Motivation of RCC with important effects: From April 2018 to May 2022, when the Ordinance of C. Predoiu was issued, in Romania there were no causes for interruption of the prescription.  Effects: All criminal cases that have exceeded the general limitation period in the 4 years must be closed

The Constitutional Court published today the motivation of the decision of May 26, 2022, regarding the unconstitutionality of the provisions of art. 155 paragraph (1) of the Criminal Code regarding the prescription of criminal liability.

In their reasoning, the CCR judges recall that a first decision of the Constitutional Court on this issue existed on April 26, 2018, so that the CCR found then that the legislative solution provides for the interruption of the statute of limitations ”, From the provisions of art.155 paragraph (1) of the Criminal Code, is unconstitutional.

The Court then found that “by the effects it produces, Decision no. 297 of April 26, 2018 borrows the legal nature of a simple / extreme decision, since, finding unconstitutionality that of the procedure in question ”, the Court sanctioned the only legislative solution that the provisions of art.155 paragraph (1) of the Criminal Code regulated”.

“Just considering the sphere of competence of the legislator, the Court finds that, in paragraph 34 of Decision no. 297 of April 26, 2018, it highlighted the landmarks of constitutional behavior that the legislator, and not the judiciary, had the obligation to this one, based on art.147 of the Constitution, being obliged to intervene legislatively and to establish clearly and predictably the cases of interruption of the course of the prescription of the criminal responsibility.

However, the Court notes that by the silence of the legislator, the identification of cases of interruption of the prescription of criminal liability remained an operation carried out by the judiciary, reaching a new situation lacking clarity and predictability, a situation that led to different application to similar situations of the criticized provisions (fact confirmed by the finding by the High Court of Cassation and Justice of the existence of a non-unitary practice).

So, the lack of intervention of the legislator determined in the task of the judicial body the need to replace it by outlining the normative framework applicable in case of interruption of the course of prescription of criminal liability and, implicitly, the application of criminal law by analogy. However, the Court has consistently ruled in its case-law that the provisions of Article 61 para. it cannot be limited to a certain field if the law thus adopted complies with the requirements of the Fundamental Law (Decision no. 308 of March 28, 2012, published in the Official Gazette of Romania, Part I, no. 309 of May 9, 2012).

At the same time, the Court ruled that allowing the person who interprets and applies criminal law, in the absence of an express rule, to establish the rule by which he is to resolve a case, taking as a model another solution pronounced in another regulated framework, represents an application by analogy of the criminal law. However, according to the case-law of the European Court of Human Rights and the Constitutional Court, Article 7, paragraph 1, of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 23, paragraph (12) of the Basic Law, which enshrines the principle of lawfulness and criminality ( nullum crimen, nulla poena sine lege), in addition to prohibiting, in particular, the extension of the content of existing offenses to acts which previously did not constitute offenses, also provide for the principle that criminal law should not be interpreted and applied extensively to the detriment of the accused, for example, by analogy.

Thus, the Court finds that the normative set in force does not provide all the legislative elements necessary for the foreseeable application of the norm sanctioned by Decision no. 297 of April 26, 2018. Thus, although the Constitutional Court referred to the old regulation, highlighting the the legislator had the obligation to appropriate it, applying the rules of the Court, this fact cannot be interpreted as a permission granted by the court of constitutional contentious to the judicial bodies to establish themselves the cases of interruption of the prescription of criminal liability

Consequently, the Court finds that, under the conditions of establishing the legal nature of Decision no. 297 of April 26, 2018 as a simple / extreme decision, in the absence of the active intervention of the legislator, mandatory according to art. 147 of the Constitution, for the period between the date of publication of that decision and until the entry into force of a normative act clarifying the norm, by expressly regulating cases capable of interrupting the term of prescription of criminal liability, the active fund of prescription of criminal liability.

The Court finds that such a consequence is the result of the legislature’s failure to comply with its obligations under the Basic Law and its passivity, even though the decisions of the High Court of Cassation and Justice signaled from 2019 the non-uniform practice resulting from the lack of intervention. legislative.

The Court also emphasizes that the reason for pronouncing Decision no. 297 of April 26, 2018 was not the removal of the statute of limitations on criminal liability or the removal of the institution of interruption of the course of these terms, but the alignment of the provisions of art.155 para. (1) of the Criminal Code to the constitutional requirements. Thus, the Court observes that the terms of general prescription regulated by the provisions of art. 154 of the Criminal Code are not affected by the decisions of the Constitutional Court.

In this context, the Court finds that the situation created by the passivity of the legislator, following the publication of the mentioned admission decision, represents a violation of the provisions of Article 1 paragraphs (3) and (5) of the Basic Law, which enshrines the rule of law Romanian, as well as the supremacy of the Constitution. This is because the prevalence of the Constitution over the entire normative system is the crucial principle of the rule of law. Or, the guarantor of the supremacy of the Fundamental Law is the Constitutional Court itself, through the decisions it pronounces, so that the neglect of the findings and provisions contained in its decisions determines the weakening of the constitutional structure that must characterize the rule of law (in the same sense April 28, 2022, published in the Official Gazette of Romania, Part I, no. 519 of May 26, 2022).

The Court therefore finds that, in the present case, the legislator disregarded the provisions of art.147 paragraph (4) of the Constitution, ignoring the mandatory effects of Decision no.297 of April 26, 2018 with the consequence of creating a more serious unconstitutionality defect generated by the non-unitary application of the text of the law “The term of the prescription of the criminal liability is interrupted by the fulfillment”, which obviously does not provide for any case of interruption of the course of the prescription of criminal liability. In order to restore the state of constitutionality, it is necessary for the legislator to clarify and detail the provisions regarding the termination of the prescription of criminal liability, in the spirit of those specified in the recitals of the aforementioned decision “, the CCR’s motivation states.

On May 30, 2022, much too late, the Romanian Government led by Nicolae Ciucă, at ​​the proposal of Minister Cătălin Predoiu, amended the Penal Code, bringing the legislation in line with the CCR decision of 2018.

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