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