The lines bellow present a short review over the crime of omission stipulated in Article 17 of the Romanian Penal Code. The crime of omission is characterized by a failure to act from a person who does not fulfil an obligation imposed on him by law. It is divided into proper omission and improper omission, the latter being also known as commission by omission.
Under the 1968 Penal Code, there was no provision to regulate an improper omission: only the proper ones were recognized by Article 262, 263, and 315, although the legal doctrine and the judicial practice admitted their existence. As noted in the doctrine a circumstance in which a failure to act attracts criminal liability, because there is no legal text to condemn it, is alarmingly close to the analogy against the defendant (Streteanu, 2008, p. 397) which is forbidden. Moreover, another author stated that the crime described in Article 333 of the 1968 Romanian Penal Code, named the infringement of an order, could be committed either by action or inaction, so both situations would have the same outcome under criminal law. In this case, due to the fact that the failure to act is not explicitly mentioned as a way of committing the crime, the principle of legality of criminal offence is not respected (Basarab, 1992, p. 98). As a conclusion, the principle mentioned required a legal base in order to consider an omission a crime, so Article 17 of the 2014 Romanian Penal Code came to satisfy this necessity.
As far as the proper omission is concerned, the failure to act is specifically mentioned in the text of incrimination as a way of committing the crime (Streteanu, Niţu, 2014, p. 284). The second category, the improper omission, stipulated in Article 17, is characterised by the fact that the author of the crime does not take all the required measures in order to prevent a result which, due to a particular situation, he or she had the obligation to prevent (Streteanu, Niţu, 2014, p. 285). The classic example is that of the mother who no longer feeds her child, leading to its death. Also, if a nurse notices that a patient recently operated on develops difficulty in breathing, but neglects to help, and the patient dies because of lack of medical care, he or she is guilty of a crime committed by improper omission. However, in order to incur criminal liability for this type of crime, courts have to conclude not only that the individual could have averted the outcome, but also that the law imposed a special obligation on him or her to do so, as required by Article 17. This special obligation is necessary due to the fact that Article 203 of the Romanian Penal Code incriminates the failure to help a person in need or in danger, and provides a punishment in case of failure to act. Moreover, because the Romanian Penal Code condemns only a series of actions that are detrimental to important social values, one cannot infer that all the citizens have the obligation of preventing those actions to take place (Streteanu, Niţu, 2014, p. 286).
Article 17 exhaustively presents the situations in which a person might have the obligation of protecting a social value that belongs to another person, who is in a temporary incapacity of protecting it himself or herself. In other words, Article 17 has introduced the legal position of guarantor, on which the crime committed by improper omission is based. It can either derive from the law, a contract, or a previous action or inaction. In any other circumstance, even if the deed might be considered immoral, it will not be considered a criminal act.
The position of guarantor has two main applications: it either protects certain social values or controls a source of danger. In the first situation, the theory of the guarantor is based on the existence of a relationship of dependence between the one who must act and the owner of the social value to be protected, which forces the former to act when it is impossible for the latter to protect himself or herself (Streteanu, Niţu, 2014). Therefore, it is based either on a familial connection, such as the relationship between parents and children or between spouses, or on a contractual relationship. In the first case, if, due to an infirmity, a parent is looked after by his or her child, but the child does not fulfil this duty properly, leading to the parent’s death, the child is in the position of a guarantor, and will be guilty of murder by omission. In the second situation, it can be based on any type of contract. An example is that of a doctor who, according to his labour contract, is responsible for the life and safety of his or her patients.
If the guarantor has the obligation of protecting from a source of danger, one of the next three situations is applicable: he created the peril by a previous action or inaction, he is liable for the action of certain people under his care, or it is mandatory for him to supervise an animal or object which may produce an injury. In the first situation mentioned, due to a previous action which can lead to injuries punished by the criminal law, Article 17 makes it compulsory for the author to take all the reasonable steps in order to prevent the damage. In this case, a distinction between legal and illegal actions must be made.
A former illicit action always entails the position of guarantor (Streteanu, Niţu, 2014, p. 289). For instance, if an intoxicated person drives a car and provokes a traffic accident in which the driver of another car is hurt, that person is in the situation of a guarantor. As a result, if the guilty driver does not take any measures to help the injured one and it is obvious that he or she will die due to lack of medical care, the former will be held responsible for the death of the latter, precisely because of his or her failure to act. The intoxicated driver will be held responsible for aggravated murder, and not involuntary manslaughter, because the form of culpability is established at the moment of the omission, not the moment of the accident. In this example, though the accident is characterized by guilt, at the moment of inaction the author, by seeing the condition of the victim and failing to act, at least accepts that the person might die.
An interesting situation is that of a culpable inaction when the author, although anticipating that damage might occur, due to some objective circumstances mistakenly judged as being sufficient, considers that the injury will not happen (Pascu et al., 2014, p. 128). For example, if a driver hits a pedestrian and, being a doctor, he or she considers that no injury was produced because the pedestrian is not bleeding or does not report any pain, but the victim later dies because of internal bleeding, the doctor is responsible for his or her failure to protect the pedestrian’s life. This omission belongs to those described by Article 17 due to the fact that his or her previous action, the accident, made it compulsory for him or her to try to save the endangered life.
As far as the supervision of an animal or object is concerned, if an owner has an aggressive dog, he or she must make sure that the animal does not bite anyone on the streets, making it mandatory to use a leash. Also, if an owner digs a foundation on his or her property, he or she must mark the excavation in order to prevent a possible injury of a person who might fall in it. If the owner does not do this, he or she will be held responsible for the injuries of the victim due to the failure to act in order to prevent it.
Liability for the actions of third parties includes situations where third parties are under the authority of the guarantor. Due to special circumstances, those under the authority of a guarantor are not legally responsible for their actions. Instead, those responsible for their care will be legally liable. In this particular situation, it is not the guarantor that provokes the danger, but a third person under his or her care. For example, if the nurse at the psychiatric ward observes a patient hitting another patient with a blunt object, causing wounds, and does nothing to prevent it, he or she is in the position of a guarantor and will have to legally answer for his or her inaction, and not for the action of the mentally ill.
In any of the situations presented above, the theory of the position of guarantor finds its place, but, in order for the author to legally answer for an improper omission, all the conditions mentioned in Article 15 of the Romanian Penal Code for the existence of a crime must be met.