Considerations on the enforcement of the most favourable criminal law in case of requests for punishments merger and requests for conditional release

• Author: Constantin I. Gliga
• Position: Faculty of Law, Transilvania University of Brasov
• Pages: 201-208

Bulletin of the Transilvania University of Braşov

Series VII: Social Sciences • Law • Vol. 8 (57) No. 2 - 2015

CONSIDERATIONS ON THE

ENFORCEMENT OF THE MOST

FAVOURABLE CRIMINAL LAW IN CASE

OF REQUESTS FOR PUNISHMENTS

MERGER AND REQUESTS FOR

CONDITIONAL RELEASE

Constantin I. GLIGA1

Abstract: This article intends to draw the attention to some situations

which can occur in the practice of the courts concerning the enforcement of

the most favourable criminal law in terms of the provisions of the Decision

no. 265 from May 6th 2014 of the Constitutional Court of Romania and tries

to propose solutions for the cases in which the “combination” of the

provisions of successive criminal laws is impossible to avoid

Key words: the most favourable criminal law, punishments merger,

conditional release, decision, Constitutional Court of Romania.

1 Faculty of Law, Transilvania University of Braşov.

1. Introduction

The entry into force of the New Criminal

Code on February 1st 2014 brought some

important modifications to the fundamental

institutions of criminal law. Therefore,

although concerning the sentencing regime

we notice a reduction of the special

punishment limits, the modifications

brought to this institution have a

determinant contribution to the punishment

establishment in case of multiple offences.

Therefore, a special issue was the modality

in which the most favourable criminal law

is enforced until the definitive judgement

of the case (art. 5 of the New Criminal

Code), the practice and doctrine providing

different solutions concerning this aspect.

This controversy culminated in the

issuance of two totally opposite solutions,

coming to offer an interpretation to art. 5

of the New Criminal Code. Therefore, by

Decision no. 2 from April 14th 2014,

published in the Official Gazette of

Romania, Part I, no. 319 from April 30th

2014, the High Court of Cassation and

Justice – Panel for the judgement of certain

legal issues on criminal matters – decided

that, by enforcing art. 5 of the Criminal

Code, the statute of limitation of the

criminal liability is an autonomous

institution, as compared to the institution

of punishment, establishing the mechanism

for deciding the most favourable criminal

law in two steps, first the easier provisions

of successive laws concerning the

punishment are identified, and next the

most favourable law is selected in case of