Description
In order to address the issue of the degree of influence of the French law over the Romanian law in the field of criminal sanctions, the research uses a comparative study. Taking into consideration the richness and the transversal character of criminal sanctions law, which interest both private and public law, a triple approach is being used: philosophical, criminal and constitutional. The study is realised having in mind a theoretical angle (study of norms), but also a practical one (study of case law and criminal policy, as well as the statistics). In order to answer in a structured manner to the proposed problem, starting from the many legal provisions in this field, the comparative study is oriented towards two directions which allow the analysis of the main actual problems related to this topic: the first corresponds to a fundamental and director principle of this discipline – the principle of individualization of sanctions, known to both French and Romanian law. The second direction correspond to the criminal sanction which remains the main penalty: the imprisonment (also including life imprisonment).
The plan of the research is thus the following:
Part I. The principle of individualization of criminal sanctions
In this direction, the first part is dedicated to the study of this principle and to its recognition in France and Romania.
I. Definition and legal nature of the principle of individualization of criminal sanctions
A. Origin, definition
B. Legal value
The second part analyses the manifestations of this fundamental principle, which is common to the two legislations. In a comparative manner, the study analyses the different instruments and institutions which allow the individualization of penalties in the legal, judiciary and administrative field.
II. The expression of the principle of individualization of criminal sanctions
A. Legal individualization of sanctions
It consists in studying the instruments created by French and Romanian legislators in order to individualize the sanctions. These instruments consist in: the diversification of penalties provided by the law (multiplication of penalties having different nature, alternative and complementary penalties, privative and restrictive penalties/patrimonial penalties, penalties applicable to natural and legal persons), the aggravating causes (aggravating circumstances and recidivism), the mitigating causes (mitigating circumstances, attenuations of penalties – for minors and persons who suffer from psychical disorders).
B. Judiciary and administrative individualization
Such form of individualization consists in choosing the sanction by the judge. This form is realized by choosing the penalty (the determination of the duration and of enforcement ways – the surveillance term and its duration) or by not choosing a penalty (admission of guilt followed by waiving the penalty or postponing the penalty). Also, the judiciary individualization is being realized by choosing the personalisation of penalty, which means that the study will focus on this issue as well.
III. The implications and the limits of the principle of individualization of sanctions
In the same time, the consequences and the limits of the principle of individualization of sanctions shall be taken into consideration, by offering some significant examples.
A. Example of implication: interdiction of automatic penalties
It refers to the interdiction to apply a penalty without being pronounced (in French constitutional law, there are several decisions of Constitutional Council in this respect).
B. Example of limit: providing minimal and maximal penalties
Part II. Imprisoment
The second direction is dedicated to the study of imprisonment and of the very numerous problems raised in connection to its enforcement and its prolongation for surveillance. The common problems in the two States (for instance, prison overcrowding) or specific to each one of it (for example, safety measures in France) shall be addressed taking into account the degree of influence of the French law on the Romanian law in this field.
I. Enforcement of imprisonment
A. Problems related to short term penalties
This part covers matters as prison overcrowding and ways of avoiding imprisonment/ probation.
B. Problems related to long term penalties, such as life imprisonment or safety period (which exists in French law).
C. Problems related to life in prison
Important matters are addressed, such as detention conditions (art. 3 of the European Convention of Human Rights and the Court’s case law), medical care during detention and suspension of enforcement of penalties for medical reasons, work in prison (legal framework, organization), disciplinary procedure.
II. The prolongation of the enforcement of penalties
This part covers the safety measures and accessory penalties, privative and restrictive measures in order to allow surveillance after the enforcement of penalty, legal nature of these measures, the determination of their legal regime.