Criminal law and the legality of incrimination and of criminal law sanctions in the criminal code in force and the new criminal code

• Author: Laura Roxana Popoviciu
• Position: Ph.D. Lecturer, AGORA University of Oradea, Law and Economics Faculty
• Pages: 54-57

CRIMINAL LAW AND THE LEGALITY OF INCRIMINATION AND OF CRIMI NAL LAW

SANCTIONS IN THE CRIMINAL CODE IN FORCE AND THE NEW CRIMINAL CODE

Laura-Roxana Popoviciu

Abstract

This article is intended to examine the concept o f criminal law and the legality of indictment and

criminal sa nctions in the Criminal Code in force and from the per spective of the New Criminal Code. We speak

thus of one of the most importa nt principles of law, occur ring at the sa me time some aspects an d other large

institutions of cr iminal law, such as crime, recalling in this respect similar ities between its definitions given by

the two codes. Criminal legal rules incr iminates, in abstr act, a large variety of fa cts, to pr otect social values

aga inst those who endanger their normal development, because we must keep in mind that there may be

occasions when cer tain human actions, though pr ohibited by criminal rules a re not offenses because they do not

meet all the essential featur es that a crime must met cumulatively.

Key words: legal, cr iminal la w, incrimination, pena lty.

Introduction

According to the Criminal Co de in force, criminal law, a s a form of expression of the right, is c a set of

rules stipulatin g which a ctions constitute offenses, which sanctions can be ap plied to offenders and what

measures ca n be taken in case of committing these actions.

Because legal rules establish a well-defined conduct, whose non -compliance a ttracts penalties imposed

by courts, the need for their ela boration, adoption and promulgation by a special procedur e to th e legislative

bodies was requir ed

1.

Criminal Law sets out, in its way, the actions for which the sta te can claim to hold a person for criminal

accounta bility and the pena lties applied to those who commit crimes.

Incrimination and penalty can only be legislator’s work.

This defines the principle of legality unanimously upheld in the cr iminal doctrine in Romania

expressing the rule tha t the entire activity in the criminal law is carr ied on and in accorda nce with the law2.

This principle is not only the resear ch subject of criminal la w3.

Besides being a basic principle of law in general, it is consecr ated in complementary disciplines of the

criminal law, such as criminalistics which provides that, under this principle, all activities car ried out by

professionals involved in criminal investigations, ta ctical methods and sciential-technica l means used in forensic

activity cannot be ar ranged, performed or used only in compliance with the Code of Criminal P rocedure and the

active law4.

The purpose of the cri minal law being protection against crime, the rule of law in our country, ensuring

that order involves an adherence to the principle of legality.

The principle of legality of incrimination, e nunciated, among the first ones, by Beccaria in “Dei d elitti e

delle pene”, it was proclaimed in art. VIII of the “Declaration of t he Rights of Man and of the Citizen” (1789) as:

“No person shall be accused, arrested, or imprisoned excep t in the cases and according to the forms prescribed

by law”, afterwards being signed up to the level of principle in modern criminal law.

The rule, that no offense exist outside the law (nullum crimen sine lege), is a fundamental rule, closely

related to the legality of penalties, the penal co de in force providing not only “the law provides which actions are

offenses” (legality of incrimination), but also that the la w provides for „penalties that are applied to offenders”

(legality of sanctions).

If the Criminal Code in force, according to the three major institutions of criminal law (crime, criminal

sanctions and criminal accountability), establishes the principle of legality in a single art., art. 2 as “Legality of

incrimination”, materializing as mentioned above in two rules, the New Criminal Code establishes the principle

of legality in two separate articles:

“Article 1. The legality of incrimination

Criminal law specifies what actions constitute offenses.

No one can be sanctioned criminally for an act not provided in the criminal law at the perpetration date.

Article 2. The legality of criminal law sanctions

 Ph.D. Lecturer, AGORA University of Oradea, Law and Economics Faculty, e-mail:lpopoviciu@yahoo.com

1 F. Ivan, Drept penal. Pa rtea general, Presa universitar român Publishing House, Timişoara, 2001, p. 21.

2 C. Mitrache, Cr. Mitrache, Drept penal român, partea general, Universul Juridic Publishing House, Bucharest, 2006, p. 44.

3 A. Boroi, Drept penal. Partea general, conform Noului Cod penal, C. H. Beck Publishing House, Bucharest, 2010, p. 11.

4 E. A. Nechita, Criminalistica. Tehnica şi tactica criminalistic, Pro Universitaria Publishing House, Bucharest, 2009, p. 10.