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MIHAI DUNEA, Legal opinion on the possibility of deducting the duration of deprivation of liberty ...

Abstract: According to the provisions contained in art. 124 of the current Romanian Criminal Code, the legislator regulates the first (and easiest) of the custodial educational measures (educational measures consisting in the deprivation of liberty) applicable to the juvenile offender, represented by the internment in an educational center. In accordance with the provisions of par. 3 of this article, the law regulates a particular hypothesis of plurality of crimes (as the case may be, concurrent multiple offenses or the so-called sui generis plurality of crimes) that may exist with respect to the minor offender who executes this educational measure. We consider the situation in which, during this execution, the minor is either tried (and then convicted) for a previous offense, concurrent with the one that determined his internment, or commits a new offense. In these cases, the law establishes, from a sanctioning point of view, the possibility for the court to choose one of two possible options: either the educational measure already ordered (internment in an educational center) will be maintained, and its duration extended (but without being able to exceed, thus, the maximum provided by law - 3 years); or this educational measure (of deprivation of liberty in a educational center) will be replaced by the more severe one, that of internment in a detention center (regulated by article 125 of the Romanian Criminal Code). It should be noted that art. 125 par. 3 of the Romanian Criminal Code, in relation to the relatively similar case of the extension of the internment in a detention center, for the same reasons as those indicated in art. 124 par. 3, expressly prescribes the deduction from the established final duration of the educational measure in question, of the part already executed, previously, of it (as a result of its initial application for the first offense definitively tried). However, unlike this (somewhat) similar hypothesis, regulated by art. 125 par. 3 of the Romanian Criminal Code, the legislator does not expressly provide anything in art. 124 par. 3, regarding the deduction of the period of deprivation of liberty already executed as internment in the educational center, from the duration of the internment in the detention center finally ordered (by replacing the internment in the educational center) in consideration of the entire plurality of crimes committed by the juvenile offender. Therefore, as there are possibilities for heterogeneous interpretation of this situation in the light of pertinent arguments (from one point of view one can argue the need for this deduction, from another, on the contrary, its impossibility), this legal issue has come to be the subject of a referral to the Panel of judges for resolving legal issues in criminal matters within the High Court of Cassation and Justice of Romania, in order to issue a preliminary ruling, mandatory for the courts, that would legally resolve this dispute. This article is a processing (in some places, a development) of the legal opinion formulated in response to the request to communicate an informed point of view on this issue.

Key words: educational measures involving deprivation of liberty: internment in the educational center/internment in the detention center; deduction of deprivation of liberty; interpretation of criminal law; strict interpretation/extensive interpretation/analogical interpretation in bona partem; concurrent multiple offenses in the case of the minor offender/sui generis plurality of offenses.

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