The postponing of the application of punishment is an institution recently introduced in the Criminal Code, creating problems of interpretation both in the doctrine and in the judicial practice, especially on two levels: the terminology used and the systematization of the substantive and procedural provisions in the legislation. These issues affect the institutions of the revocation and annulment of postponing the application of punishment.

The study discusses in a precise manner and with a careful observation of the perception of the judicial practice on this issue how it is possible or how one should proceed to the verification of the legality of the probative procedures in the preliminary chamber phase. At the same time, with pertinent doctrinal arguments, the author of the study proposes an extension of the limits of verification of the legality of the probative procedures and with regard to the validity of the authorization issued by a judge of rights and liberties during the criminal investigation phase.

The Decision of the Constitutional Court of Romania No 405/2016, referring to the plea of unconstitutionality of the provisions of Article 246 of the Criminal Code of 1969, of Article 297 (1) of the Criminal Code and of Article 132 of the Law No 78/2000 on preventing, discovering and sanctioning of corruption acts (hereinafter referred to as „Decision No 405”)1, is not a mere interpretative decision2 whereby, following the admission of a plea of unconstitutionality, it is established that a text of law is constitutional only provided that a certain wording has a certain meaning3. The recitals of the Decision No 405, to which there have been added, shortly after, those included in the Decision No 392/2017, referring to the plea of unconstitutionality of the provisions of Article 248 of the Criminal Code of 1969, of Article 297 (1) of the Criminal Code and of Article 132 of the Law No 78/2000 on preventing, discovering and sanctioning of corruption acts4 (hereinafter referred to as „Decision No 392”), have emphasized the fact that the current rules of incrimination of the deeds of abuse of office, once clarified the meaning of the phrase „defectively fulfils”, still establish a criminal liability that rather acts with priority, and not according to ultima ratio principle, and the constitutive elements of the offence do not meet the standards of drafting of such legal norms identified in the case law of the European Court of Human Rights (hereinafter referred to as „ECHR”), the United Nations Convention against Corruption5, as well as in various reports and positions assumed by the European Union bodies on this subject. For the assumption that these observations of the Constitutional Court would determine the legislator to reflect on the necessity to reconfigure the legal provisions in question, the Court has indicated certain points of reference that should be considered in order to ensure a regulation compatible with the international and European standards mentioned.

The author’s approach is intended for a partially critical analysis of the Decision of the Constitutional Court No 225 of 4 April 20172, by which the phrase „likely to prejudice the prestige of the profession” within Article 14 a) of the Law No 51/1995 was declared unconstitutional. The Constitutional Court has held that the criticized text is devoid of precision, clarity and predictability, as it does not circumstantiate the scope of the offences likely to cause the unworthiness in the profession of lawyer. The author considers that this solution of unconstitutionality makes an exaggerated interpretation of the incidental legal provisions, unduly restricting the right of appreciation of the competent structures of the professional organization of lawyers and of the judge called to settle any possible disputes. Within this study it is noted that there are various other situations in which the right of appreciation of the judge can not be challenged in our legal system. The approach included in this study also insists on the consequences which can be determined by the analysed solution of unconstitutionality, due to the existence of some identical or very similar provisions in respect of other liberal legal professions as well. A cavalcade of pleas of unconstitutionality, based on similar considerations, could raise for discussion other important institutions of law as well, such as those concerning the disciplinary, contraventional, civil or even criminal liability.

This study presents a possible legislative incoherence, generated by the current form of Article 130 (3) of the Civil Procedure Code, concerning the invocation of the lack of competence of private order of the courts, which may lead to the situation of an incompetent court hearing a request, an abnormal situation in the conduct of a civil legal procedure.