The role of social reaction reflected in the dinamics of the criminal codes - past, present, future -

Author:Ph.D. student Veres Crina - Bianca
Position:Legal Counselor - The Romanian Academy
Pages:154-169
SUMMARY

The change in legal norms is closely related to the change in public power, the only social force capable of making modifications at this level. Thus, criminal law is the result of legislating society’s reaction to dangerous acts for the values established by the community. These social values are realities whose importance is given by the role they play in the formation and development of society. Once these values are undermined, the social order is undermined and thus it needs to be reintegrated through a set of pre-criminal and post-criminal measures and means, which can be both judicial and extra-judicial, and through which society has understood to prevent and combat deviant behavior. It is therefore interesting to observe how criminal law is redefined by the changes in society's mentality. From the point of view of criminal code modifications, we can see the traits of a community given by how they defend their values.

 
CONTENT
154 VEREŞ CRINA
THE ROLE OF SOCIAL REACTION REFLECTED
IN THE DINAMICS OF THE CRIMINAL CODES
- PAST, PRESENT, FUTURE -
Ph.D. student Vereş Crina – Bianca,
Legal Counselor – The Romanian Academy
Abstract
The change in legal norms is closely related to the change in public power, the only social force
capable of making modifications at this level. Thus, criminal law is the result of legislating society’s
reaction to dangerous acts for the values established by the community. These social values are
realities whose importance is given by the role they play in the formation and development of society.
Once these values are undermined, the social order is undermined and thus it needs to be
reintegrated through a set of pre-criminal and post-criminal measures and means, which can be both
judicial and extra-judicial, and through which society has understood to prevent and combat deviant
behavior.
It is therefore interesting to observe how criminal law is redefined by the changes in society's
mentality. From the point of view of criminal code modifications, we can see the traits of a
community given by how they defend their values.
Key words: social reaction, criminology, criminal law, evolution of criminal codes, changes
A legal institution can be understood by knowing the historical circumstances
that took place at the time of its constitution. History reminds us that during the
course of human civilization there was a complex and dynamic reality in which
there were periods of progress but also periods of crisis. History thus sets the
determinant roles of morality and customs in the organization and functioning of
societies.
The social reaction to criminality refers to all the measures and means both
pre-criminal and post-criminal, legal and extra-judicial, through which society has
understood to prevent and combat crime. In the doctrine, the following models of
social reaction against crime were outlined: the repressive model, the preventive
model, the mixed model (doctrine of "social defense"), the curative model. In
addition to the four models, two modern trends have also developed: the
neoclassical trend and the moderate trend.
Law Review vol. VIII, issue 2, Jul
y
-December 2018, pp. 154-169
The role of social reaction reflected in the dinamics of the criminal codes 155
The repressive model
For a long time, the anti-criminal social reaction had a repressive essence.
Information on this topic can be found in some of the earliest known legal texts
from various geographical areas.1 The repressive model has been in the past the
"natural solution" against any kind of aggression. This type of social reaction
evolved from the original idea of revenge, as a method of punishing offenders, to
staged repression and composition. 2
As an innovator of his time3, Cesare Beccaria, in his work entitled "Dei delitti e
delle pene", criticized the arbitrariness and corruption that existed in the judiciary
and penitentiary systems which were dominated by repression at the time. He was
the first to advocate equal treatment and respect for the human being. Among his
claims, for the first time, there was the idea of death penalty abolition.
Subsequently, British philosopher Jeremy Bentham resumes Beccaria's classical
theory and advances it through the famous formula "What justifies punishment is
its usefulness or, more precisely, its necessity." 4
The author's vision was one in which the punishment had as its main
objectives: the prevention of offenses being committed; determining the
perpetrator to commit less serious deeds (crimes); keeping criminality rate as low
as possible. Beccaria and Bentham can be considered the founders of the classical
school of criminal law which is based on characteristics such as:
- considering free will as the foundation of any human action5
- the proportionality of the punishment in relation to the seriousness of the
act.6
It can be seen how the classical school presents man as an abstract being and
does not take into account the personality of the offender, his social or family
situation. 7
Through the humanization of the judiciary system, the two illustrious
representatives Beccaria and Bentham succeed in creating a transition between
justice done under the Talion Law and the idea of prevention brought forth by the
subsequent trend of thought - positivism. 8
1 Eshnunna Code, Hammurabi's Code, Law of the XII Table, Egyptian Royal Orders, and so on.
2 E.Ferri, Principii de drept criminal (Criminal Law principles), Revista Poyitiv Penal Publishing
House, vol. I, Bucureşti, 1940, pg. 7
3 Cesare Beccaria lived between 1738 and 1794.
4 J.Bentham, Traité de législation civile et pénale, Paris, 1830, apud R.M.Stnoiu, Introducere în
criminologie (Introduction in criminology), Bucureşti, The Academy’s Publishing House, 1989, p.155.
5 The theory of "free will" was based on three principles: all people were considered equal before
the law; man's conduct was controlled by reason; having a free will, man had to bear the
consequences of his deeds.
6 R.M. Stnoiu, Criminologie (Criminology), the 7th edition, Oscar Print Publishing House,
Bucureşti, 2006, pg. 9.
7 E. Ferri, previously refered to work, pg. 23.
8 Ibidem.
156 VEREŞ CRINA
The preventive model
At the end of the nineteenth century the preventive model of criminal policy
was outlined in the positivist doctrine9 which emerged under the influence of
evolutionary and deterministic theories. The preventive model is a social reaction
that takes place before the offense was committed, its primary purpose being to
prevent offenses from being committed. Enrico Ferri10 shows that the difference
between the repressive model and the preventive model results from the method
used in analysis: deductive - abstract logic, in the case of the classical school (which
was the basis of the repressive model), and inductive - specific to the experimental
sciences, in the case of the positivist school ( which was the basis of the preventive
model). 11
The aformentioned indicates that the offense is, above all, a natural and social
phenomenon; therefore, prevention should be placed in the foreground.12 Enrico
Ferri indicated the need to take social and economic measures to eliminate or limit
the role of the factors that generate the criminal phenomenon, including: street
lighting, administrative decentralization, reducing working time, reducing alcohol
consumption, and so on. 13 He believes that measures of this kind are more
important and can prove to be more effective in limiting the criminogenic factors.
Crime prevention is reflected in the safety and promptitude of punishment, not in
its severity. From the above it can be shown that the object of the preventive model
is given by the factors (causes) of crime.
Unlike the classical school, the positivist doctrine is characterized by:
- centering the criminological study on the perpetrator;
- determinism as the foundation of human choice;
- the proportionality of the punishment in relation to the perilousness of the
perpetrator; 14
- the sanction had a curative purpose, and was supposed to have a tendency to
cure the anomalies that made one person a dangerous killer. 15
- criminal liability was based on the need to defend society; 16
9 The representatives of the positivist doctrine were Cesare Lombroso, Enrico Ferri. Raffaele
Garofalo, Adolphe Jacques Quélelet, André-Michel Guerry and Henrz Mazhew.
10 Enrico Ferri, in his Ph.D. thesis titled La teoria dell'imputabilita e la negazione del libero arbitrio",
1878,, challenges the virtues of the repressive system as it was conceived by the classical school (the
doctrine behind the repressive model).
11 E.Ferri, previously refered to work, p.34
12 Ibidem.
13 Gheorghe Alecu, Criminologie. Note de curs (Criminology. Course notes), Spiru Haret University,
Faculty de Juridical Sciences and Economics Sciences, Constana, Department of Legal Sciences, 2017,
pg. 35.
14 R.M. Stnoiu, Criminologie,[...] , pg. 10.
15 Lavinia Valeria Lefterache, Drept penal. Partea generala (Criminal law. General part) Second edition,
Hamangiu Publishing House, Bucureşti, 2018, pg. 27.
16 Ibidem.
The role of social reaction reflected in the dinamics of the criminal codes 157
- the person's manifestations are absolutely determined by biological,
economic, anthropological and social factors; 17
It can be seen how within the preventive model the center of gravity moves
from the "deed" to the "perpetrator". However, starting from the idea that a person
has a predetermined behavior, the guarantees of a person’s freedom that were
promoted by the classical school (such as the presumption of innocence,
accountability based on the guilty act) were denied. 18
The mixed model
As it comes natural, with the emergence of a new trend, the debate that
stimulates scientific research in the criminal field also arises. Subsequent research
into the two doctrines has led to the emergence of new trends that have tried to
harmonize the positivist school with the classical school, and so the school of social
defense was born. According to this new school, the purpose of criminal law is
given by the social defense that is possible as long as institutions include both a
preventive element and a repressive element (mixed social response model).19
Thus, Franz von Liszt and Adolf Prins took into account the results of
criminological studies and "openly declared that punishment is not the only means of
fighting crime." 20
Since the offense was perceived as a socio-human deed, the need to study the
personality of the offender was highlighted. It appears that one of the main
objectives of the mixed model is not to provoke suffering, but to treat and
resocialize the offender (criminal).21 In order to obtain positive results, the
individualization of the treatment in order to re-socialize the offender should not
be achieved only when the punishment is applied, but also during the execution of
the punishment. Furthermore, safety measures have been proposed as distinct
elements of punishment in order to eliminate the danger and to prevent the
perpetrators from committing deeds under the criminal law. Such safeguards are:
medical coercive measures; educational coercive measures; special confiscation. 22
17 Ibidem.
18 Ibidem.
19 One of the representatives of the mixed model of social reaction was Mark Ancel, who in 1954
published in his work The New Social Defense a number of ideas such as: the use by society of both
economic, social and educational means, as well as means of repression aimed at neutralizing
offenders.
20 A.Prins, La défense sociale et le transformation du droit pénal, 1910, cited by Gian Domenico
Pisapia, Marc Ancel et la Défense sociale nouvelle, în Cahiers de défense sociale, 1990/1991, p.14
21 R.M.Stnoiu, Introducere în criminologie (Introduction in criminology), Bucureşti, The Academy’s
Publishing House, 1989, pg. 157.
22 Ibidem.
158 VEREŞ CRINA
The curative model
In the second half of the 20th century, the curative model of social reaction was
developed, based essentially on the results of the scientific research in criminology,
obtained by knowing the personality of the offender that came along with the
launch of the idea of his re-socialization.
The Second World War caused a natural reaction of rejection of the idea of
repression, which led to the development of clinical criminology, a domain that
places the offender in the center of concern, following his treatment and
resocialization. Ideas of the social defense doctrine were added to the scientific
data provided by clinical criminology, and thus the curative model has gained
more and more followers, imposing itself, to a certain extent, also on a legislative
level. 23
The name "curative model" comes from the analogy of clinical medicine24,
because the purpose was to treat the offender in the way a doctor treats his sick
patient. This type of social reaction was based on the fact that criminal policies
cannot be based solely on re-socialization, but also on the introduction of the
concept regarding the offender’s reintegration into society.
For this reason, the penalties were to be based on treatment methods
established following a biological, psychological, and social examination of the
offender. 25 Thus, for each individual a diagnosis was to be established, and, in the
end, an individual re-socialization treatment was to be developed. 26
Through this type of programs the aim was to improve the reactionary
tendencies of the offender, to improve his skills, to renew motivation and to
change his / her attitude. 27 Applying this type of treatment requires the offender
to actively engage and cooperate to transform his / her own personality. 28
In addition to the treatment described above, among the methods outlined in
the curative model, there are also: suspension of punishment, execution of
imprisonment in a state of “semi-freedom”, reform of the penitentiary system, etc.
23 Gheorghe Alecu, previously refered to work, pg. 37.
24 R.M.Stnoiu, Metode şi tehnici de cercetare în criminologie (Methods and techniques of research in
criminology), Bucureşti, The Academy’s Publishing House, 1981, p.75-80.
25 J.Pinatel, La société criminogene, Paris, Calmann-Levy Publishing House, 1971, p.448
26 B.di Tulio, Le traitement des délinquants, ses aspects d'ordre médical, psychologique et social, in
"Bulletin de la Societé Internationale de Criminologie", 1959, p.223, cited by R.M.Stnoiu, previously
refered to work, p.163.
27 Ibidem.
28 Ibidem.
The role of social reaction reflected in the dinamics of the criminal codes 159
Modern trends
More recently, the criminal law policy has been characterized by modern
trends such as the neoclassical trend and moderate trend. The development of the
two took place based on the idea that crime has no borders, thus the phenomenon
is not just a internal (national) issue but a global (international) one. The types of
crime that go beyond borders stand as proof of the aformentioned: organized
crime, terrorism, money laundering and cybercrime. 29 Thus, the specialized
conferences organized by O.N.U. have resulted in resolutions in the field aimed to
stimulate cooperation between states in order to find the most effective ways of
preventing and fighting crime.
The neoclassic (repressive) trend
The neoclassical (repressive) trend, in line with the Havana Convention's
Criminal Policy Recommendations, Appendix A, should be particularly relevant to
terrorism, organized crime, environmental crime, and corruption among civil
servants.30 The neoclassical trend emerged as a reaction to the curative model,
harshly criticized for the presence of psychiatric abuse, ineffective treatment
methods and techniques, and neglect of global crime prevention programs. Some
judicial procedures (such as the undetermined punishment system, probation and
"word-of-honor" releases) have led to individuals' inequality in chances,
depending on their social or financial position, shortcomings being placed in the
area of legal and executive arbitrage. 31
Some authors appreciated that the curative model of criminal policy was based
only apparently on the idea of social reintegration of offenders. In fact, treatment
measures have contributed both to label and stigmatize them, and to keep
prisoners in prison for longer periods than necessary. 32
During 1970-1975 there were disputes that led to the re-establishment of
repressive methods from the classical school, their followers being supported by the
29 Gheorghe Alecu, previously refered to work, pg. 40.
30 Eighth United Nations Congress on the Prevention of Crime and the Treatment of offenders,
Havana, 27 August – 7 September 1990, Report prepared by the Secretariat, UNITED NATIONS, New
York, 1991, p.2-5.
31 Hans W.Mattick, Reflections of a former prison warden, în vol. Delinquency, Crime and Society,
edition taken care of by James Short jr., Ed.The University of Chicago Press, Chicago, 1976, p.287-315;
Larry Siegel, Criminology, University of Nebraska, Omaha, 1987, p.556-558
32 Conf. Jose Luis de la Cuesta Arzamendi, Le système pénitentiaire: réforme ou abolition, în "Revue
de droit penal et de criminologie", nr.6/1985, p.549-556, cited by R.M.Stnoiu, Introducere în
criminologie, Bucureşti, The Academy’s Publishing House, 1989, p.173
160 VEREŞ CRINA
concrete criminal reality and the extent of criminality in the Western countries. 33 On
this occasion, the old theories about the deterrent effect of punishment and the
importance of short-term imprisonment, which would have a beneficial impact on
the perpetrators, reiterated the need to renounce alternative prison measures and to
strictly limit the incidence of being released on probation. 34 It has also been
proposed to increase the severity of the punishment and limit the possibilities for
judicial personalization of the criminal sanction. 35 Thus, both in the US and in
Europe, punishment individualization and re-socialization of criminals have lost
ground, and the states have returned to the classical system of fixed punishments
that are applied by taking into account the severity of the committed antisocial
deeds. 36
This aggressive reaction coming from society was justified by the alarming rise
in crime rates. Jean Pinatel also drew attention to a worrying aspect, namely that
the penitentiary had become a crime-enhancing environment, so that criminals
were, due to frustrations, specialized in committing criminal offenses. 37
After several discussions, the governments38 (especially the Swedish
government) concluded that: "The prison sentence is described as a sanction which, in
the vast majority of cases, can not bring about any improvement in the personal or social
situation of those who are convicted, "which is why" (resocialization) by deprivation of
liberty is an illusion. ... this punishment leads to minor rehabilitation and high recidivism,
in addition to having destructive effects on personality. "39
In the conclusions of the seminar, it is indicated that imprisonment is
considered to be necessary in the case of serious crimes and in the case of
incorrigible criminals, whom non-custodial sanctions would no longer have any
effect. 40 Moreover, national laws need to be revised to ensure more appropriate
measures for new forms of crime, and not to rely solely on the application of
criminal penalties, but also to take into account legislative measures in the civil or
administrative field. 41
33 R.M.Stnoiu, Introducere în criminologie(Introduction in criminology), Bucureşti, The Academy’s
Publishing House, 1989, p.173
34 Ibidem.
35 Ibidem.
36 Gheorghe Alecu, previously refered to work, pg. 42.
37 Idem, pg. 43.
38 European Seminar on Alternatives to Prison Penalty, held in Helsinki on 26-28 September 1987
in the organization of the Helsinki Institute for Crime Prevention and Control (HEUNI).
39 Ibidem.
40 Ibidem.
41 Documents of the Congress of Havana, Annex A, point 3.
The role of social reaction reflected in the dinamics of the criminal codes 161
The moderate trend
The last trend is the moderate one, which appeared as a compromise attempt
between the last three models of social reaction described above: the preventive
model, the curative model and the neoclassical (repressive) trend. This emphasizes
the moderate policy of the states in the 21st century, also known as "common sense
policy”. This includes the idea that the very severe repression doubled by the
complete renunciation of it will result in the continuous increase of the criminal
phenomenon. 42
The moderate trend promotes the idea that the fight against criminality can not
be carried out only by repression, and this battle is not strictly a matter for public
authorities. An appeal is made for the active contribution of all citizens to solve the
community problems (including crime). 43
According to this doctrine, imprisonment must be applied with moderation
and only in the case of serious crimes or when the active subjects of criminal acts
are incorrigible offenders, while also seeking to create alternatives that could
provide more accessible methods for administration of justice, such as mediation,
arbitration and conciliation courts and alternatives to detention such as community
work.44 In conclusion, the moderate trend in the criminal policy is a humanized
one, oriented towards the idea of alternation and involvement of the members of
society in solving the problem of the criminal phenomenon.
Criminal Code of 1865 (Al. I. Cuza)
The ruler Alexandru Ioan Cuza, as his close counselor Mihail Kogalniceanu
liked to say, wrote his own story: "The face of the country is the page of the history of
Alexandru Ioan Cuza. Alexandru Ioan does not need a historiograph. He himself wrote his
history through laws, through acts which he used to make a state, a society other than what
was given to him when we proclaimed him ruler." 45
The necessity of elaborating a unitary (criminal) law occurred as a natural
reaction to the act of unification of the Romanian Principalities in 1859.46 Thus, the
42 Gheorghe Alecu, previously refered to work, pg. 44.
43 Ibidem.
44 Ibidem.
45 Constantin Chiper, 24 IANUARIE 1859 – EVENIMENT ISTORIC CU O SEMNIFICAIE
DEOSEBIT (24th of JANUARY 1859 – HISTORICAL EVENT WITH A SPECIAL SIGNIFICANCE) ,
published in Istorie şi societate: studii şi comunicri - sesiune de comunicri ştiinifice- Ploieşti, 9th of mai
2012, Mileniul III Publishing House, Ploieşti, 2016, pg. 117.
46 V. Dongoroz, Drept Penal, Asociaia Român de Ştiine Penale (Romanian Association of
Criminal Sciences), Bucureşti, 2000, pg. 63 - "Immediately after the unification of the Romanian
Principalities, (1859) the thought of all our great patriots was to give the country a new and uniform
legislation."
162 VEREŞ CRINA
draft Criminal Code (inspired by the French Criminal Code of 1810 and the
Criminal Code of Prussia of 1851, as amended until 1863) together with the draft
Code of Criminal Procedure (inspired by the French criminal code of 1808) are
presented to the Parliament in 1864 and promulgated by the ruler Alexandru Ioan
Cuza, coming into force in April 186547 and unifying the criminal legislation
marking the beginning of the modern criminal law. 48
The 1865 Criminal Code was presented as one of the most gentle criminal laws
in Europe. 49 The reason for this characterization is the abolition of the death
penalty50, beating, exile, public exposure and property confiscation. 51 This
legislation has elements found in the repressive model (especially the ideas given
by the classical school), but also some elements of the preventive model (e.g.
alternatives to the punitive measures).
Thus, the repressive reaction can be observed by consecrating the principle of
the lawfulness of incrimination and punishment, admitting the moral
responsibility of the perpetrator, as a result of free will, guilt as grounds for
punishment, equality before criminal law, and so on. 52
The Criminal Code was based on the concept that "offenders are rational people,
aware of the consequences of their actions, who have antisocial offenses and as such have to
be excluded from society." 53 The reasoning described implies a psychological attitude
in where there can be found both an intellectual element (consciousness) as well as
a volitional element (will). In this respect, the offense is dictated by man's
conscience and triggered by his will. For this reason, the criminal code provided
for intent as a constituent element of the offense.54 As an example, we can see the
following intentional offenses: murder committed voluntarily (article 225), murder
(article 234) and premeditated murder (article 232). 55 Other elements that indicate
rational man's conception in criminal law are: the purpose of the offense (which is
found, for example, in the crime of high treason - article 67 C.Pen.1865), causes that
47 Ion Ifrim, Explicaiile Noului Cod Penal (The new criminal code explained), Universul Juridic
Publishing House, Bucureşti, 2015, pg. 23.
48 V. Dongoroz, op. cit., pg. 63 –"With all the hardship lived by the Romanian people, the evolution of
repressive justice in the Romanian lands does not differ much from the evolution present in the Western
countries."
49 Lavinia Valeria Lefterache, previously refered to work, pg. 30.
50 The French criminal code maintains the death penalty. Although the Romanian Criminal Code
was based on the French criminal code, Beccaria's theory in the book "Dei delitti e delle feene"
published since 1764 has not been put into practice everywhere. For this reason, criminal law in
Romania could be qualified as one of the most gentle, despite the predominance of the repressive
model of social reaction in its structure.
51 Ion Ifrim, previously refered to work, pg. 23.
52 Ibidem.
53 Ion Ifrim, previously refered to work, pg. 23.
54 Ibidem.
55 Criminal Code of 1864.
The role of social reaction reflected in the dinamics of the criminal codes 163
excluded imputability and culpability. 56Another argument that supports the idea
of a rational man aware of the consequences of his actions is the regulation of the
phases of an offence: the oratory phase of the preparatory acts57; the attempt, and
the consumed offence phase. The complexity of the code was also given by the
regulation of some institutions, such as: relapse, cumulation of crimes, pardon,
amnesty, rehabilitation, etc. 58
What is interesting to observe is that although in this particular Criminal Code
the ideas of the classical school predominate, the regulation also provided some
safety measures (an element that is typically found in the preventive model of
social reaction). For example, safety measures were provided for minors who acted
without discernment, such as their internment to a monastery to be corrected
(Article 62 of the 1865 Criminal Code); there was also a ban on being in some
localities, a measure being taken regarding convicts in order to prevent future
criminal activity. 59 Another regulated measure was the special confiscation that
could be ordered by judges when certain goods were produced by offenses, used
for, or destined to be used for the commission of crimes if these were the property
of the offender or of any other accomplice. 60
The Code also included another rule typical of the preventive social response
model, namely: the regulation of the criminal treatment of minors by which a
relative presumption of the lack of "understanding" was established. The Code has
undergone numerous modifications and additions in the 72 years since it was
applied, without altering its content.
The Criminal Code of 1937 (Carol the second)
The second criminal code appears in a historical context that involves a new
unification. It is about the accomplishment of “Great Romania” (1918), which came
with the necessity of elaborating unitary criminal legislation in relation to the
country becoming complete. Immediately after the union, the Old Kingdom
legislation was extended to Basarabia in 1919. Also, some procedural provisions
and some special laws were extended throughout the country. 61 The essential
feature of this development was the increase in the number of incriminations and
the increased seveity of punishments. 62
56 Ion Ifrim, previously refered to work, pg. 23.
57 The Criminal Code provided for the principle of impunity for preparatory acts.
58 Ion Ifrim, previously refered to work, pg. 23.
59 Idem, pg. 24.
60 Ibidem.
61 Ion Ifrim, previously refered to work pg. 24.
62 Idem, pg. 25.
164 VEREŞ CRINA
The criminal code of 1937 was marked by both the repressive model and the
preventative model of social reaction. The regulation thus enshrines the principles
of the classical criminal school (the moral responsibility of the individual, the
freedomof will, the lawfulness of incrimination and punishment, the guilt, etc.),
but it was also influenced by the positivist school (admitting the safety measures
for the state of peril of the perpetrator, in order to re-socialize the convict,
educational measures for juvenile offenders). 63
The Criminal Code of 1937 provided in the first book the principle of the
personality of the criminal law and regulated double criminality for all crimes
committed by a Romanian citizen abroad. Thus, the facts are not incriminated by
the Romanian law, the conviction would be contrary to the Romanian public order,
and if the foreign law does not criminalize the same deed, it means that the
Romanian citizen committed an act that was allowed at the place of the
commission. 64
The repressive model is felt by the founding of the criminal code on the
principle of the classical school regarding the moral responsibility of the offender,
but the regulation also took into account the necessity of defending the society
through awareness of the danger that the offender would represent for it. 65 The
second element is a preventative one, indicating that the preventive trend from the
1865 code is also highlighted in the 1937 code by a harmonious connection with the
repressive elements. 66 The Criminal Code regulates the offense institution, which it
considers a strict legal phenomenon, the crime and punishment appearing as legal
entities, as violations of certain regulations existing in society and whose danger
was determined by the gravity of the facts of disregarding these rules. 67
European criminal codes have been a source of inspiration for the Criminal
Code of 1937 regarding the notions of legitimate defense, state of necessity, order
of law, victim's consent are justifying causes, distinguishing (implicitly68) between
justifiable causes, which produce in rem effects, and the causes of lack of
culpability, which produce in personam effects. 69
63 Idem, pg. 25-26.
64 Vintil Dongoroz, previously refered to work,pg. 154.
65 Ion Ifrim, previously refered to work , pg. 26.
66 Tudor Avrigeanu, Actualitatea operei lui Vintil Dongoroz din perspectiva dreptului comparat (The
Vintil Dongoroz Opera from the Perspective of Comparative Law),in Vintil Dongoroz (1893-1976) -
personalitate marcant a ştiinei juridice româneşti (outstanding personality of Romanian legal science),
Romanian Academy Publishing House, Bucuresti, 2013, p. 63.
67 George Antoniu, Contribuiile profesorului Vintil Dongoroz la dezvoltarea dreptului penal roman
(Contributions of Professor Vintil Dongoroz to the development of Romanian criminal law), in Vintil
Dongoroz (1893-1976), Personalitate complex a dreptului românesc (Complexity of Romanian law),
Romanian Academy Publishing House, Bucureşti, 2013, pp. 40-41.
68 In the texts on the causes of lack of culpability the expression "the accused is not responsible
for the offense". The texts referring to the justifying causes used the expression "the act is not
considered a crime".
69Ion Ifrim, previously refered to work, pg. 26.
The role of social reaction reflected in the dinamics of the criminal codes 165
The purely repressive tendency to raise the severity of the punishments is
brought about by the reintroduction of the death penalty, as well as the regulation
of deprivation of liberty, such as lifetime labor, labor for a time between 5 and 25
years, and heavy dungeon from 3 to 20 years. 70 In addition to the main
punishments, the penal code provided complementary punishments and
accessories such as deprivation of rights (civic degradation, correctional
interdiction and loss of parental authority, which applied both as an accessory
punishment and as a complementary punishment). 71 The preventive element in
this area is presented by pecuniary punishment (fine, confiscation of property and
bail). 72
What can be observed is a tendency to resocialize (reintegrate) offenders,
which is specific to the mixed model since it imposes certain security measures for
the moral restoration of offenders (in Book l, Title IV, Chapters I and II, which had
a distinct regulation from that of penalties). The Criminal Code provided security
measures that involved depravation of liberty: the internment of dangerous
offenders because of mental alienation, abnormality or vice; the internment of
dangerous criminals for their criminal perseverance; the internment of dangerous
offenders due to parasitic life (stragglers, beggars). 73
The prevention of the criminal phenomenon has also been attempted through
interdictions such as: the ban on entering certain pubs and other party places, the
prohibition to leave the city/village/town or to be in certain city/village/town
and expulsion (these are measures restrictive of liberty) and the prohibition to
exercise a profession or job, closing the premises of a pub, suspension or
dissolution of legal entities (these are measures restrictive of rights). 74
The 1938-1969 period (Communism)
The 1937 Criminal Code continued to be enforced after the establishment of
the communist regime. However, changes have been made to counteract any
opposition to the new social order (we are talking about a purely repressive trend -
the death penalty75 for some serious offenses against the order and measures
initiated by the new government). Also, a series of criminal laws of this period
70 Ibidem.
71 Ion Ifrim, previously refered to work pg. 27.
72 Ibidem.
73 Ibidem.
74 Ion Ifrim, previously refered to work pg. 27
75 The death penalty was introduced into modern legislation in Romania on September 24, 1938;
then it was abolished in 1948, by the republished Criminal Code, being reintroduced in 1949 (Law No.
16/1949), as well as by other decrees (for example Decree No. 202/1953, Decree No. 469/1957, Decree
No 318/1958, Decree 212/1960)
166 VEREŞ CRINA
provided for the protection of socialist state’s property or of the collective
households’ property, the confiscation of property.76 A trait of the criminal
measures adopted during the totalitarian dictatorship was the intensification of
incriminations, the increasing severity of punishments, and the diminution of the
procedural guarantees to the point of their extinction . 77
In order to meet the requirements of the new regime, the criminal code was
republished in February 1948. The principle of legality (classical school) lost its
essence with the introduction by Decree no. 187/1949 of the analogy according to
which "Acts considered dangerous to society may also be punished where they are not
specifically provided for by law as offenses, the grounds and limits of liability being
determined in this case according to the provisions prescribed by law for similar crimes." 78
From the progress made in the field of social reaction regarding the Criminal
Code, elaborated during Carol the second during communism, legislation has
come to regress and to re-establish repression as a form of control of society. It is
also regrettable that the typical repression and humanistic elements of the classical
school (Beccaria, Bentham) found in both the regulations analyzed above have led
to the repression existent before the aforementioned school’s emergence. Thus,
criminal institutions have come to be applied against society and not as a way of
social defense (typical of the mixed model that occurred up until 1948).
The Criminal Code of 1969 (Vintil Dongoroz)
On the 1st of January 1969, the criminal code, developed by reputable
specialists, under the leadership of Professor Vintil Dongoroz came into force. It is
noteworthy that the criminal law re-establishes the modern principles of criminal
law such as: the principle of the lawfulness of incrimination and punishment. Also,
other principles were enshrined, such as: guilt; individualisation of criminal
sanctions; the existence of safety measures in relation to the perpetrator's
dangerous nature, educational measures for the punishment of minors, provisions
expressing the principles of the classical school, the positivist school as well as the
conceptions of the neoclassical trend. 79
76 George Antoniu, Cercetarea ştiinific în domeniul dreptului penal (Scientific research in the field of
criminal law), scientific communication presented at the scientific session of the Institute of Legal
Research "Acad. Andrei Rdulescu "of the Romanian Academy, on the subject of Doctrinajuridic
româneasc: tradiie şi reform din data de 7 martie 2014 (Romanian Doctrine, Tradition and Reform from the
7th of March 2014) apud Ion Ifrim, previously refered to work., pg. 27
77 Ion Ifrim, previously refered to work., pg. 27
78 Lavinia Valeria Lefterache, previously refered to work, pg. 30.
79 Ion Ifrim, previously refered to work ,pg. 29.
The role of social reaction reflected in the dinamics of the criminal codes 167
The purpose of the criminal law as well as the three fundamental principles of
criminal law: democracy, humanism and legality80 were explicitly written in the
code of 1969. According to Professor Dongoroz, the principles would be the
cornerstone of the whole regulation, reflected in all institutions and norms that
form the content of these regulations.81 These serve to characterize the system as a
whole, and to explain and correctly apply them. 82 The principle of double
criminalization has been dropped, the motivation being that the citizen of a
country must comply with national law wherever he/she may be, regardless of the
provisions of foreign law.
The scientific criterion for distinguishing between offenses and crime groups
was now the type of socially protected relations by the criminal law and the social
values related to these relationships. The idea of defending social values is brought
to the forefront, so that criminal unity (continued crime and complex crime) is
regulated (for the first time). The motivation (essentially one that establishes a
society's fairness against the offender) is that in both cases there is one offense, but
its content is made up of a plurality of actions. 83
In order to avoid imprisonment in the case of deeds with a low social risk, the
scope of the punishment of the fine has been widened, the recidivism was
restrained, the correctional labor institution was introduced (later called execution
of the punishment at the workplace), the replacement of liability criminal penalties,
suspension of the execution of the punishment under supervision, security
measures, by adopting the newest principles of criminal policy.84 Significant
changes, which especially highlight the neoclassical trend, are also taking place
through a series of other normative acts: Law no. 51/1991 on the national security
of Romania, Governmental Urgency Ordinance no. 105/2000 on the state border of
Romania and Law no. 678/2001 on preventing and combating trafficking of
human beings.
The Criminal Code of 2014
In principle, the New Criminal Code of 2014 has the same traditional scheme
and structure unit that all codes have kept, stating similar provisions (criminal law
80 Vintil Dongoroz and colab.., Explicaii teoretice ale Codului penal roman (Romanian Criminal Code
theoretical explanations), vol. I, Romanian Academy’s Publishing House, Bucureşti, 1969, p. 7; Vintil
Dongoroz, Sinteze asupra noului Cod penal al României, în SCJ nr. I/1969, p. IO; Ion Oancea, Tratat de
drept penal(Criminal Law Treaty), AII Publishing House, Bucureşti, 1995, p. 16. apud Ion Ifrim, previously
refered to work pg. 29.
81 Ion Ifrim, previously refered to work., pg. 29.
82 Ibidem.
83 Ibidem.
84 Ion Ifrim, previously refered to work pg. 30.
168 VEREŞ CRINA
enforcement in time and space, provisions regarding offender, offense,
punishment, as well as the causes excluding crime and punishment). 85 In addition
to the traditional provisions (in which we observe the reflection of both the ideas of
the classical criminal school86 and the ideas of the positivist school87), some new
provisions more suited to the new vision dominated by the moderate trend (the
policy of common sense) have been added.
Therefore, in order to follow this trend, both at the level of criminal law in
Romania and in other states there is either a process of deincrimination of
offences/deeds that no longer pose a social danger, or their removal from the field
of criminal law, followed by their sanctioning through other means (administrative
- contraventions, civil - civil offenses).
Regarding the new definition of the offense, it is noticed the elimination of the
requirement that the deed presents a social danger. In this respect, the new
definition is a step forward and brings the Romanian doctrine closer to the other
doctrines that define the offense in this way (the offense is the deed stipulated by the
criminal law committed with guilt ...) 88. The new definition of offense also includes
two new features, namely that the act is unjustified and attributable to the person
who committed it.89 The legislator explicitly provided the justifying reasons,
separated the author's definition from the co-author’s and of the participants’
definition, and provided for more rational, lesser penalty limits for some offenses
and others.
Moreover, the progressive ideas related to the execution of criminal sanctions,
as much as possible in an open environment, were reflected in the provisions of the
new Criminal Code, which indicates the alignment of the Romanian Criminal
Code to the great currents of science in criminal law. 90
Modification of the criminal codes (2018 – future)
As expected, some provisions of the current criminal code are more susceptible
to discussion than others. The doctrine and jurisprudence criticized several
provisions, and changes were suggested to address some shortcomings in the
desire to continuously improve the criminal law worthy of the modern trend of
"common sense policy."
85 Ion Ifrim, previously refered to work pg. 31.
86 Principles such as: the lawfulness of criminalization and the lawfulness of criminal law
sanctions, guilt, individualization of punishment, personal liability, etc.
87 Introducing safety measures (Article 108 of the Penal Code); of educational measures (Article
15 of the Penal Code); individualization of punishment (Article 74 of the Penal Code).
88 Ion Ifrim, previously refered to work ,pg. 31.
89 Ibidem.
90 Ibidem.
The role of social reaction reflected in the dinamics of the criminal codes 169
Thus, as a result of the criticisms made not only internally (for example, by the
Constitutional Court, for example, decisions of unconstitutionality: no 265/2014,
508/2014, 732/2014, 11/2015, 405/2016 , 68/2017, 368/2017 and 224/2017) but also
internationally (in relation to Directive (EU) 2016/343 of the European Parliament
and of the Council of 9th of March 2016 on the strengthening of certain aspects of
the presumption of innocence and the right to be heard in criminal proceedings by
Directive 2014/42 / EU of the European Parliament and of the Council of 3 April
2014 on the freezing and confiscation of instrumentalities and the proceeds from
crime in the European Union, as well as the decisions of the European Court of
Human Rights in the matter), a problem solving is currently being attempted
through the Legislative Proposal for amending and completing the Law no.286 /
2009 on the Criminal Code, as well as the Law no.78 / 2000 for the prevention,
detection and sanctioning of corruption. 91
Some of the proposed changes include: reducing prescription periods,
changing the conditions under which extended confiscation may be ordered,
shortening the time limits for granting conditional release (release on probation),
reducing sentences for service offenses, reducing punishment for the offense
contest (multiple offences), modifications of offenses (such as abuse of service,
influence trafficking, bribery and compromising the interests of the judiciary
system), as well as decriminalization of offenses (such as negligence in the service
of the public).
It is premature to comment on the effectiveness of the proposed measures
(both for and against). One thing is certain: the law is behind the evolution of
society. Being a social science, changes in the level of social relationships (and
social values) inevitably lead to the need to change their legislative regulation. For
this reason, we can say that the last chapter in the history of criminal law has not
yet been written.
91 The legislative proposal is currently registered at the Chamber of Deputies under PLx.406 /
2018