Self-defense in the Romanian new Penal Code: removing the blame cause as an unimpeachable cause.
Sabău, Georgeta Valeria
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The elaboration, adoption and entry into force of the new Romanian Penal Code on February 1st 2014 represented a crucial moment in the legislative evolution of any state, and in Romania, like in all countries of the world, the elaboration of the new Penal Code was not simply a whim of the political will, but it was equally a corollary of the social and economic evolution of the national doctrine and jurisprudence, without disregarding the European states’ jurisprudence and legislation. The decision of drafting a new Penal Code was based on a number of existing shortcomings in the former legislation, which were highlighted both by the practice as well as the legal doctrine. By meeting all the requirements of the European’s Commission monitoring process, the new Penal Code is based on the necessity of maintaining the elements that can be salvaged from the previous Penal Code and to integrate them, based on a unitary conception, together with elements from other reference systems and from regulations adopted in the European Union, to create an area of freedom, security and justice. With the current criminal reform, self-defense, unlike the old provision, where it represented a cause to remove the criminal nature of the offense, is part of the so called justificatory causes. The justificatory causes were introduced in the new Penal Code, reverting to the existing provisions in the Code of 1937, the legislator aligning the Romanian criminal legislation to the European one. The new Romanian Penal Code distinctly systematizes these causes, compared to the unimpeachable ones, at the same time emphasizing the objective nature of the former, in that they operate in rem and are transmitted to the participants as well, and the subjective, personal (in personam) nature of other causes, in that they are not transmitted unto the participants, exceptions being made only in fortuitous cases. On the contrary, the unjustifiable nature of the act under criminal law implies that it is not permitted by the legislation, in other words, it is illegal. Thus, it is possible that an act, even if provided by the criminal law, may not be unlawful since its perpetration is permitted by a legal norm, e.g., killing a person in self-defense corresponds to the letter with the description issued by the legislator in the text incriminating murder, but the act is not unlawful in its nature, because the law authorizes it under the given circumstances. The circumstances removing the unlawful nature of an act are established by the new Penal Code as justificatory causes, which also include selfdefense. The legislator also takes into account both opinions expressed in the doctrine as well as the comparative law – Article 15 of the Swiss Penal Code, Article 20 of the Spanish Penal Code, Article 122-5 of the French Penal Code, and the grave danger condition generated by the attack was waived, its gravity and that of the actions committed for its removal being judged proportionally. The legal entity of self-defense is of particular importance to the Romanian criminal law. It has undeniable theoretical and practical implications regarding the existence of a crime or its lack thereof.
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