New Arguments Related to Including the Crime of Violation of Domicile among Theft and Mugging

• Author: Sorin Caluta
• Position: Baroul Constanta
• Pages: 329-331

New Arguments Related to Including the

Crime of Violation of Domicile among Theft and Mugging

Sorin Caluta

Baroul Constanţa

Abstract: The doctrine has different points of view when it comes to discussing abou t violation

of domicile as a form of grand theft committed by efraction or by using a genuine or a false key

without consent or if we talk about more than one crime. The natural complexity of the grand theft

comes when the crime has been committed in a house, and for this it is compulsory to enter the

house to commit the crime. In this situation, the breaking in represents the material element of the

theft, illicit or not. As a consequence, if t he breaking in was illicit, the constitutive elements of the

crime o f violation of domicile have been met, and it will naturally be absorbed by the crime of

theft.

Thus, it is considered1 that in this situation we talk about several crimes because the crime of

violation of domicile is a way through which the offender meets its target, that is,

misappropriation of goods. Article 33, letter a), Criminal Code, stipulates clearly that “there is

more than one crime even if one of the crimes was committed to help committing or hiding other

crime”. It is also argued that the causality link between violation of domicile and theft is not

necessary but circumstantial because efraction or using a key may be done to unlock a wardrobe,

a safety box or a car, which is not a crime. To include violation of domicile in the crime of grand

theft, this link has to be necessary and repeated in all the cases that come under incrimination.

Another opinion2 which dominates the judicial practice and the criminal doctrine states that the

crime of violation of domicile includes the crime of grand theft stipulated in article 209, par. 1,

letter i), Criminal Code. They say it is about a natural absorption because the constitutive

elements of the violation of domicile are implicitly included in the crime of grand theft

committed by efraction, escalading or by using a genuine or a false key without consent.

The crime of grand theft may exist without the constitutive elements of violation of domicile, but

this does not exclude the complex and natural character of the crime of grand theft (homicide,

another complex crime may exist through the constitutive elements of battery, grievous bodily

harm, which are absorbed when the final result has been reached, the death of the victim, or, the

homicide may be committed directly, having all the characteristics of a simple crime).

In conclusion, the natural complexity of the grand theft comes when the crime has been

committed in a house, and for this it is compulsory to enter the house to commit the crime. In this

situation, the breaking in represents the material element of the theft, illicit or not. As a

1

A. Boroi, Criminal Law. Specific Aspects, CH Beck P.H., 2008, p. 227; C. Mitrache, Theft and Violation of Domicile,

in RDP no. 1/1995, p. 124; C. Butiuc, Theft by efraction. Violation of Domicile, RDP no. 1/1997, p. 46; Simona

Cristea, Theft by efraction and violation of domicile in RD/1997, no. 4, p. 92; C. Duvac, Vio lation of domicile and theft,

RDP no. 4/1998, p. 85.

2

V. Papadopol, Legal practice in criminal related matters at the Bucharest Appelate Court, 1998, All Beck P.H.,

Bucharest, 1999, p. 140; Cristina Vladescu, Theft and violation of domicile, in RDP no. 4/1997, p. 88; C. Turianu, Fr.

Garbaci, Theft and violation of domicile, Law no. 1 /1997, p. 96; Simona Cristea, Theft and violation of domicile, RDP

no. 2/1998; Constanta Appelate Court, dec. Pen. No. 136/1994 in RDP no. 1/1995, p. 133.

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