Academic journal article Contemporary Readings in Law and Social Justice

Considerations regarding the Legal Nature of the Continued Offence

Academic journal article Contemporary Readings in Law and Social Justice

Considerations regarding the Legal Nature of the Continued Offence

Article excerpt

ABSTRACT.

The criminal offence continued as a criminal unit is the legal expression of an objective reality, actions-inactions appear as parts of a single criminal activities carried out in time, based on a unique resolution and straightened out to produce a global result, as the sum of the results generated by each individual action-inaction.

Keywords: continued offence, punishment, criminal unity, criminal resolution

During the evolution of criminal regulations, the continued offence issue arose from the need to mitigate the severity of punishments applied in the case of repeating the same facts, at short time intervals.

Italian authors emphasize that the continued offence originates in the practice of medieval Italian lawyers, who were seeking thus to mitigate the severe punishment to which those who committed offences of the same kind, repeated several times, were exposed.1

The notion of continued offence was drafted in the twelfth century by glossators: "When several offences have the same objective, they are punished as one, if committed separately in the course of a single aggressive action, or in the course of various aggressive actions, which means that if you insult someone and that hurts him, you are punished only for the harm, because you have insulted with the purpose of harming."2

Later, this concept was developed in feudal law flourishing period, as a reaction to harden penalties of the time. The modeling of the legal thinking during feudalism generated innovative visions in dealing with cases of committing one and the same criminal act, repeatedly, especially when they were committed under identical circumstances.

The situation required a remedy, especially in relation to the offence of theft. For the third theft, even trivial, the perpetrator was liable to the death penalty: "si tarnen reiteratur tertia vice, potest tribus fiurtis, quamvis minimis, poena mortis imponi" (If he still reiterates three times, he may be punished by death, even for three very small thefts). To avoid the application of this penalty and, in general, not to proceed to the accumulation of penalties set for similar repeated crimes, it was considered - in relation to certain criteria, about the time and place of the crime committing etc. - that the ensemble of several crimes of the same kind committed sequentially, constituted a single offence. Also, as a consequence, it was decided, especially concerning the offence of adultery, that in such cases, the prescription began to run from the date of termination of the criminal activity.3

F. Carrara, followed by most authors, believed that the elaboration of the continued offence concept was due to Julius Clarus and Prosper Farinacius, legal practitioners from the 16th and 17th centuries, whose work exerted an immense influence on judicial practice in all Western European countries until the eve of the French Revolution. Farinaicus claimed that it was not considered that there were more thefts, but one, when someone stole a thing or more, from the same place, but at different moments, continuously and successively". Another lawyer practicing at the time, Bendictus Carpsovius conceived also the "singulis delictis singulae poenae complétât" rule ("one sentence for each offence").4

Referring to Romanian criminal doctrine, we can grasp that initially, a clear distinction between the continuous offence and the continued offence could not be made. For example, I. Tanoviceanu did not distinguish between the two categories of offences, encompassing the continued offence into the continuous offence. The author considered the continuity theory as being "an obscure and controversial theory" and proposed to abandon it, not being necessary anymore, as long as, on the one hand, the law did not provide an excessive punishment for a "third offence committed", and on the other hand, for the extension of the prescription period in the case of continuous offences, there was no need for a "division of instantaneous and continuous offences. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.