Considerations on the concept of personalizing the penalties

• Author: Ion Ristea
• Position: Researcher Associate of the 'Acad. Andrei Radulescu' Legal Research Institute of Romanian Academy. Associate Professor at the Faculty of Law and Administrative Sciences, University of Pitesti
• Pages: 131-137

LESIJ NO. XX, VOL. 2/2013

CONSIDERATIONS ON THE CONCEPT OF PERSONALIZING

THE PENALTIES

Ion RISTEA*

Abstract

The adaptation of the constraint r elated to the committed offence is a mandatory request of equity, of

principles deeply rooted in the individuals’ conscience namely that no sanction must overcome the gravity of

the committed offence (suim cuique tribuiere – giving to each person what he deserves), principle that, in the

concept of the Roman lawyers, was part of the fundamental principles of law (jus praecepta), along with

other two principles: honestere vivere (having a honest life) and a lterum non laedere (not ha rming another

human being).

Keywords: offence, criminal liability, penalty, adapta tion, individual reeduca tion.

Introduction

Art. 1 of the űriminal űode which has as “nomen juris” the purpose of the criminal law

states that “the criminal law protects, against all offences, Romania, the sovereignty,

independence, unity and indivisibility of the state, the human rights and freedoms, property, and

the entire state of law”. This disposal represents the basic norm of the ensemble of regulations of

the űriminal űode, “it contains a fundamental orientation in order to serve to the understanding,

explanation and appliance of all the other norms provided by the űode”.

But, social protection, as a fundament of the criminal law and penalty, has not the meaning

given by the doctrine or by the positivist school, which, by its illustrious members, Cesare

Lombroso, Enrico Ferri and Rafaelle Garofalo, sustained among others, the principle of the

offender’s liability on the base of the social protection; nor the meaning given by the doctrine of

“the new social protection”, which, by its representatives, Adolphe Pins and Filippo Gramatica,

claimed to avoid, if possible, the deprivation of liberty and re-socialization of the offenders with

the appropriate treatment measures.

The modern criminal law’s theo rists have unanimously established that the fundamental

institutions of the criminal law are offence, criminal liability and penalty, b ecause around these

three notions revolve all the legal criminal provisions, creating the pillars of the law system

1.

Content of the paper

Offence has been defined as being “any action incriminated by law and sanctioned by

penalty”2 or “action or inaction, which is considered a fault, and the legislator punished it by the

* Researcher Associate of the “Acad. Andrei Radulescu” Legal Research Institute of Romanian Academy.

Associate Professor at the Faculty of Law and Administrative Sciences, University of Pitesti; Prosecutor at

the Public Prosecutor’s Office attached to Pitesti Court of Appeal (e-mail: ristea_m_ion@yahoo.com).

1 Vintil Dongoroz et al., Explicaii teoretice ale codului penal român, partea general, 1st Volume,

Romanian Academy Publishing house, Űucharest, 1969, pag. 99; űostic Űulai, Manual de dr ept penal.

Partea general, All Educational Publishing house S.A. Bucharest, 1997, p 150.

2 Vintil Dongoroz – Drept penal, Tratat, Tempus Society & Romanian Criminal Sciences Association

Publishing House, Bucharest, 2000, p 159.