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Unification of Criminal Law After the Great Union – the 1936 Criminal Code

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Unification of Criminal Law After the Great Union – the 1936 Criminal Code Law170 Review vol. VIII, issue 2, July-December 2018, pp. 170-177 IULIU CRĂCANĂ UNIFICATION OF CRIMINAL LAW AFTER THE GREAT UNION – THE 1936 CRIMINAL CODE Iuliu Crăcană The Great Union of 1918 was an exceptional achievement of the Romanian nation, but also of the political class that was able to take advantage of the international post-World War I situation. Immediately, the same political class was faced with a new challenge, consolidating the state by continuing unification at all levels: the administrative system, the education system, and so on. Among these, unifying the right on two components was of particular importance: judicial organization throughout the country and, above all, unification of legislation. As regards the judicial organization, the gradual measures have yielded satisfactory results in a relatively medium time by introducing the Romanian language into all Romanian courts, bringing the competences of the courts and the way of appointing justice cadres and the way of advancement. In terms of legislative unification, however, impediments were much larger and more complex, not by political will or administrative efficiency, but by the science of law. The Romanian state had to decide what kind of law to govern in the legal relations in the future. It was therefore necessary to consult the specialists and to set up committees and working groups of law professionals, which has happened. The founding of Great Romania, as in other states completed under the peace treaty, created a situation in the field of criminal law, with a plurality of laws being in force, namely the 1964 Criminal Code of the Old Kingdom, the Hungarian Criminal Code of 1878 and the Conventions Code (in Transylvania), the Austrian Penal Code of 1852 (in Bukovina), the Russian Criminal Code of 1903 in Bessarabia. In Bessarabia, by exception, by Decree-Law no. 1730 of 2 May 1919 were extended with effect from July 1, 1919, the Criminal Code and the Criminal Procedure Code, the Law and Regulation of the Prisoners of the Old Kingdom, while maintaining only one provision of the Russian Code, the one on conditional release before term1. In the rest of the territory, "for legislative reasons, for a time, the Romanian state chose to maintain all criminal laws in force until a new Criminal Code was drafted"2. The measure, however, was only a temporary one, the obligation "to 1 Nicolae-Cristian Ursulescu, Judicial Organization in Romania between 1918 and 1938, Demiurgical Publishing House, Iasi, 2012, p. 89. 2 Vintilă Dongoroz, Criminal Law Treaty, Bucharest, 1939, p. 81. Unification of Criminal Law after the Great Union – the 1936 Criminal Code 171 review all codices and existing laws" was stipulated in the 1923 Constitution3. Moreover, a special commission for the unification of criminal law was set up in 1920, and it ended its work in 1925 when its powers were taken over by the Legislative Council4. After The First World War, in most states in Europe there is a real effervescence of criminal science. The consequences of the war, a growing criminality5 and the reconfiguration of Europe's political map are followed by Criminal Code projects in Germany, Czechoslovakia, Serbia, Poland, Greece, Italy. There is a continuous dialogue between European specialists at congresses and international conferences. On March 30, 1924, the Romanian Society of Comparative Legislation, affiliated to the Comparative Legislation Society of Paris, was established6. After 1918, besides the territory of Bessarabia, the attempts to extend the laws of the Old Kingdom experienced difficulties, most of them were encountered in Transylvania, so it could not be accomplished by authoritarian gesture. Constantin Hamangiu's attempt to unify by extension in the new provinces was met with a strong resistance7. Efforts to develop new codes have intensified since the establishment of the Legislative Council. The first draft of the Criminal Code was submitted in the offices of the Assembly in 19288 and the second in 1933. Both projects were withdrawn by succeeding governments, and only the third, the one submitted by the Justice Minister at that time, Victor Antonescu, in 1934, was debated and adopted. Meanwhile, several legal provisions have been repealed, namely the death penalty in Hungarian law enforced in Transylvania and the Austrian legislation in force in Bukovina. In parallel, special criminal laws applicable throughout the country imposed by new social and economic realities, such as the Law on stopping and suppressing illegal speculation adopted on June 17, 1923, were adopted. Although the deeds they were pursuing were already decreasing, they were incriminated facts such as deceiving buyers by replacing goods, falsifying or distorting goods and forfeiting goods, exceeding maximum prices, and so on. 3 Article 137 of the 1923 Constitution. 4 The Legislative Council was established by the Law of 26 February 1925 to assist in the preparation of laws in a consultative manner. In its task was elaborated the drafts for unification of all judicial codes. 5 After The First World War, Professor Jean Rădulescu pointed out, the society was in a position where "a better organized struggle against increasing criminality was needed" (Jean Rădulescu, The Influence of Italian Positivism on Current Criminal Codification, in "The Review of Criminal Law and Science penitentiary"), vol. 14, 1935, p. 122. 6 Nicolae-Cristian Ursulescu, Quoted Opera, p. 174. 7 Constantin G. Rătescu, et al., Criminal Code II annotated, Vol. I, General part, "Preface", Book publishing house SOCEC & Co., Bucharest 1937, page IX. 8 P.N.T., a party that dominated the legislative forum in 1928, considered the document's provisions to be inadequate. 172 IULIU CRĂCANĂ Other laws applicable throughout the country have emerged from the need to criminalize some crimes against state security and against public peace, defense of the state order against terrorist acts. In response to the Soviet aggressive policy that organized subversive military action on Romanian territory, on December 19, 1924, the Law for the suppression of new crimes against public silence (called Mârzescu Law, after its initiator) was adopted, in which actions were accused anti-state measures such as those aimed at violently changing the social and state order, entering into ties with persons or associations from abroad to receive instructions and aids, affiliation to associations urging or organizing actions against property and persons, execution of propaganda actions in various forms9. As a result of the railway workers' strike at Griviţa Workshops in Bucharest, the Law for the authorization of the siege was promulgated on 4 February 1933, whereby the government was empowered to decree, if necessary, the general or partial state of imprisonment for 6 months, and, later, in the context of intensifying far-right political activities, new laws were passed on 16 March 1934 and 15 March 1937 authorizing the establishment of the siege. Following the assassination by the legionnaires of Prime Minister I.G. Duca on April 7, 1934, the Law for the defense of the state order was promulgated, allowing the Council of Ministers to dissolve the political groups that threatened the political order or the social order in the state. Simply participating in the activities of such groups could be punished with correctional jails and correctional bans. That is why any analysis of the Criminal Code of 193610 must go from an understanding of the two contexts in which it was adopted: the scientific context and the political context. From a scientific point of view, the Criminal Code of 1936 was on the positivist line that tended to impose itself in the criminal policy of the surrounding states. The Italian positivism influenced by the evolutionist doctrine and the application of the positive induction method in all domains has also emerged in the field of criminal law as an alternative, in opposition to the classical school. The research of Franz Joseph Gall11 and Benedict Auguste Morel12 was theorized by 9 In 1927, due to the Dynastic crisis triggered by the death of King Ferdinand, when Prince Carol had renounced the throne, the Mârzescu’s law was granted some additions, and the actions against the King's person, the Regency's constitution, or the legal succession to the throne were accused. 10 Although it came into force on January 1, 1937, we will continue to name it after the date of its adoption. 11 Franz Joseph Gall (1758-1828) studied medicine in Strasbourg and Vienna, being primarily concerned with brain anatomy. Between 1810-1819 author of the paper: "Anatomy and physiology of the nervous system in general and of the brain in particular". 12 Benedict August Morel (1809-1873), a professor of psychiatric physics, worked in a public asylum where he carried out research into a vast work: "Treaty on the physical, intellectual and moral degeneration of the human species". Unification of Criminal Law after the Great Union – the 1936 Criminal Code 173 representatives of the Italian positivist school Cesare Lombroso13, Rafaelle Garofalo14, Enrico Ferri15. The influence of the Italian Criminal Code, the most recent Criminal Code adopted in the countries to which Romania was looking at, adopted in October 1930, entered into force in July the following year. Unlike the classical doctrine, according to which the individual, endowed with free will, has exclusive moral and criminal responsibility and the criminal law has to deal only with the repressive reaction, and not in a preventive way, the positivist school investigates the criminal phenomena using the inductive or positive method, based on observation and experimentation used in the natural sciences. First viewed as a social and natural phenomenon and then as a legal phenomenon, the offense is a product of an individual, and the individual, the offender or the offender " is not free in its manifestations but is determined by biological, social and cosmoteluric factors.
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