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Provisions of the draft codes that have generated public debates

CONTENTS
Draft of the New Civil Code
A. Extract from the Draft of the New Civil Code - Title V Defending non patrimonial rights within Book I - About persons, B. Considerations of the Ministry of Justice and Citizens Liberties regarding the legal provisions from the Draft of the New Civil Code C. Annexe Compared Law

Draft of the New Criminal Code


A. Extract from the Draft of the Criminal Code legal provisions that have arisen public debates B. Considerations regarding the legal provisions that have arisen public debates: 1. Abortion 2. Incest 3. Prostitution 4. Sanctioning System 4.1 General aspects 4.2 Sanctions established for the offences against the patrimony 4.3 Sanctions established for the corruption offences 5. Corruption Offences 6. Prescription

- ANNEXE no. 1 - CRIMINAL CODE BEFORE THE ADOPTION OF LAW NO.140/1996 - ANNEXE no. 2 - COMPARED LAW: = OFFENCES AGAINST PATRIMONY= = CORRUPTION OFFENCES =

Draft of the New Criminal Procedure Code


A. Extract of the Draft of the New Criminal Procedure Code texts regarding the judge for rights and freedoms, exclusion of the illegally obtained evidence, absolute nullity cases, legal assistance of the suspect or the accused person , the injured person and the rights of the injured person.

B. Considerations of the Ministry of Justice and Citizens Liberties regarding the legal provisions within the Draft of the New Criminal Procedure Code which have arisen public debates (including aspects of compared law ) 1. The institution of the judge for rights and freedoms 2. Exclusion of the illegally obtained evidence 3. Absolute nullity cases 4. Legal assistance of the suspect or the accused person 5. The injured person and the rights of the injured person.

Draft of the New Civil Code


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A. Texts that have arisen public debates

. Book I
- About persons,

TITLE V
Defending non patrimonial rights

Protection of the human personality

Art.262 (1) The human personality is equally protected by the law. (2) Any natural person has the right to the protection of the values closely related to the human being, such as life, health, physical integrity, dignity, private life, scientific, artistic, literary or technical creation, as well as any other non-patrimonial rights. Art.263 (1) the natural person whose non patrimonial rights have been infringed or are threaten to be infringed can ask anytime to the court to: a) forbid committing the illicit deed, if it is about to be committed; b) stop breaking the legal provisions and forbidding the deed for the future, if it is still being committed ; c) determine the illicit character of the committed deed, if the the damage it has produced still persists . (2) At the same time, the person whose rights have been broken can ask to the court to oblige the person who has committed the deed to fulfil any measures considered to be necessary by the court in order to re-establish the infringed right, such as : a) distraining, destroying, seizure or taking out of the civil circuit the goods or the means which served or were meant to serve for committing the deed which produced a prejudice; b) obliging the author to publish, on his/her own expenses, the conviction decision or to pay a sum of money to the legal person with no patrimonial purpose which is deploying a charitable activity ; c) any other necessary measures for recovering the prejudice and for bringing to an end the illicit deeds against the personality. (3) Besides it, the person who has suffered a prejudice can ask for damages or ,as the case may be, for a patrimonial compensation for the prejudice, even for the non patrimonial ones, if the prejudice is imputable to the author of the deed. In these situations, the right to initiate the civil action is subject to the extinctive prescription. Art.264 (1) Any person whose rights or legitimate interests have been directly infringed by the presentation of some untrue facts in the written or audio-video media has the right to reply. (2) There is no right to reply in the situation of an exact reproduction of the public debates within an institution or other similar body, debates to which that person who pretends to be prejudiced has participated. Also, there is no right to reply when the contested presentation reproduces exactly the material elaborated directly by this person.

Means of defence

The right to reply

The content and the form of the reply.

Art.265 (1) The reply should be concise and limited to the contested presentation (2) It should be written. (3) As for the materials broadcasted within an audio-video programme, the reply can be either written or recorded on an audio-video support, at the prejudiced persons choice, with the observance of the technical standards which have been used by the press institution which has broadcasted the contested material. If the institution agrees, the reply can be also directly formulated within a live intervention of the person who considers being prejudiced. Art.266 - The reply can be refused if it is obviously inexact or contrary to the law or to the moral values. Art.267 (1) The author of the reply can address to the press institution in a term of maximum 20 days from the date he/she found out about the presentation he/she is contesting, but no later than 3 months from the date of its publishing or broadcasting. (2) That press institution should inform the author of the reply, in a term of maximum 2 days from the date the request regarding the right of reply was received, on the date, time and programme where the reply shall be published or broadcasted, or in the case in which a live intervention was requested, if it shall allow and ensure this intervention. When the press institution refuses publishing or broadcasting the reply, or the live intervention, the reasons for this refuse shall be immediately communicated

Refuse of reply Procedure

Publishing or broadcasting modality

The court action

Art.268 (1) The reply should be published or broadcasted in such a manner to reach to as much as possible of the public which has viewed or listened to the contested presentation. For this purpose, the reply shall be published or broadcasted in the same manner and at the same place with the contested presentation, as soon as possible, but no later than 3 days from the date on which publishing or broadcasting of the reply has been approved. (2)Within the audio-video programmes the reply has to be presented within the same time slot, at the same programme, in the limits of the same duration and also by specifying the programme during which the prejudice has been produced. If the programme during which the prejudice was produced is scheduled after a period of more than 7 days, the reply shall be broadcasted within a 3 days period, within the same time slot and also by specifying the programme during which the prejudice has taken place. (3)The reply has to be integrally published or broadcasted, without any alteration, without being cut off, reformulated or modified. The press institution cannot add or make any comment, but a statement indicating if it maintains the presentation of the facts or announcing the sources on which its elaboration or broadcasting was based on. (4) In every situation, publishing or broadcasting the reply is for free. Any contrary convention or clause shall be considered as not-written. Art.269 (1) If the press institution deters the prejudiced person from exercising these rights, or if it refuses publishing or broadcasting the reply, if it does not achieve these in a proper manner, the person who considers to have been prejudiced can turn to the competent court. The court shall render immediately a decision, taking into account the administrated evidence, through ordinance of the panels president. (2) Exercising or ,as the case may be, not exercising the right to reply does not imply the fact that the prejudiced person has given up the right to obtain, under legal conditions, a fair equivalent of the prejudice he/she has suffered. (3) The provisions of para (1) do not exclude the right of the person who considers to have been prejudiced to start any administrative procedures, which are settled either by the law or by the professional organizations in the press field. Art.270 (1)Any person whose rights or legitimate interests have been prejudiced by the presentation in the written or audio-video media of some inexact facts benefits of the right to rectification of the wrong information. (2) The provisions of art.265-269 shall be accordingly applied, even for the situation of rectification of the wrong information communicated through the written or audio video media.

The right to rectification

Defence of the right to ones name

Art.271 (1) The person whose name is contested can ask to the court the recognition of his/her right to that name. (2) Also, the person who has been prejudiced by the total or partial usurpation of his/her name can ask any time to the court to dispose stopping this illegitimate infringement of his/her right. (3) The provisions of this article shall be accordingly applied for the defence of the right to ones pseudonym.

Provisional measures

Art.272 (1)If the person who considers his/her nonpatrimonial rights have been breached proves in a reasonably manner that he/she is the subject of an illegitimate infringement, present or imminent, as the case may be, and that this infringement could cause him/her a prejudice which could be very difficultly to be covered, he/she has the possibility to ask to the court to take provisional measures. (2) The court could especially dispose: a) forbidding the infringement or ordering its temporary stopping; b) taking the necessary measures for ensuring the preservation of evidence. (3) Nevertheless, in the situation of an infringement of ones rights through the periodical written or audio-video media, the court cannot dispose its provisional ceasing, but in the case in which that infringement could cause a very serious prejudice to the plaintiff, it is obviously unjustified and the measure taken by the court does not appear to be too disproportionate in comparison with that infringement. (4) The court solves the request taking into account the provisions regarding the ordinance of the panels president, which shall be accordingly applied.In the case in which this request has been formulated before introducing the action on the merits of the case, the decision disposing the provisional measure has to specify the term for filing to the court the action on the merits of the case, under the sanction of rightful ceasing of that measure. The provisions of para (6) shall be accordingly applied. (5) If the taken measures could produce a prejudice to the other party, the court can oblige the plaintiff to deposit a security whose amount is stipulated by the court, under the sanction of rightful ceasing of that measure. (6) The measures taken accordingly to this article before introducing the action for defending the non-patrimonial right which has been infringed shall rightfully cease if the plaintiff does not bring the action to the court in the term stipulated by the court, but no later than 30 days from taking those measures. (7) The plaintiff shall be bound to repair, at the request of the interested party, the damage caused by the provisional taken measures, if the action on the merits of the case has been dismissed as not-grounded. Nevertheless, if the plaintiff had no fault or had a less serious fault, the court, taking into account the concrete circumstances of the case, can either refuse to oblige the plaintiff to pay the damages which the other party has asked for, or to dispose their reduction. (8) If the other party does not request the recovery of the damages, the court shall order the sum of the security to be returned, within a decision rendered after summoning the parties. The court solves the request taking into account the provisions regarding the ordinance of the panels president, 8

Death of the person holding the non patrimonial right

Art.273 (1) The action regarding the breached non patrimonial right can be continued or brought to the court, after the death of the prejudiced person, by the surviving spouse, by the ascendants or descendants of the deceased person, and by any collateral relative up to the fourth degree . (2) The action for re- establishing the integrity of the memory of a deceased person can be brought to the court by the persons previously mentioned in para (1).

Defending the non- patrimonial rights of a legal person.

Art.274 - The provisions of this title shall be accordingly applied for the non- patrimonial rights of the legal persons, such as the right to a company name, to a headquarters and other similar rights.

THE DRAFT OF THE NEW CIVIL CODE B. Considerations on the legal provisions which have arisen public debates
The draft of the New Civil code, as it has been approved by the Government, comprises, in Book I, About persons, a special title on the protection of non patrimonial rights through specific legal means (Title V Defending non patrimonial rights) by developing and updating the present provisions that are very brief stipulated in art. 54-56 in the Decree no. 31/1954 on natural and legal persons, which is to be repealed once the new Civil code enters into force. The nowadays legislator has shown a constant preoccupation on the protection of one's personal rights. Currently,the most complete national regulations in the field can be found, de lege lata, in the Quebec Civil code from 1991 (art. 10-40) one of the main models of the Romanian draft of the New civil code and in the Swiss Civil code (art. 27, 28, 28a-28l, 291), for which reason these updated and extremely efficient regulations had been the main inspiration sources for the people in charge with drawing up the Romanian Draft of the New civil code (see: art. 58-91 on respect for the human dignity and its inherent rights; art. 262-274 on defending non patrimonial rights). Some regulations on personal rights had been introduced, mainly, after the Second World War, also in other European civil codes, once these rights had been stated and having their content sketched, in the case law and doctrine. For instance, the French civil code stipulates in art. 9 (amended in 1994): the right to a private life of each person shall be respected, and in art. 91 (introduced in 2000), the right of presumption of innocence; also, in art.16, art. 16-1 art. 16-9 (introduced in 1994) there are regulations on respect of person's life, health, physical and mental integrity. The Italian civil code regulated ever since 1942 the right to one's own imagine (art. 10), the defense of the right to physical and mental integrity (art. 5) and the right to have a name (art. 7-9). Also, the Swiss civil code has a modern regulation, from 1985, on defense of the personal rights. More concretely, it is about the possibility of the person that had suffered a prejudice of his/her personal rights to defend his/her rights against any other person. In this case, the prejudiced person can ask the judge to prohibit the illegal infringement (art.28a), and if the harm suffered was a consequence of an act of the written or audiovisual media, he/she can ask directly to the respective institution to publish his/her right to reply (art. 28g, art. 28h , art. 28i, art.28k, art.28l).

See the annex to the present document.

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Besides this, should the breach into one's personal right be likely to cause to the victim a harm that is difficult to be redressed, the latter is entitled to ask for some provisional measures in order to prohibit the temporary breach. To this end, for instance, the French civil code stipulates in art. 9 para. 2 (amended in 1994) that the judges, without breaching into the right to redress the prejudice suffered, can order any measures, such as: seizure, freezing and any other measures meant to hamper or stop any breach into the intimate and private life; in case of emergency, these measures can be taken through a rfr ordinance (i.e. ordinance of the panel's president). In the same way, the Swiss civil code stipulates that such measures can be taken, mentioning that, any breach caused by means of the media, the judge is entitled to forbid or cease it only as an exceptional circumstance, that is, only if the breach is likely to cause a serious prejudice, should the breach not be obviously justified and the measure taken by the judge does not seem out of proportion in relation with the damage caused (art. 28c); it is extremely important that there should be also a provision that entitles the judge to compel the plaintiff to deposit a security should the provisional measures ordered by the judge can damage the other party (art. 28d). As far as the right to reply, regarding the prejudices caused to one's personal rights by the media, the former is unanimously acknowledged at European level, in the regulations on written and audiovisual media, apart from the victim being entitled to have the moral and material prejudice redressed. For instance, we can mention France (art. 12, art.13 and art. 13-1 in Law on media freedom, amended in 2000, as well as art. 6 in Law from 1982 on audiovisual communication and Decree from 1987 on exercising one's right to reply within the services of audio-visual communication), Belgium (Law from 1961 on the right to retort, reviewed in 2000) or Spain (Law from 1984 on the right to rectification, amended in 2000). The commission on drawing up the draft took into account the necessity for the new regulations to observe the European standards on the protection of private life and the constitutional principles on recognition and safeguard of fundamental rights for each person, especially art. 22 (the right to life and physical and mental integrity), art. 23 (individual freedom), art. 26 (intimate, family and private life), art. 27 (domicile inviolability) art. 30 (freedom of expression and its limits). To this end, the followings were taken into account: the ECHR case law on freedom of expression2, as well as the most updated legal regulations in the field in Europe, especially the provisions of the above mentioned Swiss civil code.

The Court said that sanctioning the journalists for committing some media crime offences it is compatible with the provisions of art. 10 in ECHR, should they be provided by law, aim at a legitimate objective, the authorities provide for serious sufficient grounds that should requires the sanction, and the sanction should be proportional by its nature and seriousness, taking into account the objective aimed. We may cite to this end: ECHR Decision from 31st of January 2006, case Stngu and Scutelnicu vs Romania; ECHR Decision from 17th of December 2004, case Cumpn and Mazre vs Romania; ECHR Decision from 28th of September 2004, case Sabou and Prclab vs Romania; ECHR Decision from 28th of September 1999, case Dalban vs Romania.

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At the same time, national regulations had been taken into account in the field of defending non patrimonial rights. Thus, besides art. 54-56 in Decree no. 31/1954, we refer to the principles of Ethical code of Romanian journalists and art. 48-65 of Regulation code of the audio video content (adopted by Decision of the National Audiovisual Council no. 187 from the 3rd of April 20063) on exercising one's right to reply and rectification. We would like to mention that Title V of Book I is not a singular regulation within the civil code but it expresses the general regulation conception in a unitary and complete way of any private legal institution included in the draft, so that, alongside other substantive issues, specific legal protection means for civil, patrimonial and non patrimonial rights, shall also be determined as the case may be. See the following as exempli gratia: Regulation on concluding the marriage , as well as on the legal claim to find it null and void and on the claim to declare it voidable (art. 288321 in the draft); Regulation on divorce, but also on the right to damages or to return compensation of one of the spouses (art. 388 and the following from the draft); Filiation and its legal claims (art. 423 and follow. from the draft); Right of private property and the legal means to defend it, first of all the legal claim for recovery of property (art. 572-583 from the draft); Rights of recording the property title in the land-book and its legal claims of (art. 900-929 from the project); Possession and the possessory claims (art. 963-966 from the draft); Right of inheritance (art. 967 and follow. from the draft), but also the heredity petition (art. 1140-1141 from the draft), revocation of donations (art. 1033-1042 from the draft), returning excessive gifts (art. 1102-1110 from the draft) or statement of donations (art. 11661169 from the draft); Validity conditions of the contract and its legal claims to find it null and void or to declare it voidable (art. 1187-1278 from the draft); Civil liability and its legal claim (art. 1362 and follow. from the draft); The right to coercive enforcement of the obligations and its legal claims, the rescisorry and annulment claim or the claim for diminishing the obligations of one party (art. 1526 and follow. from the draft); The rights of unsecured creditor and its means of protection (the preservation measures, oblique (indirect) claim and actio pauliana (art. 1569-1576 from the draft); Vendor's obligations and buyer's legal claims guaranteeing eviction and faults of the sold good sold (art. 1681-1728 from the draft); Mortgage (art. 2352 and follow. from the draft) and the mortgage claim (art. 2438 and follow. from the draft) etc.

Regarding the defense of non patrimonial rights, the draft establishes the principle of safeguarding the values tightly related to the human being and the main means to ensure their observance:
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Published in the Romanian Official Journal, Part I, no. 338 from 14th of April 2006, with subsequent modifications and additions.

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the civil claim, which aims at ceasing the deed that hinds one or several protected values. The object of the judicial claim available to the person alleged to have been prejudiced in his or her personal non patrimonial right is hereby mentioned (enumerative presentation: prohibition of the breach, cease of the infringement and its prohibition for the future; determining the illicit nature of the infringement). It is also stipulated the possibility to initiate this judicial claim if the infringement of the non patrimonial rights is imminent; Restrictive measures are provided against the author of the breach in order to lead to restoring the prejudiced right, such as: a) seizure, destroying, confiscation or retrieving of the goods that are within circuit or of the means that had been used or meant to be used for committing the infringement; b) obligation of the author to publish the conviction decision or to pay an amount of money to a non patrimonial legal person that carries out charity activities; c) any other measures required to recover the damage caused and to cease the illicit prejudice to one's personal rights. Another specific defense means set up in the draft is the right to reply and the right to rectify the wrong information shown in the audio and video media, which can prejudice the personal non patrimonial rights. We would like to emphasize that the right to reply and the right to rectification are already stipulated in the Regulation code of the audio video content (Decision of the National Audiovisual Council no. 187 from the 3rd of April 2006); it has been frequently used, both in the audiovisual and written media, and the text from the Draft took into account this decision, codifying some of its provisions. The following had been taken into account: the general provisions, likely to be applicable irrespective of the nature of the media that had been used to communicate the challenged information and bearing in mind the fact that, as a general rule, the Code stipulates general provisions and not detailed ones. The detailed provisions are stipulated, as a general rule, in secondary legislation (regulations, rules etc.). In concreto, we talk about the following: - art.48 - Any natural or legal person, irrespective of his/her nationality whose rights or legitimate interests have been prejudiced by showing within an audiovisual program of some false deeds is entitled to the right to reply; - art.50 para.(1) - Any natural or legal person, irrespective of his/her nationality whose rights or legitimate interests have been prejudiced by showing within an audiovisual program of some inaccurate information is entitled to the right to rectification - art.53 - The text of the replies shall refer only to the challenged untrue deeds shall be expressed within the limits of decency and shall not embody any threats or marginal comments; - art.55 - The deadline for sending the request is at most 20 days from the date of broadcasting the program in which the prejudice had been committed.

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- art.57 (1) the institution broadcasting the radio program shall decide, within two days from the date of receiving the request of the right to reply on allowing it or not. (2) Should the institution broadcasting the radio program decide on giving the person the right to reply, the people in charge shall notify the prejudiced person, within two days from the date of receiving the request, the day and the hour when his/her right to reply will be broadcasted. (3) Should the institution broadcasting the radio program deny the right to reply, they shall notify in writing the decision taken to the applicant as well as its justification, within two days from the moment the request had been received; - art.58 - (1) The right to reply shall be broadcast free of charge, within 3 days since the approval of the request, under the same conditions in which one's rights or legitimate interests have been prejudiced: within the same time slot, of the same program, with the same duration and with mentioning the program where the prejudiced had been caused. (2) Should the program where the prejudice had been caused is scheduled in more than 7 days, the right to reply shall be broadcasted within 3 days, within the same time slot also mentioning the program where the prejudiced had been caused; - art.59 - The right to reply shall be exercised by broadcasting the live intervention of the prejudiced person, either by broadcasting a recording made either by the institution broadcasting radio the program or by the requesting person; the recording made by the requesting person shall comply with the technical standards used by the institution broadcasting the radio program; - art.62 - The deadline to communicate the request is at most 20 days since the date of broadcasting the program where the prejudice had been caused; - art.63 - (1) The institution broadcasting the radio program shall decide, within two days since the date of receiving the rectification request, on allowing it or not. (2) Should the institution broadcasting the radio program decide on rectification, it shall communicate it within at most two days since the date of receiving the request to the prejudiced person alongside the date and the hour for broadcasting it. (3) Should the institution broadcasting the radio program deny the right to rectification, it shall notify in writing to the applicant, within two days since the date of receiving the request, the decision taken, its justification and the information stipulated at art.57 para. (4); - art.64 - (1) The right to rectification shall be exercised by broadcasting free of charge on the radio, within 3 days since the date of receiving the request, within the same time slot, of a material made by the institution broadcasting the radio program, through which the inaccurate information that had caused a prejudice are corrected, in the spirit of truth. (2) The institution broadcasting the radio program shall mention the program where the inaccurate information had been presented and also the date of its broadcasting.

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(3) The institution broadcasting the radio program shall not broadcast the rectification without prior consent of the prejudiced person. The Draft also stipulates the regulation of the provisional measures, until the litigation is solved, which can be ordered by the judge, at the request of the prejudiced person, using the ordinance of the panel's president. These measures can be: prohibition of the action that constitutes the breach into non patrimonial right or its provisional cease, taking the measures of preserving the evidence etc. There are also provided some safeguards for the author of the deed allegedly assumed to cause a prejudice: It is foreseen that the panel of judges should not be able to order provisional cease of the prejudice by means of the written or audio and video mass media unless this prejudice causes serious damage, it is not obviously justified and the measure taken by the judge does not seem out of proportion in relation with the damage caused. Also, should the provisional measures ordered by the judge can damage the other party, the judge can compel the plaintiff to deposit a security, under the sanction of annulment of the ordered measure; The plaintiff has to repair, should the interested party ask it, the damage caused by the provisional measures, should the merits of the case be dismissed as not-grounded. Conclusions: When regulating the exercise of the right to information and free expression, the authorities shall guarantee the observance of the right to dignity and private life by suitable means of protection, bringing to life the principle in the Romanian Constitution in art. 30 para. (6), republished: Freedom of expression shall not cause any prejudice to one's dignity, honor, private life or to the right to one's own image. In this context, the Draft of the New civil code aims to set a balance between two rights equally guaranteed in the Constitution and in the Convention on the protection of rights and fundamental freedoms: the right to free expression and the right to private life

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Moreover, the freedom of expression of the press will be given more protection in the future civil code; the foreseen provisional measures will not operate against the journalists except in exceptional circumstances (serious damage, obviously unjustified prejudices to private life). The proposed texts are to be read in conjunction provisions of art. 104 of the Convention and the case law of the European Court on Human Rights in Strasbourg, which clearly state judge's assessment limits in the cases of the freedom of the press. On the grounds of the above mentioned, we consider that the fear of possible restrictions that the new civil code could bring to the exercise of the journalist profession is not justified. On the contrary, we talk about European updated regulations, which do not aim at possible excess of the expression of the media, but at general protection of all personal non patrimonial rights, against any prejudice, no matter who the author is.

Art. 10 from the Convention on human rights and fundamental freedoms Freedom of expression 1. Everyone has the right of freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without inference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. In the same way, see also art. 30 (Freedom of expression) in Romanian Constitution, especially para. 6: The freedom of expression shall not hind dignity, honor, private life of a person and either the right to his or her own imagine.

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C. Annexe Compared law Swiss civil code - extract -

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Art. 27 1 Nul ne peut, mme partiellement, renoncer la jouissance ou lexercice des droits civils. 2 Nul ne peut aliner sa libert, ni sen interdire lusage dans une mesure contraire aux lois ou aux moeurs. Art. 28 1 Celui qui subit une atteinte illicite sa personnalit peut agir en justice pour sa protection contre toute personne qui y participe. 2 Une atteinte est illicite, moins quelle ne soit justifie par le consentement de la victime, par un intrt prpondrant priv ou public, ou par la loi. Art. 28a 1 Le demandeur peut requrir le juge: 1. dinterdire une atteinte illicite, si elle est imminente; 2. de la faire cesser, si elle dure encore; 3. den constater le caractre illicite, si le trouble quelle a cr subsiste. 2 Il peut en particulier demander quune rectification ou que le jugement soit communiqu des tiers ou publi. 3 Sont rserves les actions en dommages-intrts et en rparation du tort moral, ainsi que la remise du gain selon les dispositions sur la gestion daffaires. Art. 28b 1 En cas de violence, de menaces ou de harclement, le demandeur peut requrir le juge dinterdire lauteur de latteinte, en particulier: 1. de lapprocher ou daccder un primtre dtermin autour de son logement; 2. de frquenter certains lieux, notamment des rues, places ou quartiers; 3. de prendre contact avec lui, notamment par tlphone, par crit ou par voie lectronique, ou de lui causer dautres drangements. 2 En outre, si le demandeur vit dans le mme logement que lauteur de

Art. 28e 1 Les mesures ordonnes sont excutes dans tous les cantons comme des jugements. 2 Les mesures ordonnes avant lintroduction de laction perdent leur validit si le requrant na pas intent action dans le dlai fix par le juge, mais au plus tard dans les trente jours. Art. 28f 1 Le requrant est tenu de rparer le prjudice caus par les mesures provisionnelles, si la prtention qui les a motives se rvle infonde; toutefois, le juge peut refuser dallouer une indemnit ou la rduire lorsque le requrant na pas commis de faute ou na commis quune faute lgre. 2 Les srets fournies par le requrant sont restitues sil est tabli que la partie adverse ne rclamera pas la rparation de son prjudice; au besoin, le juge lui fixe un dlai pour agir. Art. 28g 1 Celui qui est directement touch dans sa personnalit par la prsentation que font des mdias caractre priodique, notamment la presse, la radio et la tlvision, de faits qui le concernent, a le droit de rpondre. 2 Il ny a pas de droit de rponse en cas de reproduction fidle des dbats publics dune autorit auxquels la personne touche a particip. Art. 28h 1 La rponse doit tre concise et se limiter lobjet de la prsentation conteste. 2 La rponse peut tre refuse si elle est manifestement inexacte ou si elle est contraire au droit ou aux moeurs. Art. 28i 1 Lauteur de la rponse doit en adresser le texte lentreprise dans les vingt jours compter de la connaissance de la prsentation conteste mais au plus tard dans les trois mois qui suivent 19

FRANCE Code civil Article 9 Cr par Loi 1803-03-08 promulgue le 18 mars 1803 Modifi par Loi 1927-08-10 art. 13 Modifi par Loi n70-643 du 17 juillet 1970 - art. 22 JORF 19 juillet 1970 Modifi par Loi n94-653 du 29 juillet 1994 - art. 1 JORF 30 juillet 1994 Chacun a droit au respect de sa vie prive. Les juges peuvent, sans prjudice de la rparation du dommage subi, prescrire toutes mesures, telles que squestre, saisie et autres, propres empcher ou faire cesser une atteinte l'intimit de la vie prive : ces mesures peuvent, s'il y a urgence, tre ordonnes en rfr. Article 9-1 Modifi par Loi n2000-516 du 15 juin 2000 - art. 91 JORF 16 juin 2000 Chacun a droit au respect de la prsomption d'innocence. Lorsqu'une personne est, avant toute condamnation, prsente publiquement comme tant coupable de faits faisant l'objet d'une enqute ou d'une instruction judiciaire, le juge peut, mme en rfr, sans prjudice de la rparation du dommage subi, prescrire toutes mesures, telles que l'insertion d'une rectification ou la diffusion d'un communiqu, aux fins de faire cesser l'atteinte la prsomption d'innocence, et ce aux frais de la personne, physique ou morale, responsable de cette atteinte. Loi n82-652 du 29 juillet 1982 sur la communication audiovisuelle Version consolide au 25 novembre 2008 Article 6 Modifi par Loi n2004-575 du 21 juin 2004 - art. 5 JORF 22 juin 2004 I. Toute personne physique ou morale dispose d'un droit de rponse dans le cas o les imputations susceptibles de porter atteinte son honneur ou sa rputation auraient t diffuses dans le cadre d'une activit de communication audiovisuelle. Le demandeur doit prciser les imputations sur lesquelles il souhaite rpondre et la teneur de la rponse qu'il se propose d'y faire. La rponse doit tre diffuse dans des conditions techniques quivalentes celles dans lesquelles a t diffus le message contenant l'imputation invoque. Elle doit galement tre diffuse de manire que lui soit assure une audience quivalente celle du message prcit. La demande d'exercice du droit de rponse doit tre prsente dans le dlai de trois mois suivant celui de la diffusion du message contenant l'imputation qui la fonde. Toutefois, lorsque, l'occasion de l'exercice de poursuites pnales, ont t diffuses dans le cadre d'une activit de communication audiovisuelle des imputations susceptibles de porter atteinte l'honneur ou la rputation d'une personne physique ou morale, ce dlai est rouvert son profit pour la mme dure compter du jour o la dcision de non-lieu dont elle fait l'objet est intervenue ou celle de relaxe ou d'acquittement la mettant expressment ou non hors de cause est devenue dfinitive.

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En cas de refus ou de silence gard sur la demande par son destinataire dans les huit jours suivant celui de sa rception, le demandeur peut saisir le prsident du tribunal de grande instance, statuant en matire de rfrs, par la mise en cause de la personne vise au neuvime alina du prsent article [*action en justice*]. Le prsident du tribunal peut ordonner sous astreinte la diffusion de la rponse ; il peut dclarer son ordonnance excutoire sur minute nonobstant appel. Pendant toute campagne lectorale, lorsqu'un candidat est mis en cause, le dlai de huit jours prvu au sixime alina est rduit vingt-quatre heures. Pour l'application des dispositions du prsent article, dans toute personne morale qui assure, quelque titre et sous quelque forme que ce soit, un service de communication audiovisuelle, il doit tre dsign un responsable charg d'assurer l'excution des obligations se rattachant l'exercice du droit de rponse. Un dcret en Conseil d'Etat fixe les modalits d'application du prsent article. Il prcise notamment les modalits et le dlai de conservation des documents audiovisuels ncessaires l'administration de la preuve des imputations vises au premier alina du prsent article, sans prjudice de l'application des dispositions de la loi n 79-18 du 3 janvier 1979 sur les archives. Les dispositions du prsent article sont applicables tout service de communication mis la disposition du public sous forme de phonogrammes ou de vidogrammes paraissant intervalles rguliers. II. - Les associations remplissant les conditions fixes par l'article 48-1 de la loi du 29 juillet 1881 sur la libert de la presse peuvent galement exercer le droit de rponse prvu par le prsent article dans le cas o des imputations susceptibles de porter atteinte l'honneur ou la rputation d'une personne ou d'un groupe de personnes raison de leur origine, de leur appartenance ou de leur non-appartenance une ethnie, une nation, une race ou une religion dtermine auraient t diffuses dans le cadre d'une activit de communication audiovisuelle. Toutefois, quand les imputations concerneront des personnes considres individuellement, l'association ne pourra exercer le droit de rponse que si elle justifie avoir reu leur accord. Aucune association ne pourra requrir la diffusion d'une rponse en application du prsent article ds lors qu'aura t diffuse une rponse la demande d'une des associations remplissant les conditions prvues par l'article 48-1 prcit. SPAIN Ley Orgnica 2/1984, de 26 de marzo, reguladora del derecho de rectificacin BOE 27 Marzo LA LEY 705/1984 Artculo 1. Toda persona natural o jurdica, tiene derecho a rectificar la informacin difundida, por cualquier medio de comunicacin social, de hechos que le aludan, que considere inexactos y cuya divulgacin pueda causarle perjuicio.

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Podrn ejercitar el derecho de rectificacin el perjudicado aludido o su representante y, si hubiese fallecido aqul, sus herederos o los representantes de stos. Vase artculo 9.2. L.O. 1/1982, 5 mayo, de proteccin civil del derecho al honor, a la intimidad personal y familiar y a la propia imagen. Artculo 2. El derecho se ejercitar mediante la remisin del escrito de rectificacin al director del medio de comunicacin dentro de los siete das naturales siguientes al de publicacin o difusin de la informacin que se desea rectificar, de forma tal que permita tener constancia de su fecha y de su recepcin. La rectificacin deber limitarse a los hechos de la informacin que se desea rectificar. Su extensin no exceder sustancialmente de la de sta, salvo que sea absolutamente necesario. Artculo 3. Siempre que el derecho se ejercite de conformidad con lo establecido en el artculo anterior, el director del medio de comunicacin social deber publicar o difundir ntegramente la rectificacin, dentro de los tres das siguientes al de su recepcin, con relevancia semejante a aqulla en que se public o difundi la informacin que se rectifica, sin comentarios ni apostillas. Si la informacin que se rectifica se difundi en publicacin cuya periodicidad no permita la divulgacin de la rectificacin en el plazo expresado, se publicar sta en el nmero siguiente. Si la noticia o informacin que se rectifica se difundi en espacio radiofnico o de televisin que no permita por la periodicidad de su emisin, divulgar la rectificacin en el plazo de tres das, podr exigir el rectificante que se difunda en espacio de audiencias y relevancia semejantes, dentro de dicho plazo. La publicacin o difusin de la rectificacin ser siempre gratuita. Artculo 4. Si, en los plazos sealados en el artculo anterior, no se hubiera publicado o divulgado la rectificacin o se hubiese notificado expresamente por el director o responsable del medio de comunicacin social que aqulla no ser difundida, o se haya publicado o divulgado sin respetar lo dispuesto en el artculo anterior, podr el perjudicado ejercitar la accin de rectificacin dentro de los siete das hbiles siguientes ante el Juez de Primera Instancia de su domicilio o ante el del lugar donde radique la direccin del medio de comunicacin. Artculo 5. La accin se ejercitar mediante escrito, sin necesidad de Abogado ni Procurador, acompaando la rectificacin y la justificacin de que se remiti en el plazo sealado; se presentar igualmente la informacin rectificada si se difundi por escrito; y, en otro caso, reproduccin o descripcin de la misma tan fiel como sea posible. El Juez, de oficio y sin audiencia del demandado, dictar auto no admitiendo a trmite la demanda si se considera incompetente o estima la rectificacin manifiestamente improcedente. En otro caso convocar al rectificante, al director del Medio de Comunicacin o a sus representantes a juicio verbal, que se celebrar dentro de los siete das siguientes al de la peticin. La convocatoria se har telegrficamente, sin perjuicio de la urgente remisin, por cualquier otro medio, de la copia de la demanda a la parte demandada. Cuando el Juez de Primera Instancia hubiese declarado su incompetencia podr el perjudicado acudir al rgano competente dentro de los siete das hbiles siguientes al de la fecha de notificacin de la correspondiente resolucin, en la cual se deber expresar el rgano al que corresponda el conocimiento del asunto. Vase artculo 8 L.O. 2/1984 de esta Ley. Artculo 6.

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El juicio se tramitar conforme a lo establecido en la Ley de Enjuiciamiento Civil (LA LEY 58/2000) para los juicios verbales, con las siguientes modificaciones: a) El Juez podr reclamar de oficio que el demandado remita o presente la informacin enjuiciada, su grabacin o reproduccin escrita. b) Slo se admitirn las pruebas que, siendo pertinentes, puedan practicarse en el acto. c) La sentencia se dictar en el mismo o al siguiente da del juicio. El fallo se limitar a denegar la rectificacin o a ordenar su publicacin o difusin en la forma y plazos previstos en el artculo 3 de esta Ley, contados desde la notificacin de la sentencia que impondr el pago de las costas a la parte cuyos pedimentos hubiesen sido totalmente rechazados. La sentencia estimatoria de la peticin de rectificacin deber cumplirse en sus propios trminos. El objeto de este proceso es compatible con el ejercicio de las acciones penales o civiles de otra naturaleza que pudieran asistir al perjudicado por los hechos difundidos. Vase artculo 250.1.9 LEC 2000. Vase artculo 437 LEC 2000. Artculo 7. No ser necesario la reclamacin gubernativa previa cuando la informacin que se desea rectificar se haya publicado o difundido en un medio de comunicacin de titularidad pblica. Artculo 8. No sern susceptibles de recurso alguno las resoluciones que dicte el Juez en este proceso, salvo el auto al que se refiere el prrafo 2. del artculo 5, que ser apelable en ambos efectos y la sentencia, que lo ser en un solo efecto dentro de los tres y cinco das siguientes, respectivamente, al de su notificacin, conforme a lo dispuesto en las secciones primera y tercera del Ttulo VI del libro II de la Ley de Enjuiciamiento Civil. La apelacin contra el auto a que se refiere el artculo 5 se sustanciar sin audiencia del demandado. Vanse artculos 455 y siguientes LEC 2000. DISPOSICION DEROGATORIA. Quedan derogados los artculos 58 a 62 de la Ley 14/1966, de 18 de marzo, el artculo 25 de la Ley 4/1980, de 10 de enero, sobre el Estatuto de la Radio y la Televisin; los Decretos 745/1966, de 31 de marzo y 746/1966, de la misma fecha, y el nmero 1 del artculo 566 del Cdigo Penal, as como cuantas disposiciones se opongan a lo establecido en esta Ley. BELGIUM Loi du 23 juin 1961 relative au droit de rponse CHAPITRE Ier : DES ECRITS PERIODIQUES Article 1er Sans prjudice des autres voies de droit, toute personne physique ou morale, cite nominativement ou implicitement dsigne dans un crit priodique, a le droit de requrir dans les trois mois l'insertion gratuite d'une rponse. Toutefois, la critique scientifique, artistique ou littraire ne donne ouverture au droit de rponse que si celle-ci a pour objet de rectifier un lment de fait ou de repousser une atteinte l'honneur.

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Si la personne vise est dcde, le droit de rponse appartient tous les parents en ligne directe ou au conjoint ou, leur dfaut, aux parents les plus proches; il n'est exerc qu'une fois et par le plus diligent d'entre eux; si, au jour du dcs de la personne cite ou dsigne, le dlai de trois mois prvu au premier alina est en cours, les ayants droit ne disposent que de la partie de ce dlai restant courir. Article 2 La rponse ne peut excder mille lettres d'criture ou le double de l'espace occup par le texte qui justifie le droit de rponse. La personne mise en cause peut exercer en une seule fois le droit de rponse des textes publis dans plusieurs numros successifs. En ce cas, sa rponse ne peut excder mille lettres d'criture ou le double de l'espace occup par le plus long de ces textes. La rquisition d'insertion contient l'indication prcise des textes, mentions ou citations auxquels se rapporte la rponse. Article 3 Peut tre refuse, l'insertion de toute rponse : 1 Qui n'a pas de rapport immdiat avec le texte incrimin; 2 Qui est injurieuse ou contraire aux lois ou aux bonnes moeurs; 3 Qui met un tiers en cause, sans ncessit; 4 Qui est rdige dans une langue autre que celle du priodique. Article 4 La rponse doit tre insre en entier, sans intercalation, la mme place et dans les mmes caractres que le texte auquel elle se rapporte. Cette insertion doit se faire dans le premier numro publi aprs l'expiration d'un dlai de deux jours francs, non compris les dimanches ou jours fris, et qui prend cours compter du dpt de la rponse au bureau du priodique. Article 5 En cas d'infraction l'article 4, l'diteur est puni d'une amende de 26 francs 5 000 francs. L'article 85 du Code pnal est applicable cette infraction. Si, la date du jugement, la rponse n'a pas t insre, le tribunal en ordonne l'insertion dans le dlai qu'il dtermine; il condamne en outre l'diteur une amende de 100 francs par jour de retard partir de l'expiration de ce dlai; il peut, par une disposition spcialement motive, Loi du 23 juin 1961 relative au droit de rponse Droit et Nouvelles Technologies 3 dclarer que la partie du jugement ordonnant l'insertion sera excutoire provisoirement nonobstant opposition ou appel. L'article 9 de la loi du 31 mai 1888 tablissant la libration conditionnelle et les condamnations conditionnelles dans le systme pnal, modifi par la loi du 14 novembre 1947, n'est pas applicable aux condamnations prvues l'alina prcdent. Article 6 A dfaut d'indication du nom de l'diteur dans le priodique, l'imprimeur est, sauf preuve contraire, prsum tre l'diteur. CHAPITRE II : DE LAUDIOVISUEL Article 7 Sans prjudice des autres voies de droit, toute personne physique ou morale, toute association de fait, cite nominativement ou implicitement dsigne dans une mission, dition ou programme audiovisuels caractre priodique, a, en justifiant d'un intrt personnel, le droit de requrir la diffusion ou l'insertion gratuite d'une rponse en vue de

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rectifier un ou plusieurs lments de faits errons la concernant ou de rpondre un ou plusieurs faits ou dclarations de nature porter atteinte son honneur. Si la personne vise est dcde, le droit de rponse appartient tous les parents en ligne directe ou au conjoint, ou, leur dfaut, aux parents les plus proches; il n'est exerc qu'une fois et par le plus diligent d'entre eux. Si au jour du dcs de la personne cite ou dsigne, le dlai de trente jours, prvu au premier alina de l'article 8 de la prsente loi, est en cours, les ayants droit ne disposent que de la partie de ce dlai restant courir. Article 8 Sous peine d'irrecevabilit, la demande de rponse doit satisfaire aux conditions suivantes: - tre adresse par lettre recommande, au plus tard le trentime jour qui suit la date de l'mission, du programme ou de l'dition, l'organisme producteur de l'mission ou du programme ou l'diteur; - indiquer l'identit complte du requrant ainsi que son domicile, s'il s'agit d'une personne physique. Pour les personnes morales, il est indiqu sa raison sociale, sa nature juridique, son sige social et la qualit du signataire de la demande. Pour les associations de fait, il est indiqu sa dnomination, son sige, ses organes statutaires et la qualit du signataire de la demande; - contenir toutes prcisions utiles permettant d'identifier l'mission, le programme ou l'dition incrimine, ainsi que les passages mis en cause; - tre motive et signe; - comprendre la rponse demande dont le texte ne peut excder un temps de lecture de trois minutes ou 4 500 signes typographiques. Article 9 Peut tre refuse, la diffusion ou l'insertion de toute rponse : - qui n'a pas de rapport immdiat avec les propos ou les images incrimins ou qui excde ce qui est ncessaire pour corriger les faits dclars inexacts ou dommageables pour l'honneur; - qui est injurieuse ou contraire aux lois ou aux bonnes moeurs; - qui met un tiers en cause sans ncessit; - qui est rdige dans une autre langue que celle de l'mission, du programme ou de l'dition incrimine. Article 10 Il n'y a pas lieu rponse si une rectification satisfaisante a t faite spontanment par l'organisme producteur ou l'diteur. Si cette rectification n'est pas juge satisfaisante par le requrant, celui-ci peut user des droits qui lui sont confrs par les dispositions de la prsente loi. Article 11 1. Lorsque la demande de rponse ainsi que le texte propos sont agrs, cette rponse est diffuse l'occasion de la plus prochaine mission ou du plus prochain programme de la mme srie ou du mme type, l'heure la plus proche de celle o cette mission ou programme a eu lieu. Si la demande de rponse vise une dition priodique, le texte est insr dans l'dition suivante. En cas de priodicit trop loigne, le requrant peut demander la diffusion de sa rponse dans la plus prochaine mission. La rponse est lue par la personne qui est dsigne par l'organisme producteur ou par l'diteur, sans commentaire ni rplique.

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Le requrant n'accde en aucun cas au microphone, la camra ou au dispositif d'enregistrement. 2. Lorsque la demande de rponse est agre sans que, toutefois, l'intgralit de celleci soit accepte, l'organisme producteur ou l'diteur soumet au requrant une contreproposition. Celle-ci doit tre communique par lettre recommande dans un dlai de quatre jours ouvrables, prenant cours le lendemain de la rception de la demande. Si cette contre-proposition est accepte par le requrant, la rponse est diffuse ou insre selon les modalits prvues au 1er. 3. S'il refuse la demande de rponse, l'organisme producteur ou l'diteur en avertit le requrant par lettre recommande dans un dlai de quatre jours ouvrables, prenant cours le lendemain de la rception de la demande, en motivant son refus. Article 12 En cas d'absence des formalits prvues au 2, alina 1er, et au 3 de l'article 11, de refus de la demande de rponse ou de non-acceptation de la contre-proposition de texte, le requrant peut saisir le prsident du tribunal de premire instance et ce, dans les quinze jours partir de la date laquelle le refus ou la contre-proposition de texte auraient d tre notifis ou dans les quinze jours qui suivent la notification du refus ou de la contre-proposition. Le prsident peut tre saisi dans le mme dlai par une requte crite en conciliation, conformment aux articles 731 et suivants du Code judiciaire. Cette requte produit quant au dlai de quinze jours les effets d'une citation, la condition que celle-ci soit donne dans les quinze jours du procs-verbal constatant la non-conciliation des parties. Le prsident du tribunal de premire instance, sigeant comme juge unique, statue au fond et en dernier ressort et selon la procdure prvue aux articles 1035, 1036, 1038 et 1041 du Code judiciaire, sur l'obligation de l'organisme producteur ou de l'diteur de diffuser ou d'insrer la rponse. En cas d'ordonnance rendue par dfaut, l'opposition peut tre forme dans la quinzaine de la notification. L'ordonnance est notifie aux parties par pli judiciaire. Article 13 Un enregistrement de toute mission, programme ou dition doit tre conserv durant le dlai pendant lequel la demande de rponse peut tre introduite. Si aucun enregistrement ne peut tre produit, la rponse doit tre diffuse ou dite, pour autant qu'elle soit conforme la loi. Si la demande de rponse est introduite dans le dlai prescrit, l'enregistrement de l'mission, du programme ou de l'dition concerne doit tre conserv jusqu'au rglement du litige. L'enregistrement de la rponse doit tre conserv durant une priode de trois mois. Article 14 Ne donnent pas lieu l'exercice du droit de rponse, les missions accordes par les Instituts d'mission de la Radiodiffusion-Tlvision belge aux associations et fondations reconnues pour autant que ces missions soient ralises conformment aux dispositions rglant les missions des associations et fondations reconnues. Article 15 Est punissable d'une amende de 26 5 000 francs, et sans prjudice de la rparation civile, le fait de ne pas diffuser ou insrer la rponse conformment aux dispositions prvues l'article 11, 1er et 2, deuxime alina, ou de s'abstenir d'excuter l'accord intervenu en conciliation ou l'ordonnance du prsident du tribunal de premire instance. CHAPITRE III : DISPOSITIONS COMMUNES

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Article 16 La poursuite ne peut avoir lieu que sur la plainte ou la citation directe du requrant. Celui-ci peut se dsister en tout tat de cause. Son dsistement teint l'action publique. Article 17 L'action publique et l'action civile rsultant d'une infraction la prsente loi sont prescrites aprs trois mois compter du jour o l'insertion ou la diffusion aurait d tre faite. Article 18 Les cours et tribunaux statuent toutes affaires cessantes sur les actions exerces en vertu de la prsente loi. ITALY La constituzione Art. 21 Tutti hanno diritto di manifestare liberamente il proprio pensiero con la parola, lo scritto e ogni altro mezzo di diffusione. La stampa non pu essere soggetta ad autorizzazioni o censure. Si pu procedere a sequestro soltanto per atto motivato dell'autorit giudiziaria nel caso di delitti, per i quali la legge sulla stampa espressamente lo autorizzi, o nel caso di violazione delle norme che la legge stessa prescriva per l'indicazione dei responsabili. In tali casi, quando vi sia assoluta urgenza e non sia possibile il tempestivo intervento dell'autorit giudiziaria, il sequestro della stampa periodica pu essere eseguito da ufficiali di polizia giudiziaria, che devono immediatamente, e non mai oltre ventiquattro ore, fare denunzia all'autorit giudiziaria. Se questa non lo convalida nelle ventiquattro ore successive, il sequestro s'intende revocato e privo di ogni effetto. La legge pu stabilire, con norme di carattere generale, che siano resi noti i mezzi di finanziamento della stampa periodica. Sono vietate le pubblicazioni a stampa, gli spettacoli e tutte le altre manifestazioni contrarie al buon costume. La legge stabilisce provvedimenti adeguati a prevenire e a reprimere le violazioni. Legge 8 febbraio 1948, n. 47 Disposizioni sulla stampa Art.8 din aceasta lege astfel cum a fost modificat prin Legea nr.416/1981 are urmatorul cuprins. _ART. 8. - (RISPOSTE E RETTIFICHE). - IL DIRETTORE O, COMUNQUE, IL RESPONSABILE TENUTO A FARE INSERIRE GRATUITAMENTE NEL QUOTIDIANO O NEL PERIODICO O ELL'AGENZIA DI STAMPA LE DICHIARAZIONI O LE RETTIFICHE DEI SOGGETTI DI CUI SIANO STATE PUBBLICATE IMMAGINI OD AI QUALI SIANO STATI ATTRIBUITI ATTI O PENSIERI O AFFERMAZIONI DA ESSI RITENUTI LESIVI DELLA LORO DIGNIT O CONTRARI A VERIT, PURCH LE DICHIARAZIONI O LE RETTIFICHE NON ABBIANO CONTENUTO SUSCETTIBILE DI INCRIMINAZIONE PENALE. PER I QUOTIDIANI, LE DICHIARAZIONI O LE RETTIFICHE DI CUI AL COMMA PRECEDENTE SONO PUBBLICATE, NON OLTRE DUE GIORNI DA QUELLO IN CUI AVVENUTA LA RICHIESTA, IN TESTA DI PAGINA E COLLOCATE NELLA STESSA

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PAGINA DEL GIORNALE CHE HA RIPORTATO LA NOTIZIA CUI SI RIFERISCONO. PER I PERIODICI, LE DICHIARAZIONI O LE RETTIFICHE SONO PUBBLICATE, NON OLTRE IL SECONDO NUMERO SUCCESSIVO ALLA SETTIMANA IN CUI PERVENUTA LA RICHIESTA, NELLA STESSA PAGINA CHE HA RIPORTATO LA NOTIZIA CUI SI RIFERISCE. LE RETTIFICHE O DICHIARAZIONI DEVONO FARE RIFERIMENTO ALLO SCRITTO CHE LE HA DETERMINATE E DEVONO ESSERE PUBBLICATE NELLA LORO INTEREZZA, PURCH CONTENUTE ENTRO IL LIMITE DI TRENTA RIGHE, CON LE MEDESIME CARATTERISTICHE TIPOGRAFICHE, PER LA PARTE CHE SI RIFERISCE DIRETTAMENTE ALLE AFFERMAZIONI CONTESTATE. QUALORA, TRASCORSO IL TERMINE DI CUI AL SECONDO E TERZO COMMA, LA RETTIFICA O DICHIARAZIONE NON SIA STATA PUBBLICATA O LO SIA STATA IN VIOLAZIONE DI QUANTO DISPOSTO DAL SECONDO, TERZO E QUARTO COMMA, L'AUTORE DELLA RICHIESTA DI RETTIFICA, SE NON INTENDE PROCEDERE A NORMA DEL DECIMO COMMA DELL'ARTICOLO 21, PU HIEDERE AL PRETORE, AI SENSI DELL' ARTICOLO 700 DEL CODICE DI PROCEDURA CIVILE , CHE SIA ORDINATA LA PUBBLICAZIONE. LA MANCATA O INCOMPLETA OTTEMPERANZA ALL'OBBLIGO DI CUI AL PRESENTE ARTICOLO PUNITA CON LA MULTA DA TRE MILIONI A CINQUE MILIONI DI LIRE. LA SENTENZA DI CONDANNA DEVE ESSERE PUBBLICATA PER ESTRATTO NEL QUOTIDIANO O NEL PERIODICO O NELLA AGENZIA. ESSA, OVE NE SIA IL CASO, ORDINA CHE LA PUBBLICAZIONE OMESSA SIA EFFETTUATA. Codice di procedura civile Art. 700. (Condizioni per la concessione) Fuori dei casi regolati nelle precedenti sezioni di questo capo, chi ha fondato motivo di temere che durante il tempo occorrente per far valere il suo diritto in via ordinaria, questo sia minacciato da un pregiudizio imminente e irreparabile, puo' chiedere con ricorso al giudice i provvedimenti d'urgenza, che appaiono, secondo le circostanze, piu' idonei ad assicurare provvisoriamente gli effetti della decisione sul merito.

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DRAFT OF THE NEW CRIMINAL CODE

A. LEGAL PROVISIONS THAT HAVE BEEN UNDER PUBLIC DEBATE Art. 37 Multiple criminal offences (1) There is the case of real multiple criminal offences when two or several criminal offences have been committed by the same person, through different actions or inactions, before being finally convicted for any one of them. This shall be case even if one of the criminal offences was committed in order to perpetrate or conceal another offence. (2) There is a case of formal multiple criminal offences when an action or inaction, committed by the same person, because of the circumstances under which

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it took place and because of the consequences it produced, contains the elements of several criminal offences. . Art. 38 Main penalty for multiple criminal offences (1) In case of multiple criminal of offences, the penalty for each criminal offence is established separately, and from among these the penalty, one shall be applied in one of the following ways: a) when a penalty of life detention and one or more penalties of imprisonment or fine have been established, the penalty of life detention shall be applied; b) when only penalties of imprisonment have been established, the most severe penalty shall be applied, which can be increased up to its special maximum, and when this maximum is not sufficient, an increase of up to 5 years can be added; c) when only fines have been established, the heaviest penalty shall be applied, which can be increased up to its special maximum, and when this maximum is not sufficient, an increase of up to half of that maximum can be applied; d) when a penalty of imprisonment and a penalty of fine have been established, the penalty of imprisonment shall be applied, to which the fine is added in its total amount; e) when several penalties of imprisonment and several penalties of fine have been established, the penalty of imprisonment shall be applied, according to letter b), to which the fine is added in its total amount, according to letter c) (2) When several imprisonment penalties have been established, if by adding to the most severe penalty an increase of half of the total amount of the other imprisonment penalties would exceed by 10 years or more the general maximum imprisonment penalty, and if for at least one of the multiple criminal offences the penalty stipulated by law is imprisonment of 20 years or more, then life detention can be applied. Art. 40 Relapse (1) There is relapse when, after a sentence to imprisonment that exceeds 1 year has remained final and until rehabilitation or completion of its term, the convicted person commits a new criminal offence for which the law provides the penalty of imprisonment of more than two years. (2) There is relapse also when one of the penalties in para.(1) is life detention.. (3) In order to establish the relapse one may also take into account the decision of conviction handed down abroad for a deed also provided by the Romanian criminal law, if the decision of conviction has been recognized according to the law. Art. 42 Penalty for relapse (1) If before the previous penalty is executed or considered to be so another criminal offence is committed being in a relapse case, the established penalty for this last offence is merged with the previous un-served penalty or with the remaining penalty to be served. (2) When, before the previous penalty has been served or deemed as served, several multiple criminal offences are committed, among which at least one of them is committed in relapse, the established penalties shall merge according to the

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provisions on multiple criminal offences, and the resultant penalty is added to the unserved previous penalty or to the remaining un-served penalty. (3) If by computing the penalties under the conditions of para.(1) and (2) the maximum general penalty would be exceeded by more than 10 years, and if for at least one of the criminal offences committed the penalty provided by law is imprisonment of 15 years or more, instead of the imprisonment penalty the life detention can be applied. (4) When the previous penalty or the penalty established for the criminal offence committed in relapse is life detention, the life detention penalty shall be served. (5) If after the previous penalty has been served or deemed as served, a new criminal offence is committed in relapse, the special limits of the penalty provided by law for the new criminal offence are increased by half. (6) If after a conviction decision for the new criminal offence remains final and before the penalty has been served or deemed as served, it is discovered that the convicted person is in relapse, the court shall apply the provisions in para. (1) (5). (7) The previous paragraph shall also be applied if the sentence to the penalty of life detention was commuted with or replaced by the penalty of imprisonment. Art. 43 Intermediary plurality of criminal offences (1) There is intermediary plurality of criminal offences when, after a conviction decision remains final and until the date when the sentence is served or deemed to be served, the convicted person commits a new criminal offence and the legal conditions for relapse are not met. (2) In the case of intermediary plurality of criminal offences the penalty for the new criminal offence and the previous penalty are merged according to the provisions on multiple criminal offences. Art. 132 Prescription of criminal liability for minors The prescription terms for criminal liability provided in art. 155, are reduced by half for the persons who at the moment of committing the criminal offence were minors and these terms are interrupted or suspended under the legal conditions for adults. Art. 133 Prescription of serving the educative measures (1) The educative measures without imprisonment have a prescription term of 2 years from the moment the decision by which these measures have been taken remains final.. (2) The educative measures with imprisonment have a prescription term equal to the duration of the educative measure taken, but not less than 2 years (3) The prescription terms for serving the educative measures can be interrupted and suspended under the legal provisions for adults. (4) Should the educative measures be replaced by other measures or penalties, the serving prescription term is taken into account for the most servere educative measure and runs from the moment the replacement decision was rendered. Art. 154 Prescription of criminal liability (1) Prescription removes criminal liability

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(2) Prescription shall not remove criminal liability for criminal offences against peace and humankind, genocide and war crimes. Art.155 Terms of prescription for criminal liability (1) The terms of prescription for criminal liability are: a) 15 years, when the law provides life detention or imprisonment for more than 20 years for the criminal offence committed; b) 10 years, when the law provides imprisonment for more than 10 years, but which does not exceed 20 years for the criminal offence committed; c) 8 years, when the law provides imprisonment for more than 5 years, but it does not exceed 10 years for the criminal offence committed; d) 5 years, when the law provides imprisonment for more than one year but which does not exceed 5 years for the criminal offence committed; e) 3 years, when the law provides imprisonment which does not exceed one year or a fine for the criminal offence committed;; (2) The terms provided in the present article shall run from the date of committing the criminal offence. For continuous offences, the term runs from the date of termination of the action or inaction, for continued offences, from the date of committing the last action or inaction and for the criminal offence committed repeatedly and that denotes the habit, from the date of committing the last act. (3) For the progressive criminal offences, the term of prescription for criminal liability runs from the date of committing the action or inaction and is computed taking into account the penalty for the final result. (4) For the criminal offences against freedom and sexual integrity, committed against a minor, the term of prescription runs from the date he/she became adult. Should the minor die before the age of eighteen, the prescription runs from the date of his/her death. Art. 156 Interruption in the course of prescription for criminal liability (1) The course of the term of prescription for criminal liability shall be interrupted by carrying out any procedural act in that case. . (2) After each interruption a new term of prescription runs. (3) Interruption of the course of prescription causes effects with regard to all participants to the criminal offence, even if the act of interruption concerns only some of them. (4) The terms in Art.155, if they have been exceeded by one more half, shall be deemed completed regardless of how many interruptions had been. (5) the approval as a matter of principle of the claim to reinitiate the criminal trial leads to a new term of prescription for criminal liability. Art. 161 Prescription for serving the sentence (1) Prescription removes the serving of the main penalty. (2) Prescription shall not remove the serving of the main penalties for criminal offences against peace and humankind, genocide and war crimes. Art. 162 Terms of prescription for serving the sentence (1) The terms of prescription for serving the sentence by a natural person are: a) 20 years, when the sentence to be served is life detention or imprisonment for more than 15 years;

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b) 5 years plus the duration of the sentence to be served, but no more than 15 years, for the rest of imprisonment sentence; c) 3 years, should there be a fine penalty. (2) The terms stipulated in para. (1) shall run from the date the conviction decision is final. (3) In the case of revocation or annulment of the postponement of penalty application, of suspension of the serving of the sentence under supervision or of the parole, the term of prescription runs from the date when the revocation or annulment decision rendered is final. (4) In the case of revocation of the parole, under the conditions of art. 104 para.(1), the term of prescription runs from the date when the revocation decision rendered is final and is computed taking into consideration the rest of the un-served sentence. (5) Should the fine penalty be replaced by the imprisonment penalty, the term of prescription runs from the date when the replacement decision rendered is final is computed taking into consideration the duration of the imprisonment penalty. (6) Prescription shall not be applied to complementary penalties related to natural person and safety measures. Art. 163 Interruption in the course of prescription of serving the penalty (1) The course of the term of prescription of serving of penalty is interrupted by starting to serve the sentence. Avoiding serving the sentence, after starting it, leads to a new term of prescription from the date of the avoidance. (2) The course of the term of prescription of serving the penalty is interrupted by the commission of a new criminal offence. (3) The course of the term of prescription of serving the fine penalty is interrupted also by replacing the duty to pay the fine with the duty of non remunerated community service. Art. 164 Suspension in the course of prescription of the service of penalty (1) The course of the prescription of the service of penalty shall be suspended in the cases and on the conditions provided in the Criminal Procedure Code. (2) Prescription shall resume its course on the day when the cause for suspension ceases to exist. Art. 199 Abortion (1) The deliberate ending of a pregnancy carried out in one of the following situations: a) Outside the medical institutions or the authorized medical surgeries for this purpose; b) By a person who is not a specialist in obstetrics-gynecology and does not hold a license to practice this specialty; c) If the pregnancy has more than fourteen weeks, shall be punished with imprisonment of 6 months up to 3 years or fine and prohibition of exercising certain rights. (2) The abortion carried out in any circumstances, without the consent of the pregnant woman, shall be punished with imprisonment of 2 up to 7 years and prohibition of exercising certain rights.

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(3) If the deeds mentioned in paragraphs (1) and (2) have caused an injury to the pregnant woman, the punishment shall be imprisonment of 3 up to 10 years period and prohibition of exercising certain rights, and if the deed has resulted into the death of the pregnant woman, the punishment shall be imprisonment of 6 up to 12 years and prohibition of exercising certain rights. (4) When the deeds were carried out by a doctor, besides the imprisonment, the prohibition of exercising this profession shall be also applied. (5) The attempt to commit the criminal offences stipulated in the paragraphs (1) and (2) shall be punished. (6) The therapeutic abortion, carried out by a doctor specialist in obstetricsgynecology, shall not be considered a criminal offence. (7) The pregnant woman who interrupts the course of the pregnancy shall not be punished. Art. 200 Injuring the fetus (1) Injuring the fetus, during the birth, which has deterred the appearance of the extra-uterine life, shall be punished with imprisonment form 3 up to 7 years. (2) Injuring the fetus during the birth, which has caused an injury to the baby, will be punished with imprisonment from 1 up to 5 years, and if the deed resulted into the babys death, it shall be punished with imprisonment of 2 up to 7 years. (3) Injuring the fetus during the pregnancy period, which has caused an injury to the baby, shall be punished with imprisonment of 3 months up to 2 years, and if the deed resulted into the babys death, it shall be punished with imprisonment of 6 months up to 3 years. (4) Injuring the fetus during the birth, when the deed is perpetrated by the mother in a state of psychic turmoil, shall be punished with the penalties provided by para (1) and (2), whose limits shall be reduced by half. (5) If the deeds provided by para. (1)-(4) were perpetrated by fault; the special limits of the sanctions shall be reduced by half. (6) If the deeds provided by para (1)-(3) and (5) were perpetrated by a doctor, besides the imprisonment, the prohibition of exercising this profession shall be also applied. (7) Injuring the fetus during the pregnancy period by the pregnant woman shall not be punished. Art. 211 Procurement (1) Determining or enabling the practice of prostitution or getting patrimonial benefits from the practice of prostitution of one or several persons shall be punished with imprisonment from 2 to 7 years and the prohibition of certain rights. (2) Should coercion be used in determining in beginning or continuing the practice of prostitution, the penalty shall be imprisonment from 3 to 10 years and the prohibition of certain rights. (3) Should deeds be committed against a minor, the special limits of the penalty shall be increased by half. (4) Practice of prostitution shall mean having sexual intercourse with different people in order to get patrimonial benefits for one's or another person's use. Art. 216 Rape

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(1) Sexual intercourse, the oral or anal sex, by coercion of a person or by making a person unable to defend himself/herself or to express consent, or by taking advantage of such situation shall be punished by imprisonment from 3 to 10 years and the prohibition of certain rights. (2) The same penalty shall be applied to any other acts of vagina or anus penetration committed under the conditions in para. (1). (3) The penalty shall be imprisonment from 5 to 12 years and the prohibition of certain rights, if: a) the victim is under the care, protection, education, guard or treatment of the perpetrator b) the victim is a ascendant, descendant, brother or sister; c) the victim is not yet 15 years old; d) the deed was carried out in order to produce pornographic materials; e) the deed resulted in physical injury (4) If the act resulted in the victims death, the penalty shall be imprisonment from 7 to 15 years and the prohibition of certain rights. (5) Criminal action for the act provided in para.(1) and (2) is initiated upon previous complaint by the injured person. (6) The attempt of the criminal offences stipulated in para. (1) - (3) shall be punished. Art. 217 Sexual assault (1) The sexual intercourse, other than the ones stipulated in art. 216, with a person, committed by coercion, by making the person unable to defend him/herself or express his/her consent, or taking advantage of this situation shall be punished with imprisonment of 2 to 7 years and prohibition of certain rights. (2) The penalty of imprisonment of 3 to 10 years and prohibition of certain rights is applied when: a) the victim is under the care, protection, education, guard or treatment of the perpetrator b) the victim is an ascendant, descendant, brother or sister; c) the victim is not yet 15 years old; d) the deed was carried out in order to produce pornographic materials; e) the deed resulted in physical injury (3) If the act resulted in the victims death, the penalty shall be imprisonment from 7 to 15 years and the prohibition of certain rights. (4) If the sexual assault acts had been preceded or followed by committing the sexual intercourse stipulated in art. 216 para. (1) and (2), the deed shall be considered rape.. (5) Criminal action for the act provided in para.(1) is initiated upon preliminary complaint by the injured person. (6) The attempt of the criminal offences stipulated in para. (1) and (2) shall be punished. Art. 218 Sexual intercourse with a minor (1) Sexual intercourse, the oral or anal sex, as well as any other vagina or anus penetration committed by an adult with a minor who is not yet 13 years old, shall be punished with imprisonment penalty from 2 to 7 years and the prohibition of certain rights.

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(2) The deed in para. (1) committed by an adult with a minor aged between 13 and 15, shall be punished with imprisonment penalty from one to 5 years. (3) The deed in para. (1) committed by an adult with a minor aged between 13 and 18, by a person who abused victim s trust or took advantage of his/her authority or influence over the victim, shall be punished with imprisonment penalty from 2 to 7 years and the prohibition of certain rights. (4) The deed in para. (1) shall be punished with imprisonment penalty from 3 to 10 years and the prohibition of certain rights when: a) the minor is a descendant, brother or sister; b) the minor is under the care, protection, education, guard or treatment of the perpetrator; c) the deed was carried out in order to produce pornographic materials. (5) The same penalty shall be applied to the criminal offence in para. (2) and (3), committed under the conditions in para. (4) let. c). Art. 219 Sexual corruption of a minor (1) An adult committing a sexual act together with a minor under the age of 13, a different sexual act from the one in art. 218, as well as determining the minor to have or perform such act shall be punished with imprisonment penalty from one to 5 years. (2) The imprisonment penalty of 2 to 7 years and the prohibition of certain rights shall be applied when: d) the minor is a descendant, brother or sister; e) the minor is under the care, protection, education, guard or treatment of the perpetrator; f) the deed was carried out in order to produce pornographic materials. (3) The sexual intercourse of any kind committed by an adult in the presence of a minor under the age of 13 shall be punished with imprisonment penalty from 6 months to 2 years or fine. (4) Making a minor under the age of 13 to assist to exhibitionist behavior or to attend some shows or representations with sexual intercourse of any kind, as well as providing him/her with pornographic materials shall be punished with imprisonment penalty from 3 months to one year or fine. Art. 227 Theft (1) The act of taking a movable asset from another persons possession or use, without the latters consent, in order to make it ones own without right, shall be punished by imprisonment from 6 months to 3 years or fine. (2) The act is a theft even if the asset belongs fully or partly to the perpetrator, if at the time of committing the deed that asset was in the legitimate possession or use of another person. (3) Se consider bunuri mobile i nscrisurile, energia electric, precum i orice alt fel de energie care are valoare economic. Written documents, electric energy as well as any form of energy that has an economic value shall be deemed as movable assets. (4) The Criminal action is initiated upon preliminary complaint of the injured person. Art. 228 First degree theft (1) Theft committed under the following circumstances:

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a) in a public transportation vehicle; b) during night time; c) by a person wearing a mask, a disguise or a transvestite person; d) by forced entry, escalading or by use without right of a real key or a false one; e) by disabling the alarm or surveillance system, shall be punished with imprisonment penalty from one to 5 years. (2) The theft committed under the following circumstances: a) an asset that is part of the cultural heritage; b) by violation of domicile or professional headquarters; c) by a person wearing a fire arm, shall be punished with imprisonment penalty from 2 to 7 years. (3) Criminal action for the act provided in para.(1) and (2) let. a) is initiated upon preliminary complaint of the injured person. Art. 229 Theft for one's own use (1) The theft having as object a vehicle, committed with the intention of use it without right shall be punished with the penalty stipulated in art. 227 or art. 228, whose special limits shall be reduced by one third. (2) The penalty stipulated in para. (1) shall be applied to the use without right of a communication terminal belonging to another person or to the use of a communication terminal connected to a network without right if damage has been caused. (3) Criminal action is initiated upon preliminary complaint of the injured person. Art. 230 Sanctioning the attempt The attempt of the criminal offences in the present chapter shall be punished. Art. 231 Robbery Theft committed by use of violence or threat, or by making the victim unconscious or unable to defend him/herself, as well as theft followed by the use of such means in order to keep the stolen goods or to remove the traces of the criminal offence, or to ensure the perpetrators escape, shall be punished by imprisonment penalty from 2 to 7 years and the prohibition of certain rights. Art. 232 First degree robbery (1) The robbery committed under the following circumstances: a) by using a weapon, an explosive, narcotic or paralyzing substance; b) by impersonation of a public official; c) by a person wearing a mask or disguise or by a transvestite person; d) during night time; e) in or over a public transportation vehicle; f) by violation of domicile or professional headquarters shall be punished with imprisonment penalty from 3 to 10 years and the prohibition of certain rights. (2) When the robbery resulted in a physical injury the penalty is imprisonment from 5 to 12 years and the prohibition of certain rights. Art. 233 Piracy (1) The theft by acts of violence or threat, committed by a person belonging to the crew or being a passenger on a ship in an open sea, of the goods on that ship or

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on another ship shall be punished with imprisonment penalty from 3 to 10 years and the prohibition of certain rights. (2) The penalty provided in para.(1) shall apply accordingly to the capture of a ship in the open sea or to the fact of provoking, by any means, the shipwreck or stranding of the ship in order to take possession of its load or to rob the people on board. (3) If the piracy resulted in physical injury of a person, the penalty shall be imprisonment from 5 to 12 years and the prohibition of certain rights. (4) The criminal offence exists even when the act had been committed on an aircraft or between aircraft and ships. Art. 234 Robbery or piracy resulted in victim's death If the criminal offences stipulated in art. 213-233 resulted in the death of the victim the penalty shall be imprisonment from 7 to 15 years and the prohibition of certain rights. Art. 235 Sanctioning the attempt The attempt to the criminal offences provided in art. 231 - 233 shall be punished. Art. 288 Bribe taking (1) The act of a clerk who, either directly or indirectly, for him/herself or for another person, claims or receives money or other undue benefits, or accepts the promise of such benefits or does not reject them, in order to perform, not to perform or to delay the accomplishment of an act with regard to his service duties or in order to perform an act that is contrary to these duties, shall be punished by imprisonment from 2 to 7 years and the prohibition of the right to have a public office or to perform the profession or the activity under which the criminal offence has been committed. (2) The act provided in para (1) committed by one of the people mentioned in art. 175 para. (2) is considered criminal offence only when it is committed in relation with un-fulfillment, delaying in fulfilling an act related to his/her legal duties or in related to committing an act contrary to these duties. (3) If the criminal offence stipulated in para. (1) has been committed by another person than the ones mentioned in art. 175, the special limits of the penalty shall be reduced by half. (4) The money, values or any other goods that were the object of bribe taking shall be confiscated according to art.112. Art. 289 Bribe giving (1) The act of promising, offering or giving money or other benefits under the conditions stipulated in art. 288 shall be punished with imprisonment from one to 5 years. (2) If the criminal offence had been committed in relation with another person than the one ones stipulated in art. 175 the special limits of the penalty shall be reduced by half. (3) The act in para. (1) and (2) shall not be a criminal offence when the bribegiver was coerced by any means by the bribe-taker. (4) The bribe-giver shall not be punished if he/she denunciates the act to the authorities before the prosecution body is notified for that offence. (5) The money, values or any other goods shall be returned to the person who gave them, in the cases provided in para. (3) and (4).

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(6) The money, values or any other goods that were the object of bribe giving shall be confiscated, and if they cannot be found, confiscation by equivalent shall be ordered.

DRAFT OF THE NEW CRIMINAL CODE

B. CONSIDERATIONS REGARDING THE LEGAL PROVISIONS THAT HAVE ARISEN PUBLIC DEBATES 1. ABORTION Within the draft of the new Criminal Code, the offence of abortion is settled by article 199: According to the paragraph (7), it explicitlly specified that the pregnant woman who commits this deed shall not be punished and thus, the discussions within the doctrine on this issue come to an end (see also paragraph 245 of the Norwegian Criminal Code5). The fact that the pregnant woman is not punished does not mean
245. Any person who terminates a pregnancy, or is accessory thereto, when the statutory requirements for such an operation have not been fulfilled, or a decision for such termination has not
5

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that the deed is not an offence; the deed committed by the pregnant woman is an offence, with all the possible consequences regarding the criminal participation, only the criminal sanctioning of the deed has been given up. We should mention that according to the legislation in force at the present moment (art. 185 Criminal Code), the woman that commits the abortion by herself is not given any criminal sanction, so that the draft of the new Criminal Code only clarifies this aspect, by introducing an explicit text. (art. 199 para (7) of the draft), The Criminal Code in force, until the Decree Law no. 1/1989 on repealing some laws, decrees and other normative acts, published in the Official Gazette no. 4 on 27th December 1989, was sanctioning the abortion by art. 185- 1876. Before
been made by any person authorized to do so, is guilty of criminal abortion and shall be liable to imprisonment for a term not exceeding three years. In the case of a repeated offence or if the act is committed for the purpose of gain or under especially aggravating circumstances, the penalty shall be imprisonment for a term not exceeding six years. If the offender has acted without the woman's consent, imprisonment for a term not exceeding 15 years shall be imposed, but not exceeding 21 years if she dies as a result of the felony. The penal provision in the first sentence of the first paragraph shall not apply to women who themselves terminate their own pregnancy or are accessory thereto.
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Section III Abortion Art. 185 - Ilegal carring out of the abortion Interrupting the course of pregnancy by any means, in any conditions which do not observe the legal provisions, with the consent of the pregnant woman, shall be punished with imprisonment of one up to 3 years . The deed mentioned in para 1, perpetrated without the consent of the pregnant woman, shall be punished with imprisonment of 2 up to 3 years . If the deed mentioned in the previous paragraphs have caused a serious injury to the pregnant woman, the penalty for the situation provided in para 1 shall be imprisonment of 2 up to 5 years ,and for the situation provided in para 2, the penalty shall be imprisonment of 3 up to 6 years. If the deed provided in para 1 or 2 resulted into the death of the pregnant woman, the penalty for the situation provided in para 1 shall be imprisonment of 5 up to 10 years , and for the situation provided in para 2 the penalty shall be imprisonment of 7 up to 12 years . When the deed was commited for obtaining a material benefit, the special maximum of the penalty shall be increased up to 2 years. In the situation in which the abortion was carried out by a doctor, besides the imprisonment, the prohibition of exercising this profession shall be also applied, according to art. 64 letter c. The attempt shall be punished Art. 186 - The abortion carried out by the pregnant woman *) Interruption of the course of pregnancy carried out by the pregnant woman shall be punished with imprisonment of 6 months up to 2 years or fine. The same penalty shall be applied if the pregnant woman gave her consent for the interruption of the course of pregnancy carried out by another person. ----------------*) Art. 186 para. 1 is hereby mentioned as it was amended by Law no. 6/1973. Art. 187 - Possession of instruments or materials for abortion *) The possesion, outside the specialized sanitary institutions, of any special instruments for interrupting the course of pregnancy shall be punished with imprisonment of 3 months up to 1 year or fine. The same penalty shall be applied for the possession, outside the specialized sanitary institutions, of any special materials for interrupting the course of pregnancy, as established by the competent authority. -----------------

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1989, art. 186 of the Criminal Code, the interruption of the course of pregnancy carried out by the pregnant woman was sanctioned with imprisonment from 6 months up to 2 years or fine. After that, the Criminal Code in force was amended by Law no. 140/1996 on amending the Criminal Code, published in the Official Gazette no. 289 on 14th November 1996. Law no. 140/1996 introduced article 185 on the illegal carrying out of the abortion, which refers to the interruption of the course of pregnancy in certain dangerous situations. This deed is incriminated in two simple variants, at para (1) and (2) and in 2 aggravated variants, at para (3) and (4). Taking into consideration the above mentioned normative acts, one can notice that the legislator, by reintroducing the art 185 in the Criminal Code, did not intend to sanction the pregnant woman, thus she cannot be the active subject of the offence. If the legislator had had the intention to sanction the pregnant woman for interrupting the course of pregnancy, the provisions of article 186- The abortion carried out by the pregnant woman as they were stipulated in the Criminal Code before the Decree law no. 1/1989, would have been kept. Thus, it is obvious that, in the present legislation, the pregnant woman cannot be the active subject of the illegal carrying out of the abortion. After analysing the case law, starting with 1996 (when the present art. 185 was introduced), it resulted that there were no conviction cases of the pregnant woman which carried out the abortion byherself. Besides what we have previously mention and taking into consideration the protection of some very important social values, we should add that the draft of the new criminal code introduced a new offence, article 200- injuring the fetus7. This incrimination ensures the protection of babies which are to be born, for the period uncovered by the present legislation. We are talking about the period between the moment of the beginning of the birth process, when we can not discuss
*) Art. 187 para. 1 is hereby mentioned as it was amended by Law no. 6/1973 Art. 188 - The omission of announcing the carrying out of an abortion The deed of doctor who, after having carried out the interruption of the course of a pregnancy, in an extreme emergency situation, without legal authorization,does not announce the competent authority, within the legal period, shall be punished with imprisonment of one up to 3 months .
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Art. 200 Injuring the fetus (1) Injuring the fetus, during the birth, which has deterred the appearance of the extrauterine life, shall be punished with imprisonment form 3 up to 7 years (2) Injuring the fetus during the birth, which has caused an injury to the baby, shall be punished with imprisonment from 1 up to 5 years , and if the deed resulted into the babys death, it shall be punished with imprisonment of 2 up to 7 years . (3) Injuring the fetus during the pregnancy period, which has caused an injury to the baby, shall be punished with imprisonment of 3 months up to 2 years , and if the deed resulted into the babys death, it shall be punished with imprisonment of 6 months up to 3 years . (4) Injuring the fetus during the birth, when the deed is perpetrated by the mother in a state of psyhic turmoil, shall be punished with the sanctions provided by para (1) and (2), whose limits shall be reduced by half. (5) If the deeds provided by para. (1)-(4) were perpetrated by fault; the special limits of the sanctions shall be reduced by half. (6) If the deeds provided by para (1)-(3) and (5) were perpetrated by a doctor, besides the imprisonment, the prohibition of exercising this profession shall be also applied. (7) Injuring the fetus during the pregnancy period by the pregnant woman shall not be punished.

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anylonger about abortion, and the moment when this process comes to an end, a moment from which we are talking about a person, which can be the passive subject of the offences within the previous chapters. The practice has shown that in the above mentioned period many offences can be committed against the fetus, from medical fault in assisting the birth, resulting into the death or injuring the fetus, up to intended offences. After analyising the case law in this field, we appreciate that the Romanian courts did not considered that the murder offence was committed in this period (between the moment of the beginning of the birth process, when we can not discuss anylonger about abortion, and the moment when this process comes to an end), unlike the existent situation in the other European legislations (as for example, Germany), where the case law shows there were murder convictions for this cases. At the same time, the Criminal Code incriminates the violent deeds committed against the mother during the pregnancy period, which were not committed with the intention of provoking the abortion and had not lead to this result, but the fetus was injured and eventually, after the birth, these deeds injured the baby or caused his/her death. Drafting this text was inspired by the provisions of art 157-158 in the Spanish Criminal Code8. In conclusion, one can notice that the draft of the new Criminal Code does not contain significant differences from the Criminal Code in force, as regards the pregnant woman which carries out the abortion by herself. The only difference is that within the draft, the fact that the pregnant woman which carries out the abortion by herself shall not be sanctioned is expressely mentioned. As regards the Criminal Code in force, the non-sanctioning of this offence is only deduced from the present reglementation on the abortion. 2. INCEST The draft has given up stipulating the incest as a different specific offence and it contains the most common situations of incest found in every day juridical practice as aggravating forms of some offences regarding the sexual life. Thus, the sexual acts committed on a relative ascendant or descendant, brother or sister, are included in the draft within the art. 216 para (3) letter b), art. 217 para (2) letter b), art. 218 para (4) letter a) and art. 219 para (2) letter a). This modality of settling this issue within the criminal law, by giving up stipulating the incest as an express different offence, is also met in other European

TITLE IV Injuring the Fetus Article 157 - The person who, by any means or procedure, causes to a fetus an injury or a disease which seriously prejudices his/her normal development or provokes to the fetus a very serious physical or psihic infirmity, shall be punished with imprisonment of 1 up to 4 years and with the special prohibition of exercising the sanitary profession or of carrying out servicies in any kind of gynecology clinique, hospital or surgery, public or private, for a period of 2 up to 8 years. Articolul 158 - The person who, by serious negligence, committs the deeds described in the previous article, shall be punished with imprisonment of 3 up to 5 months or with fine of 6 up to 10 months .

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criminal codes, adopted or amended in the last few years (France, Spain, Portugal, etc). The hypotheses which are not included in the above mentioned legal provisions do not justify a criminal reaction, the incest in these situations being an aspect concerning the social pathology, and not the criminal sanctioning. The lack of criminal sanctions does not mean a lack of the societys reaction towards such acts, this kind of deeds are rejected by the society, both from a moral and a juridical point of view The commission for elaborationg the Criminal Code draft considered that the criminal sanctions do not represent the most adequate method for combating this phenomenon, but rather a system of medical and social measures is more appropriate, taking into consideration that incest is based especially on pathological, medical, social and, obviously, moral factors. We should also mention that according to the civil law, the marriage between relatives ascendants, descendants and collateral relatives up to the 4 th degree- is forbidden. Regarding the critics against not considering anylonger the incest an offence when we are talking about the variant of the freely consented sexual act between ascendants or descendants or between brothers and sisters- we should mention that currently a number of 8 persons9 convicted for this offence by final decisions are executing their penalty, out of a total of approximately 23.111 persons within the Romanian penitentiary system convicted to imprisonment by final decisions.

3. PROSTITUTION In order to fight against the extension of the prostitution phenomenon, an efficient solution is not incriminating the prostitution itself, but incriminating the deeds related to the exploitation of prostitution, because these deeds are in most of the situations various modalities of organized crime, while the person who offers his/her sexual services is nothing but a victim of the trafficking in human beings or of sexual exploitation. The elimination of this offence from the Criminal Code contributes to the reduction of the most extended form of trafficking in human beings, trafficking for sexual exploitation. We should take into consideration that, in most cases, the simple incrimination of prostitution in the Criminal Code discourages the persons who are victims of the trafficking in human beings to turn to the criminal prosecution authorities and to denounce the members of the organized crime groups. Removing the public contempt from the recruitee to the recruiter could help to sanctioning the persons who are really responsible for the expansion of the prostitution phenomenon and of other related phenomena, having a higher social danger, especially the trafficking in human beings. As regards sanctioning the deeds which determin the expansion of the prostitution phenomenon, we should mention that, according to art. 211 of the draft of
As a comparison, in 2005,18 persons convicted for incest were executing their penalty wihtin the Romanian pentientiary system.
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the new Criminal Code, the procurement, defined as determining or facilitating the practice of prostitution or of acquiring patrimonial benefits from another persons practice of prostitution, shall be punished by imprisonment from 2 up to 7 years period and the prohibition of exercising certain rights. There are also aggravating variants of this offence, namely using the constraint, as well as the situation when the deed is committed towards a minor person. In these cases the limits of the applicable sanction are increased. The draft of the new Criminal Code (the Special Part, Title I, Chapter VII Trafficking and Exploiting Vulnerable Persons) also stipulates the offence of trafficking in human beings, which is currently regulated by Law no.678/2001 for preventing and fighting against the trafficking in human beings. As regards practicing the prostitution, we consider that the social value protected by its incrimination can be efficiently and reasonably protected through non-criminal sanctions (administrative sanctions). We should also mention that within the legislation in force, the prostitution is a habit offence, so that the criminal sanctioning of this deed could be applied only if it is perpetrated several times. In the situations in which committing these deeds does not have a regular character, but an isolated one, the conditions for sanctioning them as offences are not fulfilled, they are only contraventions. According to art. 2 para (6) of Law no. 61/1991 for sanctioning the deeds breaching the social cohabitation and public order norms, determining persons, in any circumstances, in bars, parks, on streets or in other public places, to practice sexual acts for obtaining material benefits from these persons, as well as encouraging and determining another person, for the same purpose, to commit such a deed represent contravention. The fact that the prostitution shall not be anylonger incriminated in the Criminal Code does not mean that it shall be legalized or that this activity shall be settled or allowed by the law. As we have already mentioned, the deed of a person to prostitute him/herself shall continue to be sanctioned as a contravention. The simple elimination from the Criminal Code only signifies that this deed is no longer an offence and the purpose of this elimination is not changing the moral perception of the society on prostitution. Legalizing the activity of prostitution means not only its elimination from the Criminal Code, but also adopting the necessary legal framework for deploying this activity, creating a statute of this professional category, adopting some norms regarding the taxes for the obtained incomes and settling the organization of practicing the sexual activities. All these would be necessary to have a legal framework according to the international treaties regarding the fighting against prostitution to which Romania became a party. We should mention in this context that through the Decree of the Ministry of National Defence no. 482/10.12.1954 Romania has ratified the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, approved by the General Assembly of the United Nations Organization through the Resolution no. 317(IV) on 2.12.1949, which entered in force on 25th June 1951. This convention stipulates strict rules regarding the state monitoring of the activity of practicing sexual services, in the situation in which this activity would be legalized. All these aspects have not been taken into consideration by the legislator when eliminating the prostitution from the draft of the new Criminal Code, because it was not intended the legalization of this activity, but only not-sanctioning from a criminal point of view the persons who practice prostitution. The phenomen shall

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continue to be sanctioned as a contravention, as well as from a civil and moral point of view. As regards the elimination of prostiution offence from the Criminal Code, we would also like to mention that currently a number of 9 persons10 convicted for this offence by final decisions are executing their penalty, out of a total of approximately 23.111 persons within the Romanian penitentiary system convicted to imprisonment by final decisions. As for a compared law analyise, we should mention that currently there are states where the prostitution is settled as a legal activity (Germany, Holland Switzerland in the last case, the Criminal Code, through article 199, sanctions the illegal exercising of prostitution11), as well as states in which prostitution is not sanctioned as an offence, although there is no legal settlement of this activity(France, Spain12 and Italy).
As a comparison, in 2005, 17 persons convicted for prostitution were executing their penalty wihtin the Romanian pentientiary system. 11 Cod penal elveian Swiss Criminal Code Art. 199 Exercice illicite de la prostitution Celui qui aura enfreint les dispositions cantonales rglementant les lieux, heures et modes de lexercice de la prostitution et celles destines lutter contre ses manifestations secondaires fcheuses, sera puni des arrts ou de lamende. 12 In the Spanish Criminal Code, within the Chapter V Prostitution and Corruption of Minors Offences,the prostitution is not incriminated: CHAPTER V - Prostitution and Corruption of Minors Offences Article 187 1. The person who induces, promotes or facilitates the prostitution of a minor person or of a person having disabilities, shall be punished with imprisonment of 1 up to 4 years and fine of 12 up to 24 months. 2. The imprisonment sanction, namely its superiour half, and besides this, the absolute debasement shall be applied to the person who commits these deeds taking advantage of his/her position representing the authority, an agent of the authority or a civil servant. 3. More severe sanctions than the ones provided within the previous paragraphs shall be applied for those situations when the prosecuted person belongs, even temporaryly, to an organization or association deploying such activities. Article 188 A 1. The person who determines another person to practice prostitution or to continue practicing it, by using violence, intimidation or fraud, or by abusing his/her dominant position or the by taking advantage of the adult victim being in need or vulnerable, shall be punished with imprisonment of 2 up to 4 years and fine of 12 up to 24 months. The same sanction shall be applied to the person who obtains benefits by exploiting the prostitution activities of other person, even in the situation when the victim gives his/her consent for it. 2. The imprisonment sanctions, namely their superiour half, and besides this, the absolute debasement of 6 up to 12 years shall be applied to the persons who commit the deeds described within the previous paragraph by taking advantage of their position representing the authority, an agent of the authority or a civil servant. 3. If the above mentioned deeds are commited towards a minor or a person having disabilities in order to start or to continue the prostitution, the person who has perpetrated these deeds shall be sanctioned with a more severe sanction than the corresponding one, provided within the previous paragraphs. 4. The above mentioned sanctions shall be applied without affecting whatsoever the corresponding sanctions for aggression or sexual abuse committed against the person who carried out prostitution activities. Article 189 A 1. The imprisonment sanction of 1 up to 4 years shall be applied in the following situations :
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4. THE SANCTIONING SYSTEM IN THE DRAFT OF THE NEW CRIMINAL CODE 4.1. GENERAL ASPECTS The draft of the new Criminal Code brings new normal limits of the sanctioning treatment. Thus, the case law of the last decade shows that an exaggerated increasing of the sanctions limits is not an efficient solution for combating the criminality. In a state governed by the rule of law, the seriousness and the intensity of the criminal repression should remain between well determined limits, first of all taking
a) A person who uses minors or persons having disabilities for exhibitionistic or pornographic purposes, both public or private, or for achievieng any kind of pornographic material, on any kind of support, or a person who finances any of these activities. b) A person who produces, sells , distributes, presents or disseminates, by any means, pornographic materials for which minors or persons having disabilities have been used or the person who posseses such materials for the above mentioned purposes, even that the material was produced abroad or if its origin cannot be determined. 2. The person who, for his/her personal use, possesses pornographic materials for which minors or persons having disabilities have been used, shall pe punished with imprisonment of 3 months up to 1 year , or fine of 6 months up to 2 years. 3. The imprisonment sanction of 4 up to 8 years shall be applied to the person who commits the deeds mentioned in para 1 of this article in one of the following circumstances: a) When children under 3 years old children have been used ; b) When the deeds have an extremely degrading or humiliating character; c) When the facts are extremely serious, taking into account the economic value of the pornographic material; d) When the pornographic material presents children or persons having disabilities that are victims of physical or sexual violence; e) When the accused person is a member, even temporarily, of an organization or association which deploys such activities; f) When the person who committed these deeds is an ascendant, trustee, curator, teacher or takes care of persons, or anyone else who is legally or de facto taking care of the minor or the disabled person 4. The person who determines a minor a disabled person to participate at activities of sexual nature bringing prejudicies to the development of his/her personality, shall be punished with imprisionment of 6 months up to 1 year. 5. The person who has under his/her paternal authority, who is a trustee, takes care or has under his/her protection a minor or a disabled person and who knows about the situation of prostitution or corruption of the persons under his/her protection, but he/she doesnt do his/her best to stop continuinig this situation or doesnt turn to the competent authorities for this purpose and has no possibilities to keep the custody of the minor of the disabled person, shall be punished with imprisonment of 3 up to 6 months or fine of 6 to 12 months. 6. The Public Ministry shall promote pertinent actions in order that the person who had the above described behaviour should not have anymore paternal authority, should not be anymore a trustee, should not take care or have under his/her protection other persons. 7. The person who produces, sells, distributes, exhibits or facilitates, by any means, pornographic materials in which, although minors or disabled persons are not directly used, still their voice or altered, modified images are used, shall be punished with imprisonment of 3 months up to 1 year or fine of 6 months up to 2 years. 8. In the situations provided in the previous paragraphs, the measures stipulated in article 129 of this Code shall be applied when the accused person is a member, even temporarily, of an organization or association which deploys such activities Article 190 The conviction renderd by a foreign judge or court, applied for the offences stipulated in this Chapter shall be compared with the convictions rendered by the Spanish judges or Court, applied for the aggravating circumstances of relapse.

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into the consideration the importance of the damaged social value for the ones who breach for the first time the criminal law. These limits should be progressively increased for those who commit more offences before being convicted by final court decisions, and even more for those in relapse. The draft of the new Criminal Code includes a more severe sanctioning regime for multiple criminal offences and relapse: - In case of multiple criminal offences, for the main sanction, the absorption system has been chosen for the situation in which life detention has been applied for one of the concurrent offences and the cumulative juridical system for the situation in which only fine sanctions or a fine and an imprisonment sanction have been applied for the concurrent offences. If only imprisonment sanctions have been applied, the cumulative juridical system has been chosen, just as stipulated in the Criminal Code in force. The only difference is that a supplement can be added at the highest sanction, supplement that cannot overcome more than of the total of the other sanctions, under the condition that the resultant sanction should not overcome the general maximum of the imprisonment sanction. Last, but not least, as regards multiple criminal offences sanctioning, a new provision has been introduced: in the situation in which one has committed more very serious offences, the court can apply the life detention sanction, even if this is not provided for none of the concurrent offences. For example, a person has committed 4 offences of rape or robbery which resulted into the death of the victim, and for each of these deeds the court has applied an imprisonment sanction of 20 years. Applying the classical sanctioning system for multiple criminal offences, a supplement of maximum 10 year could be added (so, a total of 30 years of imprisonment sanction), although if we take into consideration the seriousness and the number of the committed offences, applying the life detention sanction would be justified. Thats why art. 38 para (2) offers the judge this possibility and the court shall analyise each concrete case to decide if this option is or isnt justified. - As regards the sanctioning regime of the relapse, new simplified provisions have been introduced. Thus, an arithmetical addition system has been stipulated for the post- conviction relapse, and a legal increasing by half of the special limits of sanctions for the post-execution relapse. As for the post- conviction relapse, the court has the possibility as an exception - to apply the life detention even if the established sanctions are imprisonment, in the situation in which the seriousness and the number of the committed offences would justify it. As we have mentionend above, the sanctions provided within the draft are quite lower than in the Criminal Code in force. The arguments for reducing the sanctions were the following: a) the concrete sanctions applied by the courts for this category of offences; b) the necessary correlation with the provisions of the general part reffering at the sanctioning mechanisms of the plurality of offences and at the provided limits of sanction for applying the alternative modalities of individualizing the enforcement of the sanctions; c) the natural hyerarchy of the social values which are protected by the Criminal Code should be reflected in the legal limits of the sanctions ; d) The Romanian legislation should come back to the tradition of the previous Criminal Codes (the Criminal Code in 1864, in 1936 and the Criminal Code adopted in 1968).

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In conclusion, one can notice that the best instrument for efficiently combating the offences against the patrimony is not an exaggerated increasing of the sanctions, but a sanctioning system proportional with the seriousness of the committed offences, a system which should also be sustained by an adequate, immediate application of these sanctions by the legal authorities. 4.2. SANCTIONS FOR OFFENCES AGAINST PATRIMONY It is well known that one of the unhappy examples of very severe penalties in the Criminal Code in force is the one in the field of the offences against patrimony. Thus, an important step in this direction was Law no. 140/1996 for amending the Criminal Code, published in the Official Gazette 289 on 14th November 1996, which substantially increases the sanctions for the offences against patrimony. As we know, the sanctioning regime can be turned into a more severe one mainly in three modalities: increasing the general limits of the penalties, increasing the special limits of the penalites for some offences and incriminating new aggravating or first degree variants of some offences. All these three modalities have been used within the law 140/1996 and thats why this law has been considered a first reference point for the general increasing tendency which appeared after 1990.13 As for the offences against the patrimony, the above mentioned law repealed the Title IV of the Criminal Code, Offences against the public patrimony. The very severe offences of this title have been transferred within the Title III of the Criminal Code Offences against the patrimony . There have been other legislative modifications, in the same direction of increasing the sanctions for the offences against patrimony. Thus, the present situation is like this: a simple theft can be sanctioned with imprisonment of 1 up to 12 years , the first degree theft can be sanctioned with imprisonment of 3 up to 15 years (para 1 and 2), or 4 up to 18 years (para 3) , or 10 up to 20 years , when there are very serious consequences (para 4). It is unconceivable the fact that a theft, no matter how serious its consequences are, is sanctioned in the same limits as a murder offence. We also should speficfy that, under the present conditions, the offences against patrimony committed with exceeded intent, resulting into the death of the victim, robbery or first degree destruction are sanctioned with imprisonment of 15 up to 25 years and prohibition of exercising certain rights, just like the first degree murder or extremely severe murder, for the alternative variant of the sanction. The courts have not followed this logical mechanism of increasing the penalties. Thus, the prior studies for the elaboration of the draft showed that between 20042006, aproximatively 80% of the imprisonment sanctions for theft and first degree theft which were pending enforcement were of maximum 5 years. Although the courts have applied correctly the law, in our opinion the existence of penalties with exaggerated maximum limits, combined with the application of the penalties always orientated towards their minimum can lead to unwanted effects of minimizing the seriousness of the deeds and contrary to the purpose of the penalty. The victim of such an offence will consider that an injustice has been done to him/her, the public
See Valerian Cioclei, On the need of equilibrium in the criminial justice, A.U.B. - 2001, pag. 15-22.
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opinion will be confused and the offender will consider that his/her deed is treated with indulgence, as it is less serious. In the current context, the draft of the Criminal Code brings new normal limits of the sanctions for the offences against the patrimony. The simple theft is sanctioned with imprisonment of 6 months up to 3 years or fine, the first degree theft is sanctioned with a maximum of 7 years, and the robbery or piratery which resulted into the death of the victim is sanctioned with imprisonment of 7 up to 15 years and prohibition of exercising certain rights.Only such sanctions, in reasonable limits, are really able to offer to the offenders, and especially to those who commited for the first time an offence, a chance for recovery, for coming back to an adequate social behaviour. Therefore, the intended solution is not an absurd increasing of the sanctions limits, a fact that means nothing else but ignoring the hierarchy of the social values in democratic society. NOTE: The penalties provided within the Criminal Code before the amendaments brought by Law no. 140/1996 are within the Annexe no. 1 attached to this document. We should mention the fact that one of the new elements regarding the conception on the penalties is the possibility to increase the special limits of the fine penalty or to apply the fine penalty cumulated with the imprisonment penalty, when the offence was committed with the purpose of obtainging a patrimonial benefit (therefore for the offences against patrimony, bribe taking, influence peddling, etc). The reason for introducing these new provisions is the necessity of stipulating more efficient means of criminal coercion which do not include the increasing of the imprisonment period. In the last decade, the criminality phenomenon has raised up following the considerable increasing of the number of offences against the patrimony and of the offences which could bring material benefits to the offenders. So far, taking into consideration this concrete reality, in the field of criminal policy the significant increasing of the imprisonment penalty was considered was considered to be adequate and enough severe for this kind of offences, but the real effect was far from the expected one. For ensuring the necessary and efficient juridical means for preventing and sanctioning this category of offences committed for obtaining material benefits and taking into account the significant reduction of the imprisonment penalty period, as one can see within the special part of the draft, the solution of introducing the possibility of applying a patrimonial coercion has been chosen, for the situation in which the court considers such a solution to be necessary, thus contributing to a better individualization of the penalty. The possibility of applying a fine together with the imprisonment penalty, for the same offence is not stipulated for the first time in our criminal legislation. This provision was also mentioned within the Criminal Code of 1936 [art. 25 point 5 and art. 52 para. (1)]. Currently, it is also stipulated in the French law (art. 131-2, 131-5 Criminal code), Dutch law [art. 9 para. (3) Criminal code], Italian law [art. 24 para (2)], Swiss law (art 50), German law ( 41) and the proposed text is inspired by the provisions of the Germna criminal code.

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Anyway, encouraging the promotion of some alternative penalties for the imprisonment penalty, as well as encouraging the releasing on parole of the convicted persons are constant preoccupations at the level of the Council of Europe. There are more reccomandations on this issue adopted along the years, in 1999, as well as in 2000 i 2003.14 When analysing the detailed compared legislation within the Annexe 2, one can notice that the limits of the penalties provided within the draft of the new Criminal Code are relatively close to the ones within the Criminal Codes of some European states. As for example, in France the simple variants are sanctioned with imprisonment of 3 up to 5 years and the aggravated variants with imprisonment up to 7, 10 or 15 years , in Estonia the simple forms are sanctioned with imprisonment up to 3 years or 5 years , and the aggravated variants with imprisonments of 2 up to 10 years , in Hungary the simple variants are sanctioned with imprisonment of up to 2 years or 3 years , and the aggravated variants with imprisonment of 5 up to 8 years , in Poland the simple variants are sanctioned with imprisonment of 3 months up to 5 years , and the aggravated variants with imprisonment up to 10 or 12 years, in Switzerland the simple forms are sanctioned with imprisonment of 3 months up to 6 months , and the aggravated variants with imprisonment of up to 5 years, in Norway the simple variants are sanctioned with imprisonment of up to 3 years, and the aggravated variants with imprisonment of up to 5 or 6 years , in Kosovo , the simple variants are sanctioned with imprisonment of 3 up to 5 years, and the aggravated variants with imprisonment of up to 10 years or 12 years. These penalties are in concordance with the ones proposed within the draft of the new Criminal Code (the sanction for the simple variant of the theft is imprisonment up to 3 years, for the first degree theft up to 5 years or 7 years, for robbery is imprisonment of up to 7 years, and for first degree robbery is imprisonment of up to 10, 12 or 15 years. NOTE: Relevant articles from the compared legislation reagarding the offences against the patrimony are within the Annex 2 attached to this document 4. 3. CORRUPTION OFFENCES As we have mentioned at point 4.1, one can notice that the draft of the Criminal Code also brings new normal limits of the sanctioning treatment within the chapter regarding the corruption offences. The explanations within point 4.2 regarding the possibility to increase the special limits of the fine penalty or to apply the fine penalty cumulated with the imprisonment penalty, when the offence was committed with the purpose of obtainging a patrimonial benefit are also applicable for the corruption offences, committed with the same purpose (bribe taking art. 288, influence peddling art 290 etc)
Recommendation No. (99) 22 concerning Prison Overcrowding and Prison Population Inflation, Reccomendation of the Council of Europe R (2003) 22 on conditional release (parole), Recommendation R (2000) 22 on Improving the Implementation of the European Rules on Community Sanctions and Measures
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Also, we would like to mention that, although currently the sanctions for the corruption offences are quite severe: from 3 up to 12 years period or from 3 up to 15 years for bribe taking (art. 254 Criminal Code in force) or from 6 months up to 5 years for bribe giving (art. 255 Criminal Code in force), still one can notice that the criminality has not been reduced. Therefore, the exaggerated increasing of the sanctions is not the solution. NOTE: Relevant articles from the compared legislation reagarding the corruption offences are within the Annex 2 attached to this document 5. CORRUPTION OFFENCES Corruption offences, stipulated in Chapter I of the Title V, have been elaborated taking into consideration, on one hand, the provisions regarding these offences within the Criminal Code in force, and on the other hand, the provisions of the Law no. 78/2000, as it was amended, including by Law no. 161/2003. The provisions proposed within the draft of the new Criminal Code took into consideration the analysis of the European legislation.Thus, the provisions on the corruption offences within the following normative acts have been analysed: 1. German Criminal Code 2. Finish Criminal Code 3. Swedish Criminal Code 4. Portugese Criminal Code 5. Estonian Criminal Code 6. Provisory Criminal Code of the Kosovo region, elaborated by the Mission for the Interim Administration of UN in Kosovo (UNMIK/REG/2003/25 Official Gazette 6 July 2003), Relevant articles from the above mentioned codes are within the Annex 2 attached to this document When analysing the detailed compared legislation within the Annexe 2, one can notice that the limits of the penalties for the offences of bribe taking and bribe giving within the draft of the new Criminal Code are in concordance with those stipulated in Germany ( maximum 5 years imprisonment), Finland ( maximum 2 years for the simple variant, and maximum 4 years imprisonment for the aggravated variant), Estonia (for bribe taking maximum 3 years imprisonment for the simple variant, and maximum 5 years for the aggravated variant, and for bribe giving maximum 5 years for the simple variant and maximum 10 years for the aggravated variant), Sweden (imprisonment of maximum 2 years for bribe taking and bribe giving, and imprisonment of maximum 6 months for receiving undue benefits), Portugal (imprisonment from 6 months up to 1, 2 , 5 or 8 years), as well as in Kosovo (maximum 5 years imprisonment for bribe taking and maximum 3 years for bribe giving ). Also, for drafting these texts, the following international instruments have been taken into consideration:

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- The Criminal Law Convention on Corruption, adopted at Strasbourg on 27th January 1999, ratified by Romania through Law no. 27/2002 - Additional Protocol to the Criminal Law Convention on Corruption, ratified by Romania through Law no. 260/2004) - Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector, published within the Official Journal of the EU, L no. 192 on 31st July 2003 One can notice that according that according to the provisions of the art. 288 in the draft of the new Criminal Code, bribe taking is defined as the act of a clerk who, either directly or indirectly, for him/herself or for another person, claims or receives money or other undue benefits, or accepts the promise of such benefits to perform, not to perform, to speed up or to delay the accomplishment of an act regarding his/her service duties or to perform an act that is contrary to these duties, unlike the provisions in force ( art 254 Criminal Code ), which define bribetaking taking into consideration the purpose of this deed (.for the purpose of performing, not performing or delaying the accomplishment of an act regarding his/her service duties , or for the purpose of performing an act that is contrary to these duties) Thus, the text proposed by the draft is wider, covering all the situations in which a person takes bribe to perform, not to perform, to speed up or to delay the accomplishment of an act regarding his/her service duties or to perform an act that is contrary to these duties. This amendment was introduced for giving up the present distinction between bribe taking and receiving undue benefits, a distinction that has brought many difficulties concerning the evidence, especially when the agreement took place before performing the act, but the material goods were handed afterwards. Therefore, art 288 contains the present provisions of art. 254 (bribe taking) and those of art. 256 (receiving undue benefits15). Even more, article 288 of the draft sanctions any tacit or express acceptance of money or other benefits, so that even if the situation of not-rejecting money or other benefits is not stipulated in art. 288, the person who is offered money shall commit bribe taking if the acceptance is tacit. The Criminal Law Convention on Corruption, adopted at Strasbourg on 27th January 1999, ratified by Romania through the Law no. 27/200216, stipulates in art. 3 that each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally, the request or receipt by any of its public officials, directly or indirectly, of any undue advantage, for himself or herself or for anyone else, or the acceptance of an offer or a promise of such an advantage, to act or refrain from acting in the exercise of his or her functions. Therefore, the text of the art. 288 of
15

Art. 256 - Receiving undue benefits The deed of a clerk who, either directly or indirectly, receives money or other benefits,after having performed an act regarding his/her duties and which he/she was legally bound to perform, shall be punished with imprionsment of 6 months up to 5 years . The money, values or any other received goods shall be confiscated, and in the situation in which these goods cannot be found, the convicted person shall be obliged to pay their money equivalent 16 Published in the Official Gazette no. 65 on 30th January 2002

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the draft is in concordance with the above mentioned Convention, as the convention does not stipulate the deed of the clerk of not rejecting the promise of money or of other benefits. A similar provision is mentioned in the article 2 para (1) letter b) of the Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector. According to this text, the Member States have to sanction the deed of requesting or receiving an undue advantage of any kind, or accepting the promise of such an advantage, for oneself or for a third party, while in any capacity directing or working for a private-sector entity, in order to perform or refrain from performing any act, in breach of one's duties. We should also mention the fact that the draft explicitly specifies that receiving undue benefits could be done for the benefit of other person than the bribed clerk receives ( ) for him/herself or for another person a situation which was not explicitly provided by the criminal code in force. As regards the article 288 para (2) of the draft, we should indicate that bribetaking is incriminated when it is committed by a person who performs a profession of public interest [referring at art 175 para (2)], but only when the deed is committed for the purpose of not performing, delaying the accomplishment of an act regarding his/her service duties or performing an act that is contrary to these duties. This provision solves the controversed issue if the notaries public, the bailiffs or other persons who perform a public interest profession, for which a special authorization of the public authorities is necessary, could be or not the authors of the bribe-taking offence. For these persons, the issue of bribe taking for performing an act according to his/her duties cannot be raised, if we take into consideration that these persons have a fee for their activities. Also, the art 288 para (3) of the draft sanctions the bribe-taking offence if it has been committed by other persons than the ones indicated in the art. 175 (therefore, the bribe-taking committed by other persons than the clerks), but the special limits of the sanction are reduced by half. In this category are included, for example, teachers, doctors etc. For better achieving of the general prevention, in the situation of the bribetaking provision, the stipulated complementary sanction is prohibition of the right to exercise a public office or to exercise the profession or the activity which was being performed while commiting the offence. As regards the corruption offences, a number of offcences that presently are included within the special laws have been introduced within the draft of the Criminal Code, such as: - the offence of influence buying was introduced in the draft by taking it over from the Law no. 78/2000, amended by the Law no. 161/2003. The mandatory application of the complementary sanction of prohibition of exercising certain rights was provided for this offence. The offence of office malfeasance, stipulated in article 292, was taken over from the above mentioned law; - a general provision (art. 294), taken over from Law no. 78/2000, as amended, has been introduced in the Criminal Code draft. This text stipulates that the provisions within the chapter entitled corruption offences are applied

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accordingly to the corruption offences commited by the foreign clerks or to the corruption offences commited in relation with their activity; - Following the ratification by Romania of the Additional Protocol to the Criminal Law Convention on Corruption (Law no. 260/2004), it became obvious that it was necessary the completion of the legal framework regarding the corruption offences with provisions regarding the expansion of the criminal norms on bribetaking and bribe-giving offences committed by the persons involved in solving the cases of the domestic or external arbitration (art. 2-4 of the Protocol) As regards the corruption offences, we should mention that the draft of the new Criminal Code pays special attention to the offences through which the financial interests of the European Communities are damaged17 (Special part Title V, Chapter III). The proposed texts take over the incriminations on this matter introduced in our legislation by the provisions of Law no. 161/2003 on certain measures for ensuring the transparency in exercising the public dignities, public offices as well as in the business environment, for preventing and sanctioning the corruption. These provisions have been taken over from the Convention on the protection of the financial interests of the European Communities and only a few modifications have been made, in order to eliminate some defaults of the original translation of those texts, included in the Law no. 161/2003

6. PRESCRIPTION As far as the criticism within mass media regarding the prescription terms is concerned, we would like to underline that this juridical institution has suffered only some unsignificant modifications hereinafter presented - which have not affected whatsoever the substance and the nature of this institution (we are talking about either the criminal liability prescription or the penalty enforcement prescription). The prescription has not suffered essential amendments, the draft maintaining the provisions in force regarding the criminal liability prescription. We should make the following clarifications: a) the criminal liability prescription terms are the same as in the Criminal Code currently in force. The only difference is that the prescription term is of 15 years, when the law stipulates for the offence the life detention penalty or an imprisonment penalty of more than 20 years the reason of this provision is that the maximum general limit for the imprisonment penalty is 30 years and not 25 years as it used to be when the Criminal Code in force was adopted; b) The date from which the criminal liability prescription terms for the habit and progressive offences run is stipulated. For the progressive offences, the criminal liability prescription term starts running from the date of committing the action or the inaction and it is calculated according to the penalty for the final result that has been produced. Thus, the law stipulates the solution proposed by the most part of the doctrine and ensures the basis of a unitary case law in this field.(also see the art. 119 from the Portugese Criminal Code). At the same time, for the offences against sexual freedom and integrity, committed towards a minor, the prescription
17

Art. 309-312 of the Draft.

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term runs from the date from which the minor has become major. Thus the possibility of prosecuting these offences was created, even if these offences have been discovered at a further date from their committing [see also art. 71 para.(3) of the Dutch Criminal Code and art. 132 of the Spanish Criminal Code]; Within the draft, the penalty enforcement prescription, as a cause removing or modifying the penalty enforcement, has the same content with the Criminal Code currently in force. The difference is that the interruption of the fine penalty enforcement prescription in the situation in which the fine payment obligation is replaced with the obligation of deploying a not remunerated activity for the communitys benefit. The special criminal liability prescription terms for the legal person are similar with the ones provided by the law for the natural person. As we have mentioned above, the new conception of the draft regarding the penalties brings as a consequence the application of other prescription terms. Thus, for example the bribe taking, in its simple variant, is currently sanctioned (art. 254 para 1) with imprisonment of 3 up to 12 years, which means that the criminal liability prescription term shall be 10 years, and the special prescription term shall be 15 years. Within the draft, the criminal liability prescription term for bribe taking (art 288 para 1, for which the penalty is imprisonment of 2 up to 7 years) shall be 8 years, and the special prescription term shall be 12 years. We would like to mention that currently, the criminal liability prescription term is also 8 years for offences sanctioned with imprisonment more than 5 years and up to 10 years. Taking into consideration what we have mentioned above, we appreciate that the prescription term of 12 years is enough for establishing the criminal liability and convicting a person who has perpetrated a bribe taking offence. We should add, in this context, the fact that any person has the right to a fair trial, tried in a reasonable period of time and we dont think that one can say that a prescription term of 15 years or longer could be considered a fair term according to the case law of the European Court of Human Rights. Therefore, we appreciate that the criticism brought to the prescription within the draft, criticism regarding in fact the reduction of the prescription terms for some offences as a result of the reduction of the penalties limits, was unjustified and the aspects on the reduction of the penalties limits have already been explained at point 4 of this document.

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DRAFT OF THE NEW CRIMINAL CODE

ANNEXE no. 1 CRIMINAL CODE BEFORE 1996 We want to present the offences of the Criminal Code, before the adoption of the Law no. 140/1996 for amending the Criminal Code, published in the Official Gazette no. 289 on 14th November 1996 : TITLE III OFFENCES AGANIST PRIVATE PROPERTY Art. 208 Theft

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The act of taking a movable asset from another persons possession or detainment, without the latters consent, in order to make it ones own without right, shall be punished with imprisonment from 3 months up to 2 years or fine. Any type of energy which has an economic value, as well as writtten documents shall be considered movable assets. The act is a theft even if the asset belongs entirely or partially to the perpetrator, but at the moment of commiting the deed that asset was in the legitimate possession or detainment of another person. Also, the act of taking, in the conditions mentioned in para.(1), of a vehicle in order to use it without right shall be considered a theft. Art. 209 - First degree theft The theft committed under the following circumstances: a) by two or more persons togheter; b) by a person holding a weapon or a narcotic substance; c) in a public place; d) in means of public transportation ; e) during night time; f) during a calamity; g) by forced entry, escalading, or by using without having the right a true key or a false one, Shall be punished with imprisonment of 1 up to 5 years. The same punishment shall be applied for the theft of an act proving the civil status, a legitimation or identification act. Ar. 210 - Punishing certain theft offences at the preliminary complaint of the victim The theft committed between spouses or close relatives, or by a minor against his/her trustee, or by the person living together with the injured person or being hosted by this person, shall be prosecuted only at the preliminary complaint of the victim. Reconciliation of parties removes criminal liability. Art. 211 - Robbery The theft committed by using violence or threats, or by bringing the victim in an unconsciousness status or wihtout any power to defend him/herself, as well as the theft followed by using such means to keep the stolen asset or for removing the proof regarding the offence, or in order that the offender escapes shall be punished with imprisonment from 2 up to 7 years. If the robbery resulted in the damages stipulated in art. 180 para 2, and the injuries needed more than 10 days of medical care to be cured, or in one of the damages stipulated in article 181, the punishment shall be imprisonment from 3 up to 8 years, and if the robbery resulted in one of the damages stipulated in article 182, the punisment shall be imprisonment from 5 to 15 years and prohibition of exercising certain rights. The robbery which resulted into the death of the victim shall be punished with imprisonment from 7 up to 20 years and prohibition of exercising certain rights. TITLE VI

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OFFENCES PREJUDICING THE STATE ORGANIZATIONS, PUBLIC ORGANIZATIONS OR OTHER ACTIVITIES SETTLED BY THE LAW CAP. 1 - OFFICE OFFENCES OR CONNECTED TO THE OFFICE DUTIES. Art. 254 - Bribe taking The deed of a clerk who, either directly or indirectly, claims or receives money or other undue benefits, or accepts the promise of such benefits or does not reject it for the purpose to perform, not to perform, to speed up or to delay the accomplishment of an act regarding his/her service duties or for the purpose to perform an act contrary to his/her service duties shall be punished with imprisonment from 3 up to 10 years and prohibition of exercising certain rights. The money, values or any other received goods that were the object of bribe taking shall be confiscated, and if they cannot be found, the convicted person shall be obliged to pay their equivalent in money. Art. 255 - Bribe giving The deed of promising, offering or giving money or other benefits in the modalities and with the purposes provided in the art.254 shall be punished with imprisonment from 6 months up to 5 years. The deed stipulated in the previous para shall not be considered an offence in the situation in which the bribe giver was constrained through any means by the person who asked for and recieved the bribe. The bribe giver shall not be sanctioned if he/she denounces the deed to the competent authority before the prosecution authority having been notified about that offence. The provisions of the art.254 para. 2 shall be applied accordingly, even when the offer was not followed by the acceptance. The money, values or any other goods shall be returned to the person who has given them in the situations mentioned in para 2 and 3 Art. 256 - Receiving undue benefits The deed of a clerk who, either directly or indirectly, receives money or other benefits,after having performed an act regarding his/her duties and which he/she was legally bound to perform, shall be punished with imprionsment of 6 months up to 5 years. The money, values or any other received goods shall be confiscated, and in the situation in which these goods cannot be found, the convicted person shall be obliged to pay their money equivalent

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DRAFT OF THE NEW CRIMINAL CODE

ANEXA nr. 2 - COMPARED LEGISLATION = OFFENCES AGAINST PATRIMONY = 1. NORWAY 257. Any person is guilty of theft who takes away or is accessory to taking away any object that wholly or partly belongs to another for the purpose of obtaining for himself or another an unlawful gain by the appropriation of the said object. The penalty for theft is fines or imprisonment for a term not exceeding three years. 258. The penalty for aggravated theft is fines or imprisonment for a term not exceeding six years. The penalty for aiding and abetting is the same. In deciding if the theft is aggravated, special regard shall be paid to whether the theft has been committed by breaking and entering (section 147, first paragraph) or from a person in a public place, whether the offender has been equipped with a weapon, explosives or the like, whether the object stolen is of considerable value, or whether the act is for other reasons especially dangerous or harmful to society. 259. (Repealed by Act of 11 June 1993 No. 76.)

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260. Any person is guilty of unlawful use of a motor vehicle who without belonging to the household or being in the service of the person entitled thereto unlawfully takes a motor vehicle and uses or disposes of it, or is accessory thereto. By motor vehicle is meant any vehicle (including a cycle) that is propelled by a power engine. The penalty for unlawful use of a motor vehicle is fines or imprisonment for a term not exceeding three years. Imprisonment for a term not exceeding five years may be imposed if the use has resulted in serious injury to any person or property or the offender has previously been convicted of an offence against this section. The same penalty applies to unlawful use of any vessel or aircraft that is propelled by a power engine. 261. Any person who unlawfully uses or disposes of any chattel that belongs to another person and thereby obtains for himself or another a considerable gain, or inflicts on the person entitled thereto a considerable loss, shall be liable to imprisonment for a term not exceeding three years. The penalty for aiding and abetting is the same. Under especially extenuating circumstances fines may be imposed. A public prosecution will only be instituted when requested by the aggrieved person unless it is required in the public interest. 263. If any person convicted of embezzlement or theft has previously been sentenced to imprisonment pursuant to this chapter or chapters 17, 18, 25, 26, 27, or pursuant to section 88, first paragraph, section 143, second paragraph, sections 147, 206, 217, 317 or 391 a, the penalty may be increased by up to 50 per cent. 2. SWITZERLAND Art. 139 1. Celui qui, pour se procurer ou procurer un tiers un enrichissement illgitime, aura soustrait une chose mobilire appartenant autrui dans le but de se lapproprier sera puni de la rclusion pour cinq ans au plus ou de lemprisonnement. 2. Le vol sera puni de la rclusion pour dix ans au plus ou de lemprisonnement pour trois mois au moins si son auteur fait mtier du vol. 3. Le vol sera puni de la rclusion pour dix ans au plus ou de lemprisonnement pour six mois au moins, si son auteur la commis en qualit daffili une bande forme pour commettre des brigandages ou des vols, sil sest muni dune arme feu ou dune autre arme dangereuse ou si de toute autre manire la faon dagir dnote quil est particulirement dangereux. 4. Le vol commis au prjudice des proches ou des familiers ne sera poursuivi que sur plainte. Art. 140 1. Celui qui aura commis un vol en usant de violence lgard dune personne, en la menaant dun danger imminent pour la vie ou lintgrit corporelle

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ou en la mettant hors dtat de rsister sera puni de la rclusion pour dix ans au plus ou de lemprisonnement pour six mois au moins. Celui qui, pris en flagrant dlit de vol, aura commis un des actes de contrainte mentionns lal. 1 dans le but de garder la chose vole encourra la mme peine. 2. Le brigandage sera puni de la rclusion ou de lemprisonnement pour un an au moins, si son auteur sest muni dune arme feu ou dune autre arme dangereuse. 3. Le brigandage sera puni de la rclusion pour deux ans au moins, si son auteur la commis en qualit daffili une bande forme pour commettre des brigandages ou des vols, si de toute autre manire la faon dagir dnote quil est particulirement dangereux. 4. La peine sera la rclusion pour cinq ans au moins, si lauteur a mis la victime en danger de mort, lui a fait subir une lsion corporelle grave, ou la traite avec cruaut.

Art. 141 Celui qui, sans dessein dappropriation, aura soustrait une chose mobilire layant droit et lui aura caus par l un prjudice considerable sera, sur plainte, puni de lemprisonnement ou de lamende. Art. 141bis Celui qui, sans droit, aura utilis son profit ou au profit dun tiers des valeurs patrimoniales tombes en son pouvoir indpendamment de sa volont sera, sur plainte, puni de lemprisonnement ou de lamende. Art. 142 1 Celui qui, sans droit, aura soustrait de lnergie une installation servant exploiter une force naturelle, notamment une installation lectrique, sera, sur plainte, puni de lemprisonnement ou de lamende. 2 Si lauteur de lacte avait le dessein de se procurer ou de procurer un tiers un enrichissement illgitime, la peine sera la rclusion pour cinq ans au plus ou lemprisonnement. Art. 143 1 Celui qui, dans le dessein de se procurer ou de procurer un tiers un enrichissement illgitime, aura soustrait, pour lui-mme ou pour un tiers, des donnes enregistres ou transmises lectroniquement ou selon un mode similaire, qui ne lui taient pas destines et qui taient spcialement protges contre tout accs indu de sa part, sera puni de la rclusion pour cinq ans au plus ou de lemprisonnement. 2 La soustraction de donnes commise au prjudice des proches ou des familiers ne sera poursuivie que sur plainte. Art. 143bis Celui qui, sans dessein denrichissement, se sera introduit sans droit, au moyen dun dispositif de transmission de donnes, dans un systme informatique

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appartenant autrui et spcialement protg contre tout accs de sa part, sera, sur plainte, puni de lemprisonnement ou de lamende. 3. POLAND Offences against Property Article 278. 1. Whoever, with the purpose of appropriating, wilfully takes someone elses movable property shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years. 2. The same punishment shall be imposed on anyone, who without the permission of the authorised person, acquires someone else's computer software, with the purpose of gaining material benefit. 3. In the event that the act is of a lesser significance, the perpetrator shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to one year. 4. If the theft has been committed to the detriment of a next of kin, the prosecution shall occur upon a motion from the injured person. 5. The provisions of 1, 3 and 4 shall be applied accordingly to stealing energy or a card enabling the collection of money from a bank automatic cash dispenser [automatic teller machine]. Article 279. 1. Whoever commits a burglary shall be subject to the penalty of deprivation of liberty for a term of between 1 and 10 years. 2. If the burglary has been committed to the detriment of a next of kin, the prosecution shall occur on a motion of the injured person. Article 280. I. Whoever commits theft with the use of violence against a person or through threatening the immediate use of violence or by causing a person to become unconscious or helpless shall be subject to the penalty of deprivation of liberty for a term of between 2 and 12 years. 2. If the perpetrator of a robbery uses a firearm, knife, or any other dangerous item or paralysing means, or acts in another manner immediately threatening life or acts in co-operation with another person using such a firearm, item or means or manner shall be subject to the penalty of deprivation of liberty for a minimum term of 3 years. Article 281. Whoever, with the purpose of maintaining possession of the stolen property, immediately after committing a theft uses violence against a person or threatens its immediate use, or causes a person to become unconscious or helpless shall be subject to the penalty of deprivation of liberty for a term of between 1 and 10 years. Article 282. Whoever, with the purpose of gaining a material benefit, by using violence or threatening the life or health of a person, or threatening a violent attack against property, causes another person to dispose his own property or property of other

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persons, or causes a person to cease operating their business shall be subject to the penalty of deprivation of liberty for a term of between 1 and 10 years. Article 283. In the event of that the act is of a lesser significance, the perpetrator of the act specified in Article 279 1, Article 280 1 or in Article 281 or 282 shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years. Article 284. 1. Whoever appropriates someone elses movable property or property rights shall be subject to the penalty of deprivation of liberty for up to 3 years. 2. Whoever appropriates a movable property entrusted to him shall be subject to the penalty of deprivation of liberty for a term of between 3 months to 5 years. 3. In the event that the act is of a lesser significance, or appropriation of an item found, the perpetrator shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to one year. 4. If the appropriation has been committed to the detriment of a next of kin, the prosecution shall occur on a motion of the injured person. Article 285. 1. Whoever connecting into a telecommunication device triggers telephone impulses charged to someone else's invoice shall be subject to the penalty of deprivation of liberty for up to 3 years. 2. If the act specified in 1 has been committed to the detriment of a next of kin, the prosecution shall occur on a motion of the injured person. Article 286. 1. Whoever, with the purpose of gaining a material benefit, causes another person to disadvantageously dispose of his own or someone elses property by misleading him, or by taking advantage of a mistake or inability to adequately understand the action undertaken shall be subject to the penalty of deprivation of liberty for a term of between 6 months and 8 years. 2. The same punishment shall be imposed on anyone, who demands a material benefit in return for an unlawfully acquired item. 3. In the event that the act is of a lesser significance, the perpetrator shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years. 4. If the act specified in 1-3 has been committed to the detriment of a next of kin, the prosecution shall occur on a motion of the injured person. Article 287. 1. Whoever, in order to gain material benefits, affects automatic processing or transmitting information, or changes or deletes record or introduces a new record on an electronic information carrier, without being authorised to do so, shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years. 2. In the event that the act is of a lesser significance, the perpetrator shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to one year.

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3. If the fraud has been committed to the detriment of a next of kin, the prosecution shall occur on a motion of the injured person. 4. HUNGARY Establishment of a Criminal Organization Section 263/C (1) A person controlling a criminal organization whose members commit homicide (Subsections (1)-(2) of Section 166), battery (Subsections (1)-(5) of Section 170), violation of personal freedom (Section 175), kidnapping (Subsections (1)-(4) of Section 175/A), terrorist act (Subsections (1)-(2) of Section 261), seizure of aircraft (Subsection (1)-(2) of Section 262), taking the law into one's own hands (Subsection (1) of Section 273), illegal acts with narcotics (Section 282), money laundering (Subsections (1)-(3) of Section 303), robbery (Section 321), blackmail (Section 323) shall be punishable for felony with imprisonment between one to five years. (2) A person controlling a criminal organization created for commission of the crime of making prohibited pornographic pictures (Section 195/A), promotion of prostitution (Section 205), pandering (Subsection (1)-(3) of Section 207), smuggling of illegal aliens (Section 218), arms smuggling (Section 263/B), counterfeiting (Subsection (1)-(2) of Section 304) or theft (Section 316) shall be punishable in accordance with Subsection (1), if members of the criminal organization have also committed violent crimes against persons. Theft Section 316 (1) The person who takes away an alien thing from somebody else in order to unlawfully appropriate it, commits theft. (2) The punishment shall be for a misdemeanour imprisonment of up to two years, labour in the public interest, or fine, if the theft is committed in respect of a smaller value or the theft committed in respect of the value of a minor offence is committed a) as part of a criminal conspiracy, b) at the scene of a public danger, c) in a business-like manner, d) with violence against a thing, e) f) entering premises or a fenced place belonging thereto with deception or without the knowledge and consent of the entitled party (user), g) with the use of a false or stolen key, h) to the detriment of a party who is sharing the use of a flat or similar premises with the perpetrator, i) through pickpocketing, j) exploiting the state of being incapable of preventing the crime of another person. (4) The punishment shall be for a felony imprisonment of up to three years, if a) the theft is committed in respect of a greater value, b) the theft committed in respect of a smaller value is committed 1. in the manner defined in subsection (2), paragraphs a) to d), 2. in respect of an object considered a cultural good. (5) The punishment shall be imprisonment from one year to five years, if

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a) the theft if committed in respect of a considerable value, b) the theft committed in re spect of a greater value is committed in the manner defined in subsection (2), paragraph a) to d). (6) The punishment shall be imprisonment from two years to eight years, if a) the theft is committed in respect of an especially high value, b) the theft committed in respect of a considerable value is committed in the manner defined in subsection (2), paragraphs a) to d), (7) The punishment shall be imprisonment between two to eight years for the crime of theft if committed a) in respect of particularly substantial value, b) in respect of a particularly considerable amount in the manner described in Paragraphs a)-d) of Subsection (2) above, c) as part of a criminal organization. 5. ESTONIA Subdivision 1 - Illegal appropriation of thing 199. Larceny (1) A person who takes away movable property of another with the intention of illegal appropriation shall be punished by a pecuniary punishment or up to 3 years imprisonment. (2) Same act, if: 1) the object of the act is a firearm, ammunition, explosive substance or radiation source, 2) the object of the act is a narcotic drug or psychotropic substance or a precursor thereof, 3) the object of the act is an object of great scientific, cultural or historical significance, 4) the act is committed by a person who has previously committed larceny, robbery or embezzlement, 5) the act is committed publicly, but without the use of violence, 6) the act is committed on a large-scale basis, 7) the act is committed by a group; 8) it was committed by intrusion - is punishable by pecuniary punishment or up to 5 years' imprisonment. (24.01.2007 entered into force 15.03.2007 - RT I 2007, 13, 69) (3) An act provided for in subsection (1) or (2) of this section, if committed by a criminal organisation, is punishable by 2 to 10 years imprisonment. (24.01.2007 entered into force 15.03.2007 - RT I 2007, 13, 69) 200. Robbery (1) A person who by using violence takes away movable property of another with the intention of illegal appropriation shall be punished by 2 to 10 years imprisonment. (2) Same act, if: 1) the object of the act is a firearm, ammunition, explosive substance or radiation source,

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(24.01.2007 entered into force 15.03.2007 - RT I 2007, 13, 69) 2) the object of the act is a narcotic drug or psychotropic substance or a precursor thereof, 3) the object of the act is an object of great scientific, cultural or historical significance, 4) the act is committed by a person who has previously committed robbery, or manslaughter in connection with robbery or for the purpose of any other personal gain, or extortion, 5) the act is committed by causing serious damage to health, 6) the act is committed on a large-scale basis, 7) the act is committed by a group or a criminal organisation, 8) the act is committed by using a weapon or any other object used as a weapon, or by threatening to use a weapon or any other object used as a weapon; (18.09.2002 entered into force 24.10.2002 - RT I 2002, 82, 480) 9) the act is committed by intrusion, or 10) the act is committed by hiding of the face with a cover or mask or in any other manner which prevents identification, is punishable by 3 to 15 years imprisonment. (12.06.2002 entered into force 01.09.2002 - RT I 2002, 56, 350) 6. KOSOVO - Provisory Criminal Code of the Kosovo region, elaborated by the Mission for the Interim Administration of UN in Kosovo (UNMIK/REG/2003/25 Official Gazette 6 July 2003) CHAPTER XXIII: CRIMINAL OFFENCES AGAINST PROPERTY Article 252 - THEFT (1) Whoever takes the movable property of another person with the intent to unlawfully appropriate it for himself, herself or for another person shall be punished by a fine or by imprisonment of up to three years. (2) An attempt of the offence provided for in paragraph 1 of the present article shall be punishable. (3) If the perpetrator returns the stolen property before he or she learns that a criminal prosecution has been initiated, the court may waive the punishment. Article 253 - AGGRAVATED THEFT (1) Whoever commits theft, as provided for in Article 252(1), shall be punished by imprisonment of six months to five years if the offence was committed in the following manner: 1) By breaking into locked buildings, rooms, boxes, trunks or other locked premises through the use of force or the removal of obstacles with the intent to appropriate movable property, 2) By acting in a particularly dangerous or brazen manner; 3) By exploiting a situation created as a result of fire, flood, earthquake, or any other disaster; or 4) By taking advantage of the incapacity or any other grave condition of another person. (2) Whoever commits theft, as provided for in Article 252(1), shall be punished as

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provided for in paragraph 1 of the present article: 1) When the stolen property is of a value exceeding 15,000 euro and the perpetrator acts with the intent to appropriate the object of such value; 2) When the stolen property serves a religious function, or it is stolen from religious premises or other premises where religious ceremonies are carried out; 3) When the stolen property is of cultural value or of special scientific, technical, or artistic importance or when it is part of a public collection, a protected private collection or a public exhibition. (3) Whoever commits theft, as provided for in Article 252(1) of the present Code, as a member of a group or while carrying a weapon or dangerous instrument shall be punished by imprisonment of one to eight years. Article 254 - THEFT IN THE NATURE OF ROBBERY (1) Whoever, surprised in the commission of theft and with the intent to retain possession of the stolen property, uses force or threat to attack the life or body of another person shall be punished by imprisonment of one to ten years. (2) When the offence provided for in paragraph 1 of the present article is committed by the perpetrator acting as a member of a group or by using a weapon or dangerous instrument, the perpetrator shall be punished by imprisonment of three to twelve years. Article 255 - ROBBERY (1) Whoever, by use of force against another person or threat of immediate attack against the life or body of another person, appropriates the movable property of such person with the intent to obtain an unlawful material benefit for himself or herself or another person shall be punished by imprisonment of one to ten years. (2) When the offence provided for in paragraph 1 of the present article involves a stolen object of a value exceeding 10,000 euro and if the perpetrator intends to appropriate an object of such value, the perpetrator shall be punished by imprisonment of at least three years. (3) When the offence provided for in paragraph 1 of the present article is committed by the perpetrator as a member of a group or by using a weapon or dangerous instrument, the perpetrator shall be punished by imprisonment of three to twelve years. Article 256 - GRAVE CASES OF THEFT IN THE NATURE OF ROBBERY OR ROBBERY (1) When the commission of theft in the nature of robbery or of robbery results in serious bodily injury or is committed by an armed group or involves the use of a weapon or dangerous instrument, the perpetrator shall be punished by imprisonment of at least five years. (2) When the commission of theft in the nature of robbery or of robbery results in the intentional deprivation of the life of any person, the perpetrator shall be punished by imprisonment of at least ten years or by long-term imprisonment. 7. FRANCE Section 1 : Du vol simple et des vols aggravs. Article 311-1 Le vol est la soustraction frauduleuse de la chose d'autrui.

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Article 311-2 La soustraction frauduleuse d'nergie au prjudice d'autrui est assimile au vol. Article 311-3 Modifi par Ordonnance n2000-916 du 19 septembre 2000 art. 3 (V) JORF 22 septembre 2000 en vigueur le 1er janvier 2002 Le vol est puni de trois ans d'emprisonnement et de 45000 euros d'amende. Article 311-4 Modifi par Loi n2004-204 du 9 mars 2004 - art. 40 JORF 10 mars 2004 Le vol est puni de cinq ans d'emprisonnement et de 75000 euros d'amende : 1 Lorsqu'il est commis par plusieurs personnes agissant en qualit d'auteur ou de complice, sans qu'elles constituent une bande organise; 2 Lorsqu'il est commis par une personne dpositaire de l'autorit publique ou charge d'une mission de service public, dans l'exercice ou l'occasion de l'exercice de ses fonctions ou de sa mission ; 3 Lorsqu'il est commis par une personne qui prend indment la qualit d'une personne dpositaire de l'autorit publique ou charge d'une mission de service public ; 4 Lorsqu'il est prcd, accompagn ou suivi de violences sur autrui n'ayant pas entran une incapacit totale de travail ; 5 Lorsqu'il est facilit par l'tat d'une personne dont la particulire vulnrabilit, due son ge, une maladie, une infirmit, une dficience physique ou psychique ou un tat de grossesse, est apparente ou connue de son auteur ; 6 Lorsqu'il est commis dans un local d'habitation ou dans un lieu utilis ou destin l'entrept de fonds, valeurs, marchandises ou matriels, en pntrant dans les lieux par ruse, effraction ou escalade ; 7 Lorsqu'il est commis dans un vhicule affect au transport collectif de voyageurs ou dans un lieu destin l'accs un moyen de transport collectif de voyageurs ; 8 Lorsqu'il est prcd, accompagn ou suivi d'un acte de destruction, dgradation ou dtrioration ; 9 Lorsqu'il est commis raison de l'appartenance ou de la non-appartenance, vraie ou suppose, de la victime une ethnie, une nation, une race ou une religion dtermine, ou de son orientation sexuelle, vraie ou suppose. Les peines sont portes sept ans d'emprisonnement et 100000 euros d'amende lorsque le vol est commis dans deux des circonstances prvues par le prsent article. Elles sont portes dix ans d'emprisonnement et 150000 euros d'amende lorsque le vol est commis dans trois de ces circonstances. Article 311-4-1 Cr par Loi n2002-1138 du 9 septembre 2002 - art. 26 JORF 10 septembre 2002 Le vol est puni de sept ans d'emprisonnement et de 100000 euros d'amende lorsqu'il est commis par un majeur avec l'aide d'un ou plusieurs mineurs, agissant comme auteurs ou complices. Les peines sont portes dix ans d'emprisonnement et 150000 euros d'amende lorsque le majeur est aid d'un ou plusieurs mineurs gs de moins de treize ans. Article 311-4-2 Cr par LOI n2008-696 du 15 juillet 2008 - art. 34 Le vol est puni de sept ans d'emprisonnement et de 100 000 d'amende lorsqu'il porte sur :

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1 Un objet mobilier class ou inscrit en application des dispositions du code du patrimoine ou un document d'archives prives class en application des dispositions du mme code ; 2 Une dcouverte archologique faite au cours de fouilles ou fortuitement ; 3 Un bien culturel qui relve du domaine public mobilier ou qui est expos, conserv ou dpos, mme de faon temporaire, soit dans un muse de France, une bibliothque, une mdiathque ou un service d'archives, soit dans un lieu dpendant d'une personne publique ou d'une personne prive assurant une mission d'intrt gnral, soit dans un difice affect au culte. Les peines sont portes dix ans d'emprisonnement et 150 000 d'amende lorsque l'infraction prvue au prsent article est commise avec l'une des circonstances prvues l'article 311-4. Les peines d'amende mentionnes au prsent article peuvent tre leves jusqu' la moiti de la valeur du bien vol. Article 311-5 Modifi par Ordonnance n2000-916 du 19 septembre 2000 art. 3 (V) JORF 22 septembre 2000 en vigueur le 1er janvier 2002 Le vol est puni de sept ans d'emprisonnement et de 100000 euros d'amende lorsqu'il est prcd, accompagn ou suivi de violences sur autrui ayant entran une incapacit totale de travail pendant huit jours au plus. Article 311-6 Modifi par Ordonnance n2000-916 du 19 septembre 2000 art. 3 (V) JORF 22 septembre 2000 en vigueur le 1er janvier 2002 Le vol est puni de dix ans d'emprisonnement et de 150000 euros d'amende lorsqu'il est prcd, accompagn ou suivi de violences sur autrui ayant entran une incapacit totale de travail pendant plus de huit jours. Les deux premiers alinas de l'article 132-23 relatif la priode de sret sont applicables l'infraction prvue par le prsent article. Article 311-7 Modifi par Ordonnance n2000-916 du 19 septembre 2000 art. 3 (V) JORF 22 septembre 2000 en vigueur le 1er janvier 2002 Le vol est puni de quinze ans de rclusion criminelle et de 150000 euros d'amende lorsqu'il est prcd, accompagn ou suivi de violences sur autrui ayant entran une mutilation ou une infirmit permanente. Les deux premiers alinas de l'article 132-23 relatif la priode de sret sont applicables l'infraction prvue par le prsent article. Article 311-8 Modifi par Ordonnance n2000-916 du 19 septembre 2000 art. 3 (V) JORF 22 septembre 2000 en vigueur le 1er janvier 2002 Le vol est puni de vingt ans de rclusion criminelle et de 150000 euros d'amende lorsqu'il est commis soit avec usage ou menace d'une arme, soit par une personne porteuse d'une arme soumise autorisation ou dont le port est prohib. Les deux premiers alinas de l'article 132-23 relatif la priode de sret sont applicables l'infraction prvue par le prsent article. Article 311-9 Modifi par Ordonnance n2000-916 du 19 septembre 2000 art. 3 (V) JORF 22 septembre 2000 en vigueur le 1er janvier 2002 Le vol en bande organise est puni de quinze ans de rclusion criminelle et de 150000 euros d'amende.

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Il est puni de vingt ans de rclusion criminelle et de 150000 euros d'amende lorsqu'il est prcd, accompagn ou suivi de violences sur autrui. Il est puni de trente ans de rclusion criminelle et de 150000 euros d'amende lorsqu'il est commis soit avec usage ou menace d'une arme, soit par une personne porteuse d'une arme soumise autorisation ou dont le port est prohib. Les deux premiers alinas de l'article 132-23 relatif la priode de sret sont applicables aux infractions prvues par le prsent article. Article 311-9-1 Cr par Loi n2004-204 du 9 mars 2004 - art. 12 JORF 10 mars 2004 Toute personne qui a tent de commettre un vol en bande organise prvu par l'article 311-9 est exempte de peine si, ayant averti l'autorit administrative ou judiciaire, elle a permis d'viter la ralisation de l'infraction et d'identifier, le cas chant, les autres auteurs ou complices. La peine privative de libert encourue par l'auteur ou le complice d'un vol en bande organise est rduite de moiti si, ayant averti l'autorit administrative ou judiciaire, il a permis de faire cesser l'infraction en cours ou d'viter que l'infraction n'entrane mort d'homme ou infirmit permanente et d'identifier, le cas chant, les autres auteurs ou complices. Article 311-10 Modifi par Ordonnance n2000-916 du 19 septembre 2000 art. 3 (V) JORF 22 septembre 2000 en vigueur le 1er janvier 2002 Le vol est puni de la rclusion criminelle perptuit et de 150000 euros d'amende lorsqu'il est prcd, accompagn ou suivi soit de violences ayant entran la mort, soit de tortures ou d'actes de barbarie. Les deux premiers alinas de l'article 132-23 relatif la priode de sret sont applicables l'infraction prvue par le prsent article. Article 311-11 Constitue, au sens des articles 311-4, 311-5, 311-6, 311-7, 311-9 et 311-10, un vol suivi de violences le vol la suite duquel des violences ont t commises pour favoriser la fuite ou assurer l'impunit d'un auteur ou d'un complice. = CORRUPTION CRIMINAL OFFENCES = 1. GERMANY Criminal code a. Corruption criminal offences general framework: Corruption criminal offences are stipulated in chapter 30 Criminal offences regarding official duties. It is incriminated the fact of receiving undue benefits by a public official or a person entrusted with special public service functions who demands, accepts the promise or receives a benefit for himself or for a third person for the discharge of an official duty. The penalty for receiving undue benefits is imprisonment of not more than 3 years or a fine (art. 331) If the perpetrator is a judge or an arbitrator, it shall be aggravated variant of this offence and it shall be punished with imprisonment up to 5 years or fine.

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The corruption criminal offence (art. 332) has as material element demanding, accepting or accepting the promise of a benefit for himself or for a third person because he/she performed or will perform in the future an act while entrusted with official duties, but violating these official duties.It shall be sanctioned with imprisonment between 6 months and 5 years. In less serious cases the penalty shall be imprisonment of up to 3 years or fine. Also, if the perpetrator active subject of the offence - is a judge or an arbitrator the penalty shall be imprisonment between 1 and 10 years. In less serious cases the penalty shall be imprisonment from 6 months to 5 years. Giving undue benefits shall be sanctioned with imprisonment of up to 3 years or fine, and the penalty for the aggravated variant of the offence (when the person who is to receive such benefits is a judge), the penalty shall be imprisonment for up to 5 years or fine (art. 333). Regarding bribe giving, which means whosoever offers, promises or grants a benefit to a public official, a person entrusted with special public service functions for that person or a third person in return for the fact that he will in the future perform an official act and thereby will violate his official duties (therefore, an illegal act) the penalty shall be imprisonment from 3 months to 5 years. And for the aggravated variant ( when referring to a decision that will be taken by a judge or an arbitrator) the penalty shall be imprisonment between 6 months and 5 years (art. 334). The penalty for corruption and bribe giving with extremely serious consequences shall be imprisonment between 1 and 10 years (art. 335). For para. 1, extremely serious consequences refer to: - the benefit having a significant value, - the offender who continuously accepts benefits demanded in return for the fact that he will perform an official act in the future, or - the offender who acts on a commercial basis or as a member of a gang whose purpose is the continued commission of such criminal offences. Judges shall determine the legal consequences for committing criminal offences, bearing in mind the applicable principles for individualization of penalties, indicated in sections 46 55. b. Individualization of penalty in the Finish criminal code relevant issues: According to the general provisions of the criminal code, the minimum imprisonment penalty is 1 (one) month and the maximum one is 15 years (section 38, paragraph 2). Serving of penalty imprisonment between 6 and 12 months can be suspended by the court and, as a consequence, it orders the parole, if the penalty is considered a warning for the convicted person and that he/she will not continue to commit any criminal offences in the future, even without the influence of serving the sentence. The following aspects are especially taken into account: the perpetrator's person, his/her previous behavior, the circumstances of the offence, his/her behavior after committing the offence, the living conditions and the effects that there might be as a consequence of suspending the penalty (section 56, paragraph 1). The court can also order to suspend serving the penalty of imprisonment of more than 10 months, but which does not exceed 2 years, under the conditions

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of paragraph 1 in art. 56 and can also order the parole if a rigorous evaluation of the offence and of the perpetrator shows some mitigating circumstances. When rendering the judgment, special attention shall be paid to the efforts of the convicted person to redress the damage caused by committing the offence (section 56, paragraph 1). With respect to the penalty individualization criteria, the criminal code stipulates that the first criteria to be the basis for determining the penalty should be the reprehensible nature of the deed of the prosecuted person and the fairness of the penalty and the Federal Appeal Court ordered that the judge to determine the penalty shall not impose one that is so severe that not even himself considers it to be proportional with the defendants guilt. [Id., see also 7 BGHSt 28 to 32 (1954)]. The code also distinguishes between the serious criminal offences (liable of a minimum 1 year imprisonment penalty) and less serious criminal offences (liable for less that 1 year imprisonment or fine). [See the first Assessment German Report, approved by GRECO within the 8th plenary session from 4-8 March 2002, Strasbourg, France] c. Relevant legal provisions: 331 Receiving undue benefits (1) A public official or a person entrusted with special public service functions who demands, accepts the promise or receives a benefit for himself or for a third person for the discharge of an official duty, shall be punished with imprisonment up to 3 years or fine. (2) A judge or arbitrator who demands, accepts the promise or receives a benefit for himself or a third person in return for the fact that he/she performed or will in the future perform a judicial act shall be punished with imprisonment of up to 5 years or a fine. The attempt shall be punished. (3) The offence shall not be punishable under subsection (1) above if the offender accepts the promise or receives a benefit which he did not demand and the competent public authority, within the scope of its powers, either previously authorizes the acceptance or the offender promptly makes a report to it and it authorizes the acceptance. 332 Corruption. (1) A public official or person entrusted with special public service functions who demands, accepts the promise or receives a benefit for himself or for a third person in return for the fact that he/she performed or will in the future perform an official act and thereby violated or will violate his official duties shall be punished with imprisonment from 6 months to 5 years.In less serious cases the penalty shall be imprisonment of up to 3 years or a fine. The attempt shall be punished. (2) A judge or an arbitrator who demands, accepts the promise or receives a benefit for himself or for a third person in return for the fact that he performed or will in the future perform a judicial act and thereby violated or will violate his judicial duties shall be punished with imprisonment from 1 up to 10 years. In less serious cases the penalty shall be imprisonment from 6 months to 5 years.. (3) If the offender demands, accepts the promise or receives a benefit in return for a future act, subsections (1) and (2) above shall apply even if he has merely indicated to the other his willingness to: 1. violate his/her duties by the act; or 2. to the extent the act is of his/her competence, to allow himself/herself to be influenced by the benefit in exercising his/her duties. 72

2. FINLAND Finish criminal code a. Corruption criminal offences general framework: In Finish criminal code, in chapter Criminal offences against democratic regime it is stipulated the electoral bribe criminal offence, which punishes the fact of promising, offering or giving to other person a fee or other benefit so that the above mentioned person should be persuaded to vote at general elections or referendum in a certain way or to abstain from voting; the penalty shall be fine or imprisonment for up to one year. Within chapter 16 Criminal offences against public authorities: Bribery, Bribery of a member of Parliament and Aggravated bribery. Bribery is defined as being the fact of a person who promises, offers or gives a public official in exchange for his/her actions in service a gift or other benefit intended for him/her or for another, that influences or is intended to influence or is conducive to influencing the actions in service of the public official. Bribery shall be punished with fine or imprisonment for at most two years. Aggravated bribery means that by giving the bribe, the gift or benefit is intended to make the person act in service contrary to his/her duties with the result of considerable benefit to the briber or to another person or of considerable loss or detriment to another person or when value of the gift or benefit is considerable; the bribery is also considered as aggravated when assessed as whole. The offender shall be sentenced for aggravated bribery to imprisonment from four months up to four years. (Section 14) Bribery of a member of Parliament means: A person who promises, offers or gives a member of Parliament a gift or other unlawful benefit intended for him/her or for another, so that said member of Parliament would, in exchange for the benefit and in his/her parliamentary mandate, act so that a matter being analised or to be analised by Parliament would be decided in a certain way. The penalty shall be fine or imprisonment for up to four years. (Section 14a) In chapter 30 Business offences there are stipulated the bribery in business and the acceptance of bribe in business. The penalty shall be fine or imprisonment of up to two years. Chapter 40 regulates the bribe taking Criminal offences committed by public officials. The following are criminal offences: Bribe taking, punished with fine or imprisonment of up to two years. Aggravated bribe taking, punished with imprisonment from four months to four years and dismissal from the office. Minor criminal offences on bribe taking, punished with fine or imprisonment of up to six months. Bribe taking in the case of members of Parliament, punished with fine or imprisonment up to four years. b. Individualization of penalties within the Finish criminal code relevant issues: A penalty of imprisonment which does not exceed two years can be converted into conditional imprisonment, except for the cases where the seriousness of the deed, the perpetrator's guilt as resulted from the offence or the criminal records require serving the imprisonment sentence in a penitentiary (Section 9)

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An offender, sentenced to serve an imprisonment penalty for a fixed period of eight months at most shall be given the penalty of community service, unless the decisions of serving the imprisonment sentence, community service or any other grounds infringe the order of sentencing to community service. (section 11) Also, the Finish criminal code stipulates the possibility of waiving the penalty in certain cases for which the court deems that the criminal offence is less serious and the perpetrator is no social danger to society. c. Relevant legal provisions: Section 13 Bribery (604/2002) (1) A person who promises, offers or gives to a public official or gives a public official in exchange for his/her actions in service a gift or other benefit intended for him/her or for another, that influences or is intended to influence or is conducive to influencing the actions in service of the public official, shall be sentenced for bribery to a fine or to imprisonment for at most two years. (2) Also a person who, in exchange for the actions in service of a public official, promises, offers or gives the gift or benefit referred to in subsection 1 shall be sentenced for bribery. Section 14 - Aggravated bribery (563/1998) If in the bribery (1) the gift or benefit is intended to make the person act in service contrary to his/her duties with the result of considerable benefit to the briber or to another person or of considerable loss or detriment to another person; or (2) the value of the gift or benefit is considerable and the bribery is aggravated also when assessed as whole, the offender shall be sentenced for aggravated bribery to imprisonment for at least four months and at most four years. Section 14 a Bribery of a member of Parliament (604/2002) A person who promises, offers or gives a member of Parliament a gift or other unlawful benefit intended for him/her or for another, so that said member of Parliament would, in exchange for the benefit and in his/her parliamentary mandate, act so that a matter being considered or to be considered by Parliament would be decided in a certain way, shall be sentenced for bribery of a member of Parliament to a fine or to imprisonment for at most four years. Section 7 - Bribery in business (769/1990) A person who promises, offers or gives an unlawful benefit (bribe) to (1) a person in the service of a businessman, (2) a member of the administrative board or board of directors, the managing director, auditor or receiver of a corporation or of a foundation engaged in business, or (3) a person carrying out a duty on behalf of a business, intended for the recipient or another, in order to have the bribed person, in his/her function or duties, favour the briber or another person, or to reward the bribed person for such favouring, shall be sentenced for bribery in business to a fine or to imprisonment for at most two years. Section 8 - Acceptance of a bribe in business (604/2002) (1) A person who (1) in the service of a business, (2) as a member of the administrative board or board of directors, the managing director, auditor or receiver of a corporation or of a foundation engaged in business or

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(3) in carrying out a duty on behalf of a business demands, accepts or receives a bribe for himself/herself or another or otherwise takes an initiative towards receiving such a bribe, for favouring or as a reward for such favouring, in his/her function or duties, the briber or another, shall be sentenced for acceptance of a bribe in business to a fine or to imprisonment for at most two years. Chapter 40 - Offences in office (604/2002) (1) If a public official, for his/her actions while in service, for himself/herself or for another, (1) asks for a gift or other unjustified benefit or otherwise takes an initiative in order to receive such a benefit, (2) accepts a gift or other benefit which influences, which is intended to influence or which is conducive to influencing him/her in said actions, or (3) agrees to the gift or other benefit referred to in paragraph 2 or to a promise or offer thereof, he/she shall be sentenced for acceptance of a bribe to a fine or to imprisonment for at most two years. (2) A public official shall be sentenced for acceptance of a bribe also if for his/heractions while in service agrees to the giving of the gift or other benefit referred to in subsection 1(2) to another or to a promise of offer thereof. (3) A public official may also be sentenced to dismissal if the offence demonstrates that he/she is manifestly unfit for his/her duties. Section 2 - Aggravated acceptance of a bribe (604/2002) If in the acceptance of a bribe (1) the public official stipulates the bribe as a condition for his/her actions or it is his/her intention, because of the gift or benefit, to act in a manner contrary to his/her duties to the considerable benefit of the party giving the gift or of another, or to the considerable loss or detriment of another, or (2) the gift or benefit is of significant value and the acceptance of a bribe is aggravated also when assessed as a whole, the public official shall be sentenced for aggravated acceptance of a bribe to imprisonment for at least four months and at most four years and in addition to dismissal from office. Section 3 Bribery violation (604/2002) If a public official, for himself/herself or for another (1) asks for a gift or other unlawful benefit or otherwise takes an initiative in order to receive such a benefit, or (2) accepts or agrees to a gift or other benefit or agrees to a promise or offer of such a gift or other benefit so that the actions are conducive to weakening confidence in the impartiality of the actions of authorities, he/she shall be sentenced, if the act is not punishable as the acceptance of a bribe or aggravated acceptance of a bribe, for a bribery violation to a fine or to imprisonment for at most six months. Section 4 Acceptance of a bribe as a member of Parliament (604/2002) If a member of Parliament, for himself/herself or for another (1) requests a gift or other unlawful benefit or otherwise takes an initiative in order to receive such a benefit, or (2) accepts or agrees to accept a gift or other unlawful benefit or agrees to a promise or offer of such a gift or other benefit and promises, in exchange for the benefit, to act in his/her parliamentary mandate so that a matter being considered or to be considered by Parliament would be decided in a certain way, he/she shall be sentenced for acceptance of a bribe as a member of Parliament to a fine or to imprisonment for at most four years.

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3. SWEEDEN Sweedish criminal code In chapter 17 criminal offences on public activity there are stipulated special penalty limits and the content of bribe giving: The person who gives, offers or promises bribe or any undue material benefits to an employer or to any other person such as provided in Chapter 20, Section 2, in order to perform an act related to his/her public duties, shall be sentenced for bribe giving, and the penalty shall be fine or imprisonment for up to two years. Also, the person who accepts, receives or asks for undue benefits in order to vote in a certain way or to abstain from voting regarding a public issue, if the deed is different from bribe taking, shall be given the sentence for acceptance of undue benefits during elections, and the deed shall be punished with fine or imprisonment of up to six months If the bribe giving involved a person who is not a public employee or local authority the criminal action is initiated upon preliminary complaint of the employer or of the responsible person of the person liable to corruption. According to Chapter 20 the deeds of misuse of office by means of which an employee receives, accepts a promise or asks for bribe or any other undue benefit in order to perform his/her duties, shall be punished as bribe taking and the penalty shall be fine or imprisonment of at most 2 years. The same shall apply if the employee committed the offence before getting the job or after leaving it. If the offence is a serious one it shall be punished with imprisonment of at most 6 years. The above mentioned provisions shall apply accordingly to: - a member of the management, administration, board of directors committee, or any other agency whose owner is the state, a municipality, a county council, an association of local authorities, a parish, religious society, social security office, - a person performing an activity based on a statute - members of the armed forces, based on the decision on disciplinary offences of the armed force members, etc., or any other persons carrying out an official duty provided by law - persons who, without having a duty of the ones mentioned above, exercises public authority, and - persons who, in any other cases but for the ones mentioned above, from 1-4, having been deemed reliable, they had been given the duty of administering someone else's financial or legal business or performing independently a duty that requires qualified technical knowledge or supervising the administration of such business or duty. 4. PORTUGAL Portuguese criminal code a. Corruption criminal offences general framework: Portuguese criminal code stipulates at section I of chapter 4 the corruption offences. According to art. 372 Passive corruption in view to committing an illicit deed The civil servant who, alone or by an intermediary person with his/her consent and ratification, asks or accepts, for himself or for a third person, without having any debt, a patrimonial or non patrimonial benefit, or his/her promise of such

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benefits in return for the deed or its omission against his duties, shall be punished with imprisonment from 1 to 8 years. The passive corruption in view to commiting a deed which is not contrary to his/her duties (art. 373) shall be punished with imprisonment up to 2 years or fine up to 240 days (the Portuguese criminal code stipulates the system of days - fine). If the perpetrator, before committing the offence, voluntarily gives up the offer or the promise he/she had accepted, or gives back the benefit, or in case of a consumable, its equivalent, he/she shall not be punished. A legal cause to reduce the penalty is the perpetrator's offer to help in a concrete way in gathering the decisive evidence in order to identify or catch the other participants. The active corruption for committing an illicit deed shall be punished with imprisonment from 6 months to 5 years, and the active corruption for committing a deed which is not contrary to his/her duties shall be punished with imprisonment of up to 6 months or fine of up to 60 days (Art. 374). b. Individualization of penalty and serving the penalty, other provisions on penalties relevant issues: Special mitigation of the penalty can be ordered by court when there are previous, simultaneous or ulterior circumstances in relation with the moment of committing the offence, circumstances that diminish in an obvious way the illicit nature of the deed, the degree of guilt of the perpetrator or the necessity to apply a penalty. To this end, the following circumstances, among others are taken into account: - if the perpetrator acted under the influence of a serious threat or under the order of a superior; - if the perpetrator's behavior had been determined by a grounded motif, because of the strong strain or temptation from the victim or because of an unjust provocation or undeserved offence; c) if there are deeds that prove perpetrator's sincere regret, that is, redressing the prejudice done to the extent to which this is possible; d) if there has been long time since the moment of committing the offence, the perpetrator preserving his/her good behavior (art. 72) Annulment of the penalty: when the penalty provided for the criminal offence is imprisonment not more than 6 months, the court can declare the defendant guilty but without applying a sentence if: a) the illicit nature of the deed and the guilt of the perpetrator are extremely insignificant; b) the damage has been redressed; and c) there are no prevention grounds against the annulment of the penalty. Chapter II of the Portuguese criminal code Penalties contains provisions on individualization of penalties. The institution of substituting the short penalty of imprisonment is also regulated. Thus, the penalty of maximum 6 months imprisonment is replaced with the penalty of fine or any other penalty which shall not be imprisonment, except for the cases where serving the penalty is required in order to prevent from future criminal offences. (art. 44)

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Also, the court can apply the penalty of imprisonment with days off, which means imprisonment during weekends and cannot exceed 18 periods under the following conditions: Any period of time has a minimum duration of 36 hours and a maximum one of 48 hours, being tantamount to 5 days of uninterrupted imprisonment. The court can order the sentence to be served in an half open imprisonment system if the penalty is imprisonment of not more than 3 months and that does not require the replacement with the penalty of fine or with another one which is not imprisonment. The half open imprisonment system means imprisonment but allowing the convicted person to continue his/her normal professional activity or studies, but going out in a limited and strict way in order to fulfill his/her obligations. (art. 45) Suspension of serving the imprisonment penalty: The court can order the suspension of serving the imprisonment penalty that does not exceed 3 years if, taking into account the personality of the perpetrator, his/her living conditions, his/her previous and subsequent behavior starting from the moment he/she had committed the offence as well as its circumstances, considers this measure to achieve the penalty aim in an adequate and sufficient way. (art. 50) The suspension period is established between 1 and 5 years from the date when the decision has been rendered. The court can decide that the suspension should be accompanied by a trial period, should it consider it adequate to facilitate social integration of the convicted person. The trial regime means an individual plan for social re-adaptation, during the suspension is in force. This plan shall be carried out by the social integration service. (art. 53) The penalty shall be declared as annulled if, once the period of suspension elapsed, there are no grounds for its revocation. Community service. If the perpetrator is given the penalty of imprisonment of up to 1 year, the court can replace it with community service, when considered that the aim of the penalty is adequately and sufficiently met. (art. 58) Reprimand: if the imprisonment penalty does not exceed 120 days, the court can change it into reprimand if the damage caused has been redressed and the court deems that, through the reprimand the aim of the penalty is adequately and sufficiently met. As a rule, admonition shall not be applied if the perpetrator, during three years before committing the deed, has been sentenced to any penalty, including reprimand. 5. ESTONIA Estonian Criminal Code Division 2 Breach of Duty to Maintain Integrity 293. Accepting of gratuities (1) An official who consents to a promise of property or other benefits or who accepts property or other benefits in return for a lawful act which he or she has

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committed or which there is reason to believe that he or she will commit, or for a lawful omission which he or she has committed or which there is reason to believe that he or she will commit and, in so doing, takes advantage of his or her official position shall be punished by a pecuniary punishment or up to 3 years imprisonment. (12.06.2002 entered into force 01.09.2002 - RT I 2002, 56, 350) (2) The same act, if committed: 1)at least twice; 2)by demanding gratuities; (12.06.2002 entered into force 01.09.2002 - RT I 2002, 56, 350) 3)by a group, or 4)on a large-scale basis, is punishable by up to 5 years imprisonment. (3) An act provided for in subsection (1) or (2) of this section, if committed by a legal person, is punishable by a pecuniary punishment. 294. Accepting bribe (1) An official who consents to a promise of property or other benefits or who accepts property or other benefits in return for an unlawful act which he or she has committed or which there is reason to believe that he or she will commit, or for an unlawful omission which he or she has committed or which there is reason to believe that he or she will commit and, in so doing, takes advantage of his or her official position shall be punished by 1 to 5 years imprisonment. (12.06.2002 entered into force 01.09.2002 - RT I 2002, 56, 350) (2) The same act, if committed: 1)at least twice; 2)by demanding bribe; (12.06.2002 entered into force 01.09.2002 - RT I 2002, 56, 350) 3)by a group, or 4)on a large-scale basis, is punishable by 2 to 10 years imprisonment. (3) An act provided for in subsection (1) of this section, if committed by a legal person, is punishable by a pecuniary punishment. (4) An act provided for in subsection (2) of this section, if committed by a legal person, is punishable by a pecuniary punishment or compulsory dissolution. (5) For the criminal offence provided in this section, the court shall impose extended confiscation of assets or property acquired by the criminal offence pursuant to the provisions of 832 of this Code. (13.12.2006 entered into force 01.02.2007 RT I 2007, 2, 7) 298. Giving bribe (1) Giving or promising a bribe is punishable by 1 to 5 years imprisonment. (12.06.2002 entered into force 01.09.2002 - RT I 2002, 56, 350) (2) The same act, if committed at least twice, is punishable by 2 to 10 years imprisonment. (3) An act provided for in subsection (1) of this section, if committed by a legal person, is punishable by a pecuniary punishment. (4) An act provided for in subsection (2) of this section, if committed by a legal person, is punishable by a pecuniary punishment or compulsory dissolution. 6. KOSOVO Provisory criminal code

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Article 343 - ACCEPTING BRIBES (1) An official person who solicits or accepts a gift or some other benefit for himself, herself or another person or who accepts a promise of a gift or some other benefit to perform within the scope of his or her authority an official or other act which he or she should not perform or to fail to perform an official or other act which he or she should or could have performed shall be punished by imprisonment of six months to five years. (2) An official person who solicits or accepts a gift or some other benefit for himself or herself or another person or who accepts a promise of a gift or some other benefit to perform within the scope of his or her authority an official or other act which he or she should have carried out or to fail to perform an official act which he or she may not perform shall be punished by imprisonment of three months to three years. (3) An official person who, following the performance or omission of an act provided for in paragraph 1 or 2 of the present article, solicits or accepts a gift or some other benefit for himself, herself or another person in relation to such performance or omission shall be punished by a fine or by imprisonment of up to one year. (4) The gift or other benefit received shall be confiscated. Article 344 - GIVING BRIBES (1) Whoever confers or promises to confer a gift or other benefit on an official person, so that such person perform within the scope of his or her official authority an official or other act which he or she should not have performed or fail to perform an official or other act which he or she should have performed or whoever serves as an intermediary in bribing an official person shall be punished by imprisonment of three months to three years. (2) Whoever confers or promises to confer a gift or other benefit on an official person so that such person perform within the scope of his or her official authority an official or other act which he or she should perform or fail to perform an official or other act which he or she may not perform or whoever serves as intermediary in bribing an official person shall be punished by a fine or by imprisonment of up to one year. (3) When the perpetrator of the offence provided for in paragraph 1 or 2 of the present article gave the bribe on the request of an official person and reported the offence before it was discovered or before knowing that the offence was discovered, the court may waive the punishment. (4) The gift or other benefit shall be confiscated or, in the case of paragraph 3 of the present article, it shall be restored to the person who gave it.

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DRAFT OF THE NEW CRIMINAL PROCEDURE CODE

A.LEGAL PROVISIONS WHICH HAVE ARISEN PUBLIC DEBATES Art.52. Competence of the judge for rights and freedoms The judge for rights and freedoms is the judge who, within a court and according to this courts competence, solves the request, proposals, complaints, contestations or any other notifications regarding: a) preventive measures; b) ensuring measures; c) safety provisional measures; c) prosecutors official documents, in the situations stipulated by the law ; d)approval of searches, of special surveillance techniques or any other proceedings regarding the evidence according to the law ; e) anticipated administration of evidence; f) any other cases provided by the law. Art.146. Using undercover investigators (1) Authorising the using of the undercover investigators can be disposed by the prosecutor who performs or supervises the criminal prosecution for a period of maximum 60 days if: 81

a) there is reasonable suspicion regarding the preparation or the perpetration by the suspected person of an offence against the national security provided by the Criminal Code or by other special laws, as well as drug trafficking offence, weapons trafficking, trafficking in human beings, terrorism acts, money laundering, coins or other values forgery, blackmail, deprivation of freedom, tax evasion, corruption offences or any other offences for which the law stipulates a punishment of 5 or more years, or there is reasonable suspicion that a person is involved in criminal activities related to the above mentioned offences; b)the measure is necessary and proportional with the restriction of fundamental rights and freedoms, taking into account the particularities of the case, the importance of the information or of the evidence which is to be obtained, or the seriousness of the offence; c) evidence or locating and identifying the suspected or prosecuted person could not be obtained in another way, or their obtaining would entail serious difficulties which would bring considerable prejudice to the investigation, or there is a potential danger for the safety of persons or of certain valuable goods. (2) This measure shall be disposed by the prosecutor, ex officio or at the request of the criminal investigation body, by ordinance which must include, besides the mention stipulated at art. 286 para (2): a) the concrete measure that has been approved; b) the period for which this measure has been approved ; c) the identity given to the undercover investigator, as well as the activities he/she is going to deploy; d) the name of the suspect or prosecuted person, or of the person subject to the technical surveillance, or their identification data, if known. . (3) in the situation in which the prosecutor considers it is necessary that the undercover investigator uses technical devices for taking photos or for obtaining adio video recordings, the prosecutor shall bring the case to the judge for rights and freedoms for issuing the technical surveillance warrant. (4) Undercover investigators are operative officers within the police and other state authorities deploying, according to the law, intelligence activites for ensuring the national security, especially appointed for this purpose and they can be used only for precisely determined period, stipulated within the judges warrant or the prosecutors ordinance. (5) The undercover investigator gathers data and information on the basis of the ordinance issued according to the articles (1) (3), and he/she will put all these data at the disposition of the prosecutor who performs or supervises the criminal prosecution, drawing up a minute on it. (6) The undercover investigator is prohibited to provoke committing of offences. (7) The judiciary authorities can use or put at the undercover investigators disposal any necessary written documents or objects he/she needs for deploying the authorized activity. The activity of the person who gives or uses the written documents or the objects shall not be considered an offence. (8) Undercover investigators can be heard as witnesses within the criminal trial. For justified reasons, the investigator can be heard in the same conditions as the threaten witnesses.

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(9) The duration of the measure can pe prolongued for well justified reasons, in the case in which the conditions of article (1) are met, every prolongation being of maximum 60 days. Art.149. Supervised Delivery (1) Supervised delivery can be authorized, by ordinance, by the prosecutor who performs or supervises the criminal prosecution, at the request of the competent institutions or authorities. (2) Supervised delivery can be disposed only in the following situations: a) if discovering or arresting the persons involved in the illegal transportation of drugs, weapons, stolen objects, explosive materials, nuclear materials, other radioactive materials, money or other objects resulted from illicit activities or objects used for the purpose of committing offences could not be carried out in another way or would entail serious difficulties which would bring considerable prejudice to the investigation, or there is a potential danger for the safety of persons or of certain valuable goods; b) if discovering or proving the offences connected to the illegal or suspect transportation delivery would be impossible or very difficult. (3) For a supervised delivery, it is necessary that all the states through which the illegal or suspect transportations are transited to expressly: a) agree to the entrance on their territory of the illegal or suspect transporation, as well as to the going out of their teritory of this transportation; b) guarantee the fact that the illegal transportation is permanently supervised by the competent authorities; c) guarantee the fact that the prosecutor, police or other state authorities are announced about the result of the criminal prosecution against the persons accused of offences which have been subject of the special investigation technique provided by article (1). (4) the provisions of art (3) shall not be aplicable in the situation in which a ratified international convention or an international agreement contains contrary provisions. (5) The ordinance of the prosecutor must include: the name of the suspect or prosecuted person, if known, the evidence proving the illicit character of the goods which are to enter, transit or go out of the states territory, the modality in which the surveillance shall be carried out. The prosecutor must issue an ordinance for each disposed supervised delivery. (6) The supervised delivery shall be carried out by the police or other competent authority. The prosecutor establishes the way of carrying out the supervised delivery. (7) Carrying out the supervised delivery shall not be considered an offence. . (8) The authorities stipulated in para (5) have the obligation to draw up, after the supervised delivery is finalised, a minute on the developed authorities, which they will put forward to the prosecutor. Art.150. Identifying the number holder, the owner or the user of a telecommunication system or of an access point to an informatic system. (1) The prosecutor who performs or supervises the criminal prosecution can ask to a service supplier to identify the number holder, the owner or the user of a telecommunication system or of an access point to an informatic system, 83

or to communicate whether a certain communication device or an acces point to an informatic system is being used or active or not, or whether it has been used or active or not on a certain date, in the situation in which there is reasonable suspicion on committing an offence and there are serious grounds to believe that the requested data is evidence on that offence. (2)This measure shall be disposed by the prosecutor, ex officio or at the request of the criminal investigation body, by ordinance which must include: the person or the service supplier which posseses or has under control the data, the name of the suspect or the prosecuted person, if known, stipulation of the fact that the conditions in para (1) are met, stipulation regarding the obligation of the person or of the service supplier to immediately communicate the requested data, under confidentiality conditions. (3) The service suppliers are bound to collaborate with the criminal prosecution authorities for the enforcement of the prosecutors ordinance and to put immediately at their disposal the requested data. (4) The persons who are requested to collaborate with the criminal prosecution authorities have the obligation to keep the secret of the operation, breaching this obligation being sanctioned according to the criminal law. Art. 151 Obtaining the list of the phone calls (1) The prosecutor who performs or supervises the criminal prosecution can ask to a service supplier to communicate the list of the made and received phone calls of a certain phone number, in the situation in which there is reasonable suspicion on committing an offence and there are serious grounds to believe that the requested data is evidence on that offence. (2)This measure shall be disposed by the prosecutor, ex officio or at the request of the criminal investigation body, by ordinance which must include: the service supplier which posseses or has under control the data, the name of the suspect or the prosecuted person, if known, stipulation of the fact that the conditions in para (1) are met, stipulation regarding the obligation of the person or of the service supplier to immediately communicate the requested data, under confidentiality conditions. (3) The service suppliers are bound to collaborate with the criminal prosecution authorities for the enforcement of the prosecutors ordinance and to put immediately at their disposal the requested data. (4) The persons who are requested to collaborate with the criminal prosecution authorities have the obligation to keep the secret of the operation, breaching this obligation being sanctioned according to the criminal law. Art.100. Exclusion of the illegally obtained evidence (1) The illegally obtained evidence cannot be used within the criminal trial. (2) As an exception, the illegaly obtained evidence can be used in the situation in which, by using this evidence, the fair character of the trial is not breached. (3) The evidence obtained by torture, inhuman or degrading treatments cannot be used within the criminal trial. (4) The evidence derived of the evidence stipulated in para (1) and (3) shall be excluded if they have been obtained directly out of the illegally obtained evidence and they could not have been gathered in any other way

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(5) The evidence derived of the evidence stipulated in para (1) and (3) shall not be excluded if the illegally obtained evidence is used under the conditions of para (2). Art.281. Absolute nullities (1) The nullity shall always be applied in the situation of breachig the following provisions on: a) panel composition; b) ratione materiae and ratione personae competence of the court, in the situation in which the case was tried by a hierarchically inferiour court to the competent one; c) public character of the court hearing; d) prosecutors participation when the prosecutors participation is mandatory according to the law; e) the presence of the suspect or of the prosecuted person when his/her presence is mandatory according to the law; f) lawyers assisting of the suspect or of the prosecuted person, as well as of the other parties, when legal assistance is mandatory . (2) The absolute nullity shall be determined ex officio or on request. (3) Breaching the legal provisions stipulated in para (1) letter a) d) can be invoked in any stage of the trial, and the breaching of the ones in para (1) letters e) and f) can be invoked up to the finalisation of the procedure within the preliminary chamber at the latest or up to the presentation of the indictment document in front of the first instance court, in the situations when there is no preliminary procedure. Art.87. Legal assistance of the suspect or of the prosecuted person (1) The suspect or the prosecuted person has the right of being assisted by one or more lawyers during the criminal prosecution stage,the preliminary chamber procedure stage and the court trial stage, and the judiciary bodies are bound to inform him/her about this right. (2) The confined or arrested person has the right to be in contact with his/her lawyer and the confidentiatliy of their communications shall be ensured, with the observance of the necessary guarding and security measures. Art.77. The injured person The person who has suffered a phisyical, material or moral damage as a result of the offence is called the injured person. Art.79.The rights of the injured person Within the criminal trial, the injured person has the following rights: a) the right to turn to a mediator, in the situations provided by the law ; b) the right to propose administration of evidence by the judiciary authorities, to rise exception and to make concluding remarks ; c) the right to be informed, in a reasonable term, on the current situation of the criminal prosecution, at his/her express request, under the condition of specifying an address on Romanias territory, or an e mail address where this information should be communicated; d) the right to request seeing the file ; e) the right to be heard; 85

f) the right to ask questions to the prosecuted person, witnesses and experts; g) the right to be assisted or represented by a lawyer; h) the right to be informed on his/her rights ; i) any other rights provided by the law.

DRAFT OF THE NEW CRIMINAL PROCEDURE CODE B. CONSIDERATIONS REGARDING THE LEGAL PROVISIONS THAT HAVE ARISEN PUBLIC DEBATES

I. The judge of rights and freedoms 1. Regulation of the legal institution within the draft of the new Criminal Procedure Code Regarding the competence of the judge of rights and freedoms, he/she shall solve the requests, proposals, complaints, legal disputes and any other notifications regarding preventive measures, ensuring measures, provisional safety measures, prosecutors acts under the circumstances stipulated by law, the authorizing of the search, the special surveillance or investigation techniques or any other evidence procedures according to the law, anticipated evidence administering or any other cases stipulated by law In order to respect the right to private life and correspondence, the new Criminal Procedure Code regulates procedural rules regarding the special surveillance and investigation techniques that comply with the conditions of accessibility, predictability and proportionality set by European Court of Human Rights jurisprudence. In all cases where such measures are

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authorized, the draft sets the necessity of an existent reasonable suspicion regarding the commitment of an offence, the respect for subsidiary principle the exceptional character of the breach into the right to private life being emphasized -, and the proportionality of the measure regarding the restraining of the right to private life taking into account the peculiar aspects of the case, the importance of information or the evidence that are to be obtained and the seriousness of the crime. In order to guarantee the right stipulated in art.8 in the European Convention for the Protection of Human Rights and Fundamental Freedoms, the new Code sets as a principle, the obligation of the prosecutor to inform, in writing, any subject of a warrant on the technical surveillance measure that was taken against him, at the shortest time, after the measure has ceased. Some of the surveillance or investigation techniques such as the technical surveillance warrant, confinement, handing and search of the correspondence are ordered by the judge of rights and liberties. Other surveillance or investigation techniques such as use of undercover investigators, supervised delivery and identification of the phone number holder, owner or user of a telecommunication system or access point to a computer may be ordered by the prosecutor who supervises or carries out the criminal proceedings. This is justified by the fact that the prosecutor is the one who carries out or supervises the criminal prosecution stage and surveillance and investigation techniques are used for getting all evidence and in terms of seriousness, the interference with ones private life is not as serious as tapping phone calls, which shall not justify setting them within the competence of the judge of rights and freedoms. Besides, the role of a judge of rights and freedoms is not the one of an examining judge, as in some European states, which has the competence to carry out the criminal prosecution. The judge of rights and freedoms is an independent guarantor of the respect of fundamental rights within the criminal trial criminal prosecution stage, for which reason he/she has the competence to authorize the measures that can be seen as serious interference in ones private life and which is carried out during this trial stage. For less breaching measures, the prosecutor who is a magistrate too and the person entitled to initiate the criminal action, may order the necessary measures for an adequate evidence administering, for setting the truth, the less intrusive ones, for which neither the current European standards require the guarantee of the authorization of a judge magistrate.The prosecutor ensures the respect for the legality and loyalty of the procedures within the criminal trial, and the infringement of the legality and loyalty of evidence administering may be sanctioned by the judge of preliminary chamber, according to his competence. 2. Aspects of comparative legislation The institution of the judge of rights and freedoms can be found in some procedural criminal European regulations The French Criminal Code regulates the institution of a specialized judge juge des liberts et de la dtention, who orders the taking, replacing or revocation of the preventive measures. According to the provisions of art.

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138 in the French Criminal Code, the judge of rights and freedoms may order the measure of judiciary supervision which means that the indicted person shall comply with some obligations and according to art 207, the judge of rights and freedoms may order the measure of preventive arrest. In the Italian Criminal Code18, adopted by the Italian Parliament in 1988, the examining judge was replaced by the judge for preliminary investigations (giudice per le indagini preliminari) and created the premises for setting a procedure of accusatorial type19. The Italian criminal system was traditionally built on the inquisitorial system and therefore the investigations were carried out by the examining judge who gathered the evidence. The new Italian Code, following some legislative initiatives, was inspired by the accusatorial model from North America. The institution of examining judge was given up for the judge of preliminary investigations who supervises the preliminary stage of the trial, the prosecutors acts and to guarantees the rights of the investigated person. This prosecutor may take the procedural measures of ones freedom limitation if proved to be necessary during the investigation. Finally, the judge for preliminary investigations solves the requests made for the ceasing of the trial. II. The principles of legality and loyalty in administering the evidence. Derived evidence The principles of legality and loyalty in administering the evidence are the basis of drawing up art. 100 in the draft of the Criminal procedure code. The principle of legality in administering the evidence presupposes only the administration of the means of evidence provided by law, under the conditions set by the new Criminal procedure code, specialized legislation and the case law of the European Court of Human Rights. The principle of the loyalty of administaration of evidence is expressely stipulated within the draft, in art. 99. This article stipulates that use of violence, promising an illegal benefit, threatening with an unjust prejudice or using any other illegal constraining means for the purpose of gathering evidence are forbidden. Also, one shall not use any hearing methods or techniques that affect one's ability to remember or tell consciously and voluntarily the deeds that represent the object of the evidence. The interdictions shall be applied even if the heard person gives his or her consent to use this kind of hearing method or technique. The criminal judicial bodies or any other person acting on behalf of them shall not determine a person to commit an offence in order to get evidence. The derived evidence is legally administrated evidence, but which are tightly connected with the evidence illegally obtained. Thus, we have a practical effect of the doctrine of remote effect or fruits of the poisonous tree. Excluding the evidence
18 19

http://www.studiocelentano.it/codici/cpp/ Adelmo Manna and Enrico Infante., Criminal justice Systems in Europe and North America, Italy . HEUNI, Helsinki, 2000 p. 18 and the following, http://www.heuni.fi/uploads/jrrqu.doc

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Excluding the evidence is a specific procedural sanction, applicable to the evidence administered by breaching of the principle of legality and loyalty. This sanction has a special scope. A difference shall be made between this sanction and the annulment applied to most of the trial or procedural acts. Excluding the evidence can be ordered if there is a substantial and significant infringement of a legal provision on administering the whole evidence which, taking into account the concrete circumstances of the case, makes that admitting the administrated evidence hind the equitable nature of the criminal trial. Art 100 para 3 of the new Criminal Procedure Code expressely provides that evidence obtained through torture, inhuman or degrading treatment of persons cannot be used within the criminal trial.The draft of the new criminal procedure code absolutely presumes that the equitable nature of the criminal trial will always be prejudiced if the evidence are obtained through torture, inhuman or degrading treatment of persons. Thus, in the hypothesis provided in paragraph 3 of art. 100 in the draft of the new Criminal Procedure Code, the sanction of excluding the evidence is applied de iure. Applying the exclusion of the derived evidence requires the analysis of the likelihood of excluding the legally administrated evidence, but which is derived (tightly connected) from the legally obtained evidence. Thus, if the criminal prosecution bodies administrated a piece of evidence in breach of the principle of legality and loyalty, and this evidence means resulted in data and information that lead to subsequent legally administration of another piece of evidence then the question of excluding or not this derived evidence is asked. In applying such rule, the doctrine and the case law of the European or American courts of justice have shown that the subsequently legally administrated evidence (derived evidence) are not excluded if: the connection between the illegally administrated evidence and the subsequently legally administrated one is marginal, that is, the cause relationship has become so mitigated that reduces the illegality; if the subsequent evidence could have been obtained through other legal means, different from the initially illegally administrated one (from an independent source); if the subsequently administrated evidence, even if it is connected to the initially illegally administrated one, would have been inevitably subsequently discovered through legal means. Consequently, if the derived evidence, legally administrated, is directly and necessarily obtained out of torture, inhuman and degrading treatment of persons will operate the sanction of excluding derived evidence, in compliance with art. 100 paragraph 4 from the draft of the new Criminal Procedure Code. At the same time, the exception stipulated in paragraph 5 of art. 100 from the draft of the new Criminal Procedure Code shall not be applied because, as it has already been shown, to the evidence obtained through torture, inhuman and degrading treatment of persons (that constitutes the premise for the derived evidence) the hypothesis provided in paragraph 2 of the same article shall not be applied. 89

In addition, the new Criminal Code sets a series of incriminations that exclude the possibility of using the evidence obtained illegally through judiciary procedures. Thus, in Title IV of the special part of the new Criminal Code the abusive investigation20, the inhuman treatment of the person21, or torture22.

In conclusion, the new Codes cannot be considered to legalize the use of torture, inhuman degrading treatments. Both the evidence obtained by means of torture, inhuman or degrading treatments and the ones derived directly and necessarily from them shall not be used in the criminal trial.

III. The absolute nullity Art. 281 of the new Criminal code regulates the cases of nullity by stipulating that the cases enumerated below shall lead to the application of nullity: a) panel compositon;
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Art. 279 The abusive investigation The promise, threats or violence against a prosecuted or trailed person in a case made by a prosecuting body, a prosecutor or a judge in order to determine that person to make a statement or not, to make a false testimony or to withdraw his testimony shall be punished with imprisonment between 2 and 7 years and the prohibition of exercising the right to have a public position 21 Art. 280 Inhuman treatment of a person (1) Forcing a person to execute a penalty, security or educative measure in any other way than the one stipulated by law shall be punished with imprisonment from 6 months to 3 years and the prohibition of exercising the right to have a public office. (2) Forcing a person to degrading or inhuman treatment during the arrest, detention or the execution of a safety or educative measure or imprisonment shall be punished from 1 to 5 years imprisonment and the interdict of exercising the right to have a public office. 22 Art. 281 Torture (1) The act of the public officer who has an office which implies the exercise of the state authority, or of any other person who acts upon the instigation of or with express or tacit consent of a person, causing serious mental or physical sufferings to someone: a) in order to obtain information or declarations from that person or a third party; b) in order to punish that person for an act that person or a third party commited it or is presumed to have it committed; c) in order to intimidate or make pressure on that person or a third party; d) for any reason based on a form of discrimination, shall be punished with imprisonment from 2 to 7 years and the interdict of exercising some rights (2) If the act stipulated at para. (1) lead to physical injury, it shall be punshed with imprisonment from 3 to 10 years and the interdict of exercising some rights. (3) Torture lead to death of the victim, the act shall be punished with imprisonment from 10 to 20 years and the interdict of exercising some rights. (4) Attemp to the offence stipulated at para. (1) shall be punished. (5) No exceptional circumstance, whatever its nature may be, regardless of whether it is a state of war or of war threats, of internal political instability or any other exceptional state, can be called upon to justify torture; also, the order of the superior or of a public authority cannot be called upon either. (6) Any pain or suffering that result exclusively from legal sanctions and are inherent to these sanctions or caused by them shall not be the offence of torture.

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b) ratione materiae and ratione personae competence of the court, in the situation in which the case was tried by a hierarchically inferiour court to the competent one; c) public character of the court hearing; d) prosecutors participation when the prosecutors participation is mandatory according to the law; e) the presence of the suspect or of the prosecuted person when his/her presence is mandatory according to the law; f) lawyers assisting of the suspect or of the prosecuted person, as well as of the other parties, when legal assistance is mandatory . Infringement of the legal provisions stipulated at para. (1) letter a) d) may be invoked during any stage of the trial. Infringement of the legal provisions stipulated at para. (1) letter e) and f) may be invoked by the end of procedure in the preliminary chamber, or by the moment the indictment act is read in the first instance court, for the cases where there is no preliminary chamber procedure. Such regulations were aimed to provide the celerity of the criminal trial. Criticism was expressed regarding the act of setting a term limit by which some cases of absolute nullity may be invoked within the criminal trial. One of the objectives of the new Criminal Procedure Code is to reduce the length of the trial by setting a necessary legislative framework for a shorter and more efficient trial and consequently, significantly less expensive. For that purpose, the new Criminal Procedure Code is based on the principle of celerity, which is also reflected in the text of the provisions stipulating the legal term limits by which some cases of absolute nullity may be invoked. The institution of preliminary chamber aims to set the trial framework, to avoid trail delay. If some absolute nullity cases cannot be invoqued but up to some moments during the trial (by the end of procedure in the preliminary chamber, or by the the moment the indictment act is read in the first instance court, for the cases where there is no preliminary chamber procedure), it does not mean that the court cannot invoque the nullity even after, ex officio. The reason for stipulating these terms is avoiding unjustified delaying of the case. The reason for setting some terms for invoking cases of absolute nullity is for the suspect or the indicted person to invoke these cases immediately, in the presence of the prosecutor or during the procedure of preliminary chamber at the latest. The role of the preliminary chamber is to check on the legality and loyalty of the procedures during criminal proceedings, thus not permitting their annulment long after for reasons related to procedural aspects, which had been known by the parties even since the beginning of the trial, but which were not invoked at the moment when they were known, because of different reasons. IV. Legal Terms Regarding the supposition that the new Criminal Procedure Code does not set precise terms for the judiciary bodies to exercise some obligations, which is against ECHR jurisprudence, indictment of the states for the infringement of article 5 paragraph 1 of the Convention the right to freedom and security, being here exemplified, the followings can be mentioned: 91

ECHR rendered the decision of maintaining the imprisonment of the plaintiffs, according to article 5 paragraph 1 of the Convention in case of lacking provisions (for example, in the case Varga v. Romania, Court showed the infringement of art. 5 para. 1 of the Convention because the plaintiffs remained imprisoned even after the expiry of the prosecutors warrant, lacking prolongation of the measure by a judiciary body act). We consider that the rule regarding establishing precise legal terms on the imprisonment measures cannot be automatically extended to cases related to other aspects such as: The term limit by which the suspect must be informed about his/her right to be assisted by a lawyer, The term limit for the search of IT equipment The maximum reasonable term limit by which the prosecutor can have a grounded postponement of the moment for informing the suspect or the indicted person or presenting him/her the media on which the documents resulting from technical surveillance are saved. European Court mentioned in its jurisprudence that the notions of ,,short term and ,,reasonable term should be interpreted according to the circumstances of each case. (C. Pantea v Romania, Decision of 3rd June 2003; Jablonski v Poland, Decision of 21st of December 2000). One can easily draw the conclusion that according to the jurisprudence of the Court, it is not mandatory for the states to set legal terms for each procedural act.

V. The confidentiality between lawyer and suspect or indicted person According to article 87, paragraph (2) of the new Criminal Procedure Code, the person who is under arrest has the right to contact a lawyer, the confidentiality of their communication being guaranteed, under the necessary measures of security and safeguard. This phrase shall not be interpreted as an arbitrary limitation to the principle of confidentiality. One should bear in mind all above mentioned even more when taking into consideration the regulation regarding the enforcement of such provisions, which is the new Law on the execution of penalties and the measures ordered by judiciary bodies within criminal trial, which settlles in art. 57 the ensuring of the right to legal assistance, guaranteed by expressly stipulating that the contact between the lawyer and the arrested person shall be done in compliance with the rule of confidentiality under visual surveillance. Therefore, the visual surveillance is a manner of exercising the necessary measures, also accepted by the European standards, for the security of the detention places. With regard to the confidentiality of the communications between lawyer and client, ECHR Decision in the case Ocalan v. Turkey should be mentioned, according to which the visual surveillance performed by the personnel of the penitentiary, accompanied by other security measures is not incompatible with the right to defence, as guaranteed by article 6 paragraph 1 paragraph 3 letter c) (see paragraph 149 of the Decision of the

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12th of March 2003, the same solution being rendered by the Great Chamber in the Decision of the 12th of May 2005, paragraph 133).

VI. The rights of the injured party Some criticism was expressed regarding the fact that, according to the new Criminal Code the victim can no longer file an appeal or second appeal regarding the criminal aspects of the case, which is against a decision rendered by the Constitutional Court. With respect to this aspect, one should notice that the decision no. 100 / 2004 of the Constitutional Court was rendered taking in consideration that the injured person is party in the criminal trial whereas in the new Criminal procedure code the injured person has no longer such quality, but the status of main criminal trial subject. Moreover, article 6 of the new Criminal Procedure Code regulates the principle according to which the initiation and exercise of the criminal action is mandatory, the prosecutor being the one entitled to exercise the criminal action. According to article 13, paragraph (2) of the new Criminal Procedure Code, the criminal action is initiated by the prosecutor, by means of the indictment act stipulated by law and it is exercised only by him./her. The injured party does not have the quality of subsidiary accuser, since state exercises the criminal action and the accusation in the criminal trial. The injured party is the victim of the crime and has special rights within the criminal trial. Besides, the injured party can become civil party in a civil trial.

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