Caiete De Drept Penal, Nr. 2-3/2007

Caiete De Drept Penal, Nr. 2-3/2007 - ***
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Carte disponibila in libraria online ishop.roCaiete De Drept Penal, Nr. 2-3/2007
  • Autor: ***
  • Editura: CH Beck
  • Colectia:
  • Categoria: Penal
  • ISBN: 1841-6047
  • An aparitie: 2007
  • Numar de pagini: 368
  • Format carte:
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Dalina GROZA

ABSTRACT. Probation as a Set of community Sanctions and Measures. The Authority of Implementation. Some Difficulties in assimilating probation inside Romanian Criminal Proceedings. Romanian probation system is already 10 years old (1997-2007). After an experimental stage, today, probation has a legal framework based on European Council Recommendation R (92)16 concerning European rules regarding community sanctions and measures. Also, nowadays, 41 probation services are functioning near by each county court from Romania. Despite these, there are a lot of people who never heard about probation or who are not sure what community sanctions and measures mean or how effective they are in comparison with prison punishment. In this light, this article has two aims: on one hand, it tries to show some aspects of probation system’s evolution, making references on other European probation systems with a longer or shorter tradition; on the other hand, this article makes an exam of Romanian’s jurisprudence and underlines some difficulties met by probation service during it’s involvement in each stage of a criminal trial.

Festively, this article provides an analysis of the role of the probation service during the management of a criminal case by the judiciary police or by the prosecutors. The most important assignments of probation service at this stage are the following: to write pretrial reports (regarding the defendants) or presentence reports (regarding the prosecuted people); to participate at some special hearing procedures of juveniles (14-16 years old), witnesses or victims; to be informed by the judge whom is responsible to decide at this level of criminal trial, about the preventive arrest of any minors (14-18 years old). Because many changes of Criminal Procedure Code (CPC) arouse (by Law no. 281/2003, Government’s Ordinance no. 109/2003, Law no. 356/2006, Government’s Ordinance no .60/2006), the role of probation service, in this stage, was enlarged, but not clarified. A lot of dilemmas persist and they need some practical answers, which this article tries to provide or to suggest.

Secondly, inside this article, the role of probation service regarding the presentence stage of criminal trial is analyzed. At this stage, the probation officer’s presence in the criminal court seems to put him in a more visible position. Here, he is able not only to write the presentence reports regarding the prosecuted people, but also to participate at any criminal trial involving minors (14-18 years old) and to sustain the conclusions of these reports, in order to assist the judge when he decides what is the most appropriate sanction or measure which has to be applied for each minor (art. 484 CPC). Starting with the 31st of March 2007, the presentence report regarding the minors became obligatory for judiciaries (art. 482 CPC). That means more attention paid by our Parliament and Government for the juvenile justice improvement, but, at the same time, this good thing has drown a lot of difficulties for probation services, because their human resources are not enough in front of this duty (in Romania, all the probation staff consists in about 300 members and the annually number of presentence reports for the minors is estimated to be somewhere around 24.000). Remaining in this context, this article tries to show what can happen if two fundamental principles of criminal procedure (the quality and the celerity) will be sacrificed in the name of quantity.

Finally, this article is analyzing the enforcement stage of criminal trial and it underlies some practical difficulties that are met by probation services – as implementation authority – when they put into force a community sanction or measure decided by the criminal court. For example, here we show how difficult is: to monitor a criminal sentence without specificity; to find the connection between two or many criminal sentences that have different natures or different conditions necessary to be respected and which are decided by different courts for the same convicted person; to apply the same criminal treatment for someone who breaks in a lighter or in a serious way the supervision conditions – simply because that the Romanian law doesn’t regulate any differences between these situations.

Because all these difficulties result from practice and because this article provides some lines in order to solve or to minimize the bad consequences of these practical difficulties, we hope that, on a short term, the content of this article will open some eyes and some minds towards the national probation system’s needs. On a long term, we also hope that it will lead to some law changes which are necessary in order to have a real functional probation system, able to assist, in a professional way, the judiciaries and to have a well done representation during the each stage of a criminal trial, answering, in this way, to the public’s expectations.



ABSTRACT. Fight against organized Crime in Spain. This paper makes an analysis of the common characteristics of the concept of organized crime or delinquency and its legal regime established in the Spanish penal and procedural-penal legislation. In the Spanish penal Code published in 1995 a concept of organized crime is not formally provided. Nevertheless, and apart from the traditional existence of the crime of illicit associations, some aggravations have been established for certain crimes in the event that conducts are carried out by means of an association of persons or an organization which facilitates their commission. Likewise the concept of organized crime proves to apply within the sphere of the juridical consequences of the crime and the procedural-penal field.


ABSTRACT. Argument in favor of a distinct Incrimination for the Constitution of an organized criminal Group. The article raises a problem unfortunately still present in our criminal legislation – the seemingly similar incriminations of distinctive acts. It treats the offence of association with the purpose of committing offences, stipulated in art. 323 of the Penal Code, and the offence referred to by art. 7 of Law no. 39/2003 concerning the prevention and combat of organized crime, whose denomination in the new Penal Code is that of constitution of an organized criminal group.

The study aims to prove the necessity of keeping the two pieces of legislationmentioned above, and puts together pertinent observation over their content.

The study’s subject matter is rigorously set, as the author starts by indicating that his analysis will continue the efforts already carried out in the literature, but will draw a new line in what regards the clarification of the problem at hand and the final conclusion expressed.

Thus, the study enumerates the similarities and the distinctions between the two offences, and, in parallel, explores both the reasons for the given resemblances and efficient criteria for delimitation. It maintains that, although we are in the presence of separate acts with penal relevance, their common features derive from the fact that they both pertain to the same criminal phenomenon- organized crime, and to the same type of offences- association with criminal purpose. This is the reason for the difficulties encountered by the legislator in including all characteristic features in the norm of incrimination.

Regarding the delimitation criteria, the author considers that, on the one hand, precise terminological clarifications between association and organized criminal group are required, moving to a detailed presentation of the two concepts; on the other hand, a simple enumeration of the offences that can serve as a purpose is insufficient, therefore additional information is required in order to correctly identify the type of association they belong to.

Nevertheless, defining the words in the incrimination texts must not exclude investigating their meaning, as the operation of defining guarantees only the common connotation, which has to be modeled on the necessities of the field of science where it operates.

A personal note is brought by the article through the emphasis placed on the way the two incrimination norms were elaborated, both from the viewpoint of the judicial language used- which has to be well adapted to the criminal reality it exposes, and from the viewpoint of the flexibility that a judicial norm requires in order to allow for the practioner’s intervention through interpretation. The interpretation of the practitioner must always be done in accord with the will of the legislator.

The study concludes by arguing for the maintaining of both texts of incriminationalbeit all the existing similarities, we are without any doubt in the presence of two distinct offences; the correct application of each text will be done in agreement with the facts at hand, by interpreting the law in its letter and spirit.


ABSTRACT. The Incidence of Justifications upon Offences committed through Negligence or Imprudence. The present study discusses the admissibility of justifications in the case of offences committed through negligence or imprudence, both in Romanian and in comparative law.

In what regards self defense, the author shows that, in the Romanian system, the possibility of applying it to acts committed through negligence has not been seriously investigated. In French or Belgian law, the jurisprudence has been constant in considering self defense and crimes perpetrated through negligence to be irreconcilable, ever since 1929, when the French Supreme Court has refused to recognize self defense in a case in which the offender, under attack and trying to deprive the victim of the weapon, shot her by accident. The same position is taken by a part of the Italian jurisprudence, although contested in the doctrine.

In what follows, the paper argues that the arguments in favor of a inconsistency between self defense and offence committed through negligence, such as the fact that defense must be voluntary, that by definition the defense must be conscious or that, in the case of negligence, there is no cause-effect link between aggression and riposte, are notconvincing. The author is supported by the majority opinion expressed in comparative law. The fact of the matter is that penal norms referring to self defense do not distinguish between acts committed with mens rea and acts that lack it. Furthermore, there has to be made a distinction between the defense, which is voluntary, and its consequences, which can be unintended. The solution can also prove to be illogical- being in self defense, the perpetrator intentional kills the aggressor, being justified in doing so; however, if the perpetrator only tries to rebuff the attack, without causing any harm, harm that is produced through negligence, his justification would be denied by the law.

As to necessity, the author asserts that the legal arguments brought forward in the case of self defense are also applicable to this justification. One of the difficulties that have arisen on the field of necessity refers to the situation in which the danger is created, through negligence or imprudence, by the same person that claims to be protected by the justification. The study argues that, in such a hypothesis, necessity will have limited effects, justifying the act committed with mens rea, but making the perpetrator liable for a crime committed with negligence, if incriminated.

The paper goes on in discussing the justification of exerting a right and fulfilling a legal obligation. Mainly in the German legal literature, the compatibility between these justifications and acts committed with negligence is intensely debated, the majority arguing in favor of it.

Finally, in what concerns the victim’s consent, it has sometimes been asserted that this justification is impossible to connect to an act perpetrated with imprudence or negligence, a simple relationship between the two being illogic. The supporters of this view consider that the victim’s consent must be attached to the result of the act- the author critiques this assumption, because it does not distinguish between the agent’s action and its result. Consequently, in the case of crimes committed through negligence, the consent does not refer to the result, but to the action that infringes upon the duty of prudence.

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