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At the end of January 2017, Romanian Government

adopted an emergency ordinance late Tuesday to decriminalize official misconduct, dealing a blow to a yearslong drive to curb corruption in the eastern European country.

Some changes were rejected using another ordinance, but others became effective immediately.

The trick is that some of these changes affected the Criminal Laws where "the more favorable criminal law" applies. According to this source:

(1) Whenever, between the time of the final judgment in a criminal case and the time the sentence is fully served, a law is enacted that stipulates a lighter penalty, the original sentencing shall be reduced to the special maximum of the new sentencing if the previous one exceeded that special maximum.

This means that any favorable criminal laws changes cannot be reversed, even if the Parliament rejects the ordinance (of course, this applies to those having trials or serving time between the ordinance being issued and its rejection in the Parliament).

Question: Isn't this a case of breaking the separation of powers principle (or a conflict between the powers)? (since the Government changed a law without the Parliament being able to revert its effects)

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  • Are you sure that the Parliament is unable to revert the law? Many countries that I know of allow the government to issue emergency decrees to enforce new laws quickly, but those are always subject to revision by the Parliament at a later date. And I think the 1st question belongs to law.stackexchange.com. – SJuan76 Apr 3 '17 at 13:53
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    The Parliament can revert the law and it actually did so in the mean time. The problem is that it cannot revert the effects which can be tremendous (basically, letting thieves get away with both clearer record and a lot of money). This happens only in this particular case of changing Criminal laws which have this "more favorable principle". Some argue that the Government should not be able to perform such changes using ordinances. – Alexei Apr 3 '17 at 13:56
  • @SJuan76: they're obviously able too do so. Romania is an EU country, and a recent one at that. The Copenhagen criteria for admission require parliamentary oversight. (Admission of the UK required some handwaving as their monarch theoretically is not subject to such oversight, but this predated Copenhagen) – MSalters Apr 3 '17 at 13:56
  • @indigochild - I will edit this question to include only the part about the separation of powers issue and have another for the "most favorable law". – Alexei Apr 3 '17 at 13:58
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How Do Emergency Ordinances Work?

Romania's emergency ordinances (discussed here, but also in the Romanian constitution Art.115 (3) - (8) ) have the full force of ordinary laws. Unlike a normal law, the executive (the government) passes them first with the legislature voting on them after the government has approved them. That is the "emergency" part - the laws take effect before the legislature has voted on them.

In This Case

According to the Romanian constitution, when the legislature disapproves of an emergency ordinance they must provide:

any necessary measure concerning the legal effects engendered during the effective time of the ordinance in question Art.115 (8)

So if the legislature disapproves of the law, then they must also address how to handle any inconsistencies in the law that were produced while the emergency ordinance was temporarily in effect.

In this way, there is legislative oversight and approval. Despite the existence of the "most favorable law" principle, the legislature can explicitly specify how to handle these cases. If they do that, they can specify that all cases will be handled under the current (non-emergency) law.

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  • Interesting, that you looked at the question and addressed the nature of "emergency" measures, which seems to fit more with the separation of powers issues, while I looked at the matter of alterations of sentences to the lower minimum, which seems to carry a lot of attention in the question, as well. Nice research, by the way. – PoloHoleSet Apr 3 '17 at 15:33
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    Clearly, some parts of the media exaggerated the consequences of the ordinances (in a good way), but the Government opened Pandora's box, cleaning up the legal mess being far from trivial. Thanks for the nice analysis. It provides an interesting insight on how to see things more objectively. – Alexei Apr 3 '17 at 15:43
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It does not seem to do that. What it does is says that if the law is changed, so the maximum penalty for a crime has been reduced under the new law, then they will adjust all previous sentences being served so they don't exceed the new law. If I'm serving a 100 year sentence, and the new maximum is 80 years, then my sentence gets reduced to the maximum, since a sentence more than the maximum is not allowed. If the maximum is 100, and I get sentenced to 75, and the new law states that the new maximum is 80, that would not alter my sentence.

However, if a law passes that increases the maximum penalty for a crime, you would not increase the sentences for those already serving because their sentences still fall within the legal boundaries for sentences. If I'm serving 100 years, the maximum, and a new maximum is set at 110 years, 100 years still falls within the boundaries set, because it is at or under the maximum.

The greater issue is lessening the severity of the crime, though it would have the effect of lessening sentences for those already convicted, true enough.

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The "most favorable law" principle is extremely common to the point that I don't know counterexamples.

What's probably misleading you is "a law is enacted". A law rejected by Parliament is not enacted.

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  • As suggested in one comment, I have stripped the "most favorable law" part and created a new question. Please, copy/move this answer there. Thank you. – Alexei Apr 4 '17 at 5:18

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