The protection of victims based on law nr. 211/2004
| Author | Academic associated professor Traian Dima Law Faculty Nicolae Titulescu University, Bucharest Academic lecturer Mihai Adrian Hotca Law Faculty Nicolae Titulescu University, Bucharest |
| Pages | 1-12 |
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As long as in the society serious antisocial acts will be committed, criminal law is necessary, because it is the only solution that offers adequate means to prevent and struggle against criminality. So, as long as in the society offences are committed, there will be injured person. The criminality contains the totality of offences made in a certain period of time in a determined territory.1Criminality is a social phenomenon that, at least at the present level of society's evolution, can not be precisely determined, but only approximated, because not all the deeds that constitute offences are known. In theory is made the delimitation between various forms or types of criminality, that is: legal criminality2, relevant criminality, real criminality, the black number of criminality3.
The interest in studying the offence's victim is an obvious one because certain relevant data can not be offered but from the victim's part. With all this informative potential, the offence's victim is not sufficiently tackled in the criminological studies, at least in our country, this being the reason for the detachment, more clear, of criminal victimization and criminology.
Criminal victimization has as target the complex research of the causes and the remedies for criminality from the offence victim's perspective, but taking into account the existing links between him/her and the one who commits the offence-the delinquent.
If regarding the delinquent, the modern and contemporary law had him usually as the subject of their regulations; the offence's victim was relatively ignored by the legislator until
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the last decades of the past century4 regarding its protection. Regarding the doctrine, the first specialized papers, which deal mainly with the offence's victim, appear starting with 1940.5In these papers, like in the other that followed, the victim is examined mainly from the perspective of its role inside the criminal deed. It must be made the specification that its position in the criminal deed was tackled in some papers from the 19th century.
These kind of demarches appear in the papers of the positivists (Lombroso, Ferri, Garofalo6), as well as in other works from the ending of the 19th century and the beginning of the 20th century7.On the 29th March 1947, in a conference organized at Bucharest by the Romanian Psychiatric Society, during his speech on "the victim's science", Mendelsohn defined it as "victimology".B.Mendelsohn and Hans von Henting are the first ones who introduce some concepts (existing today) in the field of criminal victimization. In his way, B. Mendelsohn (considered by some authors to be the victimology's father) introduced the concept of "victim potential of receptivity"8 and many other terms and many other terms and expressions ("criminal couple", "victimization index", "victim candidate", "provocateur victim", "voluntary victim", 'victim-aggressor"). Von Henting dealt with the victimization of the criminal and active victim9.The potential victim's reception means the level of vulnerability of one person to be a victim. The level of victim vulnerability is also tight to some factors among them the age, education, sex, social origin, some psycho-behavioral characteristic and so on. Active victim is a notion by which is established the victim's role in the determination of latent mechanism of the criminals. Victimization of the criminal is a concept which established the fact that from some points of view the delinquent is a victim either of the society or the injured person's.
As one can see from these short references to the specific doctrine, although it was given more attention to the crime's victim study, the researches were centered more on the victim's predisposition to become a victim. More, through the introduction of victimization of the criminal concept, the research was reoriented to the criminal person. What they ignored, totally or partially, the authors who made attempts in the victimology domain is the problem of finding some measures to protect the victims from offences. Instead of enjoying the
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increased attention to the criminal or, at least, to be equal with him, delinquency victim was for long time in the criminal's shadow, who has taken the spotlight of judicial affairs.
Only starting from the seventies, one can speak about a consistent concern about the protection of the offence's victim, when in some western state programs have been derulated and leaded towards this. In 1984 in the US, Reagan Administration created a national fund for the victims of delinquency, having as target to help them and non profit organizations were financed and build shelters for the aggressed women, crises centres for rape victims and centres for the defending of children's rights. The fund is supplied with money from federal penalty, penalties and confiscated assets of those who are penal convicted.10Only till 1997 had been collected 2 billion $.With this money the federal states can help the offence's victims with medical care, covering the costs determined by income loss, transportation and funeral expenses. At the European level in 1983 was adopted at Strasbourg on the 24th November, The European Council's Convention regarding the indemnification of the violent offence's victims. By law nr. 304/2004 was rectified this Convention and came into operation on the 31st October 2005.
In Romania, at least during the past century, the legislator hasn't taken under protection the victim as far as the solution of the criminal action or especially as far as the mend of material or moral prejudice suffered by the civil part when making the offence but also as far as the victim's information and counselling goes. Starting with this decade, the Romanian legislator orientated his legislative activity towards the offence's victim also.11
Moreover, the recent jurisprudence of the Constitutional Court acknowledges a change in favour of the victim. Relevant for this is the Decision nr. 100/2004, which represents a revision of the court's practice of constitutional contentious. Until adopting this decision, the Constitutional Court considered that art. 362 from the Criminal Procedure Court are constitutional12. For example, through Decision nr. 274/06/2003, the Court holds that art 362 does not go against precognition of art.16 align. (1) from the constitution, dealing with equal rights, because both the civil part and the civilly responsible part have the possibility to exercise the same medium of attack (appeal) that have the prosecutor and the defendant. The limits included in art.362 align 1 letter d); from the Criminal Procedure Code do not constitute "discrimination" but natural specifications by comparison to the legitimal interests of these parts, defended during the penal trial.
"The means of establishing the civil parts' interdiction to attack on a criminal part in the criminal trial are also found in foreign legislation. So, in the case of the Belgian law, the civil part can not try to deny an exoneration other than relatively on its civil interests (art.412 from the Belgian Code of criminal instruction).In the German law, even when the prosecutor does not want to take action, the legitimate interest of the civil part can force the intervention of the prosecutor (the law for the victim's shelter from 1987). In Italy, the civil action can be
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applied, obviously, only to the civil interest (art. 74 from the Italian code of criminal procedure)13.
By the Decision nr.100/2004, the court has come back on the jurisprudence, holding that "it is unconstitutional the disposal in the cases that refer to the fact that the criminal actions start after the previous complaint, but only when it concerns the criminal side, from art 362 align 1 letter c) from the criminal procedure code, leaving to the injured part to carry out the ordinary attack means of the appeal no matter the way in which the penal procedure starts (ex officio or at a previous complaint)"14.
In spite of the legislator's and the constitutional court magistrates' efforts must be welcomed, there have not been solutionated the essential aspects referring to the offence's victim's protection. So, under the aspect of the civil parts' solution of the penal cause should be mentioned in legislation firmly measures which could allow the judicial body to intervene promptly at the offence's victim desire, or ex officio in the cases in which it is in the impossibility to formulate its demands to intervene in order to avoid the delinquent's circumvention from the execution of the civil obligations. The regulated measures prove to be in many cases inefficient. The judicial practice mentions the perpetration of several crimes which led to important prejudice but the victims have never been indemnified or the prejudice's mending has been only partial. These cases are possible because many times the professional delinquents hide the treasure from a possible forced pursuit or sign fake judicial acts.
The settlement of efficient insurer measures (sequestration, notation in the publicity records) would be benefic to the prejudiced person and to the general prevention level. Moreover, in the case of violent crimes, when it is impossible to take the measure of preventive arrest, there should be mentioned in the legislation some measures of protecting the victim. One of this measure is the restraining order which should have as its main objective the delinquent's prohibition of coming near its victim at a reasonable distance (500m for...
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