Unification of criminal law after the great union - the 1936 criminal code

Author:Iuliu Cracana
Pages:170-177
 
CONTENT
170 IULIU CRĂCANĂ
UNIFICATION OF CRIMINAL LAW AFTER THE GREAT
UNION – THE 1936 CRIMINAL CODE
Iuliu Crcan
The Great Union of 1918 was an exceptional achievement of the Romanian
nation, but also of the political class that was able to take advantage of the
international post-World War I situation. Immediately, the same political class was
faced with a new challenge, consolidating the state by continuing unification at all
levels: the administrative system, the education system, and so on. Among these,
unifying the right on two components was of particular importance: judicial
organization throughout the country and, above all, unification of legislation. As
regards the judicial organization, the gradual measures have yielded satisfactory
results in a relatively medium time by introducing the Romanian language into all
Romanian courts, bringing the competences of the courts and the way of
appointing justice cadres and the way of advancement. In terms of legislative
unification, however, impediments were much larger and more complex, not by
political will or administrative efficiency, but by the science of law. The Romanian
state had to decide what kind of law to govern in the legal relations in the future. It
was therefore necessary to consult the specialists and to set up committees and
working groups of law professionals, which has happened.
The founding of Great Romania, as in other states completed under the peace
treaty, created a situation in the field of criminal law, with a plurality of laws being
in force, namely the 1964 Criminal Code of the Old Kingdom, the Hungarian
Criminal Code of 1878 and the Conventions Code (in Transylvania), the Austrian
Penal Code of 1852 (in Bukovina), the Russian Criminal Code of 1903 in Bessarabia.
In Bessarabia, by exception, by Decree-Law no. 1730 of 2 May 1919 were extended
with effect from July 1, 1919, the Criminal Code and the Criminal Procedure Code,
the Law and Regulation of the Prisoners of the Old Kingdom, while maintaining
only one provision of the Russian Code, the one on conditional release before
term1. In the rest of the territory, "for legislative reasons, for a time, the Romanian
state chose to maintain all criminal laws in force until a new Criminal Code was
drafted"2. The measure, however, was only a temporary one, the obligation "to
1 Nicolae-Cristian Ursulescu, Judicial Organization in Romania between 1918 and 1938,
Demiurgical Publishing House, Iasi, 2012, p. 89.
2 Vintil Dongoroz, Criminal Law Treaty, Bucharest, 1939, p. 81.
Law Review vol. VIII, issue 2, Jul
y
-December 2018, pp. 170-177
Unification of Criminal Law after the Great Union – the 1936 Criminal Code 171
review all codices and existing laws" was stipulated in the 1923 Constitution3.
Moreover, a special commission for the unification of criminal law was set up in
1920, and it ended its work in 1925 when its powers were taken over by the
Legislative Council4. After The First World War, in most states in Europe there is a
real effervescence of criminal science. The consequences of the war, a growing
criminality5 and the reconfiguration of Europe's political map are followed by
Criminal Code projects in Germany, Czechoslovakia, Serbia, Poland, Greece, Italy.
There is a continuous dialogue between European specialists at congresses and
international conferences. On March 30, 1924, the Romanian Society of
Comparative Legislation, affiliated to the Comparative Legislation Society of Paris,
was established6.
After 1918, besides the territory of Bessarabia, the attempts to extend the laws
of the Old Kingdom experienced difficulties, most of them were encountered in
Transylvania, so it could not be accomplished by authoritarian gesture. Constantin
Hamangiu's attempt to unify by extension in the new provinces was met with a
strong resistance7.
Efforts to develop new codes have intensified since the establishment of the
Legislative Council. The first draft of the Criminal Code was submitted in the
offices of the Assembly in 19288 and the second in 1933. Both projects were
withdrawn by succeeding governments, and only the third, the one submitted by
the Justice Minister at that time, Victor Antonescu, in 1934, was debated and
adopted. Meanwhile, several legal provisions have been repealed, namely the
death penalty in Hungarian law enforced in Transylvania and the Austrian
legislation in force in Bukovina. In parallel, special criminal laws applicable
throughout the country imposed by new social and economic realities, such as the
Law on stopping and suppressing illegal speculation adopted on June 17, 1923, were
adopted. Although the deeds they were pursuing were already decreasing, they
were incriminated facts such as deceiving buyers by replacing goods, falsifying or
distorting goods and forfeiting goods, exceeding maximum prices, and so on.
3 Article 137 of the 1923 Constitution.
4 The Legislative Council was established by the Law of 26 February 1925 to assist in the
preparation of laws in a consultative manner. In its task was elaborated the drafts for unification of all
judicial codes.
5 After The First World War, Professor Jean Rdulescu pointed out, the society was in a position
where "a better organized struggle against increasing criminality was needed" (Jean Rdulescu, The
Influence of Italian Positivism on Current Criminal Codification, in "The Review of Criminal Law and
Science penitentiary"), vol. 14, 1935, p. 122.
6 Nicolae-Cristian Ursulescu, Quoted Opera, p. 174.
7 Constantin G. Rtescu, et al., Criminal Code II annotated, Vol. I, General part, "Preface", Book
publishing house SOCEC & Co., Bucharest 1937, page IX.
8 P.N.T., a party that dominated the legislative forum in 1928, considered the document's
provisions to be inadequate.
172 IULIU CRĂCANĂ
Other laws applicable throughout the country have emerged from the need to
criminalize some crimes against state security and against public peace, defense of
the state order against terrorist acts. In response to the Soviet aggressive policy that
organized subversive military action on Romanian territory, on December 19, 1924,
the Law for the suppression of new crimes against public silence (called Mârzescu
Law, after its initiator) was adopted, in which actions were accused anti-state
measures such as those aimed at violently changing the social and state order,
entering into ties with persons or associations from abroad to receive instructions
and aids, affiliation to associations urging or organizing actions against property
and persons, execution of propaganda actions in various forms9.
As a result of the railway workers' strike at Grivia Workshops in Bucharest,
the Law for the authorization of the siege was promulgated on 4 February 1933,
whereby the government was empowered to decree, if necessary, the general or
partial state of imprisonment for 6 months, and, later, in the context of intensifying
far-right political activities, new laws were passed on 16 March 1934 and 15 March
1937 authorizing the establishment of the siege.
Following the assassination by the legionnaires of Prime Minister I.G. Duca on
April 7, 1934, the Law for the defense of the state order was promulgated, allowing the
Council of Ministers to dissolve the political groups that threatened the political
order or the social order in the state. Simply participating in the activities of such
groups could be punished with correctional jails and correctional bans.
That is why any analysis of the Criminal Code of 193610 must go from an
understanding of the two contexts in which it was adopted: the scientific context
and the political context.
From a scientific point of view, the Criminal Code of 1936 was on the positivist
line that tended to impose itself in the criminal policy of the surrounding states.
The Italian positivism influenced by the evolutionist doctrine and the application
of the positive induction method in all domains has also emerged in the field of
criminal law as an alternative, in opposition to the classical school. The research of
Franz Joseph Gall11 and Benedict Auguste Morel12 was theorized by
9 In 1927, due to the Dynastic crisis triggered by the death of King Ferdinand, when Prince Carol
had renounced the throne, the Mârzescu’s law was granted some additions, and the actions against
the King's person, the Regency's constitution, or the legal succession to the throne were accused.
10 Although it came into force on January 1, 1937, we will continue to name it after the date of its
adoption.
11 Franz Joseph Gall (1758-1828) studied medicine in Strasbourg and Vienna, being primarily
concerned with brain anatomy. Between 1810-1819 author of the paper: "Anatomy and physiology of
the nervous system in general and of the brain in particular".
12 Benedict August Morel (1809-1873), a professor of psychiatric physics, worked in a public
asylum where he carried out research into a vast work: "Treaty on the physical, intellectual and moral
degeneration of the human species".
Unification of Criminal Law after the Great Union – the 1936 Criminal Code 173
representatives of the Italian positivist school Cesare Lombroso13, Rafaelle
Garofalo14, Enrico Ferri15. The influence of the Italian Criminal Code, the most
recent Criminal Code adopted in the countries to which Romania was looking at,
adopted in October 1930, entered into force in July the following year.
Unlike the classical doctrine, according to which the individual, endowed with
free will, has exclusive moral and criminal responsibility and the criminal law has
to deal only with the repressive reaction, and not in a preventive way, the
positivist school investigates the criminal phenomena using the inductive or
positive method, based on observation and experimentation used in the natural
sciences. First viewed as a social and natural phenomenon and then as a legal
phenomenon, the offense is a product of an individual, and the individual, the
offender or the offender " is not free in its manifestations but is determined by
biological, social and cosmoteluric factors. Thus, the offender is determined to
commit the offense, his liability can not be based on moral guilt, but the necessity
of social defense"16.
The influence of positivism results in the emphasis placed on the personality of
the offender, both in the criminal process and in the way the punishment is
executed. According to Traian Pop, one of the jurists who participated in the
drafting, "attention was paid to the offender, who in a modern code should be on
the first level, not after the offense. The offense is not an abstract entity, but the
deed of a man with a complex genesis. The offense in the modern conception does
not concern itself and by itself, but only as the deed of a man who has been
dangerous to society. (...) The subjective criterion is more important, so besides the
nature and gravity of the crime, the personality of the offender is taken into
account: his criminal history, the mob, the degree of perversity, the moral decay,
the behavior after committing the offense"17.
13 Cesare Lombroso (1835-1909), a professor of legal medicine in Turin, considered the father of
modern criminology, author of L'Uomo delinquent, Criminal Anthropology and Recent Progress,
Genius Man.
14 Baron R. Garofalo (1851 - 1934) career magistrate, President of the Chamber of Appeal of
Naples. In Criminology, he develops the theory of moral abnormality, distinguishes between natural
crimes and conventional crimes, postulates that punishment follows the crime that hurts the moral
sense of a community. He concludes that the typical murderer is a moral monster and introduces the
notion of danger to the offender.
15 Enrico Ferri, (1856-1929), in the paper "The New Horizons of Criminal Law" formulates the
multifactorial theory of the crime, concluding that competing factors of biological, psychological and
social nature determine the individual phenomenon of crime. He denies free will, so moral
responsibility, replaced in Ferri's view of social responsibility. With him the positivist theory of
criminal responsibility is born.
16 Mihaela Agheniei, Permanents of Criminal Law: General, Bucharest, The Universe Juridic,
2010, p. 9.
17 Traian Pop, Proiectul Codului Penal din 1922 şi Codul Penal Carol II, în „Analele Facultii de
Drept din Cluj”, vol. 1, nr. 8, 1939, p. 8.
174 IULIU CRĂCANĂ
Not by accident, The Criminal Code of 1936 was preserved by the Communists
until 1968. Punishment has primarily a social purpose, becoming a tool of social
straightening and manipulation. The individualization of the punishment to the
offender's past and his personality will open the way for a specific criminal vision
in Romania for subsequent dictatorships. From personalization to politicization
was a small step. The personalization of punishment according to the individual's
social origin and labeling as a "declassified element" in the common law processes
of the 1980s originated in the criminal view of Italian positivism.
In terms of form, the Criminal Code of 1936 preserved the 1864 system,
criminal offenses being divided into three categories: crimes, offenses and
contraventions, depending on the regime of punishments. It was written in three
parts: Book I contained general provisions, Book II contained provisions on crimes
and offenses, while Book III contained provisions on contraventions.
The offenses were regulated with great care and were divided into three types:
political offenses by their nature, common law offenses that could become political
crimes and common law offenses that could not in any way become political
crimes. Offenses have been more severely punished and some crimes have been
removed from the category of crimes and passed into the category of offenses. On
the other hand, the judge's ability to reduce the amount of punishment was greatly
reduced. In terms of drafting technique, the Criminal Code of 1936 stands out
through clear texts, definitions and clear concepts.
A peculiarity of the 1936 Criminal Code was the progressive system of
executing the punishment under the supervision of the judge. For example (Article
28), the condemned to labor was isolated in the individual cell for 1-2 years,
performing the prescribed work there, then performing joint work under the
silence regime and only after the execution of 2/3 of the sentence could be passed,
for good behavior, in a penitentiary colony. He could obtain conditional release
after execution of ¾ of the punishment. The progressive system originated in art.
10 of the 1964 Criminal Code of the Old Kingdom, and had no correspondence in
any foreign code other than principally18. Improvement of the regime through
progressive punishment, was intended to "prepare the detainee for the
rehabilitation of social life"19.
Also in the field of social defense, new institutions were introduced in the
Criminal Code, such as the suspension of punishment, conditional freedom,
rehabilitation of convicts and the removal of the criminal record, and additional
punishments and accessories were provided in addition to the main punishments.
Beyond the scientific context, in order to understand the Criminal Code Carol
II, we need to evaluate the political context in which it was adopted. The surnames
18 Constantin G. Rtescu, et al., Criminal Code II annotated, Vol. I, General part, "Preface", Book
publishing house SOCEC & Co, Bucharest 1937, p. 28.
19 Constantin C, Zotta, The New Offenses of the Criminal Code "Carol II", Bucharest, 1936, p. 5.
Unification of Criminal Law after the Great Union – the 1936 Criminal Code 175
that were given to him at the time of the "Carol II Code" tells a lot about the cult of
the king's personality, in full ascension. In those years, he used all the means to get
hold of all political power in Romania. On the other hand, fascism and
communism were ideologies in full swing, both attacking democracy, eulogizing
the revolution, promoting violence in political life through assassinations and the
formation of paramilitary formations. The threat to the democratic state order
necessitated, therefore, new legal approaches. On the other hand, Romania's
Criminal Code, due to the hostility of the Romanian state towards the Soviet
Union, could only be close to the Italian and German criminal codes.
In general, the Criminal Code of 1936 introduced harsher punishments for
offenses whose "frequency and generalization constituted a real danger to the
normal development of Romanian society"20.
Although the draft Criminal Code was particularly progressive and modern
for its time, the Parliament made serious changes to put it in a traditional,
conservative, Orthodox mother. We must not forget the role of the church and
patriarch Miron Cristea in interwar politics. The majority church was the "offense
of illegal conversion" that targeted the person receiving or enlisting among his
believers a person belonging to another cult, without having previously assured
that he had fulfilled the necessary formalities for crossing the cult from which he
belonged.
Under the pretext of defending "the family, the woman in general, the married
woman especially or the minor children"21, women's rights within the family were
reduced, in close connection with the church's vision, public morality for the
benefit of her husband in general. Considering the views of the lawyers in the
project, most of the changes have suffered adultery and abortion. Although he was
not criminalized in the draft Criminal Code, adultery was reintroduced by the
Senate and maintained by the Chamber "as a means of defending the family,
considered to be the basic cell of our Romanian and Christian society"22.
The project did not condemn ethical abortion, medical abortion (both for the
life and health of the woman) and, to a very large extent, for eugenic abortion. It
was considered to be a "quasi-revolutionary innovation, past our traditional
conceptions or neglecting superior and national interests"23 and in the adopted
code (at article 484), there remained only one cause of impotence (medical abortion
in the case and a single case of eugenic abortion (the mental alienation of a party
provided that there is a certainty that the child will carry severe mental health).
The condition of certainty greatly restricted the practical application of this
hypothesis.
20 Constantin G. Rtescu, ş.a., Quoted Opera, pag. XI.
21 The same.
22 The same, pag. XII.
23 The same.
176 IULIU CRĂCANĂ
The new Criminal Code introduced new offenses, distinguished between
treason and espionage, introducing the criterion of the offender's nationality: the
same offense committed by a Romanian citizen was considered betrayal, and if
committed by a foreign citizen, it was considered as espionage. Both were
considered to be common law offenses.
The Criminal Code has opened the way for the defense of future dictatorships
by means of criminal law. Incriminating acts against state forces such as rebellion
against authority and rebellion against a civil servant, termed a crime of rebellion
against public office. The crimes introduced for criminalizing the far left and right
organizations, accentuated by Carol II's totalitarian vision, will soon become useful
to the totalitarian regimes that will follow. Without changing the body of the
Criminal Code of 1936, the communist regime will easily transform or complement
for its own benefit the newly introduced crimes: rebellion crimes, military armed
insurrection, political usurpation, military instigation in the conspiracy against
social order, and the crime of offense brought to the Romanian nation through
writings, gestures, propaganda against social order. A deeply debated issue in
developing the code was bribery. In the old code of the Kingdom there was only
the receipt or claim of bribe, but the judges punished the bribe by resorting to a
charge of substitution, considering him a provocative agent in the bribery offense.
As the code wanted to be as clear as possible, the "nullum crimen sine lege"
principle was introduced in Art. 1 of the code, Vintil Dongoroz, pointing out from
the outset that "as a corollary of the determination of offenses, it is necessary to
prohibit the extension of the application of criminal law by analogy"24, any
interpretation by analogy or substitution should be avoided.
The jurisprudence of the Old Kingdom, as well as the fact that the bribery was
punished in the codes of the provinces and the important foreign codes, prevailed
over the reasoning that the new offense would be a brake on the discovery of the
act, "the bribe avoiding a complaint against the official improper of fear his
punishment "25.
If we are to talk about the new crimes introduced by the new Criminal Code,
some of them useful politically, an objectively useful part, we need to recall the
fraudulent border crossing, punished by the 1912 passport law, the offense of
denunciation defamatory, and a better structure of the abuse of power offense.
Thus, in the context of abuse of power, the offense of illegal execution of arrest, of
tolerance of illegal arrest and of illegal admission was introduced. Other modern
regulations in favor of respecting civil rights were the newly introduced offenses of
abusive research and favoring the offender through omission of denunciation,
unjust repression, and the opposite of the offense of repression.
24 Constantin G. Rtescu, Quoted Opera, p. 4.
25 Constantin Zotta, Quoted Opera, p. 9.
Unification of Criminal Law after the Great Union – the 1936 Criminal Code 177
From the point of view of defending the King and the Royal House with
criminal law, we can say that the Criminal Code of 1936 was not called "Carol II".
According to art. 7 paragraph 1: "The criminal law does not apply to the person of
the King"26. The argument that "there is only the application of the constitutional
text concerning the inviolability of the King's person" was hard to stand because
the immunity conferred by the Constitution for government27 acts was extended to
all offenses under the criminal code or special laws.
The Criminal Code of 1936 came to cover the need for a unique criminal code
in the unified provinces in 1918, representing an important stage in the
normalization of the Romanian criminal law, regarding a series of problems
requiring an urgent and final solution. At the same time, the Criminal Code of 1936
represented a turning point in the development of the science of criminal law,
setting forth for the future well-defined concepts and crimes. It has been loaded up
to the limits admitted to the repressive period by Communists, by the addition of
numerous articles, public or secret, which have noted the need for the adoption of
a new criminal code since the mid-1950s. Needless to give arguments on form and
background, why the 1968 Penal Code is the successor of the Criminal Code of
1936, if we state that it was drawn in the essential lines by Vintila Dongoroz, a
theorist of the Romanian criminal law mark, participant in the elaboration of the
1936 Criminal Code.
26 Constantin G. Rtescu, Quoted Opera, p. 25.
27 Constitution of 1923 Article 87 only immunity for government acts: "The Person of the King is
inviolable. His ministers are responsible. No act of the King can have the strength unless he is
countersigned by a minister, who by doing so actually becomes responsible for that act".