penalty shall be imprisonment from 5 to 15 years and the prohibition of certain rights, and if they have caused significant prejudice to the financial system, the penalty shall be imprisonment from 10 to 20 years and the prohibition of certain rights. (4) Attempt is punishable.

Forgery of stamps, marks or transportation tickets

Art. 283. (1) The act of forging stamps, postage stamps, postal envelopes, postcards, travel or transportation tickets or sheets, international reply coupons, or placing such forged values in circulation, shall be punished by imprisonment from 6 months to 5 years. (2) Attempt is punishable. Art. 284. The provisions in the present chapter shall apply also in case that the offence concerns coinage or stamps belonging to other States or other foreign values. Art. 285. The act of manufacturing or possessing instruments or materials in order to use them in the manufacture of values or bonds/securities in Art. 282-284, shall be punished by imprisonment from 6 months to 5 years.

Forgery of foreign values Possession of instruments for the forgery of values

Chapter II FORGERY OF AUTHENTICATION OR MARKING INSTRUMENTS Forgery of official

1 2

Art. 286. (1) The act of forging a seal, a stamp or a

Reproduced as amended by Law No. 140/1996. Reproduced as amended by Law No. 140/1996. 119

instruments

marking instrument used by the units in Art. 145 shall be punished by imprisonment from 6 months to 3 years. (2) Attempt is punishable. Art. 287. (1) Use of the forged instruments in Art. 286 shall be punished by imprisonment from 3 months to 3 years. (2) The use without right of a seal or a stamp containing the emblem of our country shall be punished by imprisonment from 3 months to 2 years or by fine. Chapter III FORGERY OF DOCUMENTS
1

Use of forged official instruments

Material forgery in official documents

Art. 288. (1) The act of forging an official document by counterfeiting the writing or the signatures or by altering it in any manner, likely to produce a legal consequences, shall be punished by imprisonment from 3 months to 3 years. (2) The forgery in the previous paragraph, if committed by a clerk during the exercise of service prerogatives, shall be punished by imprisonment from 6 months to 5 years. (3) Tickets or any other printed documents producing legal consequences are equated with official documents. (4) Attempt is punishable. Art. 289. (1) The act of forging an official document when it is drawn up, committed by a clerk during the exercise of service prerogatives, by certifying untrue acts or circumstances or by omitting, in awareness, to insert certain data or circumstances, shall be punished by imprisonment from 6 months to 5 years. (2) Attempt is punishable. Decisions of the Constitutional Court:
3

Intellectual forgery

1. The decision No. 38 of 7 July 1993, final, published in the Official Gazette No. 176 of 26 July 1993, rejected as unfounded the plea of unconstitutionality on Art. 289 of the Criminal Code, stating that Art 289 of the Criminal Code does not contradict the constitutional provisions regarding public and private property, particularly those in Art. 41 para. (2), nor does it contradict any other provisions from the Constitution. 2. The decision No. 176 of 18 June 2002, final, published in the Official Gazette No. 542 of 24 July 2002 rejected the plea of unconstitutionality on Art. 289 of the Criminal Code, raised in relation to Art. 72 para. (3), Art 16, Art. 125 and Art. 128 of the Constitution. To motivate the decision, it is shown that in the Decision No. 124 of 26 April 2001, the Court stated that the regulations regarding the notions of public servant and clerk, including the incriminations that presuppose such a capacity of the active subject, are not a matter of the concern of the constitutional jurisdiction.
1 2

Reproduced as amended by Law No. 6/1973. Reproduced as amended by Law No. 140/1996. 3 Reproduced as amended by Law No. 140/1996. 120

Forgery of documents under private signature

Art. 290. (1) The forgery of a document under private signature by any of the means in Art. 288, if the perpetrator uses the forged document or gives it to another person for use, in order to produce legal consequences, shall be punished by imprisonment from 3 months to 2 years or by fine. (2) Attempt is punishable. Art. 291. The use of an official document or of a document under private signature, while knowing that it is forged, in order to produce legal consequences, shall be punished by imprisonment from 3 months to 3 years when the document is official and by imprisonment from 3 months to 2 years or by fine when the document is under private signature. Decisions of the Constitutional Court:
2

Use of forgery

1. The decision No. 38 of 7 July 1993, final, published in the Official Gazette No. 176 of 26 July 1993 rejected as unfounded the plea of unconstitutionality on Art. 291 of the Criminal Code, stating that Art. 291 of the Criminal Code does not contradict the constitutional provisions regarding public and private property, particularly those in Art. 41 para. (2), nor does it contradict any other provisions from the Constitution. Forged statements Art. 292. The act of making an untruthful statement before a body or institution of the State or another unit in Art. 145, in order to produce legal consequences either for oneself or for another, when, according to the law or to the circumstances, the statement made is used to produce that consequence, shall be punished by imprisonment from 3 months to 2 years or by fine. Art. 293. (1) The act of presenting oneself under a false identity or the act of ascribing such an identity to another person, in order to mislead or maintain the deceit of a body or institution of the State or of another unit in Art. 145, in order to produce legal consequences for oneself or for another, shall be punished by imprisonment from 3 months to 3 years. (2) The same penalty shall sanction also the act of handing over a document that proves civil status or identification, in order for it to be used without right. Art. 294. (1) The use without right of the emblem or the name Red Cross or of an emblem or a name equated with this, as well as the use of any sign or name that is an imitation of such an emblem or name, if the act has caused material
5 4 3

Forged identity

Forgery concerning the use of the Red Cross emblem

1 2

Reproduced as amended by Law No. 6/1973. Reproduced as amended by Law No. 6/1973. 3 Amended by Law No. 6/1973 and by Law No. 140/1996. 4 Reproduced as amended by Law No. 140/1996. 5 Reproduced as amended by Law No. 6/1973. 121

prejudice, shall be punished by imprisonment from one month to 1 year or by fine. (2) If the act is committed in wartime, the penalty shall be imprisonment from one to 5 years.

TITLE VIII OFFENCES AGAINST THE LEGAL RULES ESTABLISHED FOR CERTAIN ECONOMIC ACTIVITIES
Profiteering Art. 295. (1) The commission of one of the following acts: a) purchasing in order to resell industrial or agricultural products that cannot be the object of private trade according to the law; b) purchasing industrial or agricultural products in order to process and resell them, if the results of the processing cannot be the object of private trade according to the law; c) abrogated by Law No. 12/1990; d) abrogated by Law No. 12/1990; shall be punished by imprisonment from 6 months to 5 years. Art. 296. (1) Deceit by using of inaccurate measuring instruments or by fraudulent use of accurate measuring instruments, shall be punished by imprisonment from 3 months to 5 years. (2) Attempt is punishable. Art. 297. (1) The act of forging or replacing merchandise or any other products, as well as displaying for sale or selling such goods, in awareness that they are forged or replaced, shall be punished by imprisonment from one to 7 years. (2) If the merchandise or products became harmful to the health by the forging or replacement, the provisions of Art. 313 shall apply. (3) Attempt is punishable. Art. 298. (1) The act of disclosing data or information that is not meant for publishing, committed by a person who is aware of them thanks to service prerogatives, if the act is by nature able to cause prejudice, shall be punished by imprisonment from 2 to 7 years. (2) If the act in the previous paragraph is committed by another person, regardless of the manner in which he/she took cognisance of the data or information, the penalty shall be imprisonment from 6 months to 5 years.
3 2 1

Deceitful measurement

Deceit relating to the quality of merchandise

Disclosure of economic secrecy

1 2

Reproduced as amended by Law No. 140/1996. Reproduced as amended by Law No. 140/1996 and by the G.E.O. No. 93/2002, approved through Law No. 574/2002. 3 Reproduced as amended by Law No. 140/1996. 122

Forging the object of an invention Placing forged objects in circulation

Art. 299. The act of forging or using, without right, the object of an invention, shall be punished by imprisonment from 3 months to 2 years or by fine. Art. 300. The act of placing in circulation products resulting from forgery or from use of the object of an invention without right, shall be punished by imprisonment from 3 months to 3 years. Art. 301. The act of manufacturing or placing in circulation products bearing false names of origin or indications of provenance, as well as the act of applying false mentions concerning invention patents on products placed in circulation or of using trade names or names of trade or industrial organisations, in order to mislead the beneficiaries, shall be punished by imprisonment from one month to 2 years or by fine. Art. 302. The act of conducting any unauthorised acts considered by the law to be operations of export, import or transit, shall be punished by imprisonment from 2 to 7 years. Decisions of the Constitutional Court:
3 2 1

Disloyal competition

Non-compliance with provisions on import and export operations

1. The decision No. 19 of 8 April 1993, final by lack of appeal, published in the Official Gazette No. 105 of 24 May 1993, rejected the plea of unconstitutionality on Art. 302 of the Criminal Code, finding that they are in accordance with the Constitution. 2. The decision No. 111 of 19 April 2001, final, published in the Official Gazette No. 300 of 7 June 2001, rejected the plea of unconstitutionality on Art. 302 of the Criminal Code, raised in relation to Art. 134 para. (2) a) of the Constitution. To motivate the decision, it is stated, inter alia, that the States intervention into the economy through import-export licenses is a customary practice in all countries and cannot be interpreted as a breach of the principle of freedom of trade. Embezzlement Art. 3021 (1) The act of changing the destination of pecuniary funds or of material resources, while violating legal provisions, if the act caused disturbance in the economicfinancial activity or caused prejudice to a body or institution of the State or to another unit of those in Art. 145, shall be punished by imprisonment from 6 months to 5 years. (2) If the act in para.(1) has had particularly serious consequences, the penalty shall be imprisonment from 5 to 15 years and the prohibition of certain rights. Art. 3022 (1) The carrying out of any operations of importing waste or residue of any kind or other merchandise that
4

Failure to comply with provisions on

1 2

Reproduced as amended by Law No. 140/1996. See also Law No. 11/1991 on combating disloyal competition, amended by Law No. 21/1996 and by Law No. 298/2001. 3 Inserted by the Decree No. 99/1983 and amended by Law No. 140/1996. 4 Inserted by Law No. 88/1992. 123

importing waste and residue

is dangerous for the health of the population and for the environment, as well as the act of introducing, in any manner, or of transiting them on Romanian territory, in violation of the legal provisions, shall be punished by imprisonment from 2 to 7 years: (2) If the acts in the previous paragraph have endangered the health or corporal integrity of a great number of persons, have resulted in any of the consequences in Art. 182 or have caused significant material prejudice, the penalty shall be imprisonment from 3 to 10 years and the prohibition of certain rights, and if the death of one or several persons or major prejudice to the national economy was caused, the penalty shall be imprisonment from 7 to 20 years and the prohibition of certain rights. (3) Attempt is punishable.

TITLE IX OFFENCES INFRINGING UPON RELATIONS THAT CONCERN SOCIAL COMMUNITY LIFE
Chapter I OFFENCES AGAINST FAMILY Bigamy Art. 303. (1) Conclusion of a new marriage by a person who is married shall be punished by imprisonment from one to 5 years. (2) An unmarried person who gets married to a person about whom he/she knows that she/he is married, shall be punished by imprisonment from 6 months to 3 years. (3) Acts in the present article shall not be sanctioned if the first or the second marriage is declared null for a reason other than bigamy. Art. 304. (1) The act of a married person who has sexual relations outside the marriage shall be punished by imprisonment from one month to 6 months or by fine. (2) Criminal action is initiated upon prior complaint by the innocent spouse. (3) The innocent spouse may at any time request the cessation of criminal prosecution or of the criminal trial, and, after the decision remains final, the cessation of penalty service. (4) Adultery can be proven only by the official report that found the flagrant offence or by letters sent by the guilty spouse. (5) Criminal prosecution or trial shall cease also in case of death of the spouse who lodged the complaint, as well as in case of cancellation of the guilty spouses marriage. (6) Criminal prosecution cannot begin if the act was committed upon the other spouses urging or encouragement, or if marital life was interrupted and the spouses were living separately. (7) Art. 27 shall not apply.
Reproduced as amended by Law No. 6/1973. 124
1

Adultery

Desertion of family

Art. 305. (1) Commission, by the holder of the legal obligation of support, with regard to a person in title to support, of one of the following acts: a) deserting, sending away or leaving helpless, and thus subjecting to physical or moral suffering; b) failure, in bad faith, to fulfil the obligation of support provided in the law; c) failure, in bad faith, to pay, for two months, the support allowance established by the court, shall be punished, in the cases in a) and b), by imprisonment from 6 months to 2 years or by fine, and in the case in c), by imprisonment from one to 3 years or by fine. (2) Criminal action is initiated upon prior complaint from the injured person. (3) Reconciliation of parties removes criminal liability. (4) If there is no reconciliation of the parties, but during the trial the defendant fulfils the obligations, the court, if it finds him/her guilty, shall pronounce a conviction with conditional suspension of the penalty, even if the conditions of Art. 81 are not met. (5) Revocation of conditional suspension shall take place only if during the trial period the convict commits a new offence of desertion of family. Art. 306. The act of seriously jeopardising, either by measures or treatments of any kind, a minors physical, intellectual or moral development, committed by the parents or by any person entrusted with the minor for raising and education, shall be punished by imprisonment from 3 to 15 years and the prohibition of certain rights. Art. 307. (1) If a parent keeps his/her minor child without the approval of the other parent or of the person entrusted with the minor according to the law, he/she shall be punished by imprisonment from one month to 3 years or by fine. (2) The same penalty shall sanction also the act of a person entrusted with the minor by court decision for raising and education, of repeatedly preventing any of the parents from having personal contact with the minor, according to the conditions agreed upon by the parties or by the qualified body. (3) Criminal action is initiated upon prior complaint from the injured person. (4) Reconciliation of parties removes criminal liability.
3 2

Ill treatment applied to minors

Non-abidance by measures for child custody

1 2

Amended by Law No. 6/1973 and by Law No. 197/2000. Reproduced as amended by the G.E.O. No. 143/2002, approved through Law No. 45/2003. Prior to this amendment, Art. 306 had the following text: Art. 306. The act of seriously jeopardising, either by measures or treatments of any kind, a minors physical, intellectual or moral development, committed by the parents or by any person entrusted with the minor for raising and education, shall be punished by imprisonment from 3 to 12 years. 3 Reproduced as amended by Law No. 140/1996. 125

Decisions of the Constitutional Court: 1. The decision No. 153 of 10 May 2001, final, published in the Official Gazette No. 387 of 16 July 2001, rejected the plea of unconstitutionality on Art. 307 para. 2-4 of the Criminal Code. The plea was raised in relation to Art. 22 and 23 of the Constitution. To motivate the decision, it is shown that the relating of Art. 307 para. 1 of the Criminal Code to the constitutional provisions of Art. 22 and 23, which do not refer to family or child protection in particular, does not determine the conclusion that the latter provisions are being violated. It is also shown that the plea is inadmissible from the point of view of the criticism against Art. 307 para. 2-4 of the Criminal Code, since this Article has no relevance for the resolution of the cause that is on the roll of the law court. Chapter II OFFENCES AGAINST PUBLIC HEALTH Preventing the combating of disease Art. 308. Non-compliance with measures concerning the prevention and combating of contagious diseases, if it has resulted in the spreading of such a disease, shall be punished by imprisonment from one month to 2 years or by fine. Art. 309. (1) The transmission of a venereal disease by sexual intercourse, by sexual relations between persons of the same sex or by acts of sexual perversion, committed by a person who is aware that he/she suffers from such a disease, shall be punished by imprisonment from one to 5 years. (2) Transmission of the acquired immune deficiency syndrome AIDS by a person who is aware that he/she suffers from this disease, shall be punished by imprisonment from 5 to 15 years. (3) The law court shall ordain the security measure of obligation to undergo medical treatment. Art. 3091 The act of eluding the service of the security measure of obligation to undergo medical treatment, in case of the offence of venereal contamination, shall be punished by imprisonment from 3 months to 1 year or by fine. Art. 310. Non-compliance with measures concerning the prevention or combating of contagious diseases in animals or plants or of pests, if it has resulted in the spreading of such a disease or of pests or other serious consequences, shall be punished by imprisonment from 3 months to 3 years or by fine. Art. 311. The act of contaminating water sources and networks by any means, if it is harmful to the health of people,
5 4 3 2 1

Venereal contamination and transmission of the acquired immune deficiency syndrome

Elusion of medical treatment

Spreading disease among animals or plants

Contamination of water
1 2

Reproduced as amended by Law No. 6/1973. Reproduced as amended by Law No. 140/1996. 3 Inserted by Law No. 140/1996. 4 Reproduced as amended by Law No. 169/2002. 5 Reproduced as amended by Law No. 169/2002. 126

animals or plants, shall be punished by imprisonment from 6 months to 4 years or by fine. Drug trafficking Art. 312. (1) The act of producing, possessing or any operation regarding the circulation of stupefacient or toxic substances, the cultivation for purposes of processing of plants that contain such substances or the act of experimenting with toxic products or substances, all these without right, shall be punished by imprisonment from 3 to 15 years and the prohibition of certain rights. (2) If the act in para.(1) concern was committed in an organised manner, the penalty shall be life imprisonment or imprisonment from 15 to 25 years and the prohibition of certain rights. (3) The prescription while not necessary, by a physician, of stupefacient products or substances, shall be punished by imprisonment from one to 5 years, and the organisation or hosting of use of such products or substances in certain places shall be punished by imprisonment from 3 to 15 years and the prohibition of certain rights. (4) Attempt is punishable. Art. 313. (1) The act of processing foods or beverages that are forged, altered, prohibited for consumption or harmful for the health, the act of exhibiting for sale or selling such foods or beverages, in awareness that they are forged, altered or prohibited for consumption, shall be punished by imprisonment from 3 to 10 years. (2) The same penalty shall sanction also the act of forging or replacing other merchandise or products, if by the forgery or substitution they became harmful for the health. (3) The act of placing in public consumption meat or meat products coming from slaughtering of animals without veterinary control, if it resulted in a persons illness, shall be punished by imprisonment from 3 to 10 years, and if it resulted in death, the penalty shall be imprisonment from 7 to 20 years and the prohibition of certain rights. (4) If through the acts in para.(1) or (2) harm was caused to one or more persons the recovery of whom requires medical care of up to 20 days, the penalty shall be imprisonment from 4 to 12 years and the prohibition of certain rights, and if medical care of up to 60 days is required, the penalty shall be imprisonment from 5 to 12 years and the prohibition of certain rights. (5) If the acts in para.(1) or (2) caused harm to one or more persons the recovery of which requires medical care of more than 60 days or any of the consequences in Art. 182 para. (1) the penalty shall be imprisonment from 5 to 15 years and the prohibition of certain rights, and if they resulted in death, the
2 1

Forgery of foods or other products

Reproduced as amended by Law No. 140/1996. Art. 312 was abrogated by Law No. 143/2000 (published in the Official Gazette No. 362 of 3 August 2000) in what concerns stupefacient products or substances. 2 Reproduced as amended by Law No. 140/1996, by the G.E.O. No. 93/2002, approved through Law No. 574/2002. 127

penalty shall be imprisonment from 7 to 20 years and the prohibition of certain rights. (6) Attempt to the offences in para. (1) and (2) is punishable. Chapter III OFFENCES REGARDING ASSISTANCE TO THOSE IN PERIL Jeopardising a person unable to look after him/herself Art. 314. (1) The act of abandoning, sending away or leaving helpless a child or a person unable to look after him/herself, in any way, committed by the person charged with his supervision or care, and thus placing his/her life, health or corporal integrity in imminent danger, shall be punished by imprisonment from one to 3 years. (2) Persons who resume their duties at their will after commission of the offence shall not be punished. Art. 315. Failure to provide the help needed or to notify the authorities, committed by one who has found a person whose life, health or corporal integrity is in peril and who is deprived of the possibility to save him/herself, shall be punished by imprisonment from one month to 1 year or by fine. Art. 316. Failure to notify the authorities committed by one who finds a person abandoned or lost, who needs help, his/her life, health or physical integrity being in peril, shall be punished by imprisonment from one month to 6 months or by fine. Chapter IV OTHER OFFENCES THAT INFRINGE UPON RELATIONS THAT CONCERN SOCIAL COMMUNITY LIFE Chauvinisticnationalist propaganda Preventing the freedom of the cults Art. 317. Chauvinistic-nationalist propaganda, instigation to hatred based on criteria of race or nationality, if the act is not the offence provided in Art. 166, shall be punished by imprisonment from 6 months to 5 years. Art. 318. (1) The act of preventing or disturbing the freedom to exercise any religious cult that is organised and is functioning according to the law, shall be punished by imprisonment from one month to 6 months or by fine. (2) The same penalty shall sanction the act of forcing a person, by coercion, to partake in the religious service of any cult or to accomplish a religious act linked to the exercise of a cult. Art. 319. The act of profaning by any means a grave, a monument or a funeral urn or a corpse, shall be punished by imprisonment from 3 months to 3 years.
128
1

Leaving persons helpless

Leaving persons helpless by failure to notify

Profanation of graves
1

Reproduced as amended by Law No. 197/2000.

Disturbing the use of habitations

Art. 320. (1) The act of repeatedly disturbing the use of the homes of inhabitants in a building, or of preventing the normal use of the habitation shall be punished by imprisonment from 3 months to 2 years or by fine. (2) Criminal action is initiated upon prior complaint from the injured person. (3) Reconciliation of parties removes criminal liability. Art. 321. (1) The act of a person who, in public, commits acts or gestures or utters words or phrases, or has any other manifestations infringing upon good usage or causing a public scandal or causes disturbance, in another manner, in the public calm and order, shall be punished by imprisonment from one to 5 years. (2) If the act provided in para.(1) caused serious disturbance of public calm and order, the penalty shall be imprisonment from 2 to 7 years. Art. 322. (1) Participation to a scuffle between several persons shall be punished by imprisonment from one month to 6 months or by fine. (2) If the scuffle caused any serious injury upon a persons corporal integrity or health, the perpetrator of this act shall be punished for the offence committed, the maximum of which shall be reduced by one year. The other participants shall be punished by the penalty provided in para.(1). (3) In the case in para.(2), if it is not known which of the participants committed the acts in that paragraph, the penalty of imprisonment from 6 months to 5 years shall be applied to all of them, if injury of corporal integrity or health was caused. In case that death was caused, the penalty shall be imprisonment from 3 to 15 years. (4) A person who has been caught in a scuffle against his will, or who tried to separate others, to reject an attack or to defend another person, shall not be punished. Art. 323. (1) The act of becoming associated or of initiating the creation of an association in order to commit one or more offences, others than those in Art. 167, or of adhering to or of supporting in any manner such an association, shall be punished by imprisonment from 3 to 15 years, while not exceeding the penalty provided in the law for the offence that was the purpose of the association. (2) If the act of becoming associated was followed by the commission of an offence, the penalty for that offence shall apply to those who committed it, in concurrence with the penalty in para.
3 2 1

Outrage against good usage and disturbing public order and calm

Scuffle

Association in order to commit offences

1 2

Reproduced as amended by Law No. 6/1973 and by Law No. 169/2002. Reproduced as amended by Law No. 140/1996. 3 Reproduced as amended by Law No. 140/1996. 129

(1). (3) The persons in para. (1) shall not be punished if they denounce the association to the authorities before it is discovered and before the beginning of commission of the offence that is the purpose of the association. Public instigation and favourable presentation of offences Art. 324. (1) The act of urging the public by speech, in writing or by any means, not to observe the law or to commit acts that are offences, shall be punished by imprisonment from 3 months to 3 years, while not exceeding the penalty provided in the law for the offence to the commission of which the instigation was made. (2) If the act in para.(1) is committed by a public servant holding an office that involves the exercise of State authority or by a person in Art. 160, the penalty shall be imprisonment from one to 5 years, while not exceeding the penalty provided in the law for the offence to the commission of which the instigation was made. (3) If the public instigation resulted in the commission of the offence that was the object of instigation, the penalty shall be the one provided in the law for that offence. (4) The act of wearing, in public, uniforms, badges or other such distinctive marks unauthorised, for the purposes in para.(1), shall be punished by imprisonment from 3 months to 3 years. (5) The same penalty shall sanction the public praise to those who committed offences or to the offences they committed. Art. 325. The act of selling or disseminating, as well as that of manufacturing or possessing, in order to disseminate, objects, drawings, writings or other materials of an obscene nature, shall be punished by imprisonment from 6 months to 4 years or by fine. Decisions of the Constitutional Court: 1. The decision No. 108 of 2 November 1995, final by lack of appeal, published in the Official Gazette No. 9 of 17 January 1996, rejected the plea of unconstitutionality on Art. 325 of the Criminal Code, stating that it is in accordance with the provisions of the Romanian Constitution, with the international norms on human rights and fundamental freedoms, and that it is necessary for preventing and combating behaviour that is dangerous to one of the fundamental social values. Begging Art. 326. The act of a person who, while able to work, repeatedly appeals to public charity, requesting material aid, shall be punished by imprisonment from one month to 3 years. Art. 327. The act of a person has no settled abode and no subsistence and who, although able to work, does not regularly exercise an occupation or a profession, or does not perform any other
2 1

Dissemination of obscene materials

Vagrancy

1 2

Reproduced as amended by Law No. 140/1996. Reproduced as amended by Law No. 140/1996. 130

labour for his/her subsistence, shall be punished by imprisonment from one month to 3 years. Prostitution Art. 328. The act of a person who acquires subsistence or main subsistence by practicing for this purpose sexual intercourse with various persons shall be punished by imprisonment from 3 months to 3 years. Decisions of the Constitutional Court: 1. The decision No. 74 of 11 June 1996, final by lack of appeal, published in the Official Gazette No. 200 of 27 August 1996, rejected the plea of unconstitutionality on Art. 328 of the Criminal Code. We mention that the author of the plea claimed a contradiction between Art 328 of the Criminal Code and Art. 26 and 38 of the Constitution. 2. The decision No. 106 of 2 October 1996, final by lack of appeal, published in the Official Gazette No. 5 of 16 January 1997, rejected the pleas of unconstitutionality as obviously unfounded, motivating that the incrimination of prostitution does not restrict sexual freedom, but it restricts sexual intercourse as a form of commerce, which restriction is in accordance with Art. 49 of the Constitution. The incrimination of prostitution cannot represent a restriction of the right to work, which right can be exercised only through legally acknowledged activities. 3. The decision No. 21 of 24 January 2002, final, published in the Official Gazette No. 144 of 25 February 2002, rejected the plea of unconstitutionality on Art. 328 of the Criminal Code, raised in relation to Art. 26 of the Constitution. The Court deemed that in order to prevent and combat prostitution, it is not sufficient to incriminate and sanction only procurement, but one must also incriminate and sanction the practice of prostitutions as well, since it is an expression of the abusive and antisocial use of womens right to dispose of themselves. Procurement Art. 329. (1) The act of encouraging or facilitating the practice of prostitution or of acquiring benefits from another persons practice of prostitution shall be punished by imprisonment from 2 to 7 years and the prohibition of certain rights. (2) The act of recruiting a person for prostitution or of trafficking persons for this purpose, as well as that of coercing a person to practice prostitution, shall be punished by imprisonment from 3 to 10 years and the prohibition of certain rights. 2 (3) If the act in para.(1) or (2) is committed against a minor or has another kind of serious nature, the penalty shall be imprisonment from 5 to 18 years and the prohibition of certain rights. (4) Money, values or any other assets that served or were meant to serve, either directly or indirectly, in the commission of the offence in Art. (1)-(3) and that were acquired by its commission shall be confiscated, and if they cannot be found, the convict shall be obliged to pay their equivalent in money. (5) Attempt is punishable.
1

Reproduced as amended by Law No. 169/2002 and by the G.E.O. No. 143/2002, approved through Law No. 45/2003. 2 Prior to amendment by the G.E.O. No. 143/2002, paragraph (3) had the following text: (3) If the act in para.(1) or (2) is committed against a minor or has another kind of serious nature, the penalty shall be imprisonment from 5 to 15 years and the prohibition of certain rights. 131

Decisions of the Constitutional Court: 1. The decision No. 21 of 24 January 2002, final, published in the Official Gazette No. 144 of 25 February 2002, rejected the plea of unconstitutionality on Art. 329 of the Criminal Code, raised in relation to Art. 26 of the Constitution. The Court deemed that the antisocial nature of procurement is without doubt and the unconstitutionality of Art. 329 of the Criminal Code is out of the question. Games of chance Art. 330. (1) The organisation or toleration of games of chance for the public, without authorisation, shall be punished by imprisonment from 3 months to 2 years or by fine. (2) The same penalty shall sanction the habitual organisation or toleration of games of chance, in a private house, in order to acquire material benefits.

TITLE X OFFENCES AGAINST ROMANIAS CAPACITY OF DEFENCE

Chapter I OFFENCES COMMITTED BY THE MILITARY Section I Offences against military order and discipline Unjustified absence Art. 331. (1) Unjustified absence from the unit or from service, which exceeded 24 hours but no more than 3 days, of an active member of the military or of a concentrated member of the armed forces having a degree up to and including that of sergeant, shall be punished by imprisonment from 3 months to one year. (2) Penalties applied to active members of the military shall be served in military prisons. (3) During wartime, unjustified absence from the unit or service of any member of the armed forces, which exceeded 4 hours but no more than 24 hours, shall be punished by imprisonment from one to 5 years. Art. 332. (1) Unjustified absence exceeding 3 days, of any member of the armed forces from the unit or from service, shall be punished by imprisonment from one to 7 years. (2) During wartime, the unjustified absence exceeding 24 hours, of any member of the armed forces from the unit or service, shall be punished by imprisonment from 3 to 12 years. Art. 333. (1) The transgression of rules pertaining to the guard, watch, accompaniment or security service, shall be punished by imprisonment from 3 months to one year. (2) The same penalty shall sanction also the leaving of command or of any other post by a member of the armed
132

Desertion

Transgression of orders

forces. (3) The act of transgressing orders committed by the sentinel during guard or watch service near storage facilities containing weapons, ammunition or explosives, near the frontier or in other posts of particular military or State interest, or if the act could have had serious consequences, shall be punished by imprisonment from one to 5 years. (4) Acts in the previous paragraphs, if committed during wartime, shall be punished by imprisonment from 3 to 12 years. Insubordination Art. 334. (1) Refusal to carry out an order concerning a service duty shall be punished by imprisonment from 6 months to 2 years. (2) If the act is committed by an officer, by a military master or by a non-commissioned officer, by a hired member of the military, by one or more members of the military together or before the gathered troops or if the act has had serious consequences, the penalty shall be imprisonment from one to 5 years. (3) During wartime, the penalty for the act in para.(1) is imprisonment from 2 to 7 years, and for the act in para.(2), from 3 to 12 years.
1

Hitting or insulting a Art. 335. (1) The act of hitting a superior committed by superior the inferior or of hitting the chief committed by a subordinated person, shall be punished by imprisonment from 3 months to 2 years. (2) If the person was hit during exercise of service prerogatives, the penalty shall be imprisonment from one to 5 years. (3) The act of insulting a superior committed by the inferior or of insulting the chief committed by a subordinated person, shall be punished by imprisonment from one month to 1 year. (4) If the acts above are committed during wartime, the maximum of the penalties shall be increased by 2 years. Hitting or insulting an inferior Art. 336. (1) The act of hitting an inferior or a subordinated person, committed by a superior or chief, shall be punished by imprisonment from one month to 1 year. (2) The act of insulting an inferior or a subordinated person, committed by a superior or chief, shall be punished by imprisonment from one month to 6 months. (3) The provisions of para.(1) and (2) shall not apply during wartime, if the acts were determined by a military necessity. Art. 337. Criminal action for the offences in the present section shall be initiated only upon notification from the
133

Initiation of criminal action

1

Reproduced as amended by Law No. 140/1996.

commanding officer. Section II Offences on the battlefield Surrender Art. 338. (1) The act committed by the commanding officer of handing the armed forces under his command over to the enemy, of leaving into the enemys hands, destroying or making unfit to use the combat means or other means necessary for waging a war, while this was not determined by combat conditions, shall be punished by life imprisonment or by imprisonment from 15 to 25 years and the prohibition of certain rights. (2) Attempt is punishable. Art. 339. (1) The act of leaving the battlefield or of refusing to act, committed during combat, or of surrendering into captivity, or the commission of other such acts likely to benefit the enemys cause, shall be punished by life imprisonment or by imprisonment from 15 to 25 years and the prohibition of certain rights. (2) Attempt is punishable. Section III Offences specific of military aviation and navy Unauthorised flight Art. 340. (1) The act of flying an aircraft belonging to the Romanian armed forces, without prior authorisation, as well as of not complying with flight rules, if this jeopardises flight security in the aerial space or the safety of the aircraft, shall be punished by imprisonment from 3 months to 2 years. (2) If the act provided in the previous paragraph has caused serious consequences, the penalty shall be imprisonment from one to 5 years, and if it has caused disaster, the penalty shall be imprisonment from 5 to 15 years and the prohibition of certain rights. Art. 341. (1) The act of abandoning a military ship in case of wreck, committed by the commanding officer before having fully exercised service duties, as well as by any other persons that are part of the ships crew, without order from the commanding officer, shall be punished by imprisonment from 6 months to 5 years. (2) The same act committed during wartime shall be punished by life imprisonment or by imprisonment from 15 to 25 years and the prohibition of certain rights.
3 2 1

Leaving the battlefield

Abandoning ship

1 2

Reproduced as amended by the Decree-Law No. 6/1990 and by Law No. 140/1996. Reproduced as amended by the Decree-Law No. 6/1990 and by Law No. 140/1996. 3 Reproduced as amended by the Decree-Law No. 6/1990 and by Law No. 140/1996 134

Leaving command

Art. 342. (1) The act of leaving command, committed by a commanding officer of a ship or of a group of military ships, in situations that could have jeopardised the military ship or ships or their crew, shall be punished by imprisonment from 2 to 7 years. (2) If the act of leaving command was committed during combat, by the commander of a military ship or group of ships, the penalty shall be life imprisonment or imprisonment from 15 to 25 years and the prohibition of certain rights. Art. 343. The act committed by a commanding officer of a military ship or group of ships who, without having been stopped by an order or without having been prevented by his special mission, did not take the necessary measures for attack, for fighting the enemy, for helping a ship belonging to the Romanian state or to an allied country, that is being followed by the enemy or that is engaged in combat, or did not take the necessary measures to destroy an enemy convoy, or did not follow the enemys war or commercial ships, shall be punished by life imprisonment or imprisonment from 15 to 25 years and the prohibition of certain rights. Art. 344. The act of lowering the flag during combat, in order to benefit the enemys cause, committed by the commanding officer of a military ship or group of ships, as well as by any other person on board, shall be punished by life imprisonment or by imprisonment from 15 to 25 years and the prohibition of certain rights. Art. 345. (1) The act of a commanding officer of a military ship or of any other person on board the ship, which caused, out of negligence, collision or brought the ship on land, if the act resulted in serious damage to the ship or in other serious consequences, shall be punished by imprisonment from 6 months to 3 years. (2) If the act in the previous paragraph was committed with intent, the penalty shall be imprisonment from 5 to 20 years and the prohibition of certain rights. (3) During wartime, the act in para.(2) shall be punished by life imprisonment or by imprisonment from 15 to 25 years and the prohibition of certain rights. Art. 346. Attempt to the offences in Art. 340, 341, 342, 344 and 345 para.(2) and (3) is punishable. Art. 347. Art. 341-346 shall apply accordingly also with regard to military aircraft.
4 3 2

Failure to take the necessary measures in naval operations

Lowering the flag

Collision

Sanctions for attempt Offences concerning aircraft

1 2

Reproduced as amended by the Decree-Law No. 6/1990 and by Law No. 140/1996 Reproduced as amended by the Decree-Law No. 6/1990 and by Law No. 140/1996 3 Reproduced as amended by the Decree-Law No. 6/1990 and by Law No. 140/1996 4 Reproduced as amended by the Decree-Law No. 6/1990 and by Law No. 140/1996 135

Chapter II OFFENCES COMMITTED BY THE MILITARY AND BY CIVILIANS Eluding military service Art. 348. (1) The act of a person who self-inflicts injury to corporal integrity or health, simulates an illness or disability, uses false documents or any other means, in order to elude military service, shall be punished by imprisonment from 6 months to 5 years, and, during wartime, by imprisonment from 3 to 10 years. (2) Criminal action is initiated only upon notification from the commanding officer. Art. 349. The dissemination or publication during wartime of false, exaggerated or tendentious rumours or information, relating to the countrys economic and political status, to the moral status of the population in connection to the initiation of war and to the developments of the war, as well as the commission of other such acts likely to weaken the populations moral resistance, shall be punished by imprisonment from 5 to 15 years and the prohibition of certain rights. Art. 350. (1) The act of robbing the dead or injured that are on the battlefield, of the objects they have upon them, shall be punished by imprisonment from 3 to 10 years and the prohibition of certain rights. (2) The same penalty shall sanction the act in the previous paragraph, which, while not committed on the battlefield, is the consequence of a war operation. Art. 351. The use, without right, during wartime and in connection to military operations, of the emblem or name of the Red Cross or of other emblems or names equated with it, shall be punished by imprisonment from 3 to 7 years. Art. 352. (1) Unjustified refusal to make available to the armed forces the assets legally requisitioned, the act of eluding the fulfilment of these obligations, or of not declaring in a census the assets that are subject to requisitioning, shall be punished by imprisonment from 3 months to 2 years. (2) If the act is committed during wartime, the penalty shall be imprisonment from 6 months to 5 years. Chapter III OFFENCES COMMITTED BY CIVILIANS Eluding recruitment Art. 353. (1) The act of eluding recruitment during peacetime shall be punished by imprisonment from one month to 3 months or by fine. (2) The act of eluding recruitment during wartime shall be
136

Defeatism

Robbing persons fallen on the battlefield

Use of the Red Cross emblem during military operations Eluding military requisition

punished by imprisonment from one to 5 years. Failure to present oneself for incorporation or concentration Art. 354. (1) Failure to present oneself for incorporation or concentration within 3 days from notification, and, if the term appointed for presentation is greater than 3 days, failure to appear within this term committed by the person summoned by the military authority, shall be punished by imprisonment from one to 5 years. (2) The same penalty shall sanction also the failure of persons incorporated or concentrated to appear at the unit that they have been assigned to. (3) During mobilisation or wartime, as well as in case of urgent call, expressly provided in the calling order, the presentation terms are those specified in the order. In case of failure to appear, the penalty shall be imprisonment from 3 to 10 years. (4) The terms for presentation in the previous paragraphs shall be increased by 10 days if the persons called are abroad. Decisions of the Supreme Court of Justice: 1. The Decision No. VI of 15 October 2001 (decision in the interest of the law), the joint sections of the Supreme Court of Justice found that failure to present oneself for performing alternative military service is not provided in the criminal law. Initiation of criminal action Art. 355 Criminal action for the offences in the present chapter is initiated only upon notification from the commanding officer.

TITLE XI OFFENCES AGAINST PEACE AND HUMANKIND

War propaganda Art. 356. Propaganda for a war, the dissemination of tendentious or invented news, likely to serve instigation to war, or any other display in favour of the outburst of a war, committed by speech, in writing, through the radio or television, cinema or other such means, shall be punished by imprisonment from 5 to 15 years and the prohibition of certain rights. Art. 357. (1) The commission of one of the following acts in order to completely or partly destroy a community or a national, ethnic, racial or religious group: a) killing the members of the community or group; b) seriously harming the physical or mental integrity of the members of the community or group; c) subjecting the community or group to living conditions or
137
1

Genocide

Amended by the Decree-Law No. 6/1990 and by the Law No. 140/1996.

treatment likely to lead to physical destruction; d) taking measures tending to prevent births in the community or group; e) forced transfer of children belonging to a community or group into another community or group, shall be punished by life imprisonment or imprisonment from 15 to 25 years and the prohibition of certain rights. (2) If the act is committed during wartime, the penalty shall be life imprisonment. (3) Agreement in order to commit the offence of genocide shall be punished by imprisonment from 5 to 20 years and the prohibition of certain rights. Inhuman treatment Art. 358. (1) Subjection of injured or diseased persons, of members of the civil health personnel or of the personnel of the Red Cross or of organisations equated to it, of castaways, prisoners of war and in general of any other person fallen into the enemys powers to inhuman treatment, or to medical or scientific experiments not justified by a medical treatment in their best interest, shall be punished by imprisonment from 5 to 20 years and the prohibition of certain rights. (2) The same penalty shall sanction the commission, with regard to the persons in the previous paragraph, of one of the following acts: a) coercion to serve in the enemys armed forces; b) taking hostages; c) deportation; d) dislocation or deprivation of freedom with no legal grounds; e) conviction or execution, without prior judgment by a court founded legally, and that judged the case in observance of the fundamental judicial safeguards provided in the law. (3) Torture, mutilation or extermination of persons in para.(1) shall be punished by life imprisonment or by imprisonment from 15 to 25 years and the prohibition of certain rights. (4) If the acts in the present Article are committed during wartime, the penalty shall be life imprisonment. Art. 359. (1) Total or partial destruction: a) of buildings, of any other constructions or ships serving as hospitals; b) of the means of transportation of any kind assigned to a health or a Red Cross service, or to the organisations equated to the Red Cross, for transport of the wounded, of the diseased, of sanitary materials or materials of the Red Cross or of the organisations equated to the Red Cross; c) of storage facilities for sanitary material, if all these bear the legal distinctive signs, shall be punished by imprisonment from 5 to 20 years and the prohibition of certain
2 1

Destruction of certain objectives and appropriation of certain assets

1 2

Amended by the Decree-Law No. 6/1990 and by the Law No. 140/1996. Reproduced as amended by Law No. 140/1996. 138

rights. (2) The same penalty shall sanction the appropriation in any form, unjustified by a military necessity and committed in large quantities, of the means or material destined to aid or care for the wounded or the diseased who have fallen into the enemys powers. (3) The same penalty shall also sanction the partial or total destruction or the appropriation in any form, unjustified by any military necessity and committed in large quantities, of any other assets. Destroying, pillaging or appropriating cultural values Art. 360. (1) Destruction in any form, in the absence of military necessity, of monuments or constructions of artistic, historical or archaeological value, of museums, great libraries, historical or scientific archives, works of art, manuscripts, valuable books, scientific collections or important collections of books, archives or reproductions of the assets above and, in general, of any cultural assets belonging to peoples, shall be punished by imprisonment from 5 to 20 years and the prohibition of certain rights. (2) The same penalty shall sanction the pillaging or appropriation in any form of any of the cultural values shown in the present Article, from territories under military occupation. Art. 361. (1) Attempt to the offences in the present Title is punishable. (2) Concealment and support regarding the offences in the present Title shall be punished by imprisonment from 3 to 10 years. (3) Concealment and support committed by a spouse or a close relative, in case of the offences in Art. 357 and 358 para. (3) and (4) are punishable. The limits of the penalty in para. (2) shall be reduced by half, and, in case of the other offences, concealment and support are not punishable
1

Sanctions for attempt, for concealment and for support

FINAL PROVISIONS
Art. 362. The provisions in the General Part of this Code shall apply also to acts criminally sanctioned through other special laws, if the law does not provide otherwise. Art. 363. The present Code shall enter force on 1 January 1969.
2

NOTE: According to Art. II para. (1) of Law No. 140/1996: The provisions stipulated by The this law that regard parole shall not apply to those who received a final sentence before the date when this law enters force, except for those who eluded service.3 service
1 2

Reproduced as amended by Law No. 140/1996. Mention made by Law No. 168/1997. 139

According to Art. II para. (2) of Law No. 140/1996, the Art. 39 para. (6) of the Criminal Code is applicable also in case that the sentence to the death penalty was commuted with or replaced by the penalty of life imprisonment or imprisonment.

In the decision No. 214 of 16 June 1997, final, published in the Official Gazette No. 234 of 8 September 1997, the Constitutional Court found that Art. II para. 1 of Law No. 140/1996 on the amendment and supplementation of the Criminal Code is unconstitutional. 140