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The accessory punishment according to the new Criminal Code of Romania.

1. Introduction

The Romanian criminal law draws a distinction between the main or freestanding punishments and the secondary, adjacent ones. The latter are subsequently divided into ancillary and accessory punishments.

The main punishments can be decreed and applied on their own. Each crime is mandatorily assigned a main punishment but not necessarily a secondary one. Three main categories of main punishments are established in the Romanian legislation: life imprisonment, imprisonment and fines. Each crime is assigned one or two of the main punishments and they are applied alternatively (for example, life imprisonment or imprisonment; imprisonment or fine)

The ancillary punishments are applied by the court of law (ope judicis) according to the law as an addition or complement to a main punishment and is served separately. Among the ancillary punishments applicable to natural persons are the interdiction to exercise several rights, military degradation and publication of the definitive conviction.

It is worth mentioning that according to the Romanian Criminal Code in force (since 1969), the ancillary punishment of restriction of rights cannot be served if the court of law has ruled the conditional remission of the principal punishment or licence supervision. On the other hand, according to the new Criminal Code of Romania, (1) the ancillary punishment of restriction of rights can be served even if the court of law has ruled licence supervision.

For legal persons, ancillary punishments are applied in addition to the fine as main punishment. (2)

The criminal law attaches accessory punishments to the custodial punishment as an accessory.

2. The outlook of the New Criminal Code of Romania regarding accessory punishments

It is worth mentioning that accessory punishments, concept-wise, are neither applied nor decreed by the court of law as they ensue ope legis, that is by the power of law and not ope judicis that is by the power of the court of law. As a matter of fact the text of the law [article 65 paragraph (2) of the new Criminal Code] stipulates that the accessory punishment consists in the ipso jure interdiction of certain rights, which means it occurs automatically, inevitably, with no intervention on the part of the court of law. This situation applies to life imprisonment exclusively because restriction of certain rights stipulated by the law only applies to the other custodial punishment-imprisonment-if the court of law decrees to that effect and not ipso jure. As such, the new legislative authority seems to reject the principle according to which accessory punishments ensue ipso jure from the main punishment and stipulates in art. 65, paragraph (1) of the new Criminal Code that the accessory punishment is decreed by the court of law in addition to the main punishment of imprisonment. (3)

Considering that the accessory punishment rests on the main one (as its accessory), it follows that it also shares its "fate." (4)

Though they share the same "fate," the accessory and the main punishments may not have the same duration. If, for example, the convicted person does not start to serve the sentence immediately after the definitive conviction [whereas the accessory punishment is served immediately after the definitive conviction according to art. 65, paragraph (3) of the new Criminal Code] or if, having started to serve the sentence, the convicted person is an escaped fugitive, the accessory punishment will not coincide with the main punishment. This situation does not alter either the dependence of the accessory punishment upon the main one, or the fact that it ensues automatically from the main punishment and that it is not applied by the court of law. However, this does not exempt the conviction decree from mentioning the rights to which the restriction applies throughout the time the main punishment is served. Fortuitous failure to mention those rights on the part of the court of law will be regarded as a simple error because the accessory punishment, as previously pointed out, becomes effective according to the law and not according to the decree of a court of law and this failure will be corrected according to the special rules stipulated in the Criminal proceedings code. (5)

According to art. 65, paragraph (1) of the new Criminal Code, the accessory punishment for the punishment of imprisonment consists in the restriction of the rights stipulated by the law, restriction which was decreed by the court of law as ancillary punishment. It is therefore evident that the legislator considered the accessory punishment should be dependent on the ancillary punishment. If the court of law did not apply the ancillary punishment of restriction of certain rights, neither can the accessory punishment be applied. This reasoning is debatable and calls for the intervention of the legislator for its correction. The accessory punishment should only rest on the main punishment. In case the court of law has applied a main custodial, it is natural that an accessory punishment should ensue. It is not conceivable for a person under definitive conviction and serving the sentence to exercise the right to be elected in the Romanian Parliament and be allowed to carry out his duty after having been elected.

3. Content of the accessory punishment

As made clear by the regulations of the new Criminal Code of Romania, there are two types of accessory punishments: optional and mandatory accessory punishments.

According to art. 65 paragraph (1) of the new Criminal Code the optional accessory punishment consists in the restriction of the rights stipulated by the law but only if the restriction has been decreed by the court of law as an ancillary punishment. These rights are:

a) the right to be elected in positions of public authority or any other public office;

b) the right to fill a position entailing the exercise of state authority;

c) the right to choose;

d) parental rights;

e) the right to be a guardian or trustee;

f) the right to fill the position, to exercise the profession or to carry out the activity which was made use of for committing the crime;

g) the right to own, carry or use weapons;

h) the right to drive certain types of vehicles, established by the court of law;

i) the right to leave Romania;

j) the right to fill a managing position within a public legal entity;

k) the right to be in certain localities established by the court of law;

l) the right to be in certain places and take part in certain sports, cultural events or public gatherings, established by the court of law;

m) the right to communicate with the victim or his/her family, with the persons that have committed the crime or other persons, as established by the court of law, or to approach these persons.

Restriction of the above mentioned rights will not be enforced automatically, but only if the court of law rules to that effect.

The optional accessory punishment only accompanies the main punishment of imprisonment only if the latter is a custodial punishment, meaning it is served in a detention regime.

According to art 65 paragraph (2) of the new Criminal Code, the mandatory accessory punishment consists in the restriction ipso jure of certain rights stipulated by the law. These rights are:

a) the right to be elected in positions of public authority or any other public office;

b) the right to fill a position entailing the exercise of state authority;

c) the rights of a foreign citizen on Romanian territory;

d) the right to choose;

e) parental rights;

f) the right to be a guardian or trustee;

restriction of the above mentioned rights occurs ipso jure, that is automatically, without the intervention of the court of law.

The mandatory accessory punishment only accompanies the main punishment of life imprisonment.

4. Serving the accessory punishment

A. Beginning of service

The directive in paragraph (3) of art. 65 of the new Criminal code stipulates that the accessory punishment is being served from the moment of the definitive conviction is enforced which marks the beginning of service of the accessory punishment.

For the life imprisonment, as the accessory punishment consists only in the restriction of the right of the foreign person on Romanian territory, it starts being served upon licence supervision or after the punishment is regarded as served. A punishment is regarded as served in case of full pardon or pardon regarding the rest of the punishment, the statute of limitation or the supervision deadline for probation has been met. We should mention that according to the Criminal Code in force, meeting the supervision deadline in case of licence supervision - either conditioned or under supervision- leads to the ipso jure exoneration of the convicted person.

Even though the accessory punishment is associated with the main custodial punishment (life imprisonment or imprisonment), the moment it starts to be served may not coincide with the moment the main custodial punishment begins to be served if the convicted person is free on the date the decree was definitive. (6)

B. Termination of service

The directive in paragraph (3) of art. 65 of the new Criminal Code stipulates that the accessory punishment is effective and will be served until the main custodial punishment has been served or regarded as such. Therefore, the moment of the termination of the accessory punishment usually coincides with the termination of the service of the punishment of imprisonment or life imprisonment. (7)

In addition, there is yet another moment the service is terminated and that is the moment the punishment is regarded as served, in the above mentioned multifaceted sense.

C. Duration of service

Duration of service of the accessory punishment is defined as the period between the moment the service began and the moment it ends definitively.

The duration of service for the accessory punishment is usually the same as the duration of service for the main custodial punishment. Nevertheless, it can be longer than the main custodial punishment when it also covers the period comprised between the definitive conviction decree and the actual moment the service starts. This is to further emphasize the nature of the accessory punishment as a consequence of the "conviction" entailing the main custodial punishment and not and not of its "service." (8)

There are cases when the accessory punishment is effective without being accompanied by the actual service of the main custodial punishment. This is the case with probation, deferment or termination of service of imprisonment or life imprisonment, escape.

There are cases when the duration of the service of the accessory punishment is shorter than that of the main custodial punishment (giving credit for time on remand).

5. Conclusions

The accessory punishment is attached to the main custodial punishment by the criminal law as an accessory. As such, concept-wise, it is neither applied nor decreed by the court of law as it ensues ope legis, that is by the power of law and not ope judicis that is by the power of the court of law.

The Romanian legislator has rejected the principle according to which the accessory punishment ensues ipso jure from the main punishment, and therefore stipulating that the accessory punishment is decreed by the court of law in addition to the main custodial punishment. This standpoint is not acceptable.

On the other hand, the Romanian legislator has drawn a debatable distinction, stipulating that the accessory punishment is effective ipso jure, that is automatically, in the case of life imprisonment, whereas with the main punishment of imprisonment, and only with custodial punishments, it is effective only if decreed by the court of law. We hereby suggest de lege ferenda (meaning "with a view to the future law") that the legislator should give up this distinction and stipulate the same manner of incidence of the accessory punishment for the two main custodial punishments.

REFERENCES

(1.) Law no. 286/2009, published in the Official Gazette of Romania, part I, no. 510 from July 24th 2009. The new Criminal Code of Romania will enter into force at a date that will be set in the law regarding its enforcement.

(2.) Ivan, Gh. (2008), Criminal Law. General Part. Bucharest: C.H. Beck Publishing House, 130.

(3.) Ivan, Gh. (2010), "Ancillary Punishments, Accessory Punishments and Safety Measures in case of Crime Plurality," in Antoniu, G., C. Bulai, C. Duvac, I. Griga, Gh. Ivan, C. Mitrache, I. Molnar, I. Pascu, and O. Predescu (eds.) Preliminary Explanations of the New Criminal Code, Vol. I, Articles 1-52, Bucharest: Universul Juridic Publishing House, 478.

(4.) Ibid.

(5.) Ibid.

(6.) Iliescu, N. (2003), "Ancillary and Accessory Punishments (Especially Accessory Punishments)," in Dongoroz, V., S. Kahane, I. Oancea, I. Fodor, N. Iliescu, C. Bulai, and R. Stanoiu (eds.), Theoretical Explanations of the Romanian Criminal Code. General Part. V., Vol. II, 2nd edition, Bucharest: Romanian Academy and All Beck Publishing Houses, 106.

(7.) Ibid, 107.

(8.) Ibid, 106.

Gheorghe IVAN

ivan_gheorghe_p@yahoo.com

Dunarea de Jos University of Galati,

Mari-Claudia IVAN

mariclaudia_i@yahoo.com

Titu Maiorescu University, Bucharest
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Author:Ivan, Gheorghe; Ivan, Mari-Claudia
Publication:Contemporary Readings in Law and Social Justice
Article Type:Report
Geographic Code:4EXRO
Date:Jul 1, 2012
Words:2150
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