The legal institution of the waiver of penalti

• Author: Laura Roxana Popoviciu
• Position: Ph.D. Lecturer, AGORA University of Oradea, Law and Economics Faculty
• Pages: 172-176

THE LEGAL INSTITUTION OF THE WAIVER OF PENALTI

Laura-Roxana Popoviciu

Abstract

This article approach es an entirely new institution in the Romanian cr iminal law that is the institution

of the waiver of penalty.

As provided in the New Criminal Code between the means of personalisa tion of penalties, we tried to do

a br ief an alysis of the conditions stipulated by law to rule this institution by the court, and the conditions under

which this measure of clemency is prohibited.

The court is the only one able to achieve in fact the work of per sonalisation of penalty, depending on

the a ctual circumstances in which the offence was committed a nd the offender, it is required tha t the la w gives

them a full freedom of action to a chieve these opera tions.

Key words: penalty, criminal, per sonalisation of sentences.

Introduction

Article 15, align. 1 of the New Romanian Cr iminal C ode defines the infraction a s the offence under the

criminal law, committed in guilt, causeless and imputa ble to the person who committed it.

To establish the facts tha t are going to be prohibited, the legislator starts from obser vation that these

acts were committed in reality, and ther e is a concern that they could be rep eated.

By interdicting these facts members of society are shown, in a specific form of expression, what conduct

they must have towards certain socia l values, what actions are proh ibited or, conversely, a re ordered to defend

the respective social values.

As noted in theory

1, any human behavior is manifested in a highly complex environment consisting of a

multitude of stipulations that cause a person to act in different ways, in which the person must refrain from

committing crimes by controlling those tendencies that push the person to violating the law.

In the most general sense of the term, the offence is an act of man, an act of his exterior conduct,

prohibited by law under a specific sanction, repressive, which is the penalty 2.

The criminal rule covers not only the description of the conduct, that is prohibited, but also it specifies

the coercive consequences, that the offender, who violated the criminal rule, has to suffer, certain privations,

which makes the perpetrator not to repeat the offence.

If a person offends against the law, which is a reflection of communit y’s opinion, the social demands

and socio-legal rules, a penalty must applied to that person, penalty occurring as a consequence of the person’s

wrong choice, relative to which the person bears full responsibility.

But, according to other opinions3, the penalty can ful fill its fair purpose only when it is suited and

adopted to each offender individually.

A penalty, to be effective, must reflect the seriousness of the offence, not to be too soft, or too harsh, but

as it has to be. In the situation in which the applied penal ty reflects the exact seriousness of the crime, it becomes

a just penalty.

But offenders are very dif ferent among themselves, and these differences result from the family

environment, living conditions, mental capacity, education, etc.

Given these issues, in the criminal law appeared the necessity of applying penalties as close as po ssible,

as feature and duration, to the offenders’ character, to the type and seriousness of the committed offences, and

this is possible only by individualizing the penalty, an extremely complex operation.

Personalisation of the penalty is carried out in three stages:

- legal personalisation of penalt y made by the legislator during the p hase of drafting of the law, in which the

legislator sets the minimum and maximum limits of penalty;

- judicial personalisation made by t he court, which, within the overall limits of the p enalty, depending on the

seriousness of the offence and of the offender, sets in the penalty.

- administrative personalisation occurs during the phase of execution of penalties.

Personalisation of penalties is a fundamental institution of the law.

Among the forms of personalisation of ppenalties, judicial personalisation has as its main concern

setting how the convict will bear the coercion applied as result of the committed crime, oper ation also sensitive

because it can directly influence and in a significant proportion the proce ss of offender’s social recovery4.

 Ph.D. Lecturer, AGORA University of Oradea, Law and Economics Faculty, e-mail: lpopoviciu@yahoo.com

1 G. Antoniu, Unele reflecii asupra vinoviei penale, Studii de drept românesc Magazine, no. 1/1993, pp. 57-59.

2 A. Boroi, Drept penal, Partea general, C.H. Beck Publishing House, Bucharest, 2006, p. 99.

3 I. Oancea, Drept penal. Partea general, Didactic and Pedagogic Publishing House, Bucharest, 1971, p. 267.