THE INDIVIDUALIZATION OF FINAL CRIMINAL SENTENCES IN THE CONTEXT OF OFFENCE RECLASSIFICATION BASED ON THE RETROACTIVE APPLICATION OF CRIMINAL LAW

Abstract

The restrictive interpretation of criminal law, even when it is unfavorable, is not expressly prohibited and does not, as such, infringe the principle of legality of criminalization; nevertheless, it may result in prejudice to the rights and legitimate interests of litigants, may vitiate judicial practice, and, in certain situations, may lead to the State being condemned by the European Court of Human Rights. Accordingly, the subject matter of the present study consists of cases very frequently encountered in domestic judicial practice involving a restrictive interpretation of the provisions of article 101, par. (7) of the Criminal code – an interpretation which deprives the retroactive effect of criminal law of its substance. The analysis carried out highlights a different approach, currently a minority one, to the provisions of the aforementioned criminal norm, which is nevertheless consistent with both the letter and the spirit of the law. According to this view, the reclassification of the act on the basis of the retroactive effect of criminal law also entails a new re-individualization of the final criminal sentence, without limiting the court to only two options: either setting the sentence at the maximum penalty provided by the more favorable criminal law or maintaining the sentence established by the final and irrevocable judgment.