The offense of homicide by request of the victim introduced by the new Romanian Criminal Code

Author:Nasty Vladoiu
Position:Faculty of Law - 'Transilvania' University - Brasov - Romania
Pages:37-41
SUMMARY

Euthanasia is a murder committed under an impulse of mercy in order to end physical torments of a person suffering from an incurable disease, and whose death is, therefore, inevitable. However, there are differences between passive euthanasia and active euthanasia. The first is the withholding life-prolonging measures and resources when death is otherwise inevitable, while the second is the direct causing - death act of the incurable patient, with his consent, in order to avoid further suffering. Does one have a right to take one's life? The right to have one's life terminated at will is subject to social, ethical, and legal strictures. In some countries it is legal and also, socially acceptable to have one's life terminated given a sufficient deterioration in the quality of life and the imminence of death. In this article, the author examines the provisions of the new Criminal Code relating to the incrimination of murdering on victim’s request in terms of legality, ethics and morality.

 
CONTENT
The offense of homicide by request of the victim introduced … 37
THE OFFENSE OF HOMICIDE BY REQUEST
OF THE VICTIM INTRODUCED
BY THE NEW ROMANIAN CRIMINAL CODE
Ph.D., Associate Professor Nasty Marian Vldoiu
Faculty of Law, “Transilvania” University, Braşov, Romania
Abstract
Euthanasia is a murder committed under an impulse of mercy in order to end physical torments
of a person suffering from an incurable disease, and whose death is, therefore, inevitable. However,
there are differences between passive euthanasia and active euthanasia. The first is the withholding
life-prolonging measures and resources when death is otherwise inevitable, while the second is the
direct causing - death act of the incurable patient, with his consent, in order to avoid further
suffering.
Does one have a right to take one's life? The right to have one's life terminated at will is subject
to social, ethical, and legal strictures. In some countries it is legal and also, socially acceptable to have
one's life terminated given a sufficient deterioration in the quality of life and the imminence of death.
In this article, the author examines the provisions of the new Criminal Code relating to the
incrimination of murdering on victim’s request in terms of legality, ethics and morality.
Keywords: the new Criminal Code; human rights; active euthanasia; passive euthanasia; the
European Convention on Human Rights.
1. Preliminary considerations. Concept and definition. The offense of murder is
criminalized in the new Romanian Criminal Code in Article 188, with the same
wording and content. In addition, unlike the current Criminal Code which
penalizes the offense of murder with the same penalty irrespective of the reason,
the new Criminal Code criminalises the murdering on victim’s request, as an
alleviated variant of murder, rewritten thus, not only the traditional line of
regulation existed in our law (Article 468 of the Romanian Criminal Code from
1936), but also the one of the most European codes [the German Criminal Code,
the Austrian Criminal Code, the Spanish Criminal Code, the Portuguese Criminal
Code, the Swiss Criminal Code, etc.].
The reintroduction of this text has been required above all, due to the new
regime of the mitigating circumstances consecrated by the General Part. Indeed, if
in the current regulation, the fact envisaged in Article 190 of the new Criminal
Code can be harnessed as a legal mitigating circumstance, leading thus to the
E-mail: vladoiu.nasty@gmail.com.
Law Review vol. III, issue 2, July-December 2013, p. 37-41
38 NASTY MARIAN VLĂDOIU
imposition of a sentence under the special minimum, according to the new
regulation, even retaining a judicial attenuating, the penalty will not be applied
necessarly under this minimum. Therefore, to enable the imposition of a sentence
corresponding to the level of social danger of this act, it was necessary a different
legal regulation1.
Through this article, the Romanian penal legislator explicitly express his
attitude regarding the criminalization of euthanasia, as an attenuated form of
homicide. There were many discussions on the compatibility of the euthanasia
with the right of life, human dignity and the person’s right to dispose of itself,
given that euthanasia was not included among the exceptions to the right to life
and given that the attitude of the states is divided between criminalization and
decriminalization of euthanasia, to finally conclude that the option in one way or
another belongs to the national legislator. From all the data arising out of the
international texts on human rights, and also from the practice of international
courts, nothing suggests a clearly outlined opinion in one sense or another2.
According to Article 190 of the new Criminal Code, the offense of killing at
victim’s request is „the murder carried out at the explicit, serious, conscious and constant
request of a victim suffering from an incurable disease or from a medically certified serious
infirmity, causing him/her permanent and unbearable suffering” and it is punished by
imprisonment from one to 5 years.
2. The object of the criminal offence. The generic juridical object of the criminal
offence is the right to life, as protected by the Constitution3 and the Convention for
the Protection of Human Rights and Fundamental Freedoms4. The specific juridical
object is being confused with the generic juridical object.
The offense has also a material object represented by the body of the person, that
was alive at the time of the offense.
3. Subjects of the criminal offence. The active subject is not circumstantiated, it may
be any person who fulfills the general conditions of criminal liability. Criminal
participation is possible in all its forms: the instigation, complicity and the
1 Statement of reasons on the new Criminal Code, p. 35.
2 N.M. Vldoiu, op. cit., p. 20-21.
3 Article 22 of the Romanian Constitution – the right to life and physical and mental inte grity:
„(1) The right to life and the right to physical and mental integrity of the person are guaranteed”.
4 Article 2 – Right to life
1. Everyone's right to life shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court following his conviction of a crime for
which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it
results from the use of force which is no more than absolutely necessary:
a. in defence of any person from unlawful violence;
b. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
c. in action lawfully taken for the purpose of quelling a riot or insurrection.
The offense of homicide by request of the victim introduced … 39
participation as co-author. We mention that „co-authored” form assumes a
indivisible activity, concomitantly, with the common intention to kill, even though
only some actions of one’s author are lethal.
The passive subject is qualified, being thus about the living person who is
suffering from an incurable disease or a serious infirmity, medically attested,
causing permanent and unbearable distress.
4. The prerequisite condition. It is the existence of an incurable disease or a
serious infirmity, medically attested, causing permanent and unbearable distress.
5. Constitutive contents.
A. The objective side of the criminal offence. The material element of the criminal
offence provided for in Article 190 is concretized in the action or inaction of killing a
living person, who is suffering from an incurable disease or a serious infirmity,
medically attested, causing permanent and unbearable distress. The essential
requirement attached to the material element is that the termination of a person’s
life to be done at his will. The law defines the conditions that must be fulfilled by
the victim’s request, namely:
- to be explicit, which means that it could not be interpretated, that it is clear
and unambiguous
- to be serious; it is not serious the request that has been made jocandi causa, the
request that was vaguely formulated or has been made with a mental reservation
(reservatio mentalis), known by its addressee
- to be conscious, meaning that the person making the request is responsible at
the time of demand; the responsibility is appreciated from person to person, in
relation to his attitude and psycho-intellective power, taking into account the
status quo of the victim at that moment
- to be done repeatedly
The immediate result consists in the victim’s death. The causality link between the
act or omission constituting the material element and the immediate consequence
must be proved.
B. The subjective side of the criminal offence. The guilt form under which such
criminal offence is committed is the direct or indirect intention. We can speak
about the existence of a mobile of the criminal offence in this case, consisting in the
killing of a person under the impulse of mercy.
6. Forms, modalities and penalties. Preparatory acts and attempt, although possible,
are left outside incrimination by the legislator. The act is being consumed at the
time of the immediate result, namely at the moment of victim’s death. Modalities.
The offense is regulated in a single variant. Penalties. The punishment provided by
law is imprisonment from one to 5 years.
40 NASTY MARIAN VLĂDOIU
7. Explanations of practical interest. Euthanasia is a murder committed under an
impulse of mercy in order to end physical torments of a person suffering from an
incurable disease, and whose death is, therefore, inevitable5. It is often
distinguished between passive euthanasia or ototanasia and active euthanasia. The
first represents the withholding life-prolonging measures and resources when
death is otherwise inevitable, while the second is the direct causing - death act of
the incurable patient, with his consent, in order to avoid further suffering6.
The difference between euthanasia and assisted suicide is the way to
accomplish this act. While, in the case of euthanasia, the doctor himself administers
lethal medication to a person, in the assisted suicide, the patient is the one who
administers himself the medication recommended by the doctor.
The feature that differentiate between the assisted suicide and other medical
decisions of life termination is that, in the case of assisted suicide, the medication
recommended by the doctor is able to precipitate death and reduce suffering as
much as (eg. not applying a therapy that would extend perhaps the life of a patient
in terminal condition)7.
In relation to this issue, starting from the concept of law, some authors have
concluded that we can not speak of a right to life in this situation, but it is rather a
general obligation of all other persons not to affect an individual’s life.
In the specialized literature, the situation of euthanasia compatibility with
Article 2 of the European Convention on Human Rights is controversial.
Frequently, the right to decide the moment of death was linked to the right to
dignity, a concept which does not appear in the text of the European Convention,
but it has been enshrined in the latest legal instruments, as for example in the first
article of the Charter of Fundamental Right of the European Union. The respect for
human dignity should include thus the right to live with dignity and to terminate
life by your own or ask the assistance of a third party in order to do it8. In the view
of those who see euthanasia as a way of not bearing the sufferings of an incurable
disease or the technical means of life prolonging, the question can be put even in
the realm of Article 3 of the Convention, which prohibits inhuman or degrading
punishments or treatment9.
We believe, however, that the use of the term „human dignity” is a trap,
whereas precisely human dignity gives the sacred and inviolable character of the
right to life. In this context, orchestrating the death of a person is an insult to the
supreme attribute of man.
5 G. Antoniu, C. Bulai, Ghe. Chivulescu, Criminal Legal Dictionary, Scientific and encyclopedic,
Publishing House, Bucharest, 1976, p. 107.
6 Ibidem, p. 266.
7 L. Hecser, Euthanasia – Medical, Social and Legal Reflections, in „Law” („Dreptul”) no. 11/2001,
p. 93.
8 P. Jordan, The Human Right to die with Dignity: A policy oriented essay, HRQ, 1995.
9 M. Beatrice, Le principe de respect de la dignité humaine et la Convention européenne des droits de
l’homme, La documentation française, Paris, 1999, p. 401.
The offense of homicide by request of the victim introduced … 41
The question is when exactly should be permitted euthanasia. Who can
determine when the sufferings of a patient reached the limits that can justify such
an intervention. Should be limited to a number of afflictions or can be left to the
discretion of the doctor. Also, a delicate situation is the one of the existence of
clearly and freely expressed consent, particulary regarding the euthanasia of
children. The theorist and the legislator must give attention to the grounding of the
right to resort to euthanasia. The right to dispose of own life should reflect the true
values of society and should clearly define the role that dignity plays in the content
of this right.
8. Conclusions. Finally, the general conclusion of the debate on euthanasia
criminalization or not, is that the solution remains at the sole discretion of the
national legislator. The practice of the international courts and the international
specialized literature on human rights do not suggest any options clearly outlined
in one way or another. Therefore, each state must decide whether the doctor who
has resorted to such practices will be criminally responsible. If the answer is
negative, the same legislator must fix the limits of such an act in order to prevent
abuses.
The fact of criminalizing this extreme solution in the new Romanian Criminal
Code is therefore in agreement with the solutions detached at international level.
By regulating such an act in Article 190, the Romanian criminal legislator
specifically expressed his attitude on the criminalization of euthanasia as an
attenuated form of homicide.
References:
1. G. Antoniu, C. Bulai, Ghe. Chivulescu, Criminal Legal Dictionary, Scientific and
encyclopedic Publishing House, Bucharest, 1976.
2. L. Hecser, Euthanasia – Medical, Social and Legal Reflections, in „Law” („Dreptul”)
no. 11/2001.
3. P. Jordan, The Human Right to die with Dignity: A policy oriented essay, HRQ,
1995.
4. M. Beatrice, Le principe de respect de la dignite humaine et la Convention
européene des droits de l’homme, La documentation française, Paris, 1999.