Sanctionarea situatiilor de actio libera in causa
Punishing situations of actio libera in causa

Summary/Abstract: The paper treats the institution of actio libera in causa, institution not expressly regulated by the Romanian criminal legislation and relatively absent from Romanian penal studies. The author begins by explaining the notion, as approached by the Spanish and German doctrine. In this way it is shown that the structure of actio libera in causa includes two stages: a preceding voluntary and free action, provoking the irresponsibility state and the act performed in this irresponsibility state, act which represents the legally incriminated offence. In order to explain the different punishment alternatives, the study firstly deals with the juridical foundation of the institution, which is subject to a variety of theories. Some voices argue for impunity in these situations, due to the so-called principle of coincidence, which states that guilt must be concomitant with the committing of the crime- this is not possible if the author is in an irresponsible state at that moment. However, the majority of researchers pleading for the punishment of actio libera in causa commence either from the theory of the typical act, or from the exception theory. What differentiates the two is the outlook on the two actions requested by actio libera in causa: the theory of the typical act identifies actio praecedens as criminal attempt, whereas, in the exception model, this action is criminally irrelevant. Starting from these delineations, the author succinctly analyzes a few problems posed by the institution of penal attempt and penal withdrawal, in the context of actio libera in causa. Isolated opinions endorse a third theory, the theory of amplification, an intermediary ground between the two presented above. This theory remits the object of reproach in actio praecedens (as in the model of the typical act), complying with the coincidence principle. On the other hand, only the executory acts committed in irresponsible state are considered to be a criminal attempt, as in the exception model. In fact, the notion of “criminal act” is amplified by including provocation alongside executory acts. The study continues with an investigation on the punishment modalities for actio libera in causa done with intention, or culpa. The latter are presented in detail, due to doctrinary controversies on the existence of actio libera in causa executed with culpa, and on the juridical foundation of this particular figure. Finally, the author deals with the effects that this institution has in the Romanian law. She considers that, in the cases in which the subject intentionally causes the irresponsible state, aiming to commit, in this state, a determinate offence in the future, he will be liable for a crime committed with intention (under the condition that he does commit the crime). If the subject did not intend to perpetrate an offence, and did not provoke irresponsibility with such an aim, but did foresee and accept that, while irresponsible, he could perform such an act, he wi

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