Are caracter politic de drept în toate situaţiile infracţiunea de trecere frauduloasă a frontierei de stat a României, prevăzută de art. 245 din Legea nr. 15 din 21 iunie 1968
The offence of fraudulently crossing the state border of Romania, as provided by art. 245 of Law no. 15 of June 21, 1968

Summary/Abstract: The article presents the issue of knowing whether the crime of fraudulently crossing the state border of Romania, provided by art. 245 of Law no. 15 of June 21, 1968 – The Criminal Code in the form in force from January 1, 1969 to December 22, 1989, in the sense of art. 1 paragraph (1), (3) and (4) of the Law no. 221/2009 regarding the convictions of a political nature and administrative measures assimilated to them, pronounced between March 6, 1945 and December 22, 1989. The matter is important for the people who fraudulently crossed the state border of Romania, who were caught, tried, convicted and served prison sentences, since the proclamation of the political character of the crime/attempt opens the path for them to establish the patrimonial rights provided for by art. 1 of the Decree-law no. 118/1990 of March 30, 1990 regarding the granting of rights to persons persecuted for political reasons by the dictatorship established on March 6, 1945, as well as to those deported abroad or imprisoned. It is known that art. 1 paragraph (2) of the Law no. 221/2009 provides that the crime of fraudulently crossing the state border of Romania, provided by art. 267 of the Criminal Code 1936, an aspect that exceeds the analysis. The answer given by us to the question is a negative one, most of the time; the concrete actions of fraudulently crossing the state border of Romania from January 1, 1969 to December 22, 1989, as well as the attempts, had the character of a common law crime. Historical criteria from 1968-1989 and international relations were taken into account, as well as numerous criteria of law. In the context of examining the legal issue, we used the criteria established by the Supreme Court of Justice – Panel of 9 judges, by its Decision no. 14 of January 13, 2003, according to which the entitled person must prove the conduct of the criminal investigation by the special bodies of the Security, the trial of the case by the military courts and the execution of the sentence in a penitentiary for political prisoners. These criteria for determining the legal political nature of committing the crime of fraudulently crossing the state border of Romania are applicable, on a case-by-case basis, during 1969-1989, with each entitled person having to prove that he initiated, organized, effectively carried out public actions against the communist regime between January 1, 1969 and December 22, 1989.

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