APLICAREA DE CĂTRE JUDECĂTOR A LEGII PENALE MAI FAVORABILE CONDUCE LA SCHIMBAREA ÎNCADRĂRII JURIDICE SAU LA SCHIMBAREA CALIFICĂRII FAPTEI?
DOES THE APPLICATION BY THE JUDGE OF THE MORE PERMISSIVE CRIMINAL LAW LEAD TO THE CHANGE OF THE LEGAL CLASSIFICATION OR TO THE CHANGE OF THE QUALIFICATION OF THE OFFENCE?

Summary/Abstract: This article proposes to bring to the fore the effects that may be generated by the pronouncement of an interpretative decision of the Constitutional Court, effects that materialize in the difficulty of understanding both the limitations in which it applies, generated by the inaccuracy of the terms used in its motivation, as well as the way in which certain criminal law institutions are reconfigured. Therefore, there have been highlighted the particular problems generated in judicial practice by the Decision no. 250/2019 of the Constitutional Court, which no longer allows the national judge to change the legal classification of direct facts by the act of disinvestment, when examining which of the successive laws produces the most favorable effect on the defendant, it is considered that the indicated normative basis must be replaced in the indictment with another one that satisfies the requirement of the institution of art. 5 of the substantial criminal law. At the same time, the presentation highlights the fact that neither the jurisprudence nor the relevant specialized literature in criminal procedural matters provide an answer to these particular problems that the Decision no. 250/2019 of the Constitutional Court raises it in practice, and this is because the decision in question, containing several inconsistencies, generates effects that overlap with some institutions not defined by the legislator, such as the legal classification of the offence or the qualification of the facts, regarding which there are divergent views as to the conditions of existence and the effects which it manifests in the proceedings.

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