Efectele erorii de fapt în cazul circumstanłelor atenuante legale
The effects of factual error in the case of legal mitigating circumstances

Summary/Abstract: Article 73 of the Romanian criminal code regulates, under the nomen juris of legal mitigating circumstances, the following situations: exceeding the limits of self defense or of necessity (letter a), and provocation, namely “committing the offence under the reign of a powerful disturbance or emotion determined by a provocation from the victim, provocation that is made through violence, a severe encroachment of the person’s dignity or through another grave illicit action” (letter b). Taking into account that the Romanian criminal law persists in not recognizing the effects of the error of law, the analysis only refers to the effect that the error of fact can produce on these circumstances. The majority of the doctrine and the unanimity of the jurisprudence interprets exceeding the limits of self defense or of necessity in the sense that they will only generate effects when all the conditions of self defense, or necessity, are met, with the single exception of proportionality. If the error is culpable, the situation will be different: if the culpa is with forethought, the mitigating circumstance will be retained in both cases; if the culpa is without forethought, the circumstance will only be retained in the case of exceeding the limits of self defense. It will not be retained in what regards exceeding the limits of necessity, as the act is under the incidence of justified excess, owing to the fact that the agent did not foresee the “obviously more severe outcome” of his act, as opposed to the potential danger. Provided that the error on proportionality is an invincible one, the act will be bereaved of its criminal character, on the grounds of the combined effect of error of fact and self defense or necessity. The author assimilates to this situation the circumstance in which the agent who carries out provocation intentionally misleads the perpetrator into error. The study then verifies the incidence of factual error in the situations of error in persona, aberratio ictus and delicti. Significant consideration is given to the more rare situations in which the agent acts in excess of self defense or necessity, but is not aware of this, proceeding with criminal intent. In these hypotheses, the author considers that the mitigating circumstances in question should be applied, even in the absence of the subjective element, due to the effects of the reversed error concerning the interdiction. Thus, the agent acts in the belief that he will commit a crime, without knowing that, in fact, his action is justified, not threatening the order of law. Due to the objectively verifiable exceeding of the limits of self defense or necessity in these cases, the offenders will be accountable for their acts, benefiting from the mitigating circumstances of art. 73, letter a. The author proceeds to analyze the practical situation when the accused acts in the belief that these mitigating circumstances are applicable, belief that is afterwards prov

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