Preventing the exercise of religious freedom according to the new criminal code

• Author: Duvac Constantin
• Position: Associate Professor Ph.D. the Faculty of Law and Economics within Agora University of Oradea
• Pages: 222-229

PREVENTING THE EXERCISE OF RELIGIOUS FREEDOM ACCORDING TO T HE NEW

CRIMINAL CODE

Duvac Constantin 

Abstract

The a uthor makes an in-depth ana lysis as to the lega l content of the offence of preventing religious

freedom, set out in ar t. 381 of the new Criminal Code. For this purpose, the author examines the object of the

criminal safeguards, the subjects of the offence, actus reus and mens rea, the forms, modalities, penalties a nd

certain a spects related to pro ceedings, in connection to the offence laid down under a rt. 381 of the new Criminal

Code. F urthermore, the author has no reluctance in expressing his stance as to the constitutive content of this

criminal offence and to propose cer tain solutions and own ideas.

Key-words: r eligious freedom, cult, ritual, offence.

Introduction

The new Criminal Code in relation with the criminal law in force. The offence of preventing religious

freedom

1 was in cluded by the legislator of 2009 under Title VIII of the Special Part of the new Cr iminal Code,

adopted by Law no. 286/20092, entitled “Offences infringing upo n relations that concern social commun ity life”,

Chapter I II – “Offences against religious freedom and respect owed to the dead”.

In comparison with the wording of art. 318 of the Criminal Code in force, the cur rent criminalisation is

complemented with new hypotheses, and new offences whose perpetration ha s been recently reported ar e

criminalised. In this way, a distinct hypothesis is introduced, namely the a ct of forcing a per son, by threa t or

force, to fulfil an act that is forbidden by the cult she/he is a member of (for instanc e, the act of forcing a per son

to eat food that is forbidden by her/his r eligion).

At the sa me time, the penalties provided for this offence, in all its criminalisation var iants, ha ve been

reconsidered and rendered more severe.

The object of the criminal safeguards. The specia l legal object of the offence of preventing religious

freedom is represented by the relations that concern social community life, whose natural origin, conduct and

development are conditioned by the defence of r eligious freedom – co mponent of the freedom of conscience –

which comprises the right of any person to have or partake in a religion, to manifest it either alone or in

community, with others and in public or private, by means of the practices and rituals that are specific to the

respective cult, including by means of religious education, as well as the freedom to maintain or change the

religious belief. Consequently , the special legal object of the offence is directly represented by the social values

of the freedom of conscience, in terms o f the freedom of exercising the chosen religiou s cult or the freedom of

non-exercising such a cult, as well as the relations that co ncern social community life articulated around and due

to such social values.

Penal safeguards concern the respective social relations, and not the cults themselves, whose content

and ritual may vary from a cult to another and that may be maintained or removed fro m reasons that differ from

the penal safeguards3.

In Romania, the freedom to mani fest one's religion or beliefs shall be subject only to such limitations as

are prescribed by law and are necessary in a democratic society in the interests of public safety, for the

protection of public order, health or morals, or the protection of human rights and freedoms.

The freedom of thought, of conscience and religion is set forth under art. 9 of the European Convention

of Human Rights4 and art. 2 of the First Additional Protocol to this Convention5, the case-law of the European

Court of Human Rights being rich and having a clarifying nature in this regard 6.

 Associate Professor Ph.D. the Faculty of Law and Economics within Agora University of Oradea; email: ctinduvac@yahoo.com.

1 Art. 381. – “(1) The act of preventing or disturbing the freedom to exercise the ritual of any religious cult that is organised and is

functioning according to the law, shall be punished by imprisonment from 3 months to 2 years or by fine.

(2) The act of forcing a person, by coercion, to partake in the religious service of any cult or to fulfil a religious act connected to the exercise

of a cult shall be punished by imprisonment from one to 3 years or by fine.

(3) The same penalty shall sanction the act of forcing a person, by force or threat; to fulfil an act prohibited by the religious cult she/he is a

member of, cult that is organised according to the law.

(4) Criminal action shall be initiated upon prior complaint from the injured person.

2 Published in the Official Journal no. 510 of 24 July 2009.

3 C. Bulai, in V. Dongoroz, S. Kahane, I. Oancea, I. Fodor, Nicoleta Iliescu, C. Bulai, Rodica Stnoiu, V. Roşca, Explicaii teoretice ale

Codului penal român. Partea special, vol. IV, Romanian Academy Press, Bucharest, 1972, p. 651.

4 Art. 9. – “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change her/his religion or

belief, and freedom, either alone or in c ommunity, with others and in public or private, to manifest her/his religion or belief, in worship,

teaching, practice and observance. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by