Journal of Public Administration, Finance and Law [618623]

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APPROACHES ON THE LEGAL NATURE OF THE OFFENSE
PROVIDED BY ARTICLE 200 FROM THE NEW ROMANIAN
CRIMINAL CODE: MURDER OR INJURY OF THE NEWBORN
COMMITED BY THE MOTHER

Mihai DUNEA
Faculty of Law, „Alexandru Ioan Cuza” University from Iași
Iași, Romania
[anonimizat]

Acknowledgement : This work was supported by the strategic grant
POSDRU/159/1.5/S/141699, Project ID 141699, co -financed by the European Social
Fund within the Sectorial Operational Program Human Resources Development 2007 –
2013 .

Abstract: The current arti cle approaches the issue of the judicial classifying specific to the criminality
norm provided by art. 200 of the New Romanian Criminal Code, analyzing the options and following the
consequences, produced by adopting each one of these, in correlation to so me institutions regulated in the
general section of the Criminal Code, that is the participation or the prescription. The analyzed criminality
norm gives expression, without any doubt, to a manifestation of mitigating type in the criminal policy of the
current Romanian lawmaker, comparing the incrimination norms from which it derives, that is murder,
respectively the basic crimes against the body integrity or of the physical health of a person. However,
there are many ways and means available to the lawmake r, in which it is possible to express this mitigating
tendency and each one of these determines a different impact on some general institutions of the Criminal
Law, which this current article analyzes by means of particularization to the hypothesis of the
incrimination of murder or injury of the newborn, committed by the mother.
Keywords: art. 200 Romanian Criminal Law; the infanticide or the injury of the newborn by the mother;
mitigation; judicial nature; implications on some general institutions of the R omanian Criminal Law.

AN OVERVIEW ON THE REGULATION EVOLUTION: FROM THE
PREVIOUS CRIMINAL CODE TO THE NEW ROMANIAN CRIMINAL CODE

On February 1, 2014, the legal system in Romania has experienced the
annulation , after more than four decades of activity, of the Criminal Code from 1968
(applicable since January 1, 1969), the latter being replaced by a new Criminal Code
enacted in 2009 (Law no. 286/2009). Among partial transformations that tend to
characterize the new general criminal law in Romania (which was meant to be –
something even announced in its Statement of reasons – a synthesis between the aspects
of local normative tradition in criminal matters and the new aspects of novelty, from
which, many of them we re intended to be influenced by modern reference legislations

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from other states), we may also include the incrimination from article 200, with the
nomen juris : "Murder or injury the newborn committed by the mother".
The regulation from the first paragraph of the article perpetuates, with some
changes, the former incrimination contained in art. 177 of the former Criminal Code,
called "Infanticide" , maintaining as a main characterizing line, the mitigation criminal
policy, in relation to the incrimination of murder (art. 188 Criminal Code in force; art.
174 former Criminal Code), aspect revealed by the substantial gap between the penalties
prescribed by law as a consequence of committing these crimes. The second paragraph
marks a new aspect, tending, in princi ple, to appropriately design this mitigating attitude
of the legislator (in circumstances similar to those in par. 1, to be described below) also
on other incriminated offenses, namely some of the activities which affect the physical
integrity or health, p rovid ed in their basic forms in art. 193-195 from the current
Romanian Criminal Code, which the former regulation did not provide. In order to
operate any mitigation under such circumstances, the former code allowed only the
possibility of the court to seek the institution of the voluntary general mitigating
circumstances, which did not provide, however, in a general manner, the mitigation. As
we shall reveal in more detail below, this latter mitigating trend, which we appreciate to
have led to the provision of art.200, par. 2 from the Criminal Code in force, did not find
(unfortunately), a comprehensive form of expression, thus leading to a discordant niche
of the regulation, which enhances the controversy on the legal nature of the legal
provision analysed h ere.
Under a strictly evolutionary, technical aspect, we advise the reader to focus,
firstly, on the terms of the regulations we have already mentioned, contained in the
former , as well as in the current Romanian Criminal Code.
Thus, while the art. 174 of t he former Criminal Code incriminated, with the side
note "Murder", the act of killing a human (of intentionally suppress his life), providing
for it the main punishment of 10 to 20 years of prison and an additional penalty
(mandatory) consisting of the int erdiction of certain rights ( among those indicated by art.
64 of the former code), the two following articles (175 and 176) governed the aggravated
forms of this offense, under the names of “aggravated murder” (a kind of "first -degree
murder" ) and " extreme ly aggravated murder" , sanctioning them with more severe main
abstract punishments (imprisonment for 15 to 25 years for first -degree murder , and
alternative punishment – either life imprisonment or imprisonment from 15 to 25 years –
for extremely aggravate d murder). In principle, the commission of an act of suppression
of the life of a very young child (known within the universal criminal doctrine as
infanticide ), was legally framed at least as a form of first -degree murder, for such a
victim always represe nted "a person who lacks the capacity to defend itself" (as provided
in art. 175 par. 1 letter d from the former Romanian Criminal Code).
However, to this legal qualification it was extracted the offense committed on a
newborn child, by its own mother, if the murder happened in a relatively short time after
birth (although the law d id not determine the exact extent of this time, it was only stated
that the offense had to be committed "immediately after birth"), and if, in addition, the
offender committed th e offense under the control of a mental diso rder caused by the act
of birth; this offense was provided in a separate text, art. 177 of the former Criminal

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Code , titled (in a mot-a-mot translation) “Infanticide” ( "Filicide" ) – the Romanian term
being “Pruncucidere” – and was provided with a much lower penalty than murder (in its
basic form and – a fortiori – its aggravated forms), namely imprisonment from 2 -7 years
without the requirement for an additional penalty. In addition, while the offense of
attempted murder (simple, first -degree or extremely aggravated) was incriminated and
therefore punishable (according to par. 2 of a rt. 174, 175 and 176 of the former Criminal
Code), such a provision was not also found within art. 177 (from which it came out t hat,
in conjunction with the provision of art. 21 par. 1 of the former Criminal Code, the
attempted filicide, though possible, did not have, in itself, a criminal relevance).
This separate regulation, with the differences thus highlighted with respect to
murder, of the filicide (which was not accompanied, symmetrically, by a norm of a
mitigating nature corresponding to the mother, who under the same circumstances would
have only caused an intentional or praeter -intentional touch or injury of her child or
newborn physical integrity or health), led to discussions in doctrine and practice on the
correct framing of the filicide legal nature. The main views were that of assessing the act
as a stand -alone offense, distinct from that of murder, as a variant or auto nomous species
of homicide, namely that of its consideration as a mitigated form of murder, dependent on
the standard offense from art. 174 of the Criminal Code (for a more detailed exposure and
review of the controversial opinions expressed on the legal n ature of filicide in the former
Romanian criminal doctrine – which can be considered to remain valid, at least in part,
also for the future – see: Dunea , 2007: 203 and the following ones). This latter view has
become, over time, of a major importance, sho wing itself more rational with respect to
the impact triggered by its adoption on some general institutions of criminal law
(especially the one of participation), as well as by correlation to the incrimination goal.
In short: adopting the view according to which the filicide was an autonomous
crime with respect to murder would have led to the reference of the eventual participants
contribution towards the offense (instigators, accomplices, co -authors) as being
participants to filicide, not murder, and the refore the punishment should have been
applied also to them, a lower one than that of murder, p rovided in art. 177 of the former
Criminal Code. The purpose of the regulation, however, was to sanction less severely
(only) the person who had murdered the newb orn baby under a momentary impulse of a
condition that caused a reduction (but not a complete disappearance) of discernment, as a
specific effect of the physiological act of birth (issue that had to be proven, mainly by a
forensic specialized expertise), f or this person appeared to be less dangerous to society,
because of the specific conditions which influenced her while manifesting her criminal
impulse. However, this person could not be other than the woman who had just given
birth; the potential particip ants to the offense, along with this one, could not share with
her the diminished discernment due to a specific event just them, nor did they benefit,
thus, from the legal presumption of a decreased degree of social danger, comparing to
that of any other p erson who would intentionally suppress the life of a human being. As
such, it was logical for them to be denied the access to lower penalty (specific to filicide),
the mitigation brought by its governing being determined by a situation of a (strictly)
personal circumstantial element value, non -objectifiable, and – as such – non-transferable
on the participants, no matter if they had known or had foreseen it! (Michinici & Dunea

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in: Toader et al., 2014: 128, 129). Or, a proprer solution could be achieved only if filicide
was regarded as a mitigated form of murder, mitigation motivated by purely personal
circumstance , in which only the victim's mother could be found, so that her offense was
framed according to art. 177 of the former Criminal Code, as a murder d erived form , by
means of mitigation , and any other participant contributions were to be classified within
the basic offense (murder) from which it was derived the filicide (more exactly, not
within simple murder, but – at least – within the first -degree on e, that is within another
derived form of the basic crime, but with derivation in the sense of criminal liability
aggravation).
Formally, the solution was also supported in terms of legislative technique
employed: if aggravated forms of murder were not reg ulated (as with other
incriminations), even in the same article (in separate paragraphs) in which it was
provided the offense in its basic standard content, but in separate articles (and relatively
different marginal names) , then it would appear symmetrica lly that a form derived by
mitigation from the same incriminating basis should be regulated separately, in another
article, even under an own nomen juris , without however losing the addiction to the
standard crime from which it derived; moreover, the incr imination of all these forms /
versions of murder , was done in a single organizational structure of the special part of the
former Criminal Code: Title II, Chapter I, Section 1.
The criminal irrelevance of the filicide attempt (possible, but non -incrimina ted, so
devoid ed of the ability to generate, by itself, punishment), while the simple murder
attempt and its aggravated forms w ere criminally relevant, we don’t think to have altered
the operational nature of the opinion according to which the filicide rep resented a
mitigated form of murder, whereas it is not needed a symmetry of incrimination in this
regard. A mitigated form of an offense to which is incriminated the attempt for the basic
form, as well as for the aggravating ones, may not know its regulati on itself, precisely
because, being mitigated – therefore carrier of a lower hazard – it is possible that, in the
opinion and criminal policy option of the legislator , to appreciate that the criminal
repression is not justified unless the result of the mit igated offense occurs effectively, and
not if the execution act is conducted without an objective finality. Questionable might be
the hypothesis of an aggravated form of an offense, for which the attempt would not be
provided and sanctioned, although for t he standard form, the legislator would incriminate
it; in case of the mitigated form, however, a similar reasoning can no longer be carried
out with the same success!
For these reasons, we believe that within the regulation of the former Criminal
Code it could have been argued, pertinently from a logico -rational point of view, but also
a formal -structural one, the proper legal nature of filicide, a s mitigated form of murder,
derived from / dependent on it.
The new Criminal Code has operated in this area a number of changes, both
terminological and structural, as well as in terms of content, which raises some additional
difficulties in further support of the same solution. Thus, it was added a dimension
aimin g at the mitigated incrimination not only of the mother’s act, who, within the
context and moments already indicated generically, murders her newborn baby, but also
that of the mother, who under the same circumstances, hurts him or causes injury of his

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physical integrity or health, or causes his death praete r-intentionally (by an exceeded
intention) – intentionally acting only in the sense of hurting or injuring the victim, its
death occurring as a more severe result, imputable on the basis of o lower form of guilt
than intent, namely, any form of negligence . Bringing together these two aspects of
incrimination in a single article (article 200 of the Criminal Code), the legislator also
located this regulation within a different organizational structure of th e special part of the
code – namely Chapter III ("Crimes committed against a family member") from Title I
("Crimes against the person") – than the one within which murder is found – Chapter I
("Crimes against life") from the same title – respectively than the one within which are
provided the basic (and aggravated ) forms of the crimes of common assault, physical
injury and assault or injuries causing death – Chapter II (“Crimes against physical
integrity or health”) of Title I.
There are also some content changes (in par. 1) brought against the former
incrimination of filicide, but these do not constitute the primary object of the present
study, so that we intend, in order to facilitate the reader's task, to indicate below the form
in which it is stipulated , of lege lata , the Article 200 of the Romanian Criminal Code in
force:
"(1) The murder of the newborn baby immediately after birth, but no later than 24 hours,
committed by the mother in a state of mental disorder , shall be punished with
imprisonment of one to five years. (2) If the offenses stipulated in art. 193 -195 [namely,
some of the crimes against physical integrity or health – our specification ] are committed
on the newborn child immediately after birth, but no later than 24 hours, by the mother
found in a state of mental disorder, the special limits of the penalty shall be of one month,
respectively, three years . "

CRITICAL ANALYSIS OF SOME QUESTIONABLE ISSUES OF THE
REGULATION FROM ART. 200 OF THE ROMANIAN CRIMINAL COD E IN
FORCE

As indicated before, the new legislator framed the incrimination of the offense of
newborn murder or injury committed by the mother in another article organizational
group than the one in which are found the incrimination rules from which it was started ,
obviously, the drawing -up of the incrimination contained in art. 200, namely murder and
offenses under art. 193-195 of the Criminal Code. Under these circumstances, to further
assert that we’re dealing with a mitigated form of an offense with a basic content (as we
notice d before, a thing that represented the dominant view regarding filicide, according to
the former code), becomes a more difficult thing to do because, on one hand , the
heterogeneity of the regulation from art. 200 of the Criminal Code break s the unity of
derivation from a single standard incrimination (talking about a link with several separate
offenses) and, on another hand , because a normal legislative technique, meant to raise no
artifici al interpretation problems of an incriminating rule’s legal nature, should not (could
not) frame the mitigated form (but dependent on the standard form) of a basic crime, in
another organizational group of incriminating rules than the one to which belongs the
standard offense itself from which the derivation was made (in t his case, by mitigation).

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In light of these considerations, it would seem that the legislative technique selected for
the d rafting of art. 200 of the new Romanian Criminal Code , revives a contr oversy
apparently solved (or which it was about to be solved) to the contrary of the previous
criminal regulation, supplementing the arguments focused on a formal criteria that would
support the idea that we are in prese nce of a stand -alone incrimination , which can be
explained as a manifestation of mitigated criminal policy in relation to the offenses of
murder, common assault , personal injury or bodily injury causing death, but with no need
to double this explanation by the actual qual ification of the rule from art. 200 of the
Criminal Code as a mitigated form of these crimes / offences .
The consequent result (but unsatisfactory) of such interpretative vision would be
that the role and contribution brought to the commission of such offense by the
participants , other than the mentally disturbed mother, would have to be also reported to
the incrimination of art. 200 from the Criminal Code, thus becoming incidents also for
such persons , the penalties provided by this latter article, in principle lower than those
established for the offenses indicated above (thus, according t o art. 188, for simple
murder, the new Criminal Code provides imprisonment from 10 to 20 years and
interdiction of certain rights – namely, those provided by art. 66 of the Penal Code ;
art.189 sets for the aggravated murder the alternative sanction : life imp risonment or
imprisonment from 15 to 25 years and prohibition of certain rights ; art.200 par. 1
provides only imprisonment from 1 -5 years without interdiction of certain rights; art.193
par.1 has for common assault , in its basic form, the alternative sanction of imprisonment
from 3 months to 2 years or a fine; par.2 sets for aggravated assault the alternative
sanction of imprisonment from 6 months to 5 years or a fine; in art. 194 par. 1 , for simple
bodily injury it is provided the imprison ment from 2 -7 years ; in par. 2 for aggravated
bodily injury , the sanction is imprisonment from 3 -10 years; art.195 provides for bodily
injury causing death a punis hment from 6 -12 years in prison; while in art.200 par. 2 it is
provided for any of these offen ses, committed by mentally disturbed mother of the
newborn, on it, in the first 24 hours after birth, a unique punishment consisting of
imprisonment from 1 month to 3 years). Or, as we said before, the pur pose of the
provision from art. 200 of Criminal Code (which we appreciate to have remained identical
with the one having determined the mitigation of the criminal liability for filicide, in
regard with murder, within the former Criminal Code), is to exert a lower repression
towards a certain active subject with a diminished discernment (due or at least related to
the biologic event of birth), being incidental a special circumstance of a strictly personal
mitigation, thing that continues to exclude, logically, any other participant to the
commission of such a n offense, except the mother, from the benefice of mitigation!
Thus, we believe that the ru le of art. 200 of the new Criminal Code highlights an
interpretative conflict gener ated by a tension (even opposition) between the formal
systematization of the norm – on one hand – and understanding or applying it to the spirit
and the purpose for which it was created – on the other hand (in other words, it is shown a
form of the classic conflict between the interpretation of the law done in its letter and that
done in its spirit ) – which of course, is criticisable as an exercise of legislative technique
and has the ability to lead to non -unitary solutions in the judicial practice (as a result of

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misunderstandings and confusion that could thus create while understandi ng the role,
purpose and position of the incrimination text).
Despite these new challenges, the doctrine analysing the provisions of the new
Criminal Code, published so far, seems to prevail (and thus to perpetuate the view –
which was dominant in the for mer regulation – on the legal nature of fil icide) the point of
view according to which the regulation from art. 200 of the Criminal Code devotes
mitigated forms (therefore , legal ly dependent of the respective basic offenses) of the
offenses of murder, assa ult and battery, injury or bodily injury causing death. It is true
that this idea is not always expressly and clearly stated as such (in some cases, the issue is
not even the subject of an actual conscious analysis), the author's attitude in the matter
being often deduced from indirect or generic formulations towards the mitigated nature of
the sancti oning treatment imposed in art. 200 in relation to the one prescribed in art. 188,
189, 193 -195 of the Criminal Code, o r from the solutions envisaged to the issue of legal
classification of criminal activities of participants in committing the offense, or by noting
that within art. 200 it is not established, per se, an own constitutive content, typical of
autonomous offense. (Bogdan et al., 2014: 67 -69; Neagu in Pascu et al., 2014: 78 -84;
Toader et al., 2014: 350, 351; Udroiu & Constantinescu, 2014: 277; Morosanu in Voicu
et al., 2014: 319).
Sometimes, the lack of concern and direct approach to the problem of the legal
nature of the incrimination from art. 200 of the Criminal Code leads, within the same
specialty papers, to self-contradictory formulations, that properly highlights the
uncertainty (in this respect) of the regulation, as well as the interpretative
counterproductive uncertainty g enerated even by the legislator . Thus, for example,
although from the overall of some exposures , it would come out the adherence to the
opinion of the dependant legal na ture on other incriminations of art. 200 provisions of the
Criminal Code. – as a common framework for the mitigated forms of the offenses
mentioned in the respective legal text – it is also asserted that "the o ffense [of art. 200 of
the Criminal Code. – our specification ] is regulated , according t o the result produced, in a
standard variant and in a mitigated one” afferent to paragraph 1, paragraph 2 respectively .
(Neagu, in Pascu et al., 2014: 79). Or, obviously, it is impos sible for one and the same
incrimination rule to combine two opposing lega l nature s, being also a mitigated form of
another offense (thus, being dependent and subsequent to the fulfilment of the basic
constitutive content of an incrimination rule), as well as standard form (thus an
autonomous, standalone offense) in relation to another provision, that would represent, at
its turn, the mitigated form of the first one. In addition, the reasoning regarding the
provision of paragraph 2 of art. 200 from the Criminal Code as a mitigated form of the
provision of par. 1 of the same article, improperly ignores the observation of a logical rule
which must stand, as it is natural , at the foundation of the normative process of
developing a mitigated form of a crime, namely the fact that the derivation through
mitigation can be only made by starting from the essential elements of the standard
constitutive elements of a basic incrimination. However, it must be mentioned the fact
that the constitutive elements of the offenses described at par. 2 of art. 200 of the
Criminal Code do not derive from the constitutive elements of the offense described in

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par. 1, so the assessment that we are in the presence of an incrimination unit , showing a
standard form and a mitigated form thereof, is – in our opinion – unsustainable .
It must ols o be mentioned , moreover, also as an objectionable aspect of the
regulation of art.200 from the Criminal Code , the lack of consistency in relation to
sanctioning murder, injury and batteries or bodily injury causing death – on one hand –
and respectively t o the battery or other violence – on the other hand. Thus, while the
abstract sentence for killing the newborn by the mother, as described in art.200 of the
Criminal Code, is clearly reduced compared to the one provided for murder (simple and –
even more – first-degree ), mitigating aspect that is still maintained with respect to the
newborn’s injury by the mother, in relation to the incriminations of art .194 and 195 of the
Criminal Code, this is not necessarily the same for the newborn ’s injury by its mothe r by
simply assaulting him or exerting other violent acts causing physical suffering. Thus, as
we have indicated, the legal punishment for common assault (art.193 par. 1) is an
alternative: imprisonment from 3 months to 2 years or a fine. According to art. 200 par. 2,
however, imprisonment in this case, is to be situated between the limits: 1 month – 3
years. Passing over the circumstance that it does not come out clearly from the
formulation of art.200 par. 2 (i n conjunction with the rule of a rt.193 of the C riminal
Code ) if it remains or not valid the sanctioning alternative of the criminal fine in the case
of committing battery or other violence under the conditions indicated by art.200 – what
must, however, be highlighted , also as a flaw of the new provisio n, likely to generate
contradictory interpretations – it is to note that the special limits of the imprisonment
punishment are derived asymmetric ally against the reference standard: the minimum is
lower (which proves a tendency to manifest a mitigation criminal policy, consistent with
the rest of the sanctioning attitude from the analyzed article), while the maximum is
increased (which transmits an inexplicable and contradictory trend to manifest an
aggravating criminal policy, found in disagreement with the very purpose of the
incrimination concerned).
Regarding the comparison betwen the penalty provided in art. 200 par.2 of the
Criminal Code and the one indicated by art. 193 par.2 (aggravated assault ), both of the
special limits of i mprisonment are lower in the first case (which maintains a consistent
attitude of mitigation), but we’re facing again the problem of maintenance or suppression
of the alternative penalty of the fine, without which , it recurs also in this case a n
aggravatin g centrifuge trend, discordant in relation to the general construction of the
article. These major regulating inconsistencies increase the dilemma of the correct legal
qualification of the incrimination rule of art.200 from the Criminal Code, diminishing
thus the success of its argumentation as a mitigated form of the offenses mentioned
within the text, although the purpose of its appreciation in this manner, in comparison to
the purpose of the legal provision and to the institution of criminal participatio n, is not at
all undermined.
Another correlation aspect with general criminal law institutions , that might be
influenced by the adoption of some of the legal qualifications in question, which can be
attributed to the provision from art.200 of the Romanian Criminal Code , is the one related
to the institution of criminal liability temporal limitation . Thus, according to the provision
of art.153 par.2 letter b) Criminal Code , as an exception to the rule of criminal liability

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prescriptibility o f most offenses, it is provided that (along with genocide , crimes against
humanity and crimes of war) are imprescriptible the crimes referred to in art. 188 and 189
and the deliberate offenses followed by death of the victim, namely the offenses of
murder and first-degree murder , respectively praeter -intentional crimes ( committed with
exceeded intention ) that led to death. It is questionable to what extent the legal
classification of art. 200 of the Criminal Code may or may not partial ly draw the
incrimination of this text within the domain of the imprescriptible criminal offenses.
We believe that the discussion tends to refer only to the issue regarding the
newborn murder committed by the mother (art.200 par. 1), because as for the
incrimination of the newborn injury by the mother (art.200 par. 2) things seem to be clear.
Thus, as long as the scope of art. 200 par.2 of the Criminal Code is attracted to the
commission of one of the offenses described in art. 193 or 194 of the Criminal Code, the
rule of the criminal liability pr escriptibility would be applicable , without doubt .
Conversely, if the application of art. 200 par. 2 of the Criminal Code is attracted to a n
assault or bodily injury causing death, then we would be in a case of imprescriptible
crime, under the final provision of art. 153 par. 2 letter b) from the Criminal Code , which
generic ally provides its incidence under the hypothesis of commission of any intentional
crime followed by death of the victim. In these circumstances, we can appreciate that the
interpre tation direction concerning the incrimination from art. 200 par. 1 from the
Criminal Code as representing a n autonomous incrimination, self -reliant by reference to
murder, would lead to the idea that the offense in question is not imprescriptible (so it is
prescriptable ) because it is not covered by the restrictive indication contained in art. 153
par. 2 of the Criminal Code. ( provision with a purely circumstantial scope, being a
provision of exception from the rule , thus subject to universal imperative in criminal law:
restringenda sunt strictissime interpretationis ). It is true that the same conclusion could
be reached as a result of accreditating the opinion according to which the newborn
murder offense committed by the mother is a mitigated form of murde r, but considering
in such manner the legal qualification of the rule in question, we believe that it is possible
to glimpse also an interpretative result , namely the classifying of the offense as being
imprescriptable. This, because the text of art. 154 par. 2 letter b) Criminal Code expressly
refers to art. 188 and 189 of the Criminal Code – true – but what else is the newborn
murder by the mother (in this interpretation ) but a form derived from art. 188, dependent
on its legal qualification of the latte r? Moreover, we may notice that when the legislator
specifically intended that the offense falling under art. 200 par. 1 of the Criminal Code
should not follow the legal regime and should not have the same legal consequences as
the ones of the offence from which it derived, namely murder (in its basic form – art. 188
– or first-degree / aggravated thereof – art. 189, or even partly, art. 199 of the Criminal
Code , etc.), he felt the need to emphasize this in particular. For instance, according to art.
242 of Law no. 187/2012, of implementing the new Criminal Code, it is expressly
provided that “In applying the provisions of art. 189 par. 1 letter e) from the Criminal
Code [ according to which a first -degree murder is the one committed "by a person who
has previously committed an offense of murder or attempted murder offense" – our
specification ], an offense of murder previously committed is any act of killing a person,

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committed with the intent provided by art. 16 par.3 of the Criminal Code, except offenses
referred to in art.190 and art. 200 of the Criminal Code" .
So, through a quasi -extensive interpretation (and – it's true – in mala partem ) of
the provision which enshrines the cases of exceptional criminal liability imprescriptibility
(which we may admit that is not perfectly consistent with the interpretation technique and
policy generally accepted in criminal law, yet being the result of a logical reasoning !), we
might consider that the best chance to integrate the incrimination from art. 200 par. 1 of
the Criminal Code within the imprescriptable offenses category comes from the direction
of its legal qualification as a mitigated form of murder , rather than from the one of its
opinion as an autonomous offense .
In order to weight criticism (partly justifie d) that might rise to wards the issues
developed, one wonders what would be the logic and consistency of a legislation that
would lead to appreciation as being imprescriptable of a less serius offense – from a
related species of criminal offenses – as commo n assault or injury causing death of the
newborn committed by the mentally disturbed mother immediately after birth (within 24
hours) – an act committed with exceeded intent – but without integrating within the
category of imprescriptable offenses, a more severe offense from the same species, as it is
the newborn murder committed by the mother, under the same conditions (therefore an
offense committed with an pure intention to surpress life)? We believe that the obvious
response emphasizes in a sufficient manner the rhetorical nature of the questioning and
properly supports , (also) from this angle of perception of the problem, our opinion that,
despite the syncope s of the current regulation, the proper legal nature through which it
should b e regarded , de lege lata , the rule of art. 200 of the Criminal Code, is the one of
mitigated form of murder (par. 1), respectively mitigated form, as appropriate, of the
offenses from art. 193-195 of the Criminal Code. ( par. 2).
As it was said, the circum stance that the attempt is not criminally relevant to any
of the offenses covered by the provisions of art. 200 of the Penal Code, although it is
incriminated for murder and for the aggravated form of bodily injury, is not in itself an
argument to directly support the view that the newborn murder or injury committed by
the mother is a n autonomous incrimination, and there is no element of automatic denial
of the opinion that the text focuses on the mitigated forms of other crimes, when
considering a purely p ersonal circumstantial element, equally relevant as a mitigating
factor of the social dangerousness of all these crimes, in their basic content. It is in fact
the lower weight of this social danger ousness that may be the reason why the legislator
considered that only the consumed form of these offenses is able to appeal criminal
liability, being granted a criminal relevance! Therefore, if upon the newborn is only
attempted an act of murder, by the active subject, especially circumstancied and unde r the
conditions expressly indicated in art. 200 par. 1 from the Criminal Code, such as the
newborn did not die, suffering only one of the specific results of the offenses indicated at
art. 193 or 194 from the Criminal Code, the lack of criminal relevance of the attempt thus
committed shall lead to the incidence retention of art. 200 par. 2 from the Criminal Code
(Neagu, in Pascu et al, 2014:84). To the extent in which the attempt in question did not
cause such a consequence, the offense shall not be able t o generate criminal liability at
all.

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PRECISE CONCL USIONS AND DE LEGE FERENDA PROPOSAL

As it comes out from the issues presented to this point, the entry into force of the
new Romanian Criminal Code has revived and perpetuated an old controversy (which –
partially – within the last period of activity of the former criminal regulation seem ed to
be outdated), concerning the legal qualification of incriminating the newborn murder or
injury committed by the mother. The d issenting opinions that circulated troughout the
doctrine – namely: the evaluation of the provision in question as a mitigated form of other
crimes, to which it remain s dependent, or on the contrary, its perception as an
autonomous incrimination, distinct (detached) from those generating it – has the ability to
achieve some distinct solutions to the problem of the manner and results of the
correlation of this incriminating criminal rule with some general institutions of criminal
law, such as participation and prescription .
One may notice t hat, in matters pertaining to form , manner and place of
settlement, the new code tends to accredit more than the previous one the view of this act
as a self-reliant offense. On the other hand, a consistent and coherent approach to the
statutory provision i n question , in terms of a logico -rational , systematic interpretation (by
reference to the effect on some general criminal law institutions) and teleological
interpretation (considering the scope of regulation) , rather support the variant of art. 200
as a m itigated form of other offenses (murder, common assault or other violence, injury,
bodily injury causing death ).
The main antagonism between these two interpretative variants is capable of
generating confusion in interpreting and applying the law, thus, h aving become
unpredictable / unforeseeble , dangerous aspect and – therefore – objectionable , especially
since it is accompanied by unacceptable inconsistencies in regulation, as the dissidence
from the projection of penal policy generally mitigating of the text, that is imposed by the
correlation of the penalty referred to in art. 200 par. 2 to the one shown in art. 193 of the
Criminal Code, for the crime of common assault or other battery . The reason for this
latter inconsistency we believe to be rep resented by the extremely broad scope of
consequences (and, correspondingly, by the exessive plateau of social danger ousness)
which the provision of art. 200 par. 2 of the Criminal Code tries to group under the
category of a unitary abstract penalty. Thus, if the alternative of the criminal fine is, of
course, outrageous ( socially speaking ) and with no real reeducational support , in the
event of common assault or injury causing death of the newborn by the mother, it is
certain the fact that the lack of this alternative, or the special maximum which is superior
to the common assault, is not justified when common assault offense is committed by an
active subject and in curcumstances that, within the other hypothesis of the same
regulation, are evaluated as mit igating sources, and not of aggravation of the criminal
liability.
In these circumstances, the accreditation of the idea that art. 200 of the Criminal
Code is rather a framework for mitigated forms of other crimes, than an autonomous
incrimination, is from our point of view, a compromise solution, more rational and
functional than its alternative (self -reliant incrimination), but still imperfect, given the
regulatory manner. In other words, a kind of lesser evil, chosen in competition with a

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greater evil, which of course is a solution which, scientifically, leaves much to be
desired !
The solution we propose to the legislator would be , observing a third possible
alternative found at its disposal (in general), to express by special criminal law rules a
mitigating attitude of criminal policy (alternative which he should choose to the detriment
of the two already presented in this matter). It's about building a special cause to diminish
the sentence. This would mean the complete abandonment of the idea of the criminal
autonomy of the newborn murder or injury committed by the mother, le aving the legal
qualification of the offenses committed to achieve, as appropriate, as murder, common
assault or other battery , injury, bodily injury causing the death (or do mestic violence – art.
199 of the Criminal Code – but in an mitigated form, though, by an express stipulation, it
might be removed from the incidence of that text the offenses described at art. 200,
especially since the legal nature o f the rule in art. 199 of the Criminal Code tends to be
controversial, acting – in our opinion – rather as a particular cause for aggravation, than as
a stand -alone offense or as a common container for the aggravated forms , on a certain
basis , of the same crimes, already indica ted in this framework), to which it would simply
be added the special mitigated provision , of mitigation of the legal punishment (in
principle, as a fraction or percentage of statutory pe nalty for each basic incrimination,
from those to which reference is made ).
Thus, without doubt, the activities of the participants who do not check the reason
of the mitigation would relate to the respective underlying offense (or , eventually, to its
qualified derivation ) without the benefit of the special and strictly per sonal cause of
mitigation , which benefits only to the active subject especially indicated in the mitigating
rule. Also, no doubt could arise over the imprescriptibility of the newborn murder by the
mother, removing the irrationality (which it was already i ndicated) of a strict
interpretation ( which is correct, however, methodologically speaking) of art. 153 of the
Criminal Code, in conjunction with art.200 par. 1 of the Criminal Code (in its current
form), by comparison with the re sult of correlating art.153 with art. 200 final part of par .
2. Eventually, if the legislator would seek to extract some of the offenses committed in
such circumstances from the category of imprescriptible crime s, he should exp ressly
stipulate an exception from the reference to the praeter -intentioned offenses with fatal
outcome, included de lege lata at the end of art. 153 par. 2 letter b) Criminal Code .
In addition, the mitigation may be achieved also in the situation indicated at par. 2
by separate reference to each of the standar d incriminations, so as to cover the
inconsistency according to which in some cases the commission of the offense under the
special conditions described at art . 200 has a mitigating value, and in other cases, it does
not (on the contrary, it has – at least partially – an aggravating value).
The only drawback that we glimpse regarding the solution thus proposed would
be that, in the absence of an express provision regarding the incrimination of the
attempted murder of the newborn commited by it’s mentaly tro ubled mother, this act
would follow the regime of standard reference incriminations, which would mean that the
murder attempt of the newborn by the mother, a s provided by law, and the injury attempt
of the newborn (under the same conditions), aimed to prod uce one of the consequences
provided by art. 194 par. 1 letter a)-c) from the Criminal Code, would become criminally

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relevant as well. If this isn’t the legislator’s will, we consider that a simple express
provision on the contrary, attached to the norm in cluding the reason of the penalty’s
mitigation, would be sufficient in order to maintain, under this aspect, the present
situation.
Foreseeing – we believe – more benefits than drawbacks, of the solution proposed,
it might be legitimately raise d the questi on concerning the reason for which it is not
appreciated, including de lege lata , that the text of art. 200 of the Romanian Criminal
Code does not actually express such a special case of reducing the sentence, so that the
forwarded proposal become operational without the need for any modifying legislative
intervention. The doctrine already stated that one of the novelties of the new criminal
encodings is that it is provided at art. 200 "par. 2 a special cause of reducing the penalty
for the offenses of common assault or other battery , injury or bodily injury causing death
committed over the newborn child, but not later than 24 hours after birth, by the mother
found in a state of mental disorder " (although in relation to the provisions in par. 1, the
authors in question have appreciated that the law establishes, in fact, an attenuated form
of murder ). (Udroiu & Constantinescu, 2014: 277 )
Unfortunately, the general theoretical criteria to accurately differentiate three
possible ways (already mentioned) by which the criminal legislator could express ,
through special criminal rules, the mitigating criminal policy option , have not yet been
detected with sufficient precision in the doctrine, as they are still part of a relative
indeterminacy in the criminal law theory , awaiting a clearer configuration in the future .
However, through the observation of some rules that are presented with certainty as
having the legal nature of special mitigating causes ( e.g. art. 411 of the Criminal Code,
having a n explicit nomen juris : "causes of sentence reduction " in relation to offenses
against national security), we may conclude that the rule writing style and the manner of
determining the sanction are the main differentiating characteristic features .
Thus, a particular cause for reduction a sentence refers to the incriminations in
relation to which it operates , states the element in the consideration and presence of
which it becomes incident (without resuming practically the exposure of the
incrimination , by describing its constituent content) , and specifies the mitigation extent,
basically as a fraction or percentage of the penalty provided by law for the offense /
offenses to which it works. These items are not present as such in the formulation of art.
200 of the Roma nian Criminal Code. Thus, in par. 1 the formulation tends to describe the
offense itself, as it commonly performed the creation of an autonomous incrimination,
and the punishment limits are determined directly and not derivatively, being only the
result of a comparative assessment of the interpreter that they are lower than the ones
provided for murder ( and for first-degree murder and – the more so – for domestic
violence). The wording of par. 2 tends to begin in a style closer to the specific wording of
a special ca use of a sentence reduction, firstly, making generic reference to certain
incrimination rules , then specifying the mitigation element, but the manner of
determining the abstract sentence (also directly ) as well as the fluctuations between the
decrease and increase of the represion, by reference to various penalties provided by law
for the offenses to which reference is made, do not satisfy, at their turn, the apreciation

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that right now the text of art. 200 from the Romanian Criminal Code could b e legitimely
interpreted as representing a special cause ( per se ) of penalty reduction.
Therefore, we propose to the legislator the adoption of the above mentioned
solution in the matter of the newborn murder or injury offense committed by the mother,
given the advantages present by it, towards the analyzed alternatives. In this regard, we
believe that a simple adjustment of the formulation of the text would be sufficient, of the
type (of course, perfect ible): "If the murder offenses, or the ones provided in the art. 193-
195 are committed on the newborn child immediately after birth, but no later than 24
hours, by the mother found in a state of mental disorder, the special limits of the penalty
are reduced by …", afterwards following a percentage or a fract ion assessed as
appropriate .
At the same time , to avoid the potential confusion s able to be shaped concerning
the criminal liability, in relation to art. 200 of the Criminal Code, we p ropose the
legislator an intervention to expressly clarify this issue, according to its actual criminal
policy option. Thus, to the extent that there are no aims at integrating any of the offenses
covered by this legal text within imprescriptible crime s, we believe that the legislator
should expressly exclude from the fi nal r eference contained in art. 153 par.2 letter b)
Criminal Code , the offense of common assault or injury causing death committed by a
mentally disturbed mother, on her newborn child , in the first 24 hours after birth. Such a
provision, in conjunction with explicit mentioning in the beginning of the text of art.153
par.2 letter b) Criminal Code , only of the offenses provided by art.188 and 189 of the
Criminal Code , and not of the murder described in art.200 par.1, would transmit with
sufficient clarity and predi ctability the message that none of the criminal offenses
committed so as to rece ive legal qualification in art. 200 of the Criminal Code , are not
imprescriptible (in other words, that they are, in their entirety, prescriptible ). A
formulation of the text that would satisfy this requirement of clarity could be : "The
prescription does not remove the criminal liability in the case of (…) the offenses referred
to in art. 188 and 189 and of the intentional crimes followed by death of the victim,
except in art . 200 par. 2 / or / except newborn common assault or bodily injury, causing
death, committed by the mother "(of course, the proposed wording is certainly
perfectible).
However, contrarily, if the lawmaker’s will is that of integrating among the
imprescript ible crimes, along side murder, the murder or bodily injury causing death to
the newborn, committed by the mother (together with all the provisions indicated by art.
200 Criminal Law), then we mind that there is an express provision in this sense, which
completes the current one from art.153 l. 2 letter b) Criminal Code and would be pertinent
and not redundant, because – as we already showed – an interpretation of the norm of lex
lata, in this sense , cannot be achieved, but with great difficulty and with the price of
some sensitive, disputable and hard to assume interpretative tricks and deviations from
the generally accepted rules of the reasonable and equilibrated endeavor of judicial
interpretation!
In any case, maintaining the text’s current wording , art.153 l. 2 letter b) Criminal
Law, in conjunction with the particular situation of the incriminating provisions of art.
200 Criminal Law , is in our opinion profoundly dissatisfactory, because – as we already

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have mentioned above – a strict interpretation o f lex lata leads to the inacceptable
conclusion that the less, pra eter-intentional crime against the newborn’s life, committed
by the psychically troubled mother, is imprescriptible, in comparison with its aggravated
crime, of intentional killing of the child, which in the same conditions, would remain
prescriptible. Ubi cess at ratio legis, ibi cessat lex!

REFERENCES

[1] Bogdan, Sergiu (coordonator); Șerban, Doris Alina; Zlati, George, (2014). Noul Cod penal. Partea
specială. Analize, explicații, comentarii. Perspectiva clujeană , Editura Universul Juridic, București, 2014.
[2] Dunea, Mihai, (2007). Considerații privind problematica juridică și medico -legală a pruncuciderii ,
Analele Științifice ale Universității „Alexandru Ioan Cuza” din Iași, Tomul LIII, Științe Juridice, 2007,
available on -line at: http://laws.uaic.ro/docs/ pdf/articole/
2007/Anale2007_art13MihaiDuneaPruncuciderea.pdf (08.09.2014).
[3] Pascu, Ilie; Dobrinoiu, Vasile; Hotca, Mihai Adrian; Chiș, Ioan; Păun, Costică; Gorunescu, Mirela;
Neagu, Norel; Dobrinoiu, Maxim; Sinescu, Mircea Constantin, (2014). Noul Cod penal comentat. Partea
specială , ediția a II -a (revăzută și adăugită), Editura Universul Juridic, București, 2014.
[4] Toader, Tudorel; Michinici, Maria Ioana; Răducanu, Ruxandra; Crișu -Ciocîntă, Anda; Rădulețu,
Sebastian; Dunea, Mihai, (2014). Noul Cod pe nal. Comentarii pe articole , Editura Hamangiu, București,
2014.
[5] Udroiu, Mihail; Constantinescu, Victor Horia Dimitrie, (2014). Noul Cod penal. Codul penal anterior
(prezentare comparativă, observații, ghid de aplicare, legea penală mai favorabilă) , Edi tura Hamangiu,
București, 2014.
[6] Voicu, Corina; Uzlău, Andreea Simona; Moroșanu, Raluca; Ghigheci, Cristinel, (2014). Noul Cod
penal. Ghid de aplicare pentru practicieni , Editura Hamangiu, București, 2014.