Criminal Code > TITLE II DETERMINATION 2

CHAPTER II DISCONTNUANCE AND EXTINCTION OF THE PROSECUTION AND THE PENALTY

Section I- Absence of Accuser or Accused

Sub-section I- Absence of Accusation or Complaint

Article 211- Right of Complaint or Accusation in General.

(1) Prosecution with a view to a judgment and the enforcement of the penalty is a public proceeding and is instituted by the public prosecutor in all cases where the law does not otherwise expressly provide.

(2) Prosecution by the public prosecutor does not exclude the right of lodging a complaint or accusation to the competent public authorities.

Article 212 Crimes Punishable upon a Formal complaint.

Where the law in the Special Part of this Code or in any other legislation that complements criminal law provides that a crime is punishable upon complaint, no charge shall be instituted against the criminal unless the injured party or his legal representative institutes a complaint.

Article 213- Time within which to Lodge a Complaint.

The complaint must be lodged within three months from the day when the injured person knew of the criminal act or the criminal.

Upon expiration of this period of time he shall be deemed to have renounced so doing unless he was materially incapacitated from acting, and the complaint shall not longer be entertained.

Where a complaint is not made owing to the aforesaid ground, the period of three months shall run from the day on which the incapacity ceased to exist.

Sub-section II- Death of an Accused or a Convicted Person

Article 214- Death of the Accused Prior to Conviction.

A Prosecution may neither be instituted nor continued where an accused person dies before the institution of a charge in a court or before the pronouncement of judgment.

Article 215- Death of a Convicted Person.

Death of a convicted person after a sentence has been passed puts an end to the enforcement of the penalties and any measures pronounced.

Section II- Limitation as to prosecution and Penalties

Sub-section I- Limitation as to Prosecution

Article 216- Principle and Effect.

(1) Unless otherwise provided by law, in all criminal cases the prosecution and the criminal action shall be barred and may no longer be instituted or brought upon the expiration of the legal period of time stated below.

Limitation extinguishes the liability to punishment in respect to any of the participants. As soon as the limitation period has elapsed neither a conviction nor penalties or measures may be pronounced.

(2) Even where the defendant fails to raise the barring of the charge by a period of limitation the Court or the Prosecutor shall, at any time, consider the barring of the charge by limitation.

Article 217- Ordinary Limitation Periods.

(1) The limitation period of a criminal action shall be as follows:

(a) twenty-five years for crimes punishable with death or rigorous imprisonment for life;

(b) twenty years for crimes punishable with rigorous imprisonment exceeding ten years but not exceeding twenty-five years;

(d) ten years for crimes punishable with rigorous imprisonment not exceeding five years;

(e) five years for crimes punishable with simple imprisonment exceeding one year;

(f) three years for crimes punishable with simple imprisonment not exceeding one year, or with fine only.

(2) In respect of concurrent crimes

(a) the period of limitation for one of the crimes shall apply to all of them where the maximum penalty of each crime is the same;

(b) the period of limitation for the most serious crime shall apply to the other crimes where the maximum penalties of the concurrent crimes are different.

Article 218- Special Periods.

Subject to the provision of Article 213, the period of limitation of any crime punishable upon complaint shall be two years.

Article 219- Calculation of Periods.

(1) Limitation periods shall be determined on the basis of the maximum penalty provided by the provision of the special Part without regard to the extenuating or aggravating circumstances involved in the case.

Where the law penalizes the act with several penalties to be applied either alternatively or concurrently the periods shall be calculated on the basis of the most severe penalty.

(2) The limitation period shall begin to run from the day on which the criminal first exercised his criminal activity.

If the criminal act was committed repeatedly the period shall begin to run from the day on which the last act was performed; if it was pursued over a period of time the period shall begin to run from the day on which it ceased.

Where achieving a given result is one of the constituents of the crime the Period shall begin to run on the day on which this result occurred.

Article 220- Suspension of Period of Limitation.

(1) Limitation shall be temporarily suspended as long as there subsists a bar in law or in fact.

It shall also be suspended where a charge has been instituted and the case is undergoing a judicial proceeding, or where the decision in the criminal case against the defendant cannot be given until other proceedings have been completed.

Upon removal of the bar the period of limitation shall revive and continue its course.

(2) In all cases where the law requires the lodging of a complaint for the institution of a prosecution the absence of this formality shall not prevent the limitation period from running.

Similarly, any act of the criminal voluntarily done to hinder the institution or continuation of the prosecution shall not prevent the limitation period from running.

Article 221- Interruption of Period of Limitation.

The limitation period shall be interrupted by any order, act or decision for purposes of search, summons, prosecution or investigation in relation to

the crime or the criminals. Upon each interruption the whole period of limitation shall begin to run afresh. The interrupting act shall be absolute as to its effect; it is effectual towards all the participants in the crime, whether known or unknown.

Article 222- Absolute Limitation.

Whatever the circumstances may be the prosecution and the criminal action shall be barred in all cases when a period equal to double the ordinary period of limitation provided by law (Art. 217) has elapsed or, in cases where a special period applies (Art. 218), when such a period has been exceeded by half.

Sub-section II- Limitation of Penalties and Measures

Article 223- Principle and Effect.

(1) Unless otherwise expressly provided by law, when for any reason whatsoever the sentence has not been enforced within the period of time stated below, the right to enforce it shall be extinguished and the penalty or measure pronounced no longer enforceable (Arts. 224-228).

The limitation of the principal penalty shall entail the limitation of any secondary penalties or measures. The limitation of the principal penalty shall also apply to the confiscation of property related with the penalty. However, where measures are imposed without principal penalties the provision of Article 224(d) shall apply.

(2) Limitation must be carried out on their own initiative by all appropriate judicial or executive authorities.

(3) Despite the non-execution of the sentence passed due to the expiry of the period of limitation, its entry shall remain in the judgment register of the criminal.

Article 224- Ordinary Periods of Limitation of Penalties and Measures.

(1) The period of limitation of the penalties or measures shall be as follows:

(a) thirty years for a death sentence or a sentence for rigorous imprisonment for life;

(b) twenty years for a sentence for rigorous imprisonment for more than ten years;

(d) five years for all other penalties or measures.

(2) In the event of concurrent penalties, the lighter penalties shall be barred at the same time as the most severe penalty.

Article 225- Calculation of the Period.

(1) The period of limitation shall run from the day on which the judgment, being final, was enforceable or, if the enforcement had commenced, from the day on which the convict evaded such enforcement.

When the convict was granted the benefit of a measure of suspension and such suspension was cancelled, the period shall start from the day on which the enforcement of the penalty was ordered.

(2) Where concurrent penalties have been decided the period of limitation shall be calculated on the basis of the period of limitation for the most severe penalty.

Article 226- Suspension of Period of Limitation of Penalty and Measures.

The limitation of the penalty or measure shall be suspended:

(a) whenever penalty or measure cannot be carried out or continued under the provisions of the law, and as long as such impediment subsists;

(b) as long as the convict enjoys the benefit of a measure of suspension or probation or was granted time for payment;

Article 227- Interruption of Period of Limitation of penalty.

Limitation shall be interrupted by any act for the enforcement, or aiming at the enforcement, of the penalty performed by the authority responsible for such enforcement.

Article 228- Absolute Period of Limitation of Penalties and Measures.

The limitation of the penalty or the measure shall in all circumstances be final when the ordinary period (Art. 224) is exceeded by one half, save when, during this period, the criminal showed that he is dangerous by committing an intentional crime punishable with at least rigorous imprisonment.

Section III- Pardon and Amnesty

Article 229- Pardon.

(1) Unless otherwise provided by law, a sentence may be remitted in whole or in part or commuted into a penalty of a lesser nature or gravity by an act of pardon of the competent authority.

Pardon may apply to all penalties and measures, whether principal or secondary and whatever their gravity, which are enforceable.

(2) The conditions of pardon shall be governed by the relevant provisions of public law. The order granting pardon may determine the conditions to which it is subjected and its scope.

Pardon shall not cancel the sentence the entry of which shall remain in the judgment register of the criminal and continues to produce its other effects.

Article 230- Amnesty.

(1) Unless otherwise provided by law, an amnesty may be granted in respect to certain crimes or certain classes of criminals, either absolutely or subject to certain conditions or obligations, by the appropriate competent authority, when circumstances seem to indicate that such a measure is expedient.

The conditions of granting amnesty shall be as provided by law.

The law shall specify its purpose, the beneficiaries and its scope.

(2) An amnesty bars or discontinues any prosecution from the moment of its promulgation.

When a sentence has been passed an amnesty cancels it as well as all its other consequences under criminal law. The conviction shall be presumed to be non-existent and the entry deleted from the judgment register of the criminal.

Article 231- Civil Reparation and Costs.

(1) Pardon or amnesty shall not affect any civil reparation and the payment of damages to injured persons.

(2) Unless otherwise provided by the order granting pardon or amnesty, costs incurred towards the State and which have not yet been collected shall be regarded as remitted by either measure.

Section IV- Reinstatement

Article 232- Principle.

(1) A convict who has undergone his penalty or whose penalty is barred by limitation or has been remitted by pardon or whose penalty has been suspended on probation or who has been released conditionally may, at his request, obtain his reinstatement and the cancellation of his conviction, if he fulfils the conditions mentioned hereinafter.

Reinstatement must be deserved and shall never be granted as of right.

(2) If the convict who satisfies the requirements prescribed by law is incapable of acting by himself or has died, the request may be made by his legal representative or a next-of-kin.

Article 233- Conditions for Reinstatement.

Reinstatement shall be granted by the Court:

(a) if in the cases of a penalty of rigorous imprisonment, a measure of permanent expulsion or a penalty of general confiscation of property a period of at least five years has elapsed since the penalty was undergone or barred by limitation or since the convict was released because his penalty was remitted by pardon, or since the penalty was suspended or since the convict was conditionally released, where he successfully underwent the period of probation in case of suspension of penalty or conditional release; in other cases, the period must be two years at least;

(b) if the sentence has been enforced as regards any secondary penalties imposed;

(c) if the convicted person has paid the compensation, damages and costs ordered by the judgment in so far as it could be expected from him having regard to circumstances; and

(d) if during the period specified in sub-article (a) above the convicted person was always of good behaviour and has not been convicted of a crime punishable with imprisonment.

The minimum period for the conditions of reinstatement specified in sub-article (a) above shall apply only as long as it does not affect the period regarding recidivism as laid down in Article 67 of this Code.

Article 234- Special Cases.

(1) When the penalty is barred by limitation reinstatement may not be ordered before the time at the earliest when the penalty pronounced would have come to an end if it had been undergone on the coming into force of the sentence.

(2) When a notably praiseworthy act performed by the applicant in the civil, military or social fields so justifies, reinstatement may be ordered prior to the expiration of the normal period of time.

Article 235- Effects of Reinstatement.

Reinstatement, since it cancels the sentence, shall produce the following effects;

(1) the convicted person is relieved, for the future, of any forfeitures of rights or privileges, incapacities and disqualifications and recovers the capacity to exercise his civil, family and professional rights;

(2) the sentence shall be deleted from the judgment register and for the future be presumed to be non-existent;

(3) a reproach referring to an old conviction made either by ill-will or any other reason shall come under the provisions of criminal law regarding defamation, and the defences based upon justification or public interest shall not be admissible.

Article 236- Dismissal and Renewal of the Request.

If the Court dismisses the request for reinstatement as unjustified it cannot be renewed before a period of two years has elapsed.

Article 237- Revocation of the Decision.

Reinstatement shall be revoked and may no longer be granted when subsequently, within a period of five years, a fresh sentence to capital punishment or rigorous imprisonment has been imposed upon the reinstated person by a judgment which is final.