05.03.2026

Criminal record in parole proceedings

The criminal record of a person who has not been rehabilitated is not only relevant in determining a harsher penalty in the event of repeated criminal behavior, but is also of particular importance in the adoption of certain decisions by the judicial authorities, with a significant impact on the person concerned. Often, criminal records are a circumstance that judicial authorities must take into account in their decision-making process, and sometimes, even in the absence of an express provision, they are reflexively taken into account when adopting solutions.

This article aims to present some reflections on the relevance of criminal records in granting conditional release to persons serving prison sentences in a penitentiary regime.

Firstly, the considerations set out are relevant, on the one hand, when, on a recurring basis, in proceedings held in open court concerning conditional release, the Public Prosecutor's Office requests that the application be rejected, invoking the convicted person's status as a repeat offender, and, on the other hand, when the court uses this argument in its reasoning for rejecting the application for conditional release.

Moreover, in the same proceedings mentioned above or in the case of preventive measures, the absence of a criminal record is considered by the judicial authorities to be a normal situation that should characterize any citizen, which is why the status of first-time offender cannot constitute a basis for obtaining legal benefits.

Secondly, in order to obtain conditional release, the convicted person must cumulatively meet a set of conditions laid down in Article 100 of the Criminal Code, but none of these conditions relate to the assessment of the criminal record of the person requesting release from prison. Of the four conditions set out in the legal text, three are objective (serving part of the sentence, the convict being in a certain regime of serving the sentence, and fulfilling civil obligations) and can therefore be satisfied or not. The last condition is subjective and refers to the court's conviction regarding the degree of rehabilitation and the capacity for social reintegration of the convicted person. In fact, this is the determining factor that transforms conditional release from a right of the prisoner into a vocation, giving them the chance to benefit from the clemency of the state.

In the same vein, the explanatory memorandum to the Criminal Code states that "conditional release is not a right recognized to the convicted person not to serve their sentence until the end of the term, but a legal instrument by which the court finds that it is no longer necessary to continue serving the sentence in detention until the full term established at the time of conviction has been served, since the convicted person, through their conduct throughout the period of imprisonment, has demonstrated consistent and evident progress towards social reintegration and has thus convinced the court that they will not commit further crimes and that their early release does not pose a danger to the community"[1].

In concrete terms, the court's conviction that the convicted person has reformed and can be reintegrated into society[2] reflects the impression formed by the judge through analysis, on the one hand, of the parole file and, on the other hand, of the conduct of the person requesting release during the trial, ex sensibus, as well as their statements. Among other things, the parole file includes the court's reference document, represented by the report of the prison parole board, which ultimately also contains the proposal for release.

The procedure for granting conditional release is carried out in two stages: an administrative stage, regulated by Article 97 of Law No. 254/2013[3], decided by the parole board (the only authority that has complete information on the prisoner's progress and behavior in prison) and a judicial stage, regulated by Article 587 of the Code of Criminal Procedure. The commission's report, based on an analysis of the prisoner's activities and profile, ultimately determines whether or not they can be released.

In most cases, the court adopts its decision based exclusively on the conclusions of the parole board. In addition, according to Article 97(3) of Law No. 254/2013, the parole board within the prison formulates proposals for parole taking into account, among other things, "e) the prisoner's criminal record." Thus, in situations where the legislator wanted the judicial authorities to take into account a person's criminal record, it did so expressly. Therefore, in the conditional release procedure, the criminal record is assessed by the release commission at the administrative stage, when it makes its proposal.

In conclusion, the criminal record should not be taken into account by the court examining the prisoner's application for conditional release, as it has already been taken into account both in the individualization of the sentence, reflected in the manner of its execution, and in the administrative stage by the conditional release commission.

In other words, the decision on conditional release cannot be adopted by further individualising the sentence or by re-evaluating the prisoner's criminal record.            

An article signed by Mihail Tofan – Associate –mtofan@stoica-asociatii.ro - STOICA & ASOCIAȚII.