UNELE CONSIDERAȚII PE MARGINEA RAPORTURILOR DINTRE DREPTUL OBIECTIV ȘI CLEMENȚĂ

Recognition of the adherence of leniency to the legal phenomenon or its inclusion in the extrajuridical field is determined by the nature of philosophicalmaterialist or idealist conceptions. Amnesty and pardon are based on the socio-political grounds and have as foundation the feelings of gentleness, magnanimity, compassion. Justice is the ideal state of society, achievable by ensuring, for each separately and for everyone together, the enjoyment of legitimate rights and interests. The fundamental components or values of the notion of justice are: righteousness, social utility, legal certainty. The concept of leniency is related to all the three elements. By its very name, its functions and its purpose, the law must be based on the idea of righteousness. The essence of the idea of righteousness is to treat similar cases equally and different cases in distinct ways. The exercise of leniency is closely related to the principle of justice. Social utility means to organize a community to ensure the good of everyone and of each separately. The same social utility claiming punishment sometimes justifies the abandonment of punishment or forgiveness thereof. Legal security designates that state of safety of individuals and of society as conferred by the legal normativity by complying with its prescriptions. Although it is sometimes considered that leniency means bankruptcy in criminal justice, the legal certainty will never be affected if leniency acts are consistent with a rational legal conscience and does not harm the rights of the injured parties by committing the offence. Amnesty and pardon are not directed against legal certainty, but, on the contrary, they are put to the service of the common good, which is a proof of trust and a means of protecting the citizens. The three components of the idea of justice – righteousness, social utility and legal certainty – are in a tensed state. Amnesty and pardon are called to detension and harmonize these relations. Leniency is not in antithesis with the law, but it is inevitable for its completion.