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
SUMMARY

The purpose of this paper is to realize a study regarding the comparison of the penal provisions 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 doctrine, jurisprudential and legal analysis from all the five countries, and the author is proposing to... (see full summary)

 
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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.

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