Lack of appropriateness of maintaining the provisions of Art. 75 para. (2) letter b) of the Criminal Code in the case of danger offenses

DEZBATERI

Abstract

In order for the provisions of Art. 75 para. (2) letter b) of the Criminal Code to be applicable, it is essential not to find certain affirmative data characterizing, in general, the perpetrator, but certain elements which customize his contribution to the offenses committed or his subjective position in such a manner (including by reference to the estate or intended purpose), so that this emphasizes, in the context of offenses, an indisputably low dangerousness of its perpetrator. 
For the purpose of circumscribing to the judicial mitigating circumstance provided for in Art. 75 para. (2) letter b) of the Criminal Code, the circumstances related to the offense committed should be of objective nature and emphasize – either from the perspective of the factual context in which the incriminated action was committed and the dangerous result at the social level was produced, or from the perspective of the perpetrator’s particulars – a serious nature of the offence or some very low dangerousness of the perpetrator so that only a punishment within the reduced limits could ensure an actual accomplishment of its preventive and educational goal and of the general and special  prevention functions. Within the complex process of the punishment individualization, the court is the only able to establish the appropriateness of applying or not the provisions of Art. 75 para. (2) letter b) of the Criminal Code, respectively whether a certain circumstance deserves to be qualified as such, based on the knowledge of the concrete influence which this has over the serious nature of the offense and on the social danger of the perpetrator, in compliance with the truth and according to his own belief.

Keywords: sanction; individualization; personal circumstances; actual circumstances