Role of the interpretation reserve in the constitutionalization of Romanian and French criminal law

• Author: Andra Iftimiei
• Position: Law Faculty, 'Alexandru Ioan Cuza' University of Iasi
• Pages: 81-87

AGORA International Journal of Juridical Sciences, www. juridicaljournal.univagora.ro

ISSN 1843-570X, E-ISSN 2067-7677

No. 4 (2014), pp. 81-86

81

ROLE OF THE INTERPRETATION RESERVE IN THE

CONSTITUTIONALIZATION OF ROMANIAN AND FRENCH CRIMINAL LAW

A. Iftimiei

Andra Iftimiei

Law Faculty

“Alexandru Ioan Cuza” University of Iai

*Correspondence: Andra Iftimiei, Alexandru Ioan Cuza University of Iai, Law Faculty,

Carol I Blvd, no. 11, Iai, Romania

E-mail: andra.iftimiei@uaic.ro

Abstract

The interpretation reserve is the only instrument through which the criminal judge

becomes an actor in the constitutionalization process of the criminal law, because although

he does not rejoice from the competence of rendering decisions the on constitutionality or

unconstitutionality of law, the interpretation under reserve directly refers to it, by the

compulsoriness of observing the sense granted by the constitutional court.

Keywords: interpretation reserve, constituionalization, criminal law, comparate

law.

Introduction

Depending on the instance of occurrence of the interpretative decision with

interpretation reserve, the role of the constitutional court is altered: if the interpretation

reserve occurs before the entering into force of a law, the constitutional judge is placed

between the legislative elaboration of the text and its application by the law court

1

.

Accordingly, the constitutional courts have a vocation in choosing and guiding the legislator’s

criminal policy, the direct outcome being the integration of interpretative decisions in

criminal law sources.

In Romania, from the viewpoint of the legal force, the decisions issued with

interpretation reserve have the same force, their compulsoriness for the future having as legal

grounds Art. 147 of the Romanian Constitution.

By interpretation reserve, in France, one understands the technique through which the

Constitutional Council indicates in advance how a legislative provision should be interpreted

so as not to violate the Constitution

2

. In Romania, the decisions with interpretation reserve are

those decisions of the Constitutional Court by which, without declaring the non-

constitutionality, the Court ascertains which is the interpretation that would lead to non-

constitutionality and through which one carries out the interpretation compatible with the

fundamental Law

3

. Upon the moment of entering into force of the Constitution in 1958, in

France, the interpretation reserve used by the constitutional judge is conceived only before the

entering into force of the law, but together with the amendment of the Fundamental Law and

with the introduction of the a. posteriori constitutional control, the technique of interpretation

reserve was triggered also in the case of the crucial issue of constitutionality. Hence, the

distinctions between the two states have also disappeared regarding the use of the

1

G. Royer, “La réserve d'interprétation constitutionnelle en droit criminel” in Revue de

sciences criminelles, no. 4/2008, p. 829.

2

Decision 2 DC of June 17, 18 and 24, 1959.

3

V. M. Ciobanu, „Considerations regarding the decisions that can be pronounced following the exercise of

constitutionality control” in Dreptul, no. 5-6/1994, p. 21.