Special confiscation - Monica Pocora

The work "Special confiscation" is a particularly valuable research that focuses on a very sensitive issue and has serious implications for the protection of fundamental human rights. It is about the confiscation of property that in one way or another are related to the commission a crime or only a deed provided by the criminal law, as the case may be.

The legal literature shows that criminal norms, like any other category of legal norms, are composed of a precept and a sanction, the precept creating and describing the illicit, and the sanction characterizing this illicit as criminal. For this reason, the criminal sanction is one of the terms of the crime and not an element of it. An inconvenient activity from a social point of view can be declared as an illegal act by any branch of law, but it can only be qualified as a crime insofar as the sanction provided for that fact is a criminal sanction.

In legal language, the word "crime" is reserved for the field of criminal law, just as the term "punishment" is reserved for criminal law sanctions. In this way, stricto sensu, by criminal sanction is meant punishment. In an extended perception of the sanction as a consequence of the violation of the law, criminal sanctions or, more precisely, sanctions of criminal law are both punishments (as repressive measures) and security measures (as preventive measures).

In any case, however, both punishments and security measures are the legal consequence of the crime because they have their primary cause in it.

In fact, the problem of identifying the most effective social reaction to committing an antisocial act of high gravity has always been a problem that has provoked and still provokes heated discussions. In arguing this statement that we have just made, we bring elements that are related to the concept of "alternative sanctions" increasingly agreed in the present and that tend to solve a paradox facing the field of interest - that of ensures the resocialization of those who commit acts of high gravity through measures to isolate them from the social environment.

The punishment itself, as a criminal sanction, had to go through a whole history in order to establish what functions it has, without being able to state that there is a full consensus about it. In the literature it is considered that the functions and immediate purposes of punishment are:

The function of coercion or repression. This is because, being a measure of state coercion, the punishment is inconceivable without causing a certain suffering, without imposing a deprivation or restriction on the convict and without the disapproval that accompanies it. For this reason, the punishment is a sanctioning equivalent of the degree of social danger presented by the committed deed and its perpetrator and therefore is always a repressive measure, without this character being the essence of the punishment. The repressive character of the punishment increases or decreases depending on the gravity of the crime committed.

The re-education function is the one that allows the constraint function to be completed for the purpose of re-education. Repression as a single objective cannot ensure the achievement of the rule of law, even art. 52 para. 2 C. pen. in force, prohibiting the physical suffering and humiliation of the convict. Punishment does not achieve revenge, but must aim at re-educating and correcting the convict, or this purpose can not be achieved when the person is humiliated and tortured.

The exemplary function as an adjacent function is the one that consists in the influence that the punishment applied to the convict exerts on other persons. It is a function of intimidating those members of society who would be tempted to commit antisocial behaviors, and in order for efficiency to be maximum, it is mandatory that the application be made promptly.

The elimination function is also an adjacent function, which consists in the temporary or definitive elimination of the convict from society. Temporary elimination is carried out whenever the prison sentence is executed in places of detention, which appears necessary in the case of crimes with a high degree of social danger. Definitive removal of the convict from society is possible only in cases strictly provided by law, when the offender is sentenced to life imprisonment.

Thus outlined, the punishment as a criminal sanction was sometimes found in the situation of being inefficient and not being able to exercise their functions in particular cases in which the persons who committed the deeds were among those who did not meet the general conditions of responsibility in this field. It is, for example, the case of the mentally insane or of the minor who is not criminally liable and who cannot bear the criminal sanction because its only basis is missing - the crime. That's exactly why we felt it The need to create another type of sanctions, criminal law sanctions this time, to complete the functions of punishment.

In this way, the safety measures appeared as means of coercion with a purely preventive character, destined to remove a state of danger and to prevent the commission of the deeds provided by the criminal law. These "states of danger", distinct from the social danger posed by the crime, are specifically provided by criminal law and generally concern the person of the perpetrator. As shown in the doctrine, through their content and legal nature, security measures appear as a new type of criminal law sanction, intended to replace or supplement the punishment in the fight against crime; that is why the institution of security measures is known today in practically all contemporary criminal legislations
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These being the elements from which we start in our research, we consider it of special importance the monographic study of special confiscation as a security measure with multiple features, including within the legal category to which it belongs, and which has multiple reflections in legal instruments developed and adopted at different levels and under the auspices of international organizations. We will pay special attention to the way in which this reflection is done concretely, with the research of the legal instruments of special relevance in the matter, but also to the analysis of the regulations of the special confiscation from different countries of the world.

We appreciate that these elements are very important at present, when the Romanian criminal legislation is in an accentuated process of reform and resettlement, especially on the line of alignment with the European exigencies in the matter.