Caiete de Drept Penal nr. 1/2007

Caiete de Drept Penal nr. 1/2007

ABSTRACT. An Account of Interferences between the Community Law and National Criminal Law: The Neutralization and the Duty to Incriminate. The essay insists on two themes that are particularly vivid within the Italian scientific debate concerning the interference between Brussels legal production and the dimension of the national criminal law.

First, object of the analysis are the neutralization relations that apply every time a contrast appears between the directly applicable community law and the Italian incriminating case law. The later, because of the primacy of the community law over the national legislation, is destined to cede and the national criminal judge must eliminate it even without previous intervention from the legislator or the Constitutional Court. We are dealing with an already classical subject, object of an analysis in relation with the principle of nondiscrimination, general principle of the community law, largely referred to at the Court of Justice. The author proves, in his endeavor, how the neutralization mechanism, apparently “neutral” on the criminal law, in reality raises relevant problems: the tendency to disincriminate (with reference to the need for justifying causes) that emanates from Brussels may, in effect, generate disharmonic effects on the national criminal legislation, when it is subject to interests of relevant ranking. Through the recognition of the jurisprudence in matters of nondiscrimination and fundamental freedoms, the author reaches the conclusion that the neutralization mechanism, incident in what concerns the judicially protected objects, must be used with extreme care by the national criminal judges

The second problem exposed by the text concerns, instead, the neutralization in malam partem, in other words the complex mechanism of dis-application of a criminal law, from which derives the revitalization of another criminal case law which was interrelated. The community law jurisprudence distinguishes two hypotheses, next to the fact that the neutralization concerns a special criminal norm, with the contextual reinstatement of a general norm, or of a successive one, with the consequent reinstatement of the preceding, case may be abrogated, norm. The problem has proven its complexity and political-criminal relevance on the occasion of the recent Berlusconi case where the Justice Court was asked to decide on the possible incompatibility with the community law of the national law, which had modified, in a more favorable way for the defendant, the discipline of company law offences on false communications. On this point the author begins the search for an interpretative line that will allow the understanding of the High Chamber’s decision of May 2nd, 2005, when it rejects the conflict between the Italian law and the community directives on company law.

Jorge Vizueta FERN�NDEZ

ABSTRACT. Confiscation of Goods produced or used at the Perpetration of a criminal Offence in the View of the Spanish penal Code. Analyzing the provisions of art. 127 para. 1 of the Spanish penal code, the author distinguishes between goods produced through an intentionate offence, and goods, means or devices that facilitated the preparation or the perpetration of the offence. In the opinion of the author, goods produced through an offence are both objects whose existence is owed to the perpetration of the crime, and objects that, though preexistent to the crime, have suffered a transformation of nature or composition through the perpetration of the act. In what regards the goods that have served at the perpetration of the crime, the author discusses the amendments brought by Organic Law no. 15/2003, consequent to which confiscation has become applicable both to instruments used at the perpetration, and at the preparation of the offence.

After enumerating the legal hypothesis of confiscation, the analysis concentrates on the underpinning and on the purpose of the measure. Thus, the foundation of confiscation resides in the dangerousness of the good, attribute that can have different origins- the nature of the object (e. g. the deposits of toxic waste), or the use of the object (e. g. instruments used for an abortion, or for human cloning). The purpose of the measure is none other than the elimination of this state of danger.

According to the author, the position adopted in what concerns the foundation and purpose of confiscation is justified by the current legislative context. As such, even if the provision of art. 127 para. 3 – instituting the optional character of confiscation in the case the act was committed without guil t- might plead against the underpinning of dangerousness, the author maintains that the text allows a judge to confiscate a good based on its danger potential.

The study then discusses the judicial nature of confiscation, considered neither a punishment, nor a safety measure by the Spanish literature. In the opinion of the author, if we accept that the underpinning of confiscation is none other that the good’s danger potential, and the purpose of the measure is granting the security of social values against perils emanating from such goods, we can conclude that confiscation does not have a penal nature. Consequently, in agreement with other opinions expressed in the Spanish literature, confiscation is considered an auxiliary preventive measure, with an insurance aim, pertaining to administrative law.

Confiscation of goods with an equivalent value, instead of confiscation of goods produced or used at the perpetration of an offence, is the last subject discussed by the study. Critiquing the legal text for imprecision, the author commends the German legislation and jurisprudence as being more explicit. In the German regulation, confiscation through equivalent (§ 74), as opposed to art. 127 para. 2 of the Spanish penal code, can only be applied to money. Investigating the nature of this alternative measure, the study also concludes that it is an auxiliary preventive measure, with an insurance aim, pertaining to administrative law.

Radu CHIRI��


ABSTRACT. The Legality Principle referred by art. 7 of the European Convention of Human Rights and the Obligations of member States. The article treats the principle of legality of retribution and incrimination, starting from the provisions of art. 7 of the European Convention on Human Rights (ECHR). With regard to the incidence of this text, the author ascertains that, in spite of a wording very close to that of art. 6, the Court’s jurisprudence does not entirely overlap the applicability sphere of art. 6 and art. 7. Notwithstanding the critics addressed to the Court due to the exclusion of multiple domains from the sphere of incidence of art. 7, the author asserts that the entire human rights protection mechanism is marked by the principle of legality, as almost any restriction of a right laid down in the Convention must satisfy the condition of legality in ord to be licit. In what regards the matter of the right provided by art. 7, the article concentrates on the notion of law, analyzed through a double perspective: a formal one, which points to the categories of acts that can be considered laws, and a material one, that points to the qualities that a regulation must own in ord to be considered source of law. Formally, the author concludes that, classical sources of law aside, jurisprudence can constitute law in the sense of art. 7 of the Convention, if it fulfills the material requirements of this notion.

From this viewpoint, the prerequisite paramount to determining the concrete matter of the principle of legality is the predictability of the judicial norm. The author examines the effects of the principle of legality – lex certa, lex praevia, lex stricta and lex scripta – presented both through referrals to the European Court’s jurisprudence on the subject, and to the Romanian criminal law. From this perspective, the predictability of the norm, the author maintains that some apparent violations of the principle of legality, such as the intervention of acts from the Executive in penal matter, the assimilation of an omission as an illicit action, the retroactivity of the jurisprudence etc., are not actually genuine infringements upon legality, because surpassing the strict legal background in ord to punish an act is a predictable measure. Thus, if at the time of committing an act, its illicit character could be predicted, the punishment of such act through the extension of the sphere of incidence of the written law cannot be counter to the necessity of legality. Finally, the author notes that neither the Court of Strasbourg, nor the Romanian courts have a courageous enough approach towards employing the principle of legality, especially in what concerns the obligation of assuring the predictability of the norm, through its accurate enunciation.

Adriana BUCUR

ABSTRACT. Considerations on the Crimes of Human Trafficking and Procurement. The present article approaches the problem raised by two texts of the current legislation in what concerns the confusions that they can create as to the juridical framing of a certain act. On the one hand, art. 12 of Law no. 678/2001 on preventing and combating human trafficking stipulates that the crime of human trafficking is represented by the recruitment, transport, transfer, accommodation or receival of a person, done through threat, violence or other forms of constraint, kidnapping, fraud, abuse of authority, or through benefiting from the person’s inability to defend herself or to express her will, or through the offering, giving, accepting or receiving of money or other goods in ord to obtain the consent of a person that has authority over another, with the purpose of exploiting the latter; it also specifies that the exploiting of a person signifies, among others, the compulsion to prostitution. On the other hand, art. 329 para. 1 of the Penal Code stipulates that the crime of procurement is represented by the stimulation or facilitation of perpetrating prostitution, or the obtaining of profit as a consequence of a person’s prostitution activities; para. 2 provides for an aggravated form of the crime, the coercion of a person to perpetrate prostitution.

The confusion arises in the hypothesis of compulsion /coercion of a person to practice prostitution. The dilemma is: does the crime of human trafficking include in itself the crime of procurement?
After underlining the inadequacy of the phrase compulsion or coercion to practice prostitution, the study concentrates on analyzing the pro and counter arguments brought forward by the literature and the jurisprudence on the subject, structuring them on four sections: 1. the juridical object of the two crimes; 2. their objective side; 3. the problem of a complex crime; 4. the problem of consent.

With regard to the juridical object of the two crimes, the author sees no incompatibility between the social values aimed at by the two texts; in a large sense, these values relate to the concept of human freedom.
The objective side of the crime of human trafficking seeks at, among others, succeeding in the compulsion of a person to practice prostitution, action that is also present in the crime of procurement as a modality of performing the objective side. If for executing the objective side of the crime of human trafficking, the purpose must be present at the time of the action, the requirement that the purpose of the crime is actually attained is absent- therefore, whenever this purpose is attained, the perpetrator also fulfills the content of the crime of procurement.

The juridical identification that must be received by an act of human trafficking in the conditions of art. 12 of Law no. 678/2001, followed by the effective attainment of the purpose of the crime, when this purpose is the exploiting of the victim through compulsion to practice prostitution, also depends on whether the human trafficking is a complex offense or not. Even if the arguments have been brought on both sides, the author concludes that, given that human trafficking does meet the general requirements of a complex offence, it is able to include, through the legislator’s will, the crime of procurement.

The consent of the victim of the two crimes is analyzed as an element of dissimilarity; if in what concerns human trafficking, the possibility of such a consent is invalidated expressly by the law, for the aggravated form of procurement, coercion implies the utilization of violent means (physical or psychical), that exclude per se any form of valid consent. For the other modalities of perpetrating procurement, the valid consent of the person that will perform prostitution excludes the possible incidence of human trafficking.

The conclusion of the present study is materialized in the possibility of legal absorption of procurement in the crime of human trafficking, whenever the latter one is committed so that the purpose (of compulsion to prostitution) is attained.

Corina Sabina MUNTEAN

ABSTRACT. The European Arrest Warrant. A juridical Replacement for Extradition. The Council of the European Union Framework Decision 2002/584/JHA of June 13th 2002 has regulated the procedure of the European arrest warrant, which replaces the existent extradition system of the member states, requiring that each national judicial authority with an executory role recognize the surrender request of another member state.

The first part of this article presents the context in which the framework decision was adopted and the position of the warrant in the system of international judiciary cooperation. The idea of a European arrest warrant is based on the European Union’s objective of creating a space of freedom, security and justice. The classical cooperation procedure, characterized as slow and complex, is not correspondent to the necessities of the evolving European Union, determining the adoption of a simplified system in what concerns the surrendering of persons wanted for prosecution or for the execution of a criminal sentence.

The second part of the article analyzes the coming into effect of the European arrest warrant, taking into account the fact that not all member states have enforced it from the date imposed by the Council (January 1st 2004). Moreover, there is no unitary approach in what concerns the application in time of the discussed framework decision.

The third part of the article investigates whether the European arrest warrant is a new form of cooperation or a form of extradition. The author analyzes the definition of the warrant, considering some opinions expressed in the literature and the opinion of the Attorney General of Court of European Justice. She concludes that the warrant represents a new form of cooperation, meant to replace the extradition procedure.

The fourth part of the paper presents the main elements of novelty brought by the European arrest warrant: the principle of reciprocal recognition, the principle of double incrimination, the judicial character of the procedure of warrant execution, the reason for refusal of execution, the non-extradition of a country’s own citizens, the specialty principle.
Finally, the author presents the Romanian legal approach to the institution of a European arrest warrant, as regulated by Law no. 302/2004 concerning the international judicial cooperation in criminal matters.

Cu nota de Peter Rackow si Ignaz Stegmiller

ABSTRACT. “Targeted Sanctions”. Council Regulation resting upon Security Council Resolutions. One of the main aims of the United Nations is to combat the financial basis of terrorism. Since the 1990s the general tendency drifts towards so-called “smart sanctions” which are directed against a narrow group of addresses – sometimes even individuals! – as opposed to the traditional UN sanctions which address states. Such a framework for sanctions brings about complex questions regarding International and European Criminal Law which the ECJ of First Instance had to deal with most recently. Based on Council Regulation (EC) no. 881/2002 dated 27. 05. 2002 funds had been frozen and the parties involved claimed nullity of this regulation. Worth mentioning is that the regulation of interest here rests upon Security Council Resolutions 1267 and 1333 whose guidelines were implemented into European Law by Council Common Decision 2002/402/CFSP dated 27. 05. 2002 and the relevant Regulation no. 881/2002.

The action of the plaintiffs was dismissed in first instance and the appeal is pending before the ECJ. Notwithstanding, a debate on the decisions of the ECJ of First Instance is under way. And rightly so! Since the problems arising out of this topic are too grave to leave the judgments without a commentary. Therefore, the authors deal with the decision of the ECJ and make us aware of their thoughts about it.

Cu nota critica de Florin Streteanu

ABSTRACT. The decriminalization of insult and libel. Unconstitutionality. In the case given, the Constitutional Court was faced with an unconstitutionality plea regarding the provisions of art. I point 56 of Law no. 278/2006 amending the Penal Code and other laws. In essence, this text is responsible for repealing, among others, art. 205 and art. 206 of the Penal Code, concerning the offences of insult and libel.

Through Decision nr. 61/2007, the Constitutional Court has ascertained the unconstitutionality of art. I point 56, asserting that the decriminalization of insult and libel is contrary to the fundamental values stipulated in the Romanian Constitution and that it creates an unacceptable vacuum of regulation, violating the constitutional guarantees placed on human dignity. In motivation, the Court observes that, in the case insult or libel are committed in the press, the abrogation of art. 205 and art. 206 of the Penal Code is contrary to the constitutional provisions of art. 21 regarding the free access to justice, art. 16 regarding equality of rights, and art. 30 para. 8 (regarding the necessity to establish the offences pertaining to the press through laws)

In his analysis, the author starts by showing that the measure of decriminalization of insult and libel has been an unfortunate initiative of the legislator, contrasting to the majority of European legislations. However, he observes that the provisions of Law no. 278 represent a simple penal policy option on the part of the law-maker, not being ab initio blameworthy of unconstitutionality. The author argues that there is a single hypothesis in which the Constitutional Court can intervene in ord to criminalize a certain act- the situation in which, given a constitutional obligation of criminalization, the legislator repeals that specific text of incrimination, not replacing it with a new one, or putting an administrative liability in place (in the Romanian legal system, such would be the case of the crime of high treason, committed by the President, if the legislator repeals it, without replacing it).

As such, the study criticizes the Constitutional Court’s decision to equalize two distinct notions: the mentioning of a social value in a constitutional text and the obligation to protect this value through penal means. The constitutional texts entail the effective guarantee of the rights stipulated therein, but not necessarily through penal means- they will only intervene when the protection offered by other branches of law is proven to be inefficient or unavailable.

The author then investigates the motivation brought forward by the Court. He shows that the simple fact that human dignity is enshrined in art. 1 para. 3 of the Constitution is not sufficient to generate on its own an implicit mandate to legislate in penal matters; the protection of the criminal law only regards the acts that represent a grave infringement upon this value. In the case of other infringements upon the same value, the protection offered through extra-penal means is sufficient. As to the assertion of the Court regarding the vacuum of regulation, the study contends that the Romanian current legislation contains enough provisions applicable to the matter, and also capable of offering the protection requested by the Constitution to the respective social values.

The author enumerates the provisions of the Civil Code referring to the patrimonial liability for damages, and the provisions of Decree no. 31/1954 referring to the protection of a person’s non-patrimonial rights.
In what regards the alleged infringement upon the right of free access to justice, the author shows that art. 21 of the Constitution does not stipulate a right of access to a criminal jurisdiction for any infringements upon a right or a legitimate interest, but a right to address a court in ord to activate effective means of protection for that right. This is perfectly possible through access to civil remedies. In the same context, the author criticizes the rationale of the Court according to which the claim of unconstitutionality could be analyzed on the field of art. 16 of the Constitution, referring to the equality of rights between persons that have been violated in rights other than those pertaining to honor and reputation, and persons that have been violated in these precise rights. He argues that the non-penal remedies suffice, and, in addition, there are numerous other constitutional rights that lack penal protection (referring to the respect of private life, access to public information etc.), without art. 16 ever being considered to have been transgressed.

The last argument invoked by the constitutional instance is discarded by the author, who maintains that the provisions of art. 30 para. 8 of the Constitution cannot stipulate the duty of the legislator to preserve the discussed incriminations. Far from obliging the legislator to bring in the penal sphere any infringement of social values done through the press, the constitutional text confers him the mandate to select which are the values that enjoy a penal protection against violations perpetrated through the press.

The study concludes that the Constitutional Court has censored a penal policy option of the Parliament, stepping again outside its attributions as conferred by the Constitution.