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2 Law Rev. 1 (2012)

handle is hein.journals/lawrv2 and id is 1 raw text is: DIFFICULTIES IN APPLYING THE MITIOR LEX PRINCIPLE CONSIDERING THE PROVISIONS OF ART. 741 CRIMINAL CODE, INTRODUCED BY LAW NO. 202/2010 REGARDING SOME MEASURES TO ACCELERATE JUSTICE IN ROMANIA dr. Nasty Vldoiu*) Associate Professor Faculty of Law, University Transilvania of Brasov Romania Judge-arbitrator at the Court of International Arbitration near the Chamber of Commerce and Industry of Romania Attorney - Bucharest Bar Association Abstract Law no. 202/2010 regarding some measures to accelerate justice introduces in the Criminal Code through art. 74' Criminal Code, a series of provisions in the favor of the defendant who has committed certain economic crimes and has covered all the damage before the case has been solved in the first instance. We believe that the provisions could be interpreted as some legal and real mitigating circumstances, but with a special regime, this often creating difficulties in the interpretation and practice of the courts. Although declared unconstitutional in May 2011, the provisions of this Article should continue to apply regarding crimes committed before the article to be declared unconstitutional in virtue of the mitior lex principle. Keywords: unconstitutionality; special mitigating circumstances; mitior lex; reduction of prescription terms; covering the prejudice by a third party I. Introduction One of the key changes, generating multiple legal consequences in the field, and also difficulties of interpretation and application in the practice of the courts, is art. 741 Criminal Coder, introduced by Law no. 202/2010 on measures to * vladoiu.nasty@gmail.com. 1) Art. 741 Criminal Code: ,,(1) In the case of crimes like fraudulent management, fraud, embezzlement, dilapidation, abuse of office against the interests of persons, abuse of office against public interests, abuse of office and misconduct in office, provided in this Code, or of economic crimes specified in special laws, which had caused prejudice, if during the criminal investigation or trial, before the case to be solved in the first instance, the accused or the defendant fully covers the prejudice, the punishment limits provided by law for these crimes are reduced by half. (2) If the prejudice caused and recovered in the same conditions is up to 100,000 euro, in national currency equivalent, a fine penalty may be applied. If the prejudice caused and recovered in the same conditions is up to 50,000 euros, in national currency equivalent, an administrative penalty will be applied and registered in the criminal records. (3) The provisions of paragraphs 1 and 2 above shall not apply if the defendant has committed another crime of the same kind, provided by this code, within 5 years after committing the crime for which he has benefited from the provisions of par. 1 and 2. 1

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