Contra Doxa - Legal Guide - Romania

Contra Doxa

Legal Guide - Romania PDF Print E-mail

By admin, on 08-11-2007 22:36

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Published in : Documentation, Nato


I have structured the aspects incriminated by the Romanian law, that can occur during a demonstration/march/collective action, with a view to two main perspectives: what can’t we do / what can they do. In addition, there are some things related to the status of foreigners and some aspects related to the aggravating/extenuating circumstances.

 

The articles below refer to the guys in uniforms. If you feel that something is wrong with the activity of the authorities, on the basis of these articles, you can act in legitimate defense (for example, against an abuse) or, if not, in legitimate defense to eliminate the criminal nature; anyway, you will know which extenuating circumstances fit your case.

Art. 246. – Abuse in service counter to the interests of persons

The deed of the public functionary, that, in the exercise of his work attributions, with knowledge does not fulfill an action or he/she fulfills it in a deficient manner, and through this causes a significant damage to the personal interests of a person, is punishable with prison from 6 months to 3 years.

Art. 248. – Abuse in service counter to the public interests

The deed of the public functionary, that, in the exercise of his work attributions, with knowledge does not fulfill an action or he/she fulfills it in a deficient manner, and through this causes a significant damage to the work of an organ or a state institution or of another unit of those refered to in art. 145, or damage to its patrimony, is punishable with prison from 6 months to 5 years.

Art. 248 (1). – Abuse in service in qualified form

If the deeds provisioned in art. 246, 246 and 248 have had very serious consequences, they are punishable with prison from 5 to 15 years and forbidment of some rights.

Art. 249. – Negligence in service

Violation of a service duty, by a public functionary, by not executing it or executing it deficiently, if a significant damage to the work of an organ or of a state institution or of some other unit of those mentioned in art. 145 has been made or damage to its patrimony or a significant damage to the legal interests of a person has been made, it is punishable with prison from one month to 2 years or with fine.

The deed provisioned in paragraph 1, if it had very serious consequences, is punishable with jail from 2 to 10 years.


Art. 250. Abusive behaviour

The use of offensive expressions towards a person, by a public functionary in the exercise of the work attributions, is punishable with jail from one month to a year or with fine.

Threat made by a public functionary, in the conditions of paragraph 1, is punished with jail from 6 months to 2 years or with fine.

Hitting or other acts of violence done by a public functionary, in the conditions of paragraph 1, is punished with jail from 6 months to 3 years or with fine.

Body wounds made by a public functionary, in the conditions of paragraph 1, is punishable with jail from 6 months to 6 years.

Severe body wounds made by a public functionary, in the conditions of paragraph 1, is punishable with jail from 3 to 12 years.

Art. 263. – Omission of notice of the judicial organs

The deed of the public functionary that, taking to knowledge the execution of a crime related to the service in which he/she exerts his/her duties, omits to immediately notice the district attorney or the criminal justice organ, according to the criminal procedure law, is punished with jail from 3 months to 5 years.

If the deed is done by a public functionary with leading or control attributions, the punishment is jail from 6 months to 7 years.

Art. 266. – Illegal arrest and abusive inquiry

Illegal retainment or arrest, or the submission of a person to the execution of a punishment, educational or security measures, in another way then that provisioned by the legal dispositions, is punished with jail from 6 months to 3 years.

The use of promises, threats or violence against a person in the course of an inquiry, criminal inquiry or judgement, for obtaining statements, is punished with jail from one to 5 years.

With the same punishment is penalized the use of promises, threats or violence towards a witness, expert or interpreter.

Art. 267. – Submission to bad treatments

Submission to bad treatments of a person that is in a state of retainment, detainment or in the execution of a safety or educational measure, is punished with prison from one to 5 years.

Art. 268. – Unfair repression

The deed of bringing in force the criminal action, disposing of arrest, sending to trial or sentencing a person, knowing that he/she is not guilty, is punished with prison from 2 to 7 years.
These articles refer to things that may occur in the streets and that the “boys” have in mind:

Art. 321 – Injury of good manners and disturbance of public silence

The deed of the person that, in public, does acts or gestures, states words or expressions, or gives way to any other manifestation through which he/she brings harm to the good manners or gives way to public scandal or disturbs, in another way, the public order and silence, is punished with prison from 1 to 5 years.

If by the deed provisioned in paragraph 1, the public order and silence have been severely disturbed, the punishment is prison from 2 to 7 years.

Art. 322 – Scuffle

The participation in a scuffle between several people is punished with prison from one month to 6 months or with fine.

If during the scuffle, a severe damage to the body integrity or health of a person has been produced, the person that commited this deed is punished for the crime committed, of which maximum is reduced with a year. The other participants to the scuffle are punished with the punishment provisioned in paragraph 1.

In the case provisioned in paragraph 2, if it is not known which of the participants has done the deeds shown in that paragraph, the punishment with prison from 6 months to 5 years is applied to all of them, when damage has been caused to the body integrity or health. In the case in which death has been caused, the punishment is prison from 3 to 15 years.

The one that got caught in the scuffle against his will, or tried to separate others, defend himself or another is not liable for punishment.

Art. 323. - Association for committing a crime

The act of associating or initiating the constituting an association with the purpose of committing one or several crimes, other then those shown in art. 167, or the adherance or support in any way of such an association, is punished with prison from 3 to 15 years, without the possibility of overlapping the punishment provisioned by law for the crime that goes in the purpose of the association.

If the deed of association has been followed by the committing of a crime, the punishment for that crime is applied to those that committed that crime, in opposition with the punishment provisioned in paragraph 1.

The persons provisioned in paragraph 1, that denounce to the authorities the association, before its discovery and before the committing of a crime that stands as purpose for the association are not punished.


Art. 324. – Public incitement and crime apology

The act of inciting the public through speech, writing or any other means, of disrespecting the law, or of committing acts that constitute crimes, is punished with prison from 3 months to 3 years, without the possibility of overlapping the punishment provisioned by law for the crime to which it has been incited.

If the deed provisioned in paragraph 1 is committed by a public functionary that fulfills a function that implies the exercise of state authority or by a person of those provisioned in art.160, the punishment is prison from 1 year to 5 years, without the possibility of overlapping the maximum punishment provisioned by law for the crime to which it has been incited.

If the public incitement has as a consequence the committing of the crime to which it has been incited, the punishment is the one provisioned by law for that crime.

Wearing in public a uniform, badge, pin or any other unauthorized distinctive sign, in the purposes shown in paragraph 1, is punished with prison from 3 months to 3 years.

The same punishment is applied for praising in public of the ones that committed crimes or of the crimes committed by them.

Art. 180.    - Striking or other violence acts

Striking or any other violence acts that cause physical sufferance are punished with prison from one month to 3 months or with fine.

Reconciliation of the parts removes the criminal responsibility, exerting its effects also in the case in which the criminal action has been started ex officio.


Art. 181. – Physical wounding

The deed through which wounding has been produced either to the physical integrity or to the health of a person, that needs medical assistance of 60 days at most for recovery, is punished with prison from 6 months to 5 years.

The criminal action is started at the previous complaint of the wounded person. In the case of deeds provisioned in paragraph 1, the criminal action is also started ex officio.

The reconciliation of the parts removes the criminal responsibility, exerting its effects also in the case in which the criminal action has been started ex officio.

Art. 182. – Severe physical wounding

The deed through which damage has been produced either to the physical integrity or to the health of a person, that needs medical assistance of more then 60 days for recovery, is punished with prison from 2 to 7 years.

If the deed has produced any of the following consequences: lost of one of the senses or of an organ, organ failure, physical or psychic permanent damage, abortion or threat to the persons’ life, the punishment is prison from 2 to 10 years.

When the deed has been committed in the purpose of producing the consequences provisioned in paragraph 1 and 2, the punishment is from 3 to 12 years in prison.

The attempt to commit the crime provisioned in paragraph 3 is punishable.


Art. 183.    - Death-causing wounds or strikes

If any of the deeds provisioned in art, 180 – 182 has had as a consequence the death of the victim, the punishment is prison from five to fifteen years.

Article 184 –     Premeditated physical wounding

The deed provisioned in article 180 paragraph 2 and 2-1, That has caused a wounding which needs medical assistance of more than ten days for recovery, as well as that provisioned in article 181, committed deliberately, are punished with prison from one month to three months or with fine.

If the deed had one of the consequences provisioned in article 182 paragraph 1 or 2, the punishment is prison from three months to two years or fine.

When the committing of the deed provisioned in paragraph 1 Is the consequence of disrespecting legal dispositions or foreseeing measures For the exercise of a profession Or job, Or for the fulfillment of a certain activity, the punishment is prison from three months to two years or fine.

The deed provisioned in paragraph 2, if it is the consequence of disrespecting the legal dispositions of the foreseeing measures Shown in the previous paragraph is punished with prison from six months to three years.

(4) If the deeds provisioned in paragraph 3 and 4 Are committed by a person That is under the influence of alcohol the punishment is prison from one to three years in the case of paragraph 3 and prison from one to five years in the case of paragraph 4,

For the deeds provisioned in paragraph 1 and 3, Criminal action is started at the previous complaints of the wounded person.
Reconciliation of the parts removes criminal responsibility.

Art. 236. -     Insult brought to some signs

Any manifestation through which lack of consideration For Romanian signs is expressed as punished with prison from six months to three years.

The manifestation Through which lack of consideration Is expressed for the symbols or signs that The authorities’ use is punished with prison from three months to one year or with fine.


Art. 239. – Special cases of punishment

In the case of crimes provisioned in art, 180-182, art. 189 and 193, Committed against the husband, the children, the parents of a judge, prosecutor, police officer, or military, With the purpose of intimidation or revenge for acts or deeds fulfilled in the exercise of the function, the maximum of the punishment is increased with two years.


The articles below refer to crimes against state security

Art. 158 – Mean actions against the state

The deeds provisioned in art 155 and in art 156, committed by foreign citizen or by a person without citizenship that does not reside on the territory of the Romanian state, are punished with life detention or with prison from fifteen years to 25 years and forbidment of some rights.

Art. 160 – Attempt that puts in danger the security of the state

The attempt committed against the life, physical integrity, or health of a person that fulfills an important State activity or other important public activity, in circumstances that make the deed dangerous for the security of the state is punished with life detention or prison from fifteen years to 25 years and forbidment of some rights.

Art. 161 -     Attempts against a collectivity

The Attempt committed against a collectivity through mass poisoning, causing epidemics or by any other means, of such a nature that would undermine the state power, with life detention for prison from fifteen to 25 years and forbidment of some rights.

Art. 163 -     Diversion Acts

Destroying, degrading or bringing in a state of uselessness, fully or partly, Through explosions, Fires, or in any other way, Of factories, industrial installations, cars, communication means, transport means, telecommunication means, constructions, industrial or agricultural products or of other goods, If the deed is Capable of Affecting the security of the state, is Punished with life detention or with prison from fifteen to 25 years and forbidment of some rights.

Art. 166. -     propaganda in favor of the totalitarian state

Propaganda with a view to installing a totalitarian state, Committed through any means in public is punished with prison from six months to five years and forbidment of some rights.

Propaganda consists in Spreading systematically, or in the apology of some ideas, concepts or doctrines, With the intention of persuading and attracting new Followers.

Art 166 – Actions against constitutional order

Constitution of any action for changing through illegal actions and through violence of the constitutional order or of the national, souveran, independent, unitary and indivisible character of the Romanian state, is punished with prison from five to fifteen years and forbidment of some rights.


Art. 167.    -    Plot

Initiation our constitution of an association or group with the purpose of committing one of the crimes provisioned in art. 15 – 163, 165 and 166, or adherence for support in any way of such an association or group, is punished with life detention or with prison from fifteen to 25 years and forbidment of some rights.

The punishment for plot cannot be greater than the punishment provisioned by law for the worst of the crimes that enter as a purpose of the association or the group.

If the deeds provisioned in paragraph 1 have been followed by the committing of a crime, the rules from the crime opposition apply.

The person that committing the deed provisioned in paragraph 1 or 3, denounces it before its discovery, will not be punished.

Art. 171 -     Crimes against the representative of a foreign state

The crimes against the life, the physical integrity, the health, freedom or dignity committed against the representative of a foreign  state are punished with the punishment provisioned by law for the committed crime of which maximum is increased with two years .
Criminal action is started at the expressed Wish of the foreign government.

Art. 172. – Some causes for lack of punishment or reduction of Punishment

The participant in the crimes provisioned in the present title is not punished if he denounces in due time the committing of the crime, so that It can be stopped, Or if he himself stops the committing of the crime and then denounces it.

The participant that, after the criminal Research has begun or the criminals have been discovered, makes their arrest easier, is punished with a punishment that is reduced to half.

For those that will come from other parts one of the things that can happen is expulsion. Following the signing of some international treaties the Romanian state is not competent to apply the Romanian criminal law to citizens of other states; theoretically there should be no situation in which you can be detained without the possibility of making contact with the embassy of your country.

Art. 117 – Expulsion

The foreign citizen that has committed a crime can be forbided from Remaining On the state territory.

The disposition of the previous paragraph also applies to the person without citizenship that does not reside in the country.

In the case in which the expulsion is joined together by prison punishment, the expulsion takes place after the execution of the punishment.

The person’s provisoned in the present article will not be expuled if there are serious reasons to believe that they risk Undergoing torture Treatments in the state in which they are supposed to be expuled to.

The following is related to the causes that remove the criminal character of the deed. This thing refers to the fact that although normally what you did is a criminal act (meaning that is punished with prison), because of the circumstances below you can get away with a fine.

Art. 44 –  Self – defense

(1)    It does not constitute a crime the act provisioned by the criminal law, committed in a state of self defense.
(2)    It is in a state of self defense that person that commits the deed To remove a material, direct , immediate and unfair attack, directed towards him, another or against a public interest, and that puts in great danger the person or the rights of the person being attacked or of he public interest.
(2)-1 it is presumed to be self-defense, also the case in which the person commits the deed in order to deny the entrance without any right, through violence, treachery, breach of close or by any such means, in a home, flat, room or surrounded place marked by marking signs.

(3)    It is also in a state of self defense the one that because of the fear and torment has overlapped the limits of a defense proportional with the gravity of the danger and with the surroundings in which the attack took place.

Art. 45.    - Necessity state

It does not constitute a crime the deed provisioned by the criminal law, committed in a state of necessity.

In a state of necessity is the person that commits the deed in order to save from an imminent danger and that could not have been removed in another way, the life, physical integrity or health of him or someone else or an important good of him or someone else or a public interest.

It is not in a state of necessity the person that in the moment in which he committed the crime realized that he is committing consequences obviously greater then the ones that would have been produced if the danger wouldn’t have been removed.

Art. 46 – Physical constraint and Moral constraint

It does not constitute a crime, the deed provisioned by the criminal law, committed because of a physical constraint to which the person could not resist.

Also, it does not constitute a crime, the deed provisioned by the criminal law, committed because of a moral constraint, exerted through threatening with a severe danger for the person or for someone else and that couldn’t have been removed in some other way.

Art. 48 – Iresponsability

It does not constitute a crime, the deed provisioned in the criminal law, if the person, in the moment of committing the crime, either from mental alienation or from some other reasons, could not be aware of his actions or inactions, or he couldn’t control them.

Art. 49 – Alcohol intoxication

It does not constitute a crime the deed provisioned by the criminal law, if the person, during the committing of the crime, was, because of some circumstances independent of his will, in a state of complete alcohol intoxication produced by alcohol and other substances.

The voluntary complete drunkness state produced by alcohol or other substances does not remove the criminal character of the deed. It can constitute, as the case may be, either an aggravating or extenuating circumstance.

Art. 50.    - The minority of the person

It does not constitute a crime the deed provisioned by the criminal law, committed by a minor that at the date of committing the crime did not fulfill the legal requierments in order to be criminally responsible.

Art. 51.    -    Fact error

It does not constitute a crime the deed provisioned by the criminal law, when he person, during the committing of the crime, did not know of the existence of a state, situation or circumstance of which the criminal character of the crime depends on.

It does not constitute an aggravating circumstance the situation that the criminal did not know during the committing of the crime.

The dispositions of paragraph 1 and 2 are also applied to the deeds committed deliberately that the criminal law punishes, only if the lack of knowing of the state, situation or respective circumstance is not itself the result of deliberation.

The lack of knowledge or wrong knowledge of the criminal law does not remove the criminal character of the crime.


Before evaluating the risks to which you expose yourselves doing something “nice” you should have in mind some aspects that aggravate somehow the situation of the deed committed in the case in which you end up in court. Usually, small things end up being complicated, you think that you did some small shit and you find out that you’ve committed a series of crimes. These details are about the participation and plurality in actions. The criminal code explains pretty ok and you can actually realize clearly in which category it goes and you know exactly what to expect. So….

Participation:

Art. 23 .     - The participant

The participants are the persons that contribute to the committing of a crime provisioned by the criminal law as authors, instigators or accomplices.

Art. 24.    - Author

The author is the person that commits directly the crime provisioned by the criminal law.

Art. 25.    - Instigator

The instigator is the person that, with intention, determines another person to commit a crime provisioned by the criminal law.

Art. 26        -Accomplice

The accomplice is the person that, with intention, helps or makes easier in any way the committing of a crime provisioned by the criminal law. It is also an accomplice the person that promises, before or during the committing of the crime, that he will hide the goods obtained from it or that he will favour the person that does the crime, even if after the committing of the crime the promise isn’t kept.

Art. 27.    - Punishment in the case of participation

The instigator and the accomplice to a crime provisioned in the criminal law committed with intention are punished with the punishment provisioned by law for he author. In determining the punishment it will be taken into consideration the contribution of each to the committing of the crime, as well as the dispositions of art. 72.

Art. 28. – Real and personal circumstances

The circumstances refering to the person of a participant do not apply on others.

The circumstances refering to the crime apply on the participant, only to the extent to which they have known or foreseen them.


Art. 29 – Incitement without execution

Incitement acts that are not followed by the execution of the crime, as well as the acts of incitement followed by the stopping by the author or forbiding by the author of producing the result, is punished with a punishment between the punishment special minimum for the crime to which it has been incited and the general minimum. In the case when the punishment provisioned by law is life detention, the punishment with prison from 2 to 10 years is applied.

The acts shown in the previous paragraph are not sanctioned, if the punishment provisioned by law for the crime to which it has been incited is of 2 years or smaller, except the case when the acts committed by the author until the moment of discovery constitute another crime provisioned by the criminal law.

Art. 30     -    Prevention from committing the crime

The participant is not punished if during the execution, but before the discovery of the crime, he prevents its unfurlment. If the acts committed until the moment of prevention constitute another crime provisioned by the criminal law, the participant will get the punishment for this crime.

Art. 31 – Improper participation

Determinating, enabling or helping in any way, with intention, to the deliberately commitment by another person, of a crime provisioned in the criminal law, is punished with the punishment that the law provisions for the deliberate crime committed.

Determinating, enabling or helping in any way, with intention, to the commitment of a crime provisioned by the penal law, by a person that commits that crime without guilt is punished with the punishment provisioned by law for that crime.

The dispositions of art. 28-30 are applied accordingly.

Plurality of crimes:

Art. 32. – The forms of plurality

Plurality of crimes constitutes, as the case may be, a concourse of crimes or relapse.

Art. 33 The crime concourse

A crime concourse exists when:

a)    two or more crimes have been committed by the same person, before being definitively sentenced for one of them. There is a concourse even if one of the crimes has been committed in order to execute or hide another crime;
b)    an action or inaction, committed by the same person, because of the situation in which it took place or of the consequences it had, gathers elements of several crimes.

Art. 34. – Main punishment in case of crime concourse committed by a physical person

In case of crime concourse, the punishment is set for each crime separately, and of those the punishment is applied as follows:

a)    when a life detention punishment has been set, and one or more sentences with prison or fine, the sentence with life detention is applied;
b)    when only prison sentences have been set, the longest sentence is applied, which can be increased until its special maximum, and when this maximum is not enough, another 5 years to the most can be added;
c)    when only fines have been set, the biggest sentence is applied, , which can be increased until its special maximum, and when this maximum is not enough, another half of that maximum can be added;
d)    when a prison sentence and a fine sentence have been set, the prison sentence is applied, to which the fine sentence can be added, totally or partly;
e)    when several prison sentences and several fine sentences have been set, the sentence with prison is applied, according to the disposition from letter b), to which the fine can be added, according to the disposition from letter c).

By applying the dispositions from the previous paragraph, the total of the sentences set by the court cannot be overlapped for the concourent crimes.

Art. 35. – Complimentary punishment and security measures in case of crime concourse

If for one of the concurent crimes, a complimentary sentence has also been set, this is applied together with the prison sentence.

If several complimentary sentences of a different nature, or even of the same nature but with a different content, have been set, these are applied together with the prison sentence.

If several complimentary sentences of the same nature and with the same content have been set, the hardest of these will be applied.

The security measures of different or the same nature, but with a different content, taken in the case of concurent crimes, are added to one another.

If several security measures of the same nature and with the same content have been taken, for different periods, the security measure with the longest period is applied only once. In the case of security measures of the same nature and with the same content, taken according to art. 118 paragraph 1, letter a) – e), these are added to one another.

Art. 36 – Fusion of sentences for concurent crimes committed by a physical person

If the definitively sentenced criminal is subsequently judged for a concurent crime, the dispositions of art. 34 and 35 apply.

The dispositions of art. 34 and 35 are also applied in the case in which, after a sentence decision has been made definitive, it is found that the condemned person had also suffered a previous definitive sentence for a concurent crime.

If the criminal has executed completely or partly the sentence applied through the previous decision, what has been executed is substracted from the period of the sentence applied for the concurent crimes.

The dispositions refering to the applying of the punishment in case of crime concourse are also applied in the case in which the sentencing to life detention punishment has been commuted or replaced with a prison punishment.

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Last update : 08-11-2007 22:37

   
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