Attempted murder. Conditions for acknowledgment of the mitigating circumstances of the provocation provided for by art. 75 para. 1 letter a of the Criminal Code

DREPT PENAL ȘI DREPT PROCESUAL PENAL

Abstract

According to art. 75 para. (1) letter a of the Criminal Code, a legal mitigating circumstance shall be the committing of the offence under the influence of a strong disorder or emotion, determined by a provocation of the injured person, produced by violence, by serious harm to the person’s dignity or by other serious unlawful act. The literature showed that in order to uphold such circumstance several legal requirements should be met both by the act of provocation and by the flight back (the unlawful act committed in the condition of provocation). Regarding the act of provocation, it is upheld that it should be achieved by (physical or psychic) violence, a serious harm to the person’s dignity or by another serious unlawful act; it should be directed against the offender or against other person; it should not be attributable to the person having committed the offense in the condition of provocation; respectively, the action of provocation should determine a condition of strong disorder or emotion. As regards the flight back, this should be committed toward the person who committed the action of provocation and be determined by the action of provocation, and it may be concurrent or subsequent to the action of provocation. Consequently, even if the action of provocation may be directed against other person than the offender (in this case, the defendant’s grandfather), the flight back (offense committed in the state of provocation) can only aim at the provoker, and not at another person. In this case, the defendant expressly indicated before the court of first instance that his grandfather was hit by another person than the victim, coming back to the initial statements, so that the legal requirements for the acknowledgment of the condition of provocation are not met.