The Continued Offense and Its Distinction from Real Concurrence

Keywords: continued offense; real concurrence; Article 26 of the Criminal Code; homogeneous culpability; legal classification; unity of the offense.

1. Unity of the offense is not a matter of procedural convenience

A series of blameworthy acts may constitute one continued offense, several offenses in real concurrence, or another complex form of criminal activity. Choosing between these constructions does not depend on a desire to shorten the indictment or reduce the sentence. The choice follows from the statutory elements and the established connections between the individual acts.

Article 26 of the Criminal Code establishes substantive-law unity under specified conditions and excludes Articles 23–25 for the acts included within it. Real concurrence, by contrast, presupposes independent offenses for which sentences are first determined separately, followed by application of the rules on a single aggregate sentence. Incorrect aggregation or separation therefore affects not only the penalty but also the subject matter of the charge. ^[1]

The central thesis is that a continued offense must be established through specific objective and subjective connections. Similarity between acts is necessary but insufficient. The same motive, the same victim, or closely spaced dates cannot replace the combined requirements of Article 26(1).

2. The first criterion: separate acts of the same offense type

A continued offense requires at least two acts, each independently satisfying the same or different statutory forms of the same offense. Basic and aggravated forms may be combined under the statutory conditions. Theft, fraud, and misappropriation by an official cannot, however, be arbitrarily combined merely because all seek a financial benefit. ^[1]

Before unity is considered, every act must be individualized by time, place, subject matter, method of execution, offender, and culpable attitude. A statement such as “committed violations over several months” does not permit examination either of the elements of each act or of their connection. The overall result does not relieve the prosecution of that burden of proof.

Conversely, not every physical movement is a separate act under Article 26. Several successive movements during a single taking of property may form one act of execution. Fragmenting naturally unified conduct and then “reuniting” it under Article 26 is as inaccurate as merging genuinely independent offenses.

3. Short intervals and the same circumstances

The statute establishes no universal maximum number of days between acts. The requirement of short intervals is evaluative and must be assessed in relation to the offense's nature, the persistence of the conditions, and the way opportunities for subsequent acts arise. Introducing an extrastatutory time limit that automatically determines every case is incorrect. ^[1]

A short interval may support unity but does not establish it alone. Two frauds committed on the same day on entirely different occasions may require separate assessment. A longer interval must likewise not be viewed in isolation from the recurring activity within which the acts occurred. In every case, the reasons must explain why the particular period is short for the criminal activity under examination.

The same circumstances do not require absolute identity of every external condition. What matters is a stable core: assigned functions, access to property, the mechanism used, a recurring opportunity, and the pattern of interaction. A change of address does not necessarily exclude unity; an unchanged address does not necessarily create it.

Consider a cashier repeatedly misappropriating entrusted sums through the same accounting procedure. This differs from subsequently acquiring another's money through a separate deception outside the employee's assigned function. A common intention to become enriched does not erase differences between the offense elements and the factual conditions.

4. Homogeneous culpability and the subjective connection

Homogeneous culpability must be considered together with the requirement that later acts continue earlier ones subjectively as well. It is not enough that all acts were intentional. The inquiry must clarify how the earlier conduct relates to the decision to act again and whether a unified direction persists under substantially similar conditions. ^[1]

Article 26(1) does not expressly require the actor, before the first act, to have planned the final number and exact dates of all subsequent acts. The absence of a detailed advance plan is therefore not an independent ground for denying a continued offense. Equally, a general assumption of a “criminal disposition” cannot replace proof of the subjective connection.

Statements, communications, accounting measures, repeated use of one scheme, and reactions following an earlier act may be evidentially relevant. They must be evaluated specifically, without converting everyday similarity into a presumption of intent. Particular caution is necessary when combining acts with different forms of culpability or qualitatively different directions.

5. Statutory limits on unity

Article 26(6) expressly limits the doctrine in relation to offenses against the person of different individuals and acts committed after the indictment has been filed, as well as earlier acts not included in it. These limits cannot be overcome merely because the conduct is factually similar. The precise scope of the filed charge must also be examined. ^[1]

The prohibition concerning different victims must not be restated as a general rule that any offense affecting more than one owner excludes Article 26. The statute refers to a particular category of offenses. Complex offenses and conduct affecting several protected interests require analysis of their legal nature rather than a mechanical count of those affected.

Procedural joinder of cases likewise does not prove substantive-law unity. Conversely, trying different episodes in separate proceedings does not relieve the court of examining the applicable concurrence rules and accounting for earlier judicial decisions. Statutory limits and factual identity matter, not merely case numbers.

6. Determining the classification of the whole

For a continued offense, punishability is determined by considering the included acts together and their overall result. This does not permit aggregation of values unrelated to the subject matter of the same offense or inclusion of unproven episodes to reach an aggravated threshold. The scope of unity must first be proven; only then can the whole be assessed. ^[1]

Article 26(3) and (4) contains special rules for combining basic and aggravated forms. The conclusion cannot be reduced to the mechanical formula that “one episode is more serious, so the whole takes the most serious classification.” The law requires consideration of the significance of the aggravating circumstances for the entire criminal activity. That assessment must be reasoned, not merely announced.

Different stages of completion are also expressly regulated. When completed acts and attempts are combined, Article 26(5) allows punishment under the rules for attempt if the completed acts do not significantly affect the criminal activity as a whole. One completed episode therefore does not automatically resolve the classification of the whole. ^[1]

7. Real concurrence and related constructions

Where the required unity is absent, the independent offenses do not cease to exist. Articles 23–25 apply if their prerequisites are satisfied. Real concurrence involves different offenses committed through separate acts; one act constituting several offenses raises the issue of ideal concurrence. These distinctions precede calculation of the aggregate sentence. ^[1]

A continued offense must not be confused with a continuing offense. In the former, separate acts satisfying offense elements are united by statute. In the latter, one unlawful situation is maintained over time or the offense's elements are continuously fulfilled, where its structure permits this. Repeated acquisition of prohibited items and uninterrupted possession of an already acquired item do not receive identical analysis.

Offenses requiring systematic commission or activity carried on as an occupation also have their own structure. Repetition or sustained activity may be an element of the offense itself. Article 26 must not be used as a universal explanation of every instance of repetition. The starting point must always be the act of execution and the other elements of the particular provision.

8. A judicial example and evidentiary discipline

Judgment No. 664 of December 29, 2010, in criminal case No. 686/2010 of the Supreme Court of Cassation, Third Criminal Division, considered eight notarial certifications within a charge under Article 311 in conjunction with Article 26. The example illustrates application beyond property offenses; it creates no general presumption that every document prepared by the same person forms one offense. ^[2]

A defense against incorrect aggregation must identify the specific missing element: a different offense type, interrupted circumstances, nonhomogeneous culpability, lack of a subjective connection, or a statutory prohibition. Disagreement with the overall classification cannot replace analysis of the episodes. Conversely, a defense against incorrect separation must demonstrate the proven common core and satisfaction of every prerequisite.

Judicial reasons must make it possible to review which acts were included and why. Article 305(3) of the Criminal Procedure Code requires established facts, an evidentiary basis, and legal reasoning; that requirement is incompatible with a summary concealing unproven episodes within a total amount. If some acts are excluded, the implications for the classification and penalty of the remainder must be assessed. ^[3]

9. Sentencing and impermissible double counting

A continued offense does not necessarily guarantee a more favorable outcome. The aggregate value of its subject matter or consequences may trigger an aggravated offense. Real concurrence likewise does not automatically mean an arithmetic sum of every sentence. The comparison must follow the statute, not the intuition that one classification is always “less severe.” ^[1]

In sentencing, the number of episodes, duration, and persistence may be relevant to the particular offense. Article 56 must nevertheless be respected: a circumstance already accounted for by the legislature in defining that offense cannot be reused as an independent ground for aggravation. The aggregate amount cannot both establish the classification and, without further reasoning, become a second aggravating factor. ^[1]

10. Conclusion

The continued offense is a statutorily recognized unity, not a technique for summarizing evidence. Its application requires each act to satisfy offense elements independently, an established objective and subjective connection, and the absence of a statutory bar. Real concurrence applies where the offenses retain their independence and its own prerequisites are satisfied.

The most reliable practical method has two stages: first examine each act independently, then examine the connection between the proven acts. This prevents both unjustified expansion of a single charge and artificial multiplication of offenses. Substantive-law unity must be proven before it is used to determine punishment.

This article is a general discussion of legal theory and practice. A specific matter requires consideration of the law applicable at the relevant time and Article 2 of the Criminal Code. Hypotheticals serve legal analysis only and do not describe actual cases.