Unele consideratii privind infractiunea de hartuire introdusa de noul Cod penal
Some Remarks on the Crime of Harrasment, introduced by the new Criminal Code

Summary/Abstract: In his study, the author draws attention on the offence of harrassment, provided by the new Criminal Code for the first time in the Romanian legislation. The article sets off with some preliminary remarks on the concept of harrasment and the different forms it may embrace. A particular relevance is given to stalking, both because of its frequence and because of the grave consequences it has on the victims. In the follow up, the analysis focuses on the so-called phenomenon of stalking. Over the last few decades stalking has become increasingly prevalent throughout the civilized world, developing into a legal and social phenomenon. In this particular section, the author deals mainly with the latter aspects, trying to identify the reasons behind stalking and the background of the stalker. Using the results from different surveys from major European countries and from the United States, a conclusion is drawn regarding the motives of the stalker and, therefore, different stalker profiles are identified. In the final part, the repercussions of this phenomenon on the victims is duly analyzed, only to establish that stalkers can have a devastating effect on the lives of their victims and that stalking has medically acknowledged negative mental effects on its victims. Moving forward to the legal aspects of harassment, the study presents the reasons which stood behind the option of the Romanian legislator. As the drafters of the Code recognized – in the Giving of Reasons of the new Code – that their model of inspirations were the correspondent provisions from Netherlands, Switzerland, France or Great Britain (especially, Public Order Act 1986 and Protection from Harassment Act 1997), a special section is dedicated to the detailed presentation of these texts, as well as similar offences from other legislations, enacted during this time (e.g. Italy) or which were not considered, for whatever reasons, by the Romanian drafters (e.g., Japan). The major part of the study analyzis the elements of the offence of harrasment – article 208 of the new Criminal Code. In an unconventional manner, the study focuses only on particular aspects which can prove to be difficult to interpret in the future jurisprudence of the Romanian courts. In doing so, the autor presents, in a comparative view, the different versions of the offence of harrasment, provided by previous drafts of the new Code. Regarding the constituent elements of the crime, the author considers that the legislator tried to cover all relevant types of stalking, but with great amount of care, in order not to restrict in an unprecedent manner the constitutional rights of a person (the alleged stalker). The dilligence of the Romanian legislator is to be understand, when, in the final chapter of his study, the author presents some of the perils derived from incriminating conducts which amount to harassment. The abuse of the legal text both by alleged victims – in reality person sufering from different psihological diseases (especially, persecutory dillusions) –, and by the authorities, who often missinterpred the legal provision from whaever reasons (e.g., Great Britain) underlines the possible slippery slope of harrassment. All these problems must have been taken into count by the Romanian legislator who, in a bold manner, still decided to penalize such conducts. We will see in the near future the manner in which the Romanian courts will deal with this new and unconventional offence.

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