The application of the more favorable criminal law in the case of Article 10 of Law no. 241/2005, as amended by Law no. 55/2021 – a perspective on final convictions

Abstract

On 01.04.2021, Law no. 55/2021 amended Law no. 241/2005, modifying its provisions in the following sense:

“In case of committing a crime of tax evasion provided in Article 8 and 9, if during the criminal investigation or trial the damage caused is fully covered and its value does not exceed 100,000 euros, in the equivalent of the national currency, the penalty imposed may be a fine.

If the damage caused and recovered under the same conditions is up to 50,000 euros, in the equivalent of the national currency, the penalty with a fine shall be applied”.

Another amendment was the introduction of Article 10 paragraph (12) which provides that “The provisions of this article shall apply to all defendants even if they have not contributed to the recovery of the damage provided for in paragraphs (1) and (11)”.

By adopting this normative act, the purpose of the legislator by granting the benefit of fine alternative to imprisonment if the damage is up to 100,000 euros, in the equivalent of the national currency, respectively to replace the prison sentence with a fine in case of damages up to 50,000 euros, in national currency equivalent, was to encourage the full recovery of damages caused by the commission of criminal acts, considering that the acts which caused damage up to the specified amounts do not meet a high level of danger, as opposed to those the damage created exceeds, as the case may be, 100,000 euros or 500,000 euros, amounts calculated in national currency equivalent.

Although the convicted persons claimed in the motivation of some requests that in the situation of the persons convicted prior to the entry into force of the Law for a tax evasion offence, having associated a damage at least equal to the threshold of 50,000 euros (equivalent in RON), but lower than the threshold of 100,000 euros and which was fully recovered during the criminal investigation or in court, the provisions of Article 6 paragraph (1) of the Criminal Code are applicable, in the sense that the new law provides for a lighter sentence, respectively imprisonment alternatively with a fine, the court of judicial control will hold that the latter is a more favorable criminal law only if the sentence that is applied, even imprisonment, would exceed the maximum punishment for the offence provided by the new law.

In the opinion of the court of judicial control, this hypothesis is, from a practical point of view, inapplicable, since the limits of the prison sentence, previously provided, have not changed by the effect of Law no. 55/2021, and under the rule of the new law the application of the fine is only an alternative, an option for the court.

In essence, the convicted petitioner understood not to criticize the application of Law no. 55/2021, but the lack of transitional provisions, respectively of some provisions to regulate the application of the provisions introduced by Law no. 55/2021 about definitively convicted persons.

Avoiding the risk of potentially discriminatory situations could be done only by the legislator, by introducing transitional rules, as the constitutional jurisdiction has recommended in cases involving similar approaches since 2011, based on Constitutional Court Decision no. 1483/2011 regarding the exception of unconstitutionality of the provisions of Article 320¹ of the Code of Criminal Procedure from 1969.

In the absence of transitional rules, bearing in mind that in this case the provisions of Article 6 of the Criminal Code regarding the application of the more favorable criminal law, the withholding of the incidence of a case of impunity introduced by Law no. 55/2021 in the case of a final conviction on the date of entry into force of the indicated normative act, would represent the realization by the judge of a true “lex tertia”.