Lack of predictability in the criminal law. The offences of "insult" and "libel"

• Author: Adrian Aldea
• Position: Department of Public Law, <I>Transilvania</I> University of Bra&#x015f;ov.
• Pages: 183-186

Page 183

Articles 205 (text stipulating the offence of insult), 206 (text stipulating libel), 207 (sample text regulating the proof of truth) and article 236 index 1 (text stipulating the crime of nation defamation) in the Criminal Code were repealed by article A section 56 of Law no. 278/2006.

By Decision no. 62 of the Constitutional Court of 18.01.2007 [1], given the retrospective review of constitutional practice, the abrogation of insult and defamation crimes stipulated by articles 205-206 of the Criminal Code, was declared unconstitutional. The Court held that in the event of unconstitutionality, repealing the law deprives it from its legal effects, but the legal stipulations that formed the subject of abrogation still have consequences, according to art. 147. 1 of the Constitution.

Therefore, the Constitutional Court has found the provisions stipulated by Article 205 and Article 206 C as being constitutional, but the repealing of these texts was considered unconstitutional.

The Constitutional Court decided that the decriminalization of the two criminal offences violates the principle of the free access to justice, recognized by article 21 of the Constitution, the right to a fair trial and the right to an effective appeal provided by article 6 and 13 respectively of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the principle of equity rights' provided by article 16 of the Constitution. The Constitutional Court concludes that the free access to justice does not suppose the mere possibility to address Courts, but also to take benefit of adequate means for the protection of the violated right, in proportion with the social gravity and risk of the injury produced.

As regards the effects of the Constitutional Court's decisions on the laws declared unconstitutional article 147 paragraph 1 of the Constitution established that the provisions of the laws and ordinances in force, as well as thePage 184regulations found to be unconstitutional, cease their legal consequences within 45 days after publication of the Constitutional Court decision if ,in the meanwhile, the Parliament or the Government, depending on the case, do not agree with the unconstitutional provisions of the Constitution. During this period, unconstitutional provisions shall be suspended by rights.

Strict interpretation of the text of the Constitution leads to the conclusion that the provisions of article A...