CJEU – Case C-506/22, Parchetul de pe lângă Judecătoria Câmpina and Others. Compatibility with European Union law of the effects of the Decision of the Constitutional Court of Romania No 358/2022. Possibility of creating a substantive criminal law which has the effect of removing the criminal liability of the perpetrators by restricting the effects of the statute of limitations on criminal liability and an effective mechanism of systemic impunity for any acts constituting offences

By judgment of 01.07.2022, the Câmpina First Instance Court referred the matter to the Court of Justice of the European Union, pursuant to Article 267(3) of the Treaty on the Functioning of the European Union for a preliminary ruling on the following question: “The principle of the supremacy of European Union law must be interpreted as permitting national courts of ordinary law to leave unapplied, of their own motion, decisions of the national constitutional court whereby, in conjunction with the passivity/inaction of the legislature (the Parliament) to comply with the case-law resulting from those decisions and to bring the provisions declared unconstitutional into line with the provisions of the Constitution by means of legislation, a criminal rule may be created which has the effect of removing the criminal liability of the perpetrators by restricting the effects of the statute of limitations on criminal liability and an effective mechanism of systemic impunity for any acts constituting offences, regardless of their nature and gravity, by closing judicial proceedings, if they consider that this case-law is contrary to Art. 3 para. (2) of the Treaty on European Union, Art. 67 para. (1) and (4) of the Treaty on the Functioning of the European Union or Decision 2006/928”.

The reference for a preliminary ruling was made in a criminal case concerning the offence of driving a vehicle without a driving licence, an offence provided for and punishable under Article 335(1) of the Criminal Code, and concerns in practice the compatibility with European Union law of the effects of Decision No 358 of 26 May 2022 of the Constitutional Court of Romania.

The Câmpina First Instance Court held the following:

“27. The referring court notes that, by Decision No 443 of 22 June 2017, published in the Official Journal of Romania, Part I, No 839 of 24 October 2017, the Constitutional Court found that “criminal liability is a form of legal liability incurred as a result of a breach of a provision of criminal law, which gives rise to a legal relationship of constraint, arising as a result of the commission of the offence, a relationship between the State, on the one hand, and the person committing the offence, on the other. The content of the criminal legal relationship of constraint is made up of the right of the State to hold the offender liable by imposing the appropriate penalty provided for by the criminal law and the obligation of the offender to execute the penalty imposed […].

28. The State’s right to hold offenders criminally liable is extinguished if it is not exercised within a certain period of time. The limitation period for criminal liability is based on the idea that, in order to achieve its purpose, which is to establish the rule of law, criminal liability must intervene promptly, as close as possible to the time when the offence was committed, since only in this way can general and special prevention be achieved and a sense of security of the social values protected and confidence in the authority of the law be created. The later criminal liability is incurred after the offence has been committed, the less effective it becomes, the less the social impact of the offence is diminished and the less necessary it is to establish criminal liability for the offence, because the consequences of the offence could have been removed or erased. At the same time, in the time that has elapsed since the offence was committed, the perpetrator, under the pressure of the threat of criminal liability, can make amends without the need for punishment […].
29. Prescription of criminal liability consists in the extinction of the criminal legal relationship of conflict and, by this, the extinction of the right of the State to hold criminally liable the person who commits a crime, after the passage of a certain period of time from the date of its commission, i.e. after the expiry of the limitation period […].
30. Limitation periods are regulated in Article 154 of the Criminal Code, depending on the nature and severity of the penalties prescribed by law for the offences to which they apply.
31. […] “art. 155 para. (1) of the Criminal Code provides for the interruption of the limitation period of criminal liability by the performance of any procedural act in the case, and, according to the provisions of para. (2) of the same Article 155, a new limitation period begins to run after each interruption.”
32. The referring court notes that, by Decision No 1.092 of 18 December 2012, published in the Official Journal of Romania, Part I, No 67 of 31 January 2013, the Constitutional Court ruled that “prescription belongs to substantive criminal law, and not to criminal procedural law and that, as such, prescription is a cause of removal of criminal liability. […] by removing criminal liability, criminal action is also removed, but this is a derivative effect, of a procedural nature, which follows from the first effect, the removal of criminal liability, a material effect. The Court therefore concluded that the prescription of criminal liability appears as a cause of the removal of criminal liability and, consequently, as a cause of the removal or non-application of the penalty, a cause which terminates the right to incur criminal liability and the corresponding obligation.”
33. The referring court finds that, by Decision No 297 of 26 April 2018, published in the Official Journal of Romania No 18 of 25 June 2018, the Constitutional Court found that the legislative solution providing for the interruption of the limitation period for criminal liability by the performance of ‘any procedural act in question’, contained in the provisions of Article 155(1) of the Criminal Code, is unconstitutional, and held, in essence, as follows:
34. “[…] the foreseeability of the effects of the provisions of Article 155 para. (1) of the Criminal Code on the person who has committed an act provided for by the criminal law, including by ensuring the possibility for him to know the occurrence of the interruption of the limitation period of criminal liability and the beginning of a new limitation period. Moreover, the date on which a procedural step which has the effect referred to above is also the date from which the new limitation period begins to run and can be calculated. To accept the contrary solution is to create, on the occasion of the performance of procedural acts which are not communicated to the suspect or defendant and which have the effect of interrupting the running of the limitation period for criminal liability, a state of perpetual uncertainty for the person concerned, given the impossibility of reasonably assessing the period of time within which he or she may be held criminally liable for the acts committed, an uncertainty which may last until the expiry of the special limitation period provided for in Article 155 (4) of the Criminal Code” (paragraph 28 of the decision).
35. However, according to the case law of the Constitutional Court, a legal provision must be precise, unequivocal and establish clear, predictable and accessible rules whose application does not allow arbitrariness or abuse, and the legal rule must regulate in a unitary and uniform manner and establish minimum requirements applicable to all its addressees (see Decision No 637 of 13 October 2015, published in the Official Journal of Romania, Part I, No 906 of 8 December 2015, paragraph 34).
36. With reference to the case-law analysed above, the Court finds that the provisions of Article 155 para. (1) of the Criminal Code establishes a legislative solution which is liable to create an uncertain legal situation for the person who is a suspect or accused person as regards the conditions for his criminal liability for the acts committed.
37. For these reasons, the Court holds that the provisions of Article 155 para. (1) of the Criminal Code are not foreseeable and, at the same time, are contrary to the principle of the legality of the incrimination, since the phrase “any procedural act” contained therein also refers to acts which are not communicated to the suspect or defendant, thus preventing him from knowing that the limitation period has been interrupted and that a new limitation period for his criminal liability has begun (paragraphs 29-31 of the decision).
38. In the light of the above considerations, the Court finds that the previous legislative solution, provided for in Article 123(2) of the EC Treaty, was not compatible with the principle of proportionality. 1 of the Criminal Code of 1969 met the conditions of foreseeability imposed by the constitutional provisions examined in the present case, since it provided for the interruption of the limitation period for criminal liability only by the performance of an act which, according to the law, had to be communicated, in a case in which the person concerned was the accused or defendant” (paragraph 34 of the decision).
39. The referring court points out that the adoption of Decision No 297 of 26 April 2018 prompted the courts to refer the matter to the High Court of Cassation and Justice for a preliminary ruling for a preliminary ruling on the following questions of law:

“If, in interpreting Art. 155 para. (1) of the Criminal Code, the cause for interrupting the limitation period of criminal liability consisting in the performance of procedural acts in the case shall have effect only in the case of any procedural act which, according to the law, must be communicated to the suspect or defendant in the course of the criminal proceedings”.

“If the procedural acts carried out prior to the publication in the Official Gazette of Romania of the Constitutional Court Decision no. 297/26.04.2018, in compliance with Art. (1) of the Criminal Code, in the form in force on the date of their performance, have led to the interruption of the course of limitation of criminal liability in pending cases”.

“Whether the limitation period is interrupted by the procedural acts communicated to the defendant or it is no longer interrupted, as it is not currently legislated by which acts the running of the limitation period is interrupted”.

“Whether acts interrupting the running of the limitation period for criminal liability carried out under the previous Criminal Code or the new Criminal Code up to the date of publication of Constitutional Court Decision No 297/2018 shall also have effect after that decision”.

40. By Decision No 5 of 21 March 2019 on the interpretation of Article 155(1) of the Criminal Code, published in the Official Gazette No 381 of 15 May 2019, the High Court of Cassation and Justice – Panel for the resolution of questions of law in criminal matters found that the admissibility conditions laid down in Article 475 of the Code of Criminal Procedure were not cumulatively met, and, pursuant to Art. 477 of the Code of Criminal Procedure, dismissed as inadmissible the applications for preliminary rulings on the questions of law sought, holding, in essence, as follows:
41. “[…] the case law of the Constitutional Court, which, by Decision No 454 of 4 July 2018, published in the Official Gazette of Romania, Part I, No 836 of 1 October 2018, in paragraph no. 62, holds: “The High Court of Cassation and Justice does not have the power to rule on the effects of the Constitutional Court’s decision or to issue binding rulings that are contrary to the decisions of the Constitutional Court (see Constitutional Court decision no. 206 of 29 April 2013, published in the Official Gazette of Romania, Part I, no. 350 of 13 June 2013).
42. […] to ask the Supreme Court for further clarifications on the issues raised in the content of the two petitions is tantamount to disregarding the full jurisdiction of the Constitutional Court in the field of unconstitutionality review …”.
43. The referring court also points out that, by Decision No 25 of 11 November 2019, published in the Official Gazette of Romania, Part I, No 86 of 6 February 2020, the High Court of Cassation and Justice – Panel for the resolution of appeals in the interest of the law found the existence of non-uniform practice regarding the interpretation and application of the provisions of Article 155(1) of the Criminal Code concerning the interruption of the limitation period for criminal liability by the performance of any procedural act in question, following the publication in the Official Gazette of the Constitutional Court Decision No. 297 of 26 April 2018, but held that the condition of admissibility under Article 471(1) of the Code of Criminal Procedure was not met, considering that the appeal did not concern the interpretation of the law, namely the provisions of Article 155(1) of the Criminal Code, but the determination of the effects of Constitutional Court Decision No 297 of 26 April 2018 on this legal text. The appeal in the interest of the law concerning ‘the interpretation and application of the provisions of Article 155(1) of the Criminal Code on the interruption of the limitation period for criminal liability by the performance of any procedural act in the case, after the publication in the Official Gazette of the Constitutional Court’s Decision No 297 of 26 April 2018’ was dismissed as inadmissible.
44. In the case law of the ordinary courts, without relevance to the degree of jurisdiction or subject-matter jurisdiction, the majority view has emerged that the nature/typology of Decision No 297 of 26 April 2018 is interpretative, and there are isolated cases where the decision has been qualified as simple/extreme.
45. In a first, majority orientation, expressed by Alba Iulia Court of Appeal, Bacău Court of Appeal, Brașov Court of Appeal, Bucharest Court of Appeal, Cluj Court of Appeal, Constanța Court of Appeal, Craiova Court of Appeal, Galați Court of Appeal, Iași Court of Appeal, Oradea Court of Appeal, Pitești Court of Appeal, Ploiești Court of Appeal, Târgu Mureș Court of Appeal, Timișoara Court of Appeal, it was considered that the Constitutional Court Decision no. 297 of 26 April 2018 is a decision of interpretation, and the provisions of Art. (1) of the Criminal Code remain in the active substance of the legislation and continue to produce effects, but the only acts that can have the effect of interrupting the course of prescription of criminal liability are those that are communicated to the suspect or defendant.
46. At the level of the Courts of Appeal of Alba Iulia, Bacău, Cluj, Constanța, Ploiești and Timișoara, a minority opinion was also identified, to the effect that the text of the law contained in Article 155(1) of the Criminal Code was declared unconstitutional by Constitutional Court Decision no. 297 of 26 April 2018, so that the institution of interrupting the statute of limitations of criminal liability is no longer applicable.
47. In two decisions upholding the appeal in cassation, the Supreme Court held, in essence, that, in interpreting Article 155(1) of the Criminal Code, the court is obliged to start from the recitals of the Constitutional Court’s decision no. 297/2018, given that, on the one hand, the decisions of the Constitutional Court are generally binding and, on the other hand, this character is attached not only to the operative part but also to the recitals of the decision.
48. In the light of these considerations, the High Court of Cassation and Justice has found that the limitation period can be interrupted only by the performance of an act which, according to the law, must be communicated, in a case in which the person concerned was the accused/suspect or defendant, as expressly ruled by the Constitutional Court.
49. In the same sense are also decisions No 290/A of 6 November 2018, No 306/A of 22 November 2018, delivered by the Criminal Division of the High Court of Cassation and Justice; Decision No 142 of 27 May 2019 of the 5 judges of the High Court of Cassation and Justice.
50. Next, the referring court observes that, by Decision No 358 of 26 May 2022, published in the Official Gazette No 565 of 9 June 2022, the Constitutional Court found that the provisions of Article 155(1) of the Criminal Code were unconstitutional and held, in essence, as follows:
51. “First, the Court finds that, by the effects it produces, Decision No 297 of 26 April 2018 lends itself to the legal nature of a simple/extreme decision, since, by finding unconstitutional the fact that the interruption of the limitation period for criminal liability is achieved by the performance of ‘any procedural act in question’, the Court sanctioned the only legislative solution which the provisions of Article 155 para. (1) of the Criminal Code.
52. On the other hand, the Court observes that both part of judicial practice and part of the literature, taking as a starting point the content of paragraph 34 of the above decision, have held, by analogy with the provisions of the old Criminal Code, that, as regards the ground for interrupting the limitation period for criminal liability consisting in the performance of procedural acts in the case, it has effect only in the case of any procedural act which, according to the law, must be communicated to the suspect or defendant in the course of the criminal proceedings” (paragraphs 61-62 of the decision).
53. “Next, the Court observes that, in paragraph 34 of Decision No 297 of 26 April 2018, it pointed out that the legislative solution in the 1969 Criminal Code met the requirements of clarity and predictability, since it provided for the interruption of the limitation period for criminal liability only by the performance of an act which, according to the law, had to be communicated, in a case in which the person concerned was the accused or defendant. The Court observes, however, that the indication of the legislative solution in the earlier legislative act had a guiding role and can in no way be attributed to it an absolute nature, in the sense of obliging the legislature to adopt a rule identical to that contained in the 1969 Criminal Code. Thus, the Court points out that, although it has sanctioned the legislative solution provided for in Article 155(1) of the Criminal Code, it has not adopted the legislative solution because it provided that the limitation period could be interrupted by the performance of procedural acts which were not known to the suspect or accused person, by communication or by his presence when they were performed, The Court did not require that all acts communicated to the suspect or accused or all acts involving the participation of the suspect or accused be regarded as acts capable of interrupting the running of the limitation period for criminal liability, the determination of which is a matter for the legislature, provided that they satisfy the requirements referred to by the Constitutional Court” (paragraph 68 of the decision).
54. “Precisely in view of the sphere of competence of the legislature, the Court notes that, in paragraph 34 of Decision No 297 of 26 April 2018, it highlighted the landmarks of constitutional conduct which the legislature, and not the judiciary, was obliged to adopt, since the legislature, pursuant to Article 147 of the Constitution, is obliged to intervene by law and to establish clearly and predictably the cases in which the limitation period for criminal liability is interrupted. Moreover, in the same decision, the Court also referred to the case-law of the Federal Court of Justice (…)” (paragraph 70 of the decision).
55. “Consequently, the Court finds that, given the legal nature of Decision No 297 of 26 April 2018 as a simple/extreme decision, in the absence of active intervention by the legislature, which is mandatory under Article 147 of the Constitution, during the period between the date of publication of that decision and the entry into force of a legislative act clarifying the rule, by expressly regulating the cases capable of interrupting the running of the limitation period for criminal liability, the active substance of the legislation does not contain any case allowing the interruption of the running of the limitation period for criminal liability” (paragraph 73 of the decision).
56. “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 of its passivity, even despite the fact that the decisions of the High Court of Cassation and Justice had signalled as early as 2019 the non-uniform practice resulting from the lack of legislative intervention. The Court also emphasises that the rationale behind the delivery of Decision No 297 of 26 April 2018 was not the removal of the limitation periods for criminal liability or the removal of the institution of the interruption of the running of those periods, but the alignment of the provisions of Article 155 (1) of the Criminal Code to the constitutional requirements. Thus, the Court observes that the general limitation periods governed by the provisions of Article 154 of the Criminal Code are not affected by the decisions of the Constitutional Court.
57. In this context, the Court finds that the situation created by the legislature’s inaction, following the publication of the decision of admission referred to above, constitutes a breach of Article 1 para. (3) and (5) of the Fundamental Law, which enshrine the rule of law of the Romanian State and the supremacy of the Constitution. This is because the prevalence of the Constitution over the entire regulatory system is a crucial principle of the rule of law. However, the guarantor of the supremacy of the Fundamental Law is the Constitutional Court itself, through the decisions it delivers, so that neglecting the findings and provisions contained in its decisions weakens the constitutional structure that must characterise the rule of law (in the same sense, Decision No 230 of 28 April 2022, published in the Official Gazette of Romania, Part I, No 519 of 26 May 2022).
58. The Court therefore finds that, in the present case, the legislature disregarded the provisions of Article 147 para. (4) of the Constitution, ignoring the binding effects of Decision No 297 of 26 April 2018 with the consequence of creating a more serious unconstitutionality flaw generated by the uneven application of the text of the law “the course of the limitation period of criminal liability is interrupted by the fulfilment”, which clearly does not provide for any case of interruption of the course of the limitation period of criminal liability. In order to restore constitutionality, it is necessary for the legislature to clarify and detail the provisions relating to the cessation of the limitation period for criminal liability, in the spirit of what was stated in the recitals of the above decision” (paragraphs 74-76 of the decision).
59. By Government Emergency Ordinance No 71 of 30 May 2022, published in the Official Gazette No 531 of 30 May 2022, which entered into force on the date of publication, the content of Article 155(1) of the Criminal Code was amended as follows: “(1) The period of limitation of criminal liability shall be interrupted by the performance of any procedural act in the case which, according to the law, must be communicated to the suspect or defendant.”

III. Reasons for the preliminary question and the preliminary question

60. The referring court considers that the Union is and must ensure an area of justice for all its citizens, as is apparent from the provisions of Article 3(2) of the Treaty on European Union and Article 67(1) and (4) of the Treaty on the Functioning of the European Union.
61. As a member of the European Union, Romania is under an obligation to ensure the achievement and preservation of this objective, which is a derived objective and a specific reference in the field of judicial reform, based on the principle of the rule of law, a principle common to all Member States (Decision 2006/928, Article 2 of the Treaty on European Union).
62. The area of justice under the rule of law presupposes a clear and coherent functioning of the jurisdictional mechanisms established by predictable substantive or procedural rules and not susceptible to untimely interventions that might call into question or paralyse the work of the trial or criminal investigation or obstruct the proper functioning of justice or, where appropriate, call into question the res judicata nature of final judgments and the legal certainty they provide.
63. Of course, such a conception does not deny the powers and prerogatives of state actors with specific competences in ensuring the proper functioning of the rule of law.
64. The referring court reiterates that, in the period from 1 February 2014 to 30 May 2022, Article 155(1) of the Romanian Criminal Code: “The limitation period for criminal liability shall be interrupted by the performance of any procedural act in the case.”
65. By Government Emergency Ordinance number 71 of 30 May 2022, the content of Article 155(1) of the Criminal Code was amended as follows: “(1) The period of limitation of criminal liability shall be interrupted by the performance of any procedural act in the case which, according to the law, must be communicated to the suspect or defendant.”
66. The referring court notes that, in its case-law on the subject, the Constitutional Court has held that, as regards government acts, only emergency government ordinances which, from a substantive point of view, contain primary regulatory rules having a legal force assimilated to that of a law, may regulate in the field of organic law, and are therefore capable of constituting a new criminal law (Decision No. 405 of 15 June 2016, published in the Official Journal of Romania, Part I, No 517 of 8 July 2016, paragraphs 62 and 63, and Decision No 68 of 27 February 2017, published in the Official Journal of Romania, Part I, No 181 of 14 March 2017, paragraph 73).
67. In the Romanian criminal justice system, prescription of criminal liability is an institution of substantive criminal law (paragraph 27 of Decision No 297 of 26 April 2018; Decision No 1.092 of 18 December 2012, supra, paragraph 32). Such a nature/qualification of prescription of criminal liability entails discussions from the point of view of the application of the more favourable criminal law.
68. In this context, the referring court is faced with the possibility of applying recent case law of the Constitutional Court, whereby, in conjunction with the passivity/inaction of the legislature (the Romanian Parliament) or the delegated legislature to comply with the case law resulting from Decision no. 297 of 26 April 2018 and to bring the provisions declared unconstitutional into line with the provisions of the Constitution by means of legislation, a substantive criminal rule can be created which has the effect of removing the criminal liability of the perpetrators by restricting the effects of the statute of limitations on criminal liability and an effective mechanism of systemic impunity for any acts constituting offences, irrespective of their nature and gravity, including with regard to fraud and any other illegal activity affecting the financial interests of the Union and corruption, in respect of which Romania has undertaken express and distinct obligations regulated by the Union framework and in respect of which the Court of Justice of the European Union has ruled in its case law.[1]
69. Accordingly, the referring court considers that by Decision No 358 of 26 May 2022, published in the Official Gazette No 565 of 9 June 2022, the Constitutional Court adopted a series of explicit recitals by which it unravelled, clarified, supplemented and interpreted, but also qualified the nature/category of Decision No 297 of 26 April 2018 (supra, paragraphs 55-56), holding, in essence, as follows:

is a simple/extreme decision, in the absence of active/passive intervention and failure by the legislature to comply with its obligations under the Romanian Constitution, a conduct to which the Romanian Parliament was obliged under Article 147 of the Fundamental Law, has resulted in the absence from the active substance of the legislation of any case of interruption of the course of criminal liability,

although the rationale behind Decision No 297 of 26 April 2018 was not to remove the limitation periods for criminal liability or to remove the institution of interrupting the running of these periods, but to bring the provisions of Article 155(1) of the Criminal Code into line with constitutional requirements, the general limitation periods governed by the provisions of Article 154 of the Criminal Code are not affected by the decisions of the Constitutional Court.

70. In the light of these last aspects, the referring court notes that in its case-law, in Decision No 68 of 27 February 2017, published in the Official Journal of Romania, Part I, No 181 of 14 March 2017, the Constitutional Court ruled, in paragraph 124, that “According to Article 147 para. (4) of the Constitution, “Decisions of the Constitutional Court shall be published in the Official Gazette of Romania. From the date of publication, the decisions are generally binding and have force only for the future.” The ex nunc effect of the Court’s acts constitutes an application of the principle of non-retroactivity, a fundamental guarantee of constitutional rights that is likely to ensure legal certainty and citizens’ confidence in the system of law, a prerequisite for respecting the separation of powers in the State, thus contributing to the consolidation of the rule of law. Consequently, the effects of the Court’s decision can only concern acts, actions, inactions or operations to be carried out in the future by the public authorities involved in the legal conflict of a constitutional nature.”
71. With regard to the principle of stability/security of legal relationships, by Decision No 404 of 10 April 2008, published in the Official Journal of Romania, Part I, no. 347 of 6 May 2008, the Constitutional Court held that, although it is not expressly enshrined in the Romanian Constitution, this principle is inferred both from the provisions of Article 1(3), according to which Romania is a democratic and social state governed by the rule of law, and from the preamble to the Convention for the Protection of Human Rights and Fundamental Freedoms, as interpreted by the European Court of Human Rights in its case law. With regard to the same principle, the Strasbourg Court has held that one of the fundamental elements of the supremacy of law is the principle of the certainty of legal relationships (Judgment of 6 June 2005 in Androne v. Romania; Judgment of 7 October 2009 in Stanca Popescu v. Romania).
72. In its case law, the Constitutional Court has addressed the issue of the more favourable criminal law and decided that the application of criminal law over time means the set of criminal legal rules arising from criminal policy reasons, which regulate the application of the principle of mitior lex in relation to the time of the commission of the offence and the time of criminal liability of the offenders (Decision no. At the same time, it also ruled that the determination of the more lenient law does not imply an abstract activity, but a concrete one, being inextricably linked to the act committed and its perpetrator (Decision No 834 of 2 October 2007, published in the Official Journal of Romania, Part I, No 727 of 26 October 2007).
73. The Constitutional Court has ruled that in order to identify the more favourable criminal law, a series of criteria must be taken into account which tend either to remove criminal liability or the consequences of conviction, or to apply a lesser penalty. These elements of analysis concern first of all the conditions of incrimination, then those of criminal liability and finally the criterion of the penalty. “The determination of the “more favourable” character takes into account a number of elements, such as: the amount or content of penalties, the conditions of incrimination, the grounds excluding or removing liability, the influence of mitigating or aggravating circumstances, the rules on participation, attempt, recidivism, etc. The criteria for determining the more favourable criminal law therefore take into account both the conditions of incrimination and liability and the conditions relating to the penalty. With regard to the latter, there may be differences in nature (one law provides for a fine as the main penalty and another for imprisonment), but also differences in degree or amount as regards the limits of the penalty and, obviously, the way in which they are determined in practice.” As regards the concrete determination of the more favourable criminal law, the Constitutional Court ruled that “this concerns the application of the law, and not of the more lenient provisions, as it is not possible to combine provisions of the old and the new law, since this would lead to a lex tertia, which, despite the provisions of Art. 61 of the Constitution, would allow the judge to legislate” (Decision No 1.470 of 8 November 2011, published in the Official Gazette of Romania, Part I, No 853 of 2 December 2011, Decision No 265 of 6 May 2014, published in the Official Gazette of Romania, Part I, No 372 of 20 May 2014).
74. In those circumstances, the referring court considers it imperative to point out that, in its view, the reasoning mechanism used by the Constitutional Court in Decision No 358 of 26 May 2022 generates a series of retroactive effects and thus incorporates/adds to the content of Decision No 358. 297 of 26 April 2018 current and additional considerations concerning the determination of the nature/category of the decision, the absence from the active substance of the legislation of any case of interruption of the course of criminal liability and the fact that the general limitation periods regulated by the provisions of Article 154 of the Criminal Code are not affected and abolishes/invalidates a national jurisprudence that has become quasi-unanimous, consolidated and constant, crystallized in the conditions shown below in paragraphs 76-77 and supra, paragraphs 39-49.
75. It should be reiterated that the Constitutional Court itself, in Decision No 358 of 26 May 2022, in paragraphs 41, 73 and in the operative part, notes, on the one hand, that by Decision No. 297 of 26 April 2018 found that the legislative solution providing for the interruption of the limitation period of criminal liability by the performance of “any procedural act in question”, in the provisions of Article 155(1) of the Criminal Code, is unconstitutional and, finds, on the other hand, that the provisions of Article 155(1) of the Criminal Code are unconstitutional and that the active substance of the legislation does not contain any case which would make it possible to interrupt the running of the limitation period for criminal liability during the period between the date of publication of the decision in question and the entry into force of a legislative act clarifying the rule by expressly regulating the cases capable of interrupting the running of the limitation period for criminal liability.
76. Following Decision No 297 of 26 April 2018, as detailed in Section II of this judgment (supra, paragraphs 39-49), in judicial practice the majority view has been taken that the nature/category of this decision is an interpretative one, and there have even been decisions to admit the appeal in cassation by the Supreme Court, which has held that, in interpreting Article 155(1) of the Criminal Code, the court is obliged to start from the considerations of Constitutional Court Decision No. 297/2018 and found that the interruption of the running of the limitation period can be achieved only by the performance of an act which, according to the law, must be communicated, in the case in which the person concerned had the status of accused/suspect or defendant, as expressly ruled by the Constitutional Court.
77. The case law has become quasi-unanimous and has endorsed the view that the interruption of the limitation period can only be achieved by the performance of an act which, according to the law, must be communicated in the case in which the person concerned was the accused/suspect or defendant.
78. The referring court points out that the subject-matter of the exceptions of unconstitutionality which formed the basis of Decision No 297 of 26 April 2018, paragraph 11, and Decision No 358 of 26 May 2022, paragraph 39, are the provisions of Article 155(1) of the Criminal Code with the following content: “The running of the limitation period for criminal liability shall be interrupted by the performance of any procedural act in the case”.
79. In view of this, and given the qualification given after approximately 4 years, by a new decision, to the nature/category of Decision No 297 of 26 April 2018, the referring court finds that the Constitutional Court sanctioned for constitutional non-compliance on two occasions, by two separate decisions of admission, Article 155(1) of the Criminal Code, a normative text which had the same content from its entry into force on 1 February 2014 until the amendment made by Government Emergency Ordinance No 71 of 30 May 2022.
80. It is clear that in its case law, the Constitutional Court has ruled as a matter of principle that the binding force accompanying judicial acts, and therefore also its decisions, is attached not only to the operative part but also to the considerations on which it is based (Decision of the Plenary of the Constitutional Court no. 1 of 17 January 1995, published in the Official Journal of Romania, Part I, no. 16 of 26 January 1995; Decision no. 223 of 13 March 2012, published in the Official Journal of Romania, Part I, no. 256 of 18 April 2012; Decision no. 3 of 15 January 2014, published in the Official Journal of Romania, Part I, no. 71 of 29 January 2014) and established its possibility and obligation to intervene, whenever it is seized, in the event that a legal text may generate interpretations that may infringe constitutional provisions, holding that, “without denying the constitutional role of the supreme court, whose jurisdiction is circumscribed to situations of non-unitary practice, the Constitutional Court holds that, in the event that a legal text may generate different interpretations, it is obliged to intervene whenever those interpretations generate violations of the provisions of the Fundamental Law. The Constitution represents the framework and the extent to which the legislature and the other authorities may act; thus the interpretations which may be given to the legal rule must also take account of this constitutional requirement contained in Article 1(1) of the Constitution. (5) of the Fundamental Law, according to which in Romania respect for the Constitution and its supremacy is mandatory” (Decision No 1.092 of 18 December 2012, published in the Official Gazette of Romania, Part I, No 67 of 31 January 2013).
81. The referring court concludes that by the recitals in paragraphs 72 and 74 of Decision No 358 of 26 May 2022, although it does not do so expressis verbis, the Constitutional Court tacitly requires the ordinary courts to find that all offences committed before the entry into force of Government Emergency Ordinance No 71 of 30 May 2022[2] , published in the Official Gazette No 531 of 30 May 2022, which entered into force on the date of publication, would be subject exclusively to the single general limitation periods governed by the provisions of Article 154 of the Criminal Code[3]. The referring court considers that it must be stressed that there is no effective remedy/mechanism in the Romanian Constitution or in the Romanian infra-constitutional regulatory framework by which the primary or delegated legislator is induced to comply with the Constitutional Court’s case law and to exercise its law-making prerogatives within the 45-day period established by Article 147(1) and (4) of the Romanian Constitution[4] . The Parliament, the primary legislator, is free to decide on the State’s criminal policy, by virtue of the provisions of Article 61 para. (1) of the Constitution[5] as the sole legislative authority of the country.
82. In criminal matters, it is traditional for the primary or delegated legislator to fail to comply with the provisions of Article 147(4) of the Constitution by failing to comply with the case law resulting from the decisions of the Constitutional Court and to bring the provisions declared unconstitutional into line with the provisions of the Constitution. Such a conclusion is supported by the repeated instances over time in which Constitutional Court decisions have been disregarded by the legislature. An eloquent example is provided by the Constitutional Court itself in Decision No 358 of 26 May 2022, in paragraph 59 of the decision, which refers to Decision No 244 of 6 April 2017, which found that the legislative solution contained in the provisions of Article 145 of the Code of Criminal Procedure, which does not allow the legality of the measure of technical surveillance to be challenged by the person concerned by it, who is not an accused person, is unconstitutional. Since the publication of the decision, the legislature has not intervened to amend the legislative solution contained in Article 145 of the Code of Criminal Procedure in order to regulate the essential aspects relating to the exercise of that action in court.
83. The two elements analysed in conjunction – Decision No 358 of 26 May 2022 and the legislature’s passivity/inaction in bringing the provisions declared unconstitutional into line with the provisions of the Constitution – in the case of the thesis analysed by the referring court, lead to the creation of effects specific to the adoption of a genuine disguised amnesty, the basis of which is the existence of a single general limitation period for criminal liability, which runs under the conditions of Article 154(2) to (4) of the Criminal Code[6] . The term is not subject to and is not susceptible to interruption of the course and the running of a new course after interruption and is intended to constitute a more favourable criminal law. The term benefits or is intended to benefit all offenders for offences committed up to 30 May 2022[7], regardless of whether criminal proceedings are pending or final court judgments have been issued in view of the existence and operation of the special limitation period in respect of offences for which the single general limitation period had expired at the time of the judgment.
84. Thus, in the case of offences committed before 30 May 2022, the general limitation period for criminal liability would apply exclusively, seen as a single time-limit independent of the intermittency and nature of the procedural or procedural acts carried out in the case, which would not have an interrupting effect. The coexistence of the special and general limitation periods between the two decisions of the Constitutional Court would be fictitious/illusory. The special limitation period would be inapplicable and there would be no cases of interruption of the limitation period provided for in the Criminal Code which would result in the running of a new general limitation period for criminal liability.
85. Once it is established that the single general limitation period for criminal liability has expired, as a matter of principle, the courts pending criminal charges and the criminal investigation bodies should immediately apply Article 16(1)(f) of the Code of Criminal Procedure[8], following the occurrence of the cause of termination of the criminal proceedings on the grounds of the lapse of the limitation period, and close the judicial proceedings.
86. The mechanism would operate, without exception, in the case of any acts constituting criminal offences, whatever their nature and gravity, including fraud and any other illegal activity detrimental to the Union’s financial interests and corruption, in respect of which Romania has entered into explicit and distinct obligations regulated by the Union framework, on which the Court of Justice of the European Union has ruled in its case law[9].
87. The referring court also considers it necessary to consider that such a sentence is likely to lead, by way of the extraordinary remedy of an action for annulment[10] , to the reconsideration and removal of the authority of res judicata of final criminal convictions by the reformulation of judgments handed down by the courts after the publication of Decision No. 297 of 26 April 2018, which considered, until the publication of Decision No 358 of 26 May 2022, that the course of limitation of criminal liability is interrupted by the performance of any procedural act which is communicated to the suspect or defendant and issued final judgments within the special limitation period of criminal liability, after the expiry of the single general limitation period.
88. At the same time, Decision No 358 of 26 May 2022 may serve as a basis for review of final judgments, under the terms of the law[11].
89. Under such conditions, an effective mechanism of systemic impunity would be created for any acts constituting offences, regardless of their type, nature and seriousness, by closing judicial proceedings in criminal cases in which a judgment has not been delivered or is not delivered within the general limitation period or, as the case may be, by reopening criminal cases in which final judgments have been delivered although, according to the thesis under consideration, the general limitation period had expired.
90. The referring court is aware that, having regard to the subject-matter of the criminal charge in the main proceedings pending before it (paragraphs 14 and 15 above), its approach concerns obligations derived and mediated from Articles 2 and 3(2) of the Treaty on European Union, Article 67(1) and (4) of the Treaty on the Functioning of the European Union or Decision 2006/928, implicitly assumed by Romania following its accession, other than the primary and immediate offences of fraud and any other illegal activity detrimental to the Union’s financial interests and corruption, in respect of which Romania is subject to express regulations and typologies (Article 325(1) of the Treaty on the Functioning of the European Union, in conjunction with Article 2 of the PFI Convention and Decision 2006/928).
91. Thus, Decision No. 358 of 26 May 2022, which is such as to reshape and fracture established and constant judicial practice in criminal matters in the particular case under consideration, may lead the referring court to consider that, by the effects which it may produce, it is contrary to Article 3(2) of the Treaty on European Union, Article 67(1) and (4) of the Treaty on the Functioning of the European Union or Decision 2006/928, rendering the Union, in general, and Romania, in particular, unfit, in particular, to ensure and provide citizens with an area of justice by Romania’s infringement of the principles and obligations to guarantee effective judicial processes by removing the criminal liability of the perpetrators following the restriction of the effects of the limitation period for criminal liability and thus creating an effective mechanism of systemic impunity for any acts constituting offences, regardless of their nature and gravity, by closing judicial proceedings or reopening trials.
92. Decision No 358 of 26 May 2022, in conjunction with the passivity of the legislature, creates, in the circumstances indicated, an imminent risk of serious shortcomings and systemic disruption of the proper functioning and implementation of criminal justice in Romania, contrary to the requirements and obligations of the Union to ensure and achieve an area of justice, which is incumbent on the Romanian State.
93. The referring court notes that the judgment of the Court of Justice of the European Union (Grand Chamber) of 21 December 2021 in Joined Cases C-357/19, C-379/19, C-547/19, C-811/19 and C-840/19, ECLI:EU:C:2021:1034, refers to the case-law of the Court and states, inter alia, that:
94. “Article 49 TEU, which provides that any European State may apply to become a member of the Union, specifies that the Union comprises States which have freely and voluntarily subscribed to the common values currently set out in Article 2 TEU, which respect those values and which are committed to promoting them. In particular, it follows from Article 2 TEU that the Union is founded on values, such as the rule of law, which are common to the Member States in a society characterised inter alia by justice. In this respect, it should be pointed out that mutual trust between Member States and in particular between their courts is based on the fundamental premise that Member States share a number of common values on which the Union is founded, as set out in that Article.
95. Thus, respect for the values set out in Article 2 TEU is a precondition for the accession to the Union of any European State applying to become a member of the Union. In this context, the CVM was established by Decision 2006/928 to ensure respect for the value of the rule of law in Romania.
96. On the other hand, compliance by a Member State with the values enshrined in Article 2 TEU is a condition for enjoying all the rights deriving from the application of the Treaties to that Member State. A Member State may not therefore amend its legislation in such a way as to undermine the protection of the value of the rule of law, a value which is enshrined, inter alia, in Article 19 TEU. Member States are therefore obliged to ensure that their legislation on the organisation of justice does not undermine that value by refraining from adopting rules which would undermine the independence of judges.
97. In this context, it should be pointed out that acts adopted before accession by the Union institutions, including Decision 2006/928, are binding on Romania from the date of its accession to the Union, pursuant to Article 2 of the Act of Accession, and remain in force, in accordance with Article 2(3) of the Treaty of Accession, until repealed.
98. Decision 2006/928 therefore continues to have effect after the date of Romania’s accession to the Union as long as it has not been repealed. […]
99. Commission Decision 2006/928/EC of 13 December 2006 establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the area of judicial reform and the fight against corruption is, until repealed, binding in its entirety on Romania. The benchmarks set out in the Annex to the Decision are intended to ensure compliance by that Member State with the value of the rule of law as laid down in Article 2 TEU and are binding on that Member State in the sense that it is required to take appropriate measures to attain those benchmarks, taking due account, in accordance with the principle of loyal cooperation laid down in Article 4(3) TEU, of the reports drawn up by the European Commission on the basis of that Decision, in particular the recommendations made in those reports[12].”
100. The referring court considers that the preservation of an area of justice in a State of the Union takes precedence, in the case under consideration, over the binding nature of a decision of the national constitutional court, which is subject to the legislature’s passivity in the circumstances.
101. The obligation to verify that the fundamental rights guaranteed in Article 47 of the Charter of Fundamental Rights of the European Union are respected as required is unreserved.
102. However, the qualification and maintenance of the nature/category of Decision No 297 of 26 April 2018 as an interpretative decision, and the non-application of Decision No 358 of 26 May 2022, with the consequence of maintaining the cases of interruption of the statute of limitations of criminal liability to those consisting in the performance of an act which, according to the law, must be communicated, in the case in which the person concerned is a suspect or an accused person, for the period from 1 February 2014 to 30 May 2022, ensures a national standard of protection in accordance with Article 47 of the Charter of Fundamental Rights of the European Union and allows ensuring criminal justice, a component of the Union’s area of justice and respect for the principle of the rule of law, a principle common to all Member States.”

The full text of the reference for a preliminary ruling in Romanian can be downloaded at https://rejust.ro/juris/98887de52 .

[1] On these categories of offences, Judgment of the Court of Justice of the European Union (Grand Chamber) of 21 December 2021 in Joined Cases C-357/19, C-379/19, C-547/19, C-811/19 and C-840/19, ECLI:EU:C:2021:1034

[2] By Government Emergency Ordinance number 71 of 30 May 2022, published in the Official Gazette number 531 of 30 May 2022, which entered into force on the date of publication, the content of Article 155(1) of the Criminal Code was amended as follows: “(1) The running of the limitation period of criminal liability shall be interrupted by the performance of any procedural act in the case which, according to the law, must be communicated to the suspect or defendant.”

[3]According to Article 154(1) of the Criminal Code: “The limitation periods for criminal liability are: a) 15 years, where the law provides for life imprisonment or a prison sentence of more than 20 years for the offence committed; b) 10 years, when the law provides for a prison sentence of more than 10 years but not exceeding 20 years for the offence committed; c) 8 years, when the law provides for a prison sentence of more than 5 years but not more than 10 years for the offence committed; d) 5 years, when the law provides for a prison sentence of more than 1 year but not exceeding 5 years for the offence committed; e) 3 years, when the law provides for a prison sentence not exceeding one year or a fine for the offence committed.”

[4] According to Article 147(1) and (4) of the Romanian Constitution: “(1) The provisions of laws and ordinances in force, as well as those of regulations, found to be unconstitutional, shall cease to have legal effect 45 days after the publication of the decision of the Constitutional Court if, within this period, the Parliament or the Government, as the case may be, do not bring the unconstitutional provisions into line with the provisions of the Constitution. During this period, the provisions found to be unconstitutional shall be suspended by operation of law.

(4) The decisions of the Constitutional Court shall be published in the Official Gazette of Romania. From the date of publication, the decisions shall be generally binding and shall be binding only for the future.”

[5] According to Article 61 para. (1) of the Romanian Constitution: “(1) Parliament is the supreme representative body of the Romanian people and the sole law-making authority of the country.”

[6] According to Article 154(2) to (4) of the Criminal Code: “(2) The time limits provided for in this Article shall begin to run from the date of the commission of the offence. In the case of continuous offences, the time limit shall start from the date of the cessation of the act or inaction, in the case of continuing offences, from the date of the last act or inaction, and in the case of habitual offences, from the date of the last act. In the case of progressive offences, the limitation period for criminal liability shall begin to run from the date of the commission of the act or inaction and shall be calculated in relation to the penalty corresponding to the final result produced. (3) In the case of offences of trafficking in and exploitation of vulnerable persons and offences against sexual freedom and sexual integrity other than those referred to in Article 153 (4), the following shall apply (2) lit. (c) and in the case of the offence of child pornography committed against a minor, the limitation period shall begin to run from the date on which the minor reaches the age of majority. If the minor has died before reaching the age of majority, the limitation period shall begin to run from the date of death.”

[7] Date of publication and entry into force of Government Emergency Ordinance No 71 of 30 May 2022, published in the Official Gazette No 531 of 30 May 2022

[8] According to Article 16(1)(f) of the Code of Criminal Procedure: “Criminal proceedings may not be instituted, and when they have been instituted they may no longer be exercised if: […] f) the statute of limitations has expired […];”

[9] Judgment of the Court of Justice of the European Union (Grand Chamber) of 21 December 2021 in Joined Cases C-357/19, C-379/19, C-547/19, C-811/19 and C-840/19, ECLI:EU:C:2021:1034

[10] According to Article 426(b) of the Code of Criminal Procedure: “An appeal for annulment may be lodged against final criminal decisions in the following cases: […] b) when the defendant has been convicted, although there was evidence of a ground for termination of the criminal proceedings. According to Article 428(2) of the Code of Criminal Procedure: “An appeal for annulment on the grounds referred to in Article 426(b) […] may be lodged at any time.”

[11] According to Article 452(1) of the Code of Criminal Procedure: “Final court judgments may be subject to review with regard to both the criminal and civil aspects.

According to Article 453(1)(f) of the Code of Criminal Procedure: […] f) the judgment was based on a legal provision which, after the judgment became final, was declared unconstitutional following the admission of a plea of unconstitutionality raised in t hat case, where the consequences of the violation of the constitutional provision continue to occur and can only be remedied by reviewing the judgment rendered.”

[12] Judgment of the Court of Justice of the European Union (Grand Chamber) of 21 December 2021 in Joined Cases C-357/19, C-379/19, C-547/19, C-811/19 and C-840/19, ECLI:EU:C:2021:1034

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