Aplicarea în timp a deciziei nr. 265/2014 a Curţii Constituţionale. Notă critică
Time Applicability of Decision no. 265/2014 of the Constitutional Court. A critical Analysis

Summary/Abstract: The new Criminal Code, in force starting with February the 1st, 2014 and the succession of criminal laws which subsequently occurred drew attention of the doctrine and the case law on the problems rising from the correct mechanism of determining and applying the more lenient law in cases of complex laws, that is, those who contain both provisions more favourable and more severe. The special panel for preliminary rulings to settle legal issues from the High Court of Cassation and Justice, in its decision no. 2 of April the 4th, 2014, joined the vast majority opinion on the mechanism for identifying and implementing the more lenient criminal law and concluded that consists in the so called autonomous institution criterion. In the above mentioned decision, analyzing the applicability of article 5 of Criminal Code, the Court stated that the statute of limitations is an autonomous institution versus the penalties. According to Article 477 paragraph 3 of the Code of Criminal Procedure, this conclusion is binding from the time of its publication in the Official Gazette, namely the 30th of April, 2014. By decision no. 265 of 6th of May, 2014, the Constitutional Court admitted an unconstitutionality exception and therefore, held that the provisions of Article 5 of the Criminal Code are constitutional insofar as the provisions of the law do not allow combining provisions from successive law in determining and applying the more lenient law. In the context of the aforementioned two decisions, the High Court of Cassation and Justice was yet again called upon: this time, to decide whether in the case of acts committed prior to the decision of the Constitutional Court, Article 5 of the Criminal Code must be interpreted according to this decision or according to the Supreme Court’s one. By decision no. 21 of 2014, which is the subject of this study, it was established that the provisions of Article 5 paragraph of the Criminal Code must be interpreted, even as regards the statute of limitations, that the more lenient law is applicable in cases of crimes committed prior to February the 1st, 2014 which have not yet been finally adjudicated according to decision 265/2014 of the Constitutional Court. We express our disagreement with this solution. The High Court should have declared that all conditions for a succession of criminal laws are fulfilled in the case of acts committed prior to 20th of May, 2014, and therefore, the solution resides in the general principle of the more lenient law, as proscribed by Article 5 of the Criminal Code. In the structure of this succession of laws we find Article 5 in the binding interpretation given by the special panel of Supreme Court and Article 5 in the binding interpretation provided by the Constitutional Court.

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