The Individualization of Criminal Law Sanctions of Deprivation of Liberty for Minors in the Romanian Criminal Law08 luglio 2017 -
[Contributo selezionato da Filodiritto tra quelli pubblicati nei Proceedings “Fifth International Conference Multidisciplinary Perspectives in the Quasi-Coercive Treatment of Offenders – SPECTO 2016”]
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[Contribution selected by Filodiritto among those published in the Proceedings “Fifth International Conference Multidisciplinary Perspectives in the Quasi-Coercive Treatment of Offenders – SPECTO 2016”]
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“Danubius” University of Galati & lawyer - Vrancea Bar, (ROMANIA)
Throughout the current study we have proceeded, for starters, to a brief examination of criminal law sanctions of deprivation of liberty for juvenile offenders in the Romanian criminal law. In order to highlight the attention paid by the Romanian legislator to this institution, we have examined the provisions that regulated it starting with the Criminal code since 1865 and continuing with the Carol II Criminal Code and the 1969 Criminal Code. This examination considers the institution's evolution over time and the Romanian legislator's concern to improve it, bringing it in line with the European law. The paper also highlights the ways of individualizing these criminal law sanctions by the court, based on general criteria, which are otherwise characteristic to adult criminals and also to other special laws only for juvenile offenders. Regarding some special criteria of individuation we insisted upon their examination, given their importance in the complex process of individualization achieved by the court. The work can be useful to both theorists and practitioners in the field. The novelties within the paper consist in the examination of the legislative evolution of the institution in the Romanian criminal law, highlighting the progress in legislation and the importance of individualizing ways of the custodial educational measures.
The issue of criminal liability of minors was at all times extremely sensitive, with major implications regarding the general evolution of human society. Since the beginning of the emergence of the criminal law and hence criminal liability of physical entities, it was insisted on the tangible ways of criminal liability of minors. In the evolution of the sanctioning system of juvenile we observe ever since the beginning the legal provisions which aimed at two stages, namely a first stage where minors are not criminally liable and the second stage where juveniles are criminally liable, both differentiated by their age at the time of the offense . Another feature of the legal sanctioning system of the minor is that the criminal law sanctions provided by the law have always been milder, in relation to the sanctions against adult offenders. A final general observation relates to criminal law sanctions provided by law and applicable to minors which could be deprivation or non-deprivation of liberty, every time being predominant the non-deprivation of liberty.
2. The Individualization of Criminal Law Sanctions of Deprivation of Liberty. Historical References
1865 Criminal Code provided for a series of separate provisions by which it was regulated the regime of criminal liability of the juvenile offender. According to article 61 the offense committed by a child younger than 8 years old, is not punishable. Regarding the criminal liability of the minor aged between 8 and 15 years, it is not criminally liable if they prove that “the minor acted without understanding.” In that case, the law provides for two categories of sanctions, the first non-custodial consisting in bringing into custody of the family the juvenile offender in order “to have closer care” and the second involving deprivation of liberty which consists in entrusting him to a monastery where he may be kept until the age of 20 years (or they will be sent in a monastery with the purpose of correcting such children, where they will remain for some years established by the court, without exceeding the age of 20 years).
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