Waiver of penalty in Romania

Waiver of the Application of the Punishment – Criminal Code in Romania

The waiver of the application of the punishment is regulated by Article 80 of the Criminal Code and consists of the right of the court to definitively waive the determination and application of a punishment. Regarding the legal nature of this institution, there is no consensus in specialized literature. Some scholars argue that it is a way to replace criminal liability with administrative liability, others believe it is a cause for removing the criminal nature of the act, while according to another opinion, the waiver of the application of the punishment is merely a method of individualizing the execution of the punishment.

In this article, we focus strictly on the conditions of application and the effects produced by this institution.

According to Article 80 of the Romanian Criminal Code, the court may order the waiver of the application of the punishment only if the following conditions are cumulatively met:

1. The committed offense has a low severity, considering the nature and extent of the consequences, the means used, the manner and circumstances in which it was committed, the motive, and the intended purpose;
2. The court deems that applying a punishment would be inappropriate due to the consequences it would have on the offender, taking into account their personality, prior conduct before committing the offense, efforts made to remove or reduce the consequences of the offense, as well as their potential for rehabilitation;
3. The offender must not have a prior conviction, except for the cases provided in Article 42 letters a) and b) (i.e., acts no longer classified as criminal offenses and amnestied offenses) or cases where rehabilitation has occurred, or the rehabilitation term has expired;
4. The offender must not have benefited from a waiver of the application of the punishment in the last 2 years prior to the date of committing the offense for which they are being tried;
5. The offender must not have evaded criminal prosecution or trial, nor attempted to hinder the discovery of the truth or the identification and prosecution of the perpetrator or participants;
6. The punishment prescribed by law for the committed offense is a fine or imprisonment of no more than 5 years.

If all these conditions are met, the court may resolve the case by waiving the application of the punishment, which means that not only is no punishment applied, but it is not determined at all. When ordering the waiver of the application of the punishment, the court issues a warning to the person who committed the offense. According to Article 81 of the Criminal Code, this warning includes the factual reasons that led to the waiver of the punishment and notifies the offender about their future conduct and the consequences they face if they commit further offenses.

Regarding the effects of waiving the application of the punishment, the main effect of this institution is that the person for whom the waiver of the punishment was ordered will not be subject to any disqualifications, prohibitions, or incapacities that could result from the committed offense. However, it must also be mentioned that the person will not be exempt from civil obligations or from executing security measures. In this context, the following question often arises:

Does the waiver of the application of the punishment appear on the criminal record in Romania?

The answer to this question can be found in Law No. 290/2004 regarding the criminal record. Article 9 of this legal act states that the criminal record includes data concerning: “punishments, security and educational measures, pronounced by final court decisions, the beginning, interruption, and termination of the execution of imprisonment, security and educational measures, conditional release and its revocation, payment of the criminal fine, amnesty, pardon, prescription of punishment execution, rehabilitation, penalties, and measures pronounced by final criminal court decisions from foreign courts, as well as measures taken through acts performed by foreign judicial authorities, if these decisions have been recognized by the competent Romanian authorities, final decisions imposing modifications in the criminal record, extradition.”

Thus, since Romanian law does not provide for the recording of waivers of the application of the punishment, we can conclude that these waivers will not be mentioned in the criminal record extracts. Additionally, it is important to emphasize that the warning issued by the court in such cases will have no influence on the criminal record, as its role, as stated above, is to present the factual reasons for the waiver and to warn the offender about their future conduct and the consequences they face if they continue to commit offenses.

Finally, it should be noted that the waiver of the application of the punishment cannot be revoked, only annulled. Article 82 paragraph (3) of the Criminal Code sets out the necessary conditions for annulling a waiver. According to this paragraph, the waiver of the application of the punishment is annulled if:

1. The person for whom the waiver was ordered committed another offense before the final ruling on the waiver;
2. The respective offense was discovered within two years from the date of the final ruling on the waiver;
3. A punishment was determined for the respective offense even after the expiration of this term.