Contopirea pedepselor într-un caz particular de recidiva postcondamnatorie din perspectiva actualului si noului Cod penal
Merging criminal Punishments in a particular Case of Relapse after Conviction. Perspectives on the current and new Romanian Criminal Code

Summary/Abstract: The author analyzes a particular case of second offences involving a natural person, which implies several law issues discussed so far by the Criminal Law literature, based on the current Criminal Code and also states the solution of such issues given by the texts of the new Code which will come into force in the near future. The article commence by presenting the state of facts, which is the object of the study. During his execution of a sentence of imprisonment, the defendant committed two other crimes and the court considered sufficient punishing him with two criminal fines. The author further analyzes the systems of merging these three criminal penalties, in order to reach a solution in accordance with equity. Regarding the possibility that a fine could be the object of the second term of relapse, there is no doubt, as long as it is provided alternatively with an imprisonment exceeding one year. In what follows, the author presents the two methods revealed by the Romanian Criminal law literature, that involve merging two penal sentences for crimes committed after a final conviction, therefore having to deal with two types of plurality of offences: concurrence of offences and relapse. The court is not bound by the law to use any of the two following methods, but it is held by rational and pragmatic reasons. The first method involves applying with priority the rules that govern the relapse between the first penalty with each penalty that follows, in our case with each of the two fines. The second method, which is no longer supported by our contemporary authors of Criminal Law, involves applying first the rules that govern the sanctions for concurrence of offences, merging the last two offences and only then merging the resultant penalty with the imprisonment. Merging the penalties under the first method raises some serious issues in what concerns the proportionality of punishment. By doing so, depending on when the last two crimes were committed, under the article 39 of the Romanian Criminal Code, the court has even a slight possibility to increase the penalty of imprisonment, even though it imposed two criminal fines for committing two crimes that involve a low social risk. To avoid such a disproportionate application of the law, the author proposed that the court should use the second method of merging the penalties. As a consequence the court can only increase the amount of fines, provided that the other conditions regarding the relapse are met. Notwithstanding the case when a court has to merge several penalties of imprisonment and it is held by rational and pragmatic arguments to apply the first method, in what regards the present case analyzed by the author, it is considered an exception which involves no rational or pragmatic issues for applying the second method. Finally, the last section of the article treats the solution given by the new penal code of Romania for merging a penalty of imprisonment with two other criminal punishments established by the court for committing crimes after a conviction. The author examines the rules and sanctions provided by the new Criminal Code in what regards relapse and concurrence of offences, in order to reach to a solution for the current case. As expressly provided by Article 43, the present case can be recognized among the texts of the new Criminal Code, as a final decision that puts an end to decades of controversy in criminal literature. The Code states that whenever is committed a plurality of offences after a final conviction of imprisonment, provided that at least one of the offences is in relapse with the first penalty, all of the posterior offences should be merged according to the rules that govern the concurrence of offences with priority, and the resultant of that merged with the first penalty according to the rules of relapse. The reason for returning to the way criminal punishments were merged under the Criminal Code from 1936, is related to the judicial cumulative sentencing system being switched with the arithmetical cumulative sentencing system and the disproportionate consequences upon the final penalty that would imply merging criminal punishments according to the current method.

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