Some considerations about the application of the more favourable criminal law regarding deeds on trial in some countries of European Union

• Author: Alexandra Raisa Roscan
• Position: West University of Timisoara, Romania
• Pages: 163-178

Some considerations about the application

of the more favourable criminal law regarding deeds

on trial in some countries of European Union

PhD. student Alexandra Raisa ROŞCAN

1

Abstract

The purpose of this paper is to realize a study regardin g the comparison of the

penal provision s that uphold the application of the more favorable criminal law until the

final judgment of the cause between Romania and France, Italy, Spain and Portugal. The

study is realized as result of a d octrine, jurisprudential and legal analysis from all the five

countries, and the author is proposing to identify not only the similaritie s but also the

differences of applying the more favorable criminal law until final judgment of the cause in

Romania and another four European countries. We will identify the definitions of the more

favorable law, legal regulations, conditions of application, special application situations,

application limits. Special attentions will be paid to the concept de lex tertia, because we

need to establish if one of these countries applies the more favorable criminal law on

autonomous institutions, meaning if there can be a combination of more legal provision

from two or more consecutive penal laws. We will see if Romania rallied to the penal policy

of the other European countries but also what do they bring new to the matter.

Keywords: the more favourable criminal law, lex tertia, non-retroactivity, retroactivity.

JEL Classification: K14, K33

1. Introductory considerations

Until the entry into force of the new Criminal Code, application of the

more favorable criminal law did not raise major problems in Romania. After

February 1, 2014, the new criminal law created the premises of multiple conflicts

of opinion regarding the application of this principle. As a result, the doctrine was

divided into two, one part supported the global application of criminal law, and the

other, more numerous, supported its application to autonomous institutions.

Article 5 of the new Criminal Code has generated heated theoretical

discussions and practical antagonistic solutions, resulting in the issuance of two

diametrically opposed solutions, the first by the High Court of Cassation and

Justice and the second by the Constitutional Court, which invalidated, the decision

of the High Court of Cassation and Justice. By decision no. 2 of 14.04.2014, the

High Court of Cassation and Justice, establishes that the effects of the autonomous

institutions are not generated by the same type of juridical fact, the institutions

being autonomous both between themselves and with regard to criminalization and

sanction.

1

Alexandra Raisa Roşcan - West University of Timişoara, Romania, raisaroscan@hotmail.com.

164 Volume 8, Issue 1, March 2018 Juridical Tribune

The Constitutional Court pronounces, 22 days later, the decision no. 265 /

May 6, 2014, which stipulates that the provisions of art. 5 of the Criminal Code are

constitutional as they do not allow the combination of the provisions of successive

laws in the establishment and application of more favorable criminal law.

So, for 22 days, the courts have applied the more favorable criminal law to

autonomous institutions, that is, combining the more favorable provisions of the

two successive criminal laws.

Hence, we considered it necessary to identify and study the legislation,

doctrine and jurisprudence of five European Union Member States in order to

identify the way in which more favorable criminal law is applied to the cases under

judgment in order to determine whether Romania has raided their criminal policies.

2. France

Criminal laws apply immediately to previous untried facts at the time of

their entry into force when they are favorable to those prosecuted, or more gentle.

This is the second principle governing the enforcement of criminal law

over time. In this case, it is retroactivity in mitius, even if Article 112 -1, (3) of the

Criminal Code, rather provides for the principle of the immediate application of

more favorable laws

2

. According to this text, the new provisions, less stringent than

the old provisions, apply to offenses committed prior to their entry into force unless

a conviction has been passed under the authority of the trial.

This principle is particularly important during the period of legislative

instability. In this respect, the Constitutional Council gave constitutional features to

this principle by Decision no. 80-127 DC of 01.20.1981, invoking the application

of art. 8 of the Declaration of Human and Civic Rights. Georges Vedel

3

was one of

the members of this Constitutional Council who had advocated this principle being

established in his report on the "Security and Freedom" Decision

4

.

Criminal law may retroactively include provisions more favorable to the

guilty person because it does not threaten individual privileges.

The Old Criminal Code did not include this principle, but the Court of

Cassation succeeded in establishing it with a decision of the Criminal Chamber on

10.01.1813.

A. Applying this principle. The principle of retroactivity of the more

favorable criminal law is an immediate application principle. More favorable

criminal law applies to crimes committed before its entry into force, but not yet

judged or facts already judged, but only in appeals.

The French Criminal Code provides for several conditions for the

application of this retroactivity. The first condition is imposed by par. (3) of art.

2

X. Pin: Droit penal general, 5e edition, Dalloz, Paris, 2012, p. 98.

3

Georges Vedel was member of the Constitutional Council between 1980-1989.

4

The Decision no. 80-127 DC January 20th, 1981 of the Constitutional Council, cons. 75, the

document is available at http://www.conseil-constitutionnel.fr/conseil-con..decision-n-80-127-dc-

du-20-janvier-1981.7928.html, accessed on 06.10.2017.