The prior complaint - condition of penal liability for insult and calumny crimes

• Author: Aurelia Popa Daniela
• Position: DANUBIUS University Galati Academic Tutor
• Pages: 216-220

THE PRIOR COMPLAINT -

CONDITION OF PENAL LIABILITY FOR INSULT AND CALUMNY

CRIMES

Daniela Aurelia Popa

„DANUBIUS” University Galaţi

Academic Tutor

daniela.popa@univ-danubius.ro

Abstract: Beyond limits of expression we find ourselves in the area of penal illicit and this

fact leads to incrimination of insult and calumny crimes committed in press.

The starting point in triggering journalist’s liability is injured person’s notice of appeal for

the prior complaint. Media activity involves coordinated contribution of all those who collaborate

to provide a material, but this collaboration does not turn into partaking.

After apprising the judicial bodies regarding commitment of the crime, the injured party

manifests expressed will that crime be proceeded against and sentenced, so that person’s dignity to

be protected. By incriminating the acts of insult, the dignity is protected from both points of view:

subjectively, as well as objectively. In case of calumny, in completion to these acts comes the care

for public image enjoyed by one person.

Keywords: dignity, expression, intention, social danger, reputation.

Journalists’ liability is one of the most controversial subjects of debates regarding the

legislative reform. During the last years, many draft bills and legislative proposals were issued,

providing exaggerated increase in quantum of the punishment for the violations of law performed in

press until the total discharge for those violations.

The most severe type of legal liability is the penal liability. The only ground for this liability

is the violation of law and only the law can provide under which conditions a person can be held

responsible for penal liability. In most situations, committing an infraction instantly entails criminal

liability on the perpetrator, respectively on the participants. But there are also infractions less

severe, case when starting the penal action, including penal accountability, are conditional upon a

prior complaint made by the person who is considered injured.

1

The constitutional regulations, through art. 30, paragraphs 6 and 7, set the limit of the

freedom of expression. Beyond this limits we find ourselves in the area of civil or penal illicit,

depending on the situation.

According to the fundamental law, the freedom of expression cannot harm the dignity,

integrity, private life of a person or the right to personal image. It is forbidden by law to defame the

country, the nation, to instigate to aggression war, national hatred, racial hatred, class or religious

hatred. It is also forbidden to instigate to discrimination, territorial separatism or public violence, as

well as obscene display, contrary to morality.

The criminal law defends human dignity by incriminating the acts of offence (Criminal

Code, art. 205) and calumny (Criminal Code, art. 206), by forbidding under the threat of penalty,

any action that harms a person’s integrity or respect on behalf of other people.

2

The calumny and the insult are of penal nature also in France and Italy, but the European

Union tries to standardize the legislation for all its countries.

In our country, as well as within the European Union, was put into question if incriminating

the insult and calumny as infractions against personal dignity do not touch the freedom of

expression, particularly in the field of media. The Constitutional Court, as well as the European

Court for Human Rights set out some limitations to this liberty (freedom) and that each State has

1

Cercelescu Carmen Monica, Regimul juridic al presei, E ditura Teora, Bucureşti, 2002, p.171

2

Ilie Paşcu, Mirela Gorunescu, Drept Penal-Partea Specială, Ediţia a 2-a, Editura Hamangiu, Bucureşti, 2009, p. 220