Some Considerations On The Offense Of Favoring The Offender In The Romanian Criminal Law

AuthorIoana Rusu
Pages183-192
SOME CONSIDERATIONS ON THE OFFENSE OF FAVORING
THE OFFENDER IN THE ROMANIAN CRIMINAL LAW
Assistant professor Ioana RUSU1
Abstract
In this paper we have considered the offense of favoring the perp etrator in terms of constitutive conten t, the
cause of non-punishment, some legislative precedents and the transitional situation in which we are with the entry into
force of the Criminal Code. Also, on the occasion of the examination, we have formulated some critical comments,
supplemented by appropriate de lege ferenda proposals regarding the legal content of the text of incrimination, namely
the use of the terms of criminal prosecution, the prosecution and the execution of a custodial measure. The novelty of
the paper consists in the analysis carried out, as well as in the critical opinions and the de leg e ferenda proposals. The
present work is part of the examinations carried o ut in order to promote a university course of criminal law. T he work
may be useful to students and master students of law faculties, as well as to practitio ners in the field a nd to the
legislator from the point of view of operating the mentioned modifications and additions.
Keywords: Constitutive content; cause of non-punishment, legislative preceden ts, de lege ferenda proposals
JEL Classification: K14
1. Introduction
Provided in the provisions of art. 269 of Criminal Code, favoring the offender consists of the
help given by a person to the perpetrator, in order to prevent or hinder the investigation in a
criminal case, the criminal prosecution, the execution of a punishment or a measure of deprivation
of liberty.
Regarding the reason of incrimination and the protected social value, in the recent Romanian
doctrine it was argued that “The favoring offense aims at sanctioning any “interference” of third
parties in the act of criminal justice or in the full exercise of the right of the state to punish (ius
puniendi).
Conceptually, favoritism can be assimilated to posterior complicity, which, however, in the
view of the theory of participation in the Romanian criminal law (which allows the act of
participation in the form of complicity to be achieved only previously or concurrently with
committing the act - art. 48, par. (1) and (2) of the New Criminal Code), the legislator sanctions it
as a distinct offense under the name of favoring the perpetrator.
This approach to legal nature of the favoring offense produces effects on the active subject
of the offense. Although, in principle, the offense is one with a generally active subject, we believe
that the author of the favoring act cannot be also the author of favoritism at his own deed.
Since, conceptually, favoring is a form of later complicity, as we know, there can be no
contest between the forms of participation with whom a person commits a deed. Thus, a possible
previous and/or posterior complicity will/will be absorbed by the author's act. If the legislator
wanted the sanction to be a distinct offense of the subsequent complicity committed by the
perpetrator of the main deed, he could do so by expressly providing for such a derogatory rule. In
conclusion, we believe that only a third party to the main deed can “favor” an offender, “self-help”
is being incriminated in the text of art. 269 New Criminal Code”.2
1 Ioana Rusu - Christian University “Dimitrie Cantemir”, Romania, oanarusu_86@yahoo.com.
2 Sergiu Bogdan (coord.), Doris Alina Şerban, George Zlati, Noul Cod penal, Partea specială, Analize, explica ții, comentarii,
Perspectiva clujeană/The New Criminal Code, Special part, Analyzes, explanations, comments, Cluj Perspective, Ed. Universul
Juridic, Bucharest, 2014, p. 336.

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