About some new modalities of individualizationof the punishments according with the new penal code(law no. 286/2009)

• Author: Versavia Brutaru
• Position: Researcher, Institute of Juridical Research ?Acad. Andrei Radulescu', Romanian Academy
• Pages: 32-40

32 Lex ET Scientia. Juridical Series

LESIJ NO. XVII, VOL. 2/2010

ABOUT SOME NEW MODALITIES OF INDIVIDUALIZATION OF THE

PUNISHMENTS ACCORDING WITH THE NEW PENAL CODE

(LAW NO. 286/2009)

Versavia BRUTARU∗

Abstract

The individualization of the penal sanctions is a complex operation, and it is realized in

three different phases: The phase of incrimination of the penal offences, the phase of precise

determination of the punishment and the phase of the execution of the applied punishment.

Starting from this reality, the theory of the penal law makes a distinction between the three phases

of individualization that correspond with the three mention ones: the legal individualization, the

juridical individualization and the administrative individualization. Within each phases, the penal

law sanctions are individualized by the activity of particular authorities, within certain limits and

with certain methods.The main goal of the study is to present the new modalities of the punishment

individualization, adopted by assuming responsibility by the Romanian Government (Law nr.

286/2009). The study also presents other modalities of individualization of the punishment that

exist in German Penal legislation, French Penal Code, Portuguese Penal Code, Model Penal

Code, used as example by the Romanian Ministry of Justice, the initiator of the project. Along the

study, there are presented some of the issues that could appear within the normal application of

these new institutions.

Keywords: individualization, personalization, punishment, postponing the pronouncing of

the punishment, renunciation to pronounce a punishment, defendant’s obligations

Introduction

The new institutions that regulate the individualization of the punishment introduced by the

Law nr. 286/2009 (the New Penal Code) raise some issues, both theoretical and practical.

The study widely analyzes each institution and the issues that will rise, in our opinion,

during the application in practice of these institutions.

The Romanian legislator, having as inspiration other legislations, that contain these kinds of

institutions, had introduced many provisions, sometimes excessively clearly stated, and guided

towards a very dense regulations (for example: the institution of postponing the applying of the

punishment is excessively regulated by the Romanian legislator in comparison with the legisla-

tions that have been a model of inspiration).

As we will show within the study, our concern is the necessity of these new institutions,

regarding the fact of existence the institution of conditional suspension of the punishment, a

similar regulation with the one analyzed by us, and also the acquittal, provision that already exist

in the Criminal procedure Code.

In addition, we wanted to give a pertinent explanation of the expressions and the way the

legislator expresses some terms, many times not very clear or precise, from the juridical point of

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∗ Researcher, Institute of Juridical Research „Acad. Andrei R<dulescu”, Romanian Academy (e-mail:

bversavia@gmail.com).