Observatii privind compatibilitatea art. 24 alin. 3 din legea nr. 554/2004 a contenciosului administrativ cu principiile fundamentale ale dreptului pe
Observations on the compatibility of art. 24 (3) of Law no. 554/2004 on the administrative contention with the fundamental principles of criminal law.

Summary/Abstract: The study analyses the potential compatibility problems between some of the provisions of law no. 554/2004 on the administrative contention and fundamental principles of criminal law, i.e. the legality of incrimination and punishment and the personal character of criminal liability. According to art. 24 para. 1 of Law no. 554, after admitting a legal action in administrative contention, the relevant administrative authority is required to execute the irrevocable court decree in the term provided in the decree, or, in the absence of such a term, in a maximum of 30 days after the declaration of irrevocability. According to paragraph 2, in the case of non-compliance with the said terms, a daily fine can be applied. The difficulties appear when the court decree is not complied with even after applying the fine, situation when the act becomes an offence sanctioned with imprisonment from 6 months to 3 years or a fine of 25 million- 100 million ROL (para. 3). The authors consider that the enunciation of art.24 is deficient in relation with the principle of legality in incrimination, which also imposes the predictability of incrimination- the text of law must be stated clearly, so that any person can comprehend the constitutive elements of the offence. The provisions of art.24 para.3 do not clarify when the act becomes a criminal offence. How many days of fining are necessary so that the act turns into a criminal offence? The law does not provide any supplementary requirement, leaving the courts to decide on the issue; an abuse on the part of the legislator, in blatant contradiction with the legality of incrimination principle, which states that the instituting of criminal offences is solely the attribute of the legislative power, by the means of an organic law (art. 73 (h) of the Romanian Constitution). The provisions of para.3 of art. 24 are also criticized from another perspective- the compatibility with the fundamental principle of the personal character of criminal liability. The problem arises from the situation in which the public authority obliged to the conduct established in para.1 is a collegial body or a corporation authorized to perform a public service. What happens in the situation in which the court decree is not executed due to the vote of the general assembly of shareholders? Punishing all the members of the assembly would present serious impediments in the case of a secret vote, as no person can be liable for the actions of others. Also, in the case that some members of the collegial body abstained or voted against, punishing them would be against equity. Under this viewpoint, problems are also brought up by other collegial bodies, such as: Local and County Councils, the Government. Finally, the de lege ferenda solutions would be the explicit statement of a term after which the act in question will become an offence, and as for the other problems identified, the only solvency is represented by praetorian reme

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