Euthanasia - a Contemporary Issue

• Author: Florentina Pusca, PhD
• Position: Senior Lecturer. Danubius University of Galati
• Pages: 79-88

Page 79

According to the Romanian criminal doctrine (Udroiu & Predescu, 2008, p. 74) life, as a biological characteristic of human beings, represents the synthetic fundamental attribute without which any other characteristics of human beings wouldn't exist. In the criminal doctrine it has been asserted that, in relation to the vital functions of organisms (respiratory, cardio- circulatory and cerebral)¹, the final point of life coincides with brain death (Filipa, 2008, pp. 94- 137).Page 80

Starting from the origins of Romanian people, the Geto-Dacians have benefited from written laws reminded by Iordanes, but they haven't been kept. The judicial power was held by priests, that exerted it same as the druids in Gallia. After the Dacians were defeated by the Romans, the rules of the Roman law were extended in the new province of the Roman Empire. The citizens were judged by the governor or his lieutenant. He held ius gladii (the right to punish with death). During the invasion of the migrating populations, the application of the Roman law continued, but only in part, as the own judicial norms and customs had priority, formed during centuries by the local people. During the Byzantine occupation (9^th -12^th centuries) the Basilicas were applied, a collection of civil and criminal laws elaborated gradually in the capital of the Eastern Roman Empire. The penalties provisioned for murder crimes were death and mutilation of the perpetrator. Then was when the disposition related to the difference between the attempt and the consumed crime appeared. During the crystallization of the Romanian feudal states, the customary or unwritten law was still applied. This type of law was consigned by the documents of that period under the naming Valachio or Valachorum antique lex et consuetude. The first Romanian legislations were the Romanian educational book of the Romanian tradition (1646), printed at the Trei Ierarhi Monastery in Iasi and Law strengthening (1652) printed in Târgovite. According to these, murdering a person was punished with death by hanging or decapitation. The attempt was punished milder. Reasons that defend the punishment were regulated (insanity, age, the superior's order, legitimate defense) and also reasons that diminish the punishment (mania, intoxication, sleepwalking etc.). At that time, a clear distinction was made between intentional murder and unwittingly murder ("the one who kills by mistake and without wanting to will not be sought as a murderer") and between the spontaneous murder act ("posthaste murder") and the premeditated act ("planned murder"). The last feudal enactment was the Caragea Enactment (September 1^st 1818- December 1^st 1865). According to this law murder "is at first unwitting or inadvertent". The one who will "kill inadvertently, alone or with others, will be killed". "Who will kill defending his life from peril, is not guilty; he who is child or insane or nor careful will kill, is to redeem the murder with money from the family of the murdered one". The Criminal code in 1865 regulated the murder with will for which the punishment was hard labor for a limited period of time, first degree murder, "when done earlier or together or after another crime" as well as "when with purpose, or to prepare or facilitate, or execute a crime or help hiding or ensure the impunity of the authors orPage 81accomplices to that crime" for which the punishment was hard labor for the rest of the life; the premeditated murder, also punished with hard labor for life; murder of the first degree relatives, wife or husband, punished with imprisonment for life; murder of the illegitimate child, punished with reclusion; involuntary murder punished with imprisonment from 3 months to 1 year and a half and fine (Hanga, 1980, p. 61). In what concerns the legal regulation of euthanasia in Romania in the inter-war period the relevant document is the Criminal code "King Carol the 2^nd", adopted in 1936. In article 468, al.1, the Code provisioned that 'the one who will kill a man following the insistent pleadings of that man, commits the crime when asked and is punished with imprisonment form 3 to 8 years"; al. 3 of the same article provisions a condition that attenuates the act mentioned in the first paragraph: "the punishment is correctional imprisonment when the act was committed under the conditions mentioned in the former paragraphs, under the impulse of a sentiment of compassion, to put an end to the physical pain of an individual who suffered from an incurable disease whose death was inevitable because of that" (Boroi, 1999, p. 35). By making a comparative analysis of this article with article 463 of the same Code, that stipulated that "the one who kills an individual, commits a murder and is punished with hard work from 10 to 25 years and civic degradation from 3 to 8 years" we can notice that the punishments provisioned for killing by request or killing out of mercy are diminished in these two cases and expressly provisioned by law as being crimes different from murder. These provisions followed the ones existing in the Transylvanian Criminal code that stated in article 282 that "the one who, through the serious desire and determination of a person, was determined to kill that person, will be punished with reclusion up to 3 years". The imprisonment from 3 to 8 years is also applied for the one "who determines someone else to commit suicide or facilitates the suicide of that person". Article 468, al. 1 "King Carol the 2^nd"...