Omissive Offence. Concept, Content and Implications in Judicial Practice

Abstract

The present study aims to carry out an analysis of the general theory of criminal omission in relation to commissive conduct, as reflected in Romanian and comparative doctrine and, in this regard, to highlight aspects and implications concerning the moment of completion of offences committed by omission, such as the statute of limitations applicable to omissive offences and its correlation with the binding judicial practice decisions of the Constitutional Court and the High Court of Cassation and Justice.

At the same time, the study aims to analyse the typically omissive offences outlined in the Special Part of the Criminal Code and to present legal situations in which issues arise regarding the legal classification of such acts and the determination of their legal nature as continuing or continued offences.

Omissive conduct also raises the issue of the conditions under which a commissive act constitutes a criminal offence when committed through omission, pursuant to Article 17 of the Criminal Code, matters which this paper likewise intends to bring back into discussion.

Last but not least, the paper addresses the European perspective — namely the case law of the European Court of Human Rights and the Court of Justice of the European Union — regarding the analysis of omissions, viewed not only from the standpoint of criminal legislation. In European jurisprudence, “omission” is predominantly examined as a failure to fulfil certain obligations (for example, the obligation to conduct an effective investigation), with consequences for procedural or substantive rights, rather than as criminal typicity in the strict sense of omissive offences.

Using the analysis of Romanian and European doctrine and judicial practice, the paper will highlight, in each instance, the practical implications of understanding and applying the concept of the omissive offence, as well as the role of omissions in the field of social defence relations. In this way, the broader presentation of the regulatory framework governing the institution under examination will serve both the purpose of knowledge and that of a better understanding and application thereof, proving useful to legal practitioners and all interested persons, while also leaving room for further future research.