Brief considerations regarding the consequences determined by Law no. 146/2021 in the matter of plurality of offences sanctioning

Abstract

Law no. 146/2021 on electronic monitoring in judicial and executional criminal proceedings brought several amendments to the provisions of Article 285 Criminal Code, which incriminates the escape. The most important of these is the waiver of the mandatory arithmetic addition between the punishment for escape and the rest of the punishment from the execution of which the convict escaped. If the escape is a repeat offence related to the offence from whose execution the person escaped, the amendments have no effect; the sanctioning system for this type of repeat offence is similar. However, if an intermediate plurality exists, the new regulation is more favorable, as the penalty will be determined according to the sanctioning system of the concurrence. Thus, in this case, the new law will be applicable, as the case may be, based on Article 5 or 6 from the Criminal Code on the more lenient law.

However, it should be mentioned that the sanctioning system based on arithmetic addition is preserved in cases of forms assimilated to escape, as provided by Article 285 paragraph (3) a) and b)—unjustified non-appearance of the convicted person at the place of detention, at the expiration of the period in which he was legally at liberty, and leaving, without authorization, the workplace outside the place of detention holding. Thus, a question arises as to the compatibility of this option with the principle of equality before the law and the proportionality of criminal repression. Indeed, it may seem more difficult to justify the application of an arithmetic addition in the case of a person who has proved less dangerous and has been granted permission to leave the penitentiary or to work outside the place of detention, as long as in the case of a more dangerous convict, who did not benefit from these facilities and escapes from the place of detention, the legal addition is applied (the conditions of an intermediate plurality being met). However, we believe that the solution remains within the discretion of the legislator, this being not the only case in which the legislator opted for a harsher sanctioning system in case of a convict who has been trusted and obtained some facilities in the execution of the sentence, compared to the one who executes it according to the common law.