Consideraţii privind regimul normelor penale incomplete în lumina jurisprudenţei recente a Curţii Constituţionale
Considerations on the legal regime of incomplete criminal norms in the light of Constitutional Court’s recent case-law

Summary/Abstract: In the first two decades of its establishment, the Constitutional Court has been extremely lax regarding the use of the so called improper white or blank criminal norms. It ruled in a constant manner that norms of forestry regulations which sent for determining a constituent element of the offense - the damage – to lower-level administrative law acts (in this case ministerial orders), are not contravening the legality principle. More recently, however, the Court’s case-law seems to shift to an appreciable restriction of the scope of legal acts that can complement an incomplete criminal norm. Thus, in its decision no 363 of 2015 the Court stated that „in case of crimes, including those regarding tax law, the legislature must clearly and unequivocally provide for the material object either in the wording of the legal norm either in an lower-level legal act which can be easily identified by reference with the criminal norm”. A year later, in its decision no 405 of 2016, the Court held that „in criminal matters, the principle of legality requires that only the legislature can determine the primary conduct which its recipient is obliged to comply with (...)”. Regarding this case-law, an incomplete criminal norm appears unconstitutional insofar as the essential core of the prohibited conduct is to be found in the lower-level legal act, unconcerned if this latter norm is a preexisting one or one that will be adopted later. Moreover, it is difficult to reconcile the standards imposed by the Court with the explicit permission that drawing up a list of substances with special regime, whose manufacture, possession, trade etc. represents an offence is the task of a government decision or even a lower-level act (ministerial order, order of the president of an authority etc.). At least for very complex technical areas we believe that a process which meets the requirements of constitutional could be when the criminal norm complements with another legal norm of same status which defines sufficiently precise the element it borrows; this was, it will be possible for a lower-level legal norm to provide for more accurate technical details. For other areas it is preferable that the incomplete criminal norm to provide a detailed description of the prohibited conduct, in which case it be possible to borrow a technical element from a lower-level legal act.

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