The International Scientific Session

ISBN 978-973-129-447-6

CKS 2009
NEW REGULATION FOR THE EXECUTION OF THE CRIMINAL OFFENCES
IOAN CHI1
Abstract The Law project regarding the execution of penalties and of measures ordered by the judiciary bodies in the course of the criminal trial, which is at this moment next to the project of the Criminal Code and of the Criminal Procedure Code tries to complete a wide modernization process of the manner of executing the criminal penalties, a process which commenced in 1990 through the Emergency Program initiated by the Romanian Government, and then continued by adopting the Law 294/2004 and followed in short time by the introduction of Law 275/2006 regarding the execution of penalties and measures disposed by the judiciary bodies in the course of the trial, published in the Official Gazette of Romania,, Part I, no. 637 from July 20 th, 2006.By means of the new regulations it is intended to stress on the minors of age criminal offenders activity of resocialization and of young criminal offenders as well as the creation of bigger possibilities for the execution with a positive final of the penalties by the criminally convicted persons, through a bigger variety of measures put at disposal.The non privative liberty measures that can be ruled for the minors of age who committed criminal offences institute several specific obligations for the states institutions involved in the reeducational process, of executing and surveillance of the execution of convictions. Keywords: Confinement, execution requirements, regimes, dangerous detainees, release.

Introduction
At first sight, the project of law continues in the field of penalties execution the principles for which the Law 294/2004 was amended, namely the ones determined by the apparition of the new European Regulations through the Recommendation of the Ministers Committee of the European Council from January 11 th, 2006 (Rec.2006/2), which made necessary certain substantial amendments, namely the apparition of Law 275/2006. The principles of legality of detention, respecting the human dignity, the forbidding of the torture or other mistreatments, the forbidding of discrimination and the application of regimes have remained settled. In the law project are expressly stipulated the possibilities to exercise by the detained persons of all civil and political rights except for the ones which were forbidden through the decision of conviction or of those of which non exercise or limited exercise results inherently as result of the confinement or from security reasons by the detention places. In art. 1 from the Recommendation 2006/2 it is shown that the Detained persons keep their rights which were not withdrawn by law, following the decision of conviction to prison penalty or preventive detention. As clearly stated from the text of the Law project of penalties execution, our country will align to the recent European practice, like the other states, in order to grant its citizens, all the constitutional rights, regardless if they are preventively arrested or convicted, besides the rights withdrawn by law or through the express courts decision. We thus understand that the elaboration of certain regulations for the application of law, of governmental decisions, of orders and ministerial instructions or of the National Administration of Penitentiaries cannot limit the exercise of the constitutional rights, idea revealed in art. 2 of Rec. 2006/2 thus: The restrictions imposed to confined persons need to be reduced to the strict necessary and will be pro rata to the objectives for which they were imposed to. Thus, a sum of processes will be eliminated to the European Court of Human Rights, such as the Sabou and Prclab case.
1
1 Professor

Ph.D., Law Faculty, Nicolae Titulescu University, Bucharest (e-mail: profchisioan@yahoo.com).

In the same manner was resolved the application of provisions regarding the parental rights in the idea of restricting them during the execution of the confined penalties, as accessory penalty, in the absence of any control from behalf of courts and without taking into consideration the nature of the criminal offence perpetrated and the minor of ages interest. Such interpretations are considered to be a moral impeachment having as scope the penalty of the convicted, more than a measure to protect the minor of age. In conclusion, the withdrawing in absolute terms and through the effect of law of the parental rights does not answer for the primordial exigency as to the childs interests and, as consequence, does not follow a legitimate scope, the art. 8 from the Convention being breached (see the final Decision against Romania, from September 28 th 2004). In the Heading II of the Law project of penalties execution the attributions regarding the manner in which the confinement measure is monitored by the judge are clearly delimited. Two distinct institutions appear, namely the judge delegated with the execution of the court order (which will operate within the execution court) and the judge monitoring the confinement, who will develop his/her activity only in penitentiaries, detention centers and preventive detention, preventive arrest centers, educative centers and detention centers, or in the law court and his/her main attribution is the surveillance, by means of permanent control and pro-active attitude of the manner in which the detention penalty is concretely executed. The judge monitoring the detention will have a service mandate of three years, having the possibility to assign in continuation with its agreement, for continuity and real knowledge of the situation from each unit of detention. For the efficiency of his/her activity the necessary instruments are created, such as the institution of deputies and the institution of clerks which delimitates the activity from that of the penitentiary administration under the best conditions and with the necessary optimal solutions. CEDO has appreciated that the justiciables need to perceive when the justice is served. In this respect even certain aspects regarding the judges conduct need to be put aside (see the Meznaric against Croatia case, The final Court Order from July 15 th, 2005; Svarc and Kavnik against Slovenia , The final Court Order from February 8 th, 2007). The Law project operates a clear distinction between the check activity of the manner and conditions in which the penalties and the privative measures and judiciary activity of the judge monitoring the confinement. The judge monitoring the confinement, in accordance with the new provisions, assures the legality in the execution of penalties and the confinement measures, as following: - periodically verifies the manner and the conditions in which the penalties are executed and the confinement measures; - settles, as per his/her competencies, the contestations drawn up by the detainees, persons in custody, preventively arrested persons or admitted in an educative center or detention center regarding the manner of being exercised the rights provided by the current law; - settles, according to competencies, the contestations drawn up by the detained persons, retained persons, preventively arrested or admitted in an educative center or detention center regarding the establishment and changing of the execution regime established or the measures of the applied sanction; - participates to the sessions of the release on parole commission; - settles the rogatory commissions; - exercises any other attributions provided by the present law. In order to stop certain judiciary procedures artificially created by the convicted persons, who seldom for different reasons transfer from one penitentiary to another, the judge monitoring the penitentiary has derogatory competences from the common law, settling contestations drawn up against the administration of another penitentiary. In the heading III to the Law project for the execution of the penalty, it attracts attention to the great novelty of replacing the criminal fine with the remunerated work for the societys

use. The legal implication of the probation service in this field, by establishing the jobs, by monitoring and the possibility to forward the revocation proposals towards the court of law, creates a new implication, of the civil society in the correct administration of a criminal offence. After the execution of the non remunerated work obligation, the authority of the local public administration managing the public service, the local public institution where the convicted person has executed the work for community interest or, according to the case, the non-governmental specialized organization has the obligation to communicate the court and the convicted person a document in which it attests that the non remunerated work in the communitys interest has been executed. The involvement of the civil society is felt every time more, as a basic principle, especially because there is an entire set of criminal measures without confinement, which leads to the conclusion that the society heads with much more confidence towards these measures that considers to be more efficient, lacking the criminal danger of the places populated with criminal offenders, less expensive and much closer to the final social reintegration of the criminally punished one. In the Heading IV are detailed the new institutions and procedures regarding the monitoring measures ruled by the law courts. The postponing of applying the penalty, the suspension of executing the penalty under monitoring or the conditioned liberation are assured by the delegate judge with the execution of the judges decisions, by means of the councilors of probation service or the proximity police in the circumscription where it has the domicile, the residence or the dwelling house of the convicted person. Here we have again a cooperation of institutions which were linked more to the resocialization activity than to the execution of penalties, and for this a set of attributions are recorded for the first time in the Law project, these institutions being capable to convey in an operational manner periodic reports or any time necessary to the probation services. It is thus attempted a solution successfully applied in several European states, e.g. France, to entrust the civil society with public services in this matter. As a novelty in what concerns the planning of executing the measures and to grow the awareness of the convicted person as to the societys interest regarding his/her reeducation, during the postponing of applying the penalty, the suspension of executing the penalty under monitoring or the release on parole of the convicted person may request assistance and counseling, which is granted, according to the law, by the counselors of the probation service or by specialized persons assigned by the probation service. This measure develops the link between the criminally punished person and the representatives of the institutions to the extend of the situation of collaboration in the settlement of problems of life, work, house, interpersonal relations with families, so that the convicted have the option to receive free of charge and permanently pieces of qualified advice from behalf of the one who can settle certain problems. The delegate judge with the execution of the court orders notifies the law court for the revocation of the measures set when the surveillance measures are not observed or in the case of the educational measures provided in the case of the minors of age. The revocation, amendment or cessation of obligations can be disposed, the canceling of the measure in the case of the surveillance measures, or the prolongation or replacement of the educative measures of the European Council or of the European Union. We could affirm that they were construed in a creative manner, sometimes with limits due to the lack of Romanian experience or to the still existing prejudgments, the Set of minimum regulations for the treatment of detainees persons, namely the Universal Statement of the human rights, at the level of the United Nations, as well as numerous instruments at the level of the European Council, from the Recommendation 2006 (2) of the European Council regarding the European Penitentiary Regulations, to numerous recommendations that regard the distinct aspects of the penitentiary regimes: the medical treatments [Recommendation R (93) 6 regarding the prison and the criminal aspects of the transmissible disease control, including HIV/AIDS and aspects regarding the health of the penitentiary population, the Recommendation R (98) 7 regarding the ethical and organizational aspects of the medical assistance in penitentiaries], the penitentiary overpopulation and the release penitentiary population, as well as the Recommendations R (79) 14, R (82) 16 namely R (79) 14 regarding the release from

penitentiaries], the treatment of the dangerous detainees or undergoing the execution of long term penalties [The Recommendation R (2003) 23 regarding the administration by the penitentiary staff of the life imprisonments and of long term convictions], aspects regarding the education and work in penitentiaries [Recommendation R (2003) 20 regarding the education in penitentiaries, Recommendation R (75) 25 regarding the work in penitentiaries], aspects regarding alternative measures to detention [Recommendation R (92) 10 regarding certain alternative measures to the penalty in prisons]. Some times it was taken into consideration the CEDO jurisprudence such as for example in the matter of applying the human rights, the situation of older concrete cases such as Petra, Cotlet against Romania but also recent cases among which Bragadineanu or Petra against Romania. We shall not insist upon the contents of the new provisions but we shall only recall them, the development of certain approaches in this field being made in works that exceed the size of a communication. Such new changes as to the provisions of Law 275/2006 we recall in the matter of executing the confinement penalties, the following ones: a) The organization of the execution of the confinement penalties brings as a novelty element, the possibility to build penitentiaries or objectives within penitentiaries, through public-private partnership; b) The Commission for the establishment, change and administrative individualization of the regime of execution of the confinement penalties, with a role highlighted by its very denomination, has a new constituency; c) The safety of penitentiaries but also the warranting of the fact that the safety measures are applied according to the European and international standards in the matter. Thus the texts impose the ruling of the necessary measures in order to ensure the safety of the detention seats, as well as the evaluation of the person when being received in the detention place, from the point of view of the risk it can present for the community; d) An important novelty factor brought by the project is the one of applying with provisory title of a type of regime, for a short period of time, when the person enters the penitentiary; e) As for the changing of the execution regime, the project imposes a new approach as to the current provisions, thus it provides the reanalysis of the persons conduct in view to change the execution regime of the penalty, for the penalty in maximum safety regime once every 12 months, for the closed regime penalty once every 9 months and for the open or semi-opened regime once every 6 months, being provided at the same time also the criteria according to which the transfer from one regime to another can be made more easily; f) As novelty elements, The Law project imposes minimum measures which are disposed mostly to the entry in the penitentiary, and namely when drawing up an inventory of the convicted persons goods, the performance of a through medical examination of the convicted persons; g) The transfer in penitentiaries is forbidden, for a period bigger than 10 days , of the minors of age who execute the educational measure of their admittance in an educational center of a detention center;

h) As a novelty elements and also as an answer to a recent Report of the Peoples Advocate regarding this aspect, to the necessity to observe the religious believes of the convicted persons in the matter of preparing and serving food; i) Considering the civil character of rights of the convicted persons and the autonomous sense that the European Convention of the human rights confers to the notion of civil rights and in accordance with the CEDO jurisprudence in the field, the project allows each person to impugn the measures ruled regarding the execution of the penalty inside the penitentiary; j) In what concerns the right to consult the documents of personal interest, considering, for one side, the necessity to exercise it with good faith, the Law project suggests the covering of the expenses occasioned by the photocopy of the documents by the convicted person, in the case he/she has financial means to support this; k) In what concerns the assurance of the legal assistance, it will become compulsory for all contestations which are solved by the judge monitoring the confinement at the headquarters of the law court; l) A restructuration of the provisions regarding the right to receive visits and the right to communicate in special situations by receiving intimate visits, the lawmakers intention through this project is to clearly mark the character of facility and not the one of right, the intimate visit being not found as right in any international regulation, as being not recognized as right in the CEDO jurisprudence; m) The corporal perquisition will be more precisely regulation as to warrantees in observing the intimacy. A novelty element is its regulation is the distinction that the lawmaker makes between the corporal perquisition, namely the external physical examination and the perquisition of cavities allowed to be performed only by medical staff (see the McFeeley and others case against Great Britain, the decision from May 15 th, 1980). m) The work performed by the persons convicted to confinement penalties will be regulated with two novelty elements as compared to the previous regulation: the introduction of the possibility for the detainees to offer themselves as volunteers in order to perform an activity in the communitys interest (e.g. at building schools or churches), as well as the greater capitalization of the detainees interest in working; n) The judge monitoring the confinement with the consultative approval of the Units Manager will be able to grant a leave for humanitarian purposes, in order to visit by the convicted person the spouse, a close relative, or any person the convicted person is linked by strong affective connections, who is very ill, for the participation of the convicted person to the burial of such a person, or, in case of calamity, for the settlement of social, medical problems or in order to support the family. o) The possibility of release on parole and brings a new approach through the compulsory release on parole only from the open or semi open regimes . These bounds to new approaches regarding the participation of the convicted to their own reeducation program; The Heading VII intends to answer to the more and more stringent requirements of reorganization on new modern bases, by means of contouring new conceptions, of the educational measures disposed in the case of minors of age who perpetrated criminal offences. Considering the aspects regarding the execution of the educational measures, the project takes into account the following instruments: The Convention of the United Nations regarding the childs rights, the Norms of the United Nations Organization regarding the protection of the confined minors of age, the Minimal Regulations of the United Nations for the elaboration of non privative liberty measures (The Tokyo Regulations), the set of the minimum regulations for the United Nations regarding the administration of justice for minors of age (The Beijing Regulations), Recommendation 87 (20) of the Committee of Ministers regarding the social reactions as to the juvenile delinquency. This heading represents, at the same time, next to the specific provisions from the new criminal and criminal procedure codes, a new frame, in which the state fulfils the important mission to reeducate the ones who, at young ages, have committed serious anti-social deeds, needing not a correction but a special care. Thus, it is recognized also in this matter the priority of applying the non confining educational measures and namely : the civil formation

training, the surveillance, the consignment in week-ends, and the daily assistance of the minor of age. In the matter of performing the confinement educational measures, the project provides the setup of educational centers and detention centers, as institutions specialized in the recuperation of the convicted minors of age, where they attend a school training program and professional training in accordance with their skills as well as programs of social reintegration. The problems related to the detention, reeducation, schooling, professional training and resocialization of the minors of age comprise new provisions, which follow the same positive trend of the European regulations.

References:

1. Law project regarding the execution of penalties and of measures ruled by the judiciary bodies during the criminal trial; 2. Exposition of reasons at the Law project regarding the execution of punishments and of measures disposed by the judiciary bodies during a criminal trial; 3. Ion NEAGU Criminal Procedure Treaty Special Part, Universul Juridic Publishing House, Bucharest, 2009; 4. DOBRINOIU Vasile and others Criminal Law The General Part, the Individualization of the Criminal Liability, Atlaslex Publishing House, Bucharest, 2006; 5. Ioan CHIS The Execution of the Confinement Penalties Educational Criminal Law , Danlexpress Publishing House - Bucharest, 2008.