romanian english

MIHAI DUNEA, Poenalia sunt strictissimae interpretationis? (I)

Abstract: A well-known principle / a generally accepted rule of interpretation of criminal legal norms is: Poenalia sunt strictissimae interpretationis (!) - the criminal law is of strict interpretation (and application). The axiomatic nature of this rule often eliminates the need for further explanations. Thus, it is understood that the field of criminal law (a matter with maximum restrictive potential for the fundamental rights and freedoms of the human being) must operate with precise and punctual regulations, whose interpretation and application will be as strict / accurate as possible, in order not to leave room for interpretative arbitrage, as there are so many (and important) legal issues at stake. However, a quick tour through various (general) criminal law institutions can easily indicate a number of legal hypotheses (in the current Romanian criminal law) where the regulations are not / cannot / should not be interpreted strictly. On the contrary, in their case an extensive interpretation is required / justified - although this practice tends to contravene (apparently) precisely to the pre-indicated interpretation principle. What is even more surprising is the fact that, in such cases, the doctrine and the practice admit the extensive interpretation as a natural fact, seeming not to notice the apparent incongruity of the respective solution to a general interpretative rule unanimously accepted as a premise. In this article we propose to carry out a review (exemplary, not exhaustive) of such situations (legal-criminal norms that are interpreted extensively or are expected to be extensively interpreted, and sometimes there are discussions related to this aspect), with brief (potentially critical) observations on each exposed case. As the number of situations we are considering is sufficiently high (on the one hand) and because the material thus conceived presents a high degree of heterogeneity, we will divide the article into (minimum) two parts, the first to be developed in the following rows, so that in future issues of the publication this research topic will be resumed and continued.

Keywords: interpretation of criminal law; strict interpretation / extensive interpretation; lex certa; lex stricta; analog interpretation (in bona partem / in mala partem); some particular cases

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