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This question is somehow a followup of this one (split suggestion). At the end of January 2017, Romanian Government (executive branch) made several changes to Criminal Law using a Government Ordinance.

Criminal Law obeys the "more favorable criminal law" principle which states (source):

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.

Many analysts argued that the Government should not be able to perform such changes, because they cannot be fully reversed by the Parliament if rejected (it may take up to 30 days between Government ordinance being published officially and Parliament's final decision on the matter).

Question: Are there any other liberal democracies that allow such scenarios? (if the Executive can change via ordinances those laws where "more favorable principle" is applicable, as the Criminal Law)

Side note: during the short period of the democratic regime, many local analysts pejoratively argued about Romanian "democratic originality" and some included this question's subject in this area.

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    To be clear are you looking for any example of a country allowed to reduce punishment for a crime? Or just a unilateral example? – user9389 Apr 4 '17 at 16:41
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    @notstoreboughtdirt - it can be reduced to something like you said, but with an extra constraint: I am looking for other countries that allow reducing punishment for a crime through government (executive) ordinance. This is what happened in Romania and got hundreds of thousands of protesters in the streets. Some argued that this should not be a legal action for the Executive and I am wondering if this is also possible in other countries. – Alexei Apr 4 '17 at 18:00
  • So I'd think that would be all places where executives can make laws or modify sentencing. Which includes the US and I presume many other countries by delegating reviews of sentencing guidelines to some cabinet position. – user9389 Apr 4 '17 at 18:38
  • Yes. Theoretically, the Executive should change laws only for urgent matters (in Romania they are literally called "urgency ordinances" and they have been used to avoid infringements or fines from EU for legislation misalignment and similar cases). Common sense tells that Criminal Law changes are not urgent and must be subject to public debate in any liberal democratic country. That's why I specifically narrowed to liberal democratic countries. – Alexei Apr 4 '17 at 19:02
  • If you include emergency measures I think you get every country. I would be surprised if anyone was so committed to democracy as to not have an emergency plan where an executive could make changes in laws or sentencing on at least temporary basis or subject to later review. You are increasingly sounding like you are asking "this thing happed. Isn't that bad?" which is specifically discouraged. – user9389 Apr 4 '17 at 19:14
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+50

When you reduce the current maximum term for a given crime, it stands to reason that those undergoing trial for the same crime should be trialed with the new maximum term, and that those who are locked up for the same crime already should get a reduced prison sentence if applicable. Society has decided the crime warrants a less harsh punishment, so there's no point in keeping people locked up needlessly.

The converse is not true: if you increase the prison term, then it stands to reason that past crimes should get punished under the prior maximum term. If you don't do that it's a door wide open for abuse, because it could be used to lock up political opponents.

My Law courses are very rusty by now, but if memory serves me well the above is more or less how it works in France and elsewhere in Europe. And I would presume in North America and other places where there's a modicum of rule of law.

For concrete examples, see what happens when e.g. the death penalty gets abolished in a country. Those who are on death row don't get executed. They automatically get commuted to a maximum prison sentence instead. As another example, picture a country legalizing the use of weed while keeping those who are in jail for that locked up. It wouldn't pass a sniff test.

The only point that you've laid out in your question that stands out as weird to me is that the government is able to make substantial changes to criminal law via an ordinance. I'm not privy enough with Romanian law to comment on that, but I'd gather it is this rather than the "more favorable criminal law" that was the focal point of debates. I'd also note that this is what the US did when Trump changed the country's border policies -- so even that is not unique to Romania.

  • Although they might not pass your sniff test, some US sentencing reform proposals are not retroactive, even though they are reductions. For an actual US law of that kind that was not retroactive en.wikipedia.org/wiki/Fair_Sentencing_Act – Fizz Nov 18 '19 at 18:13
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In re

I am looking for other countries that allow reducing punishment for a crime through government (executive) ordinance.

That's surely possible in the US through presidential/executive commutation. Generally, in the US it's granted on a case by case basis. Obama granted more commutations than any prior president.

Ford and Carter outright pardoned Vietnam-era draft dodgers, thus completely absolving them of the crime before they were even convicted. (That's possible in the US.)

In the countries of the Council of Europe, commutation must be an option for life sentences. If a foreign country doesn't provide such an option, that even prohibits extradition to such a country.

On extradition and life imprisonment, the Court examines whether there is a risk that the extradited person might be exposed to an irreducible life sentence, which as such, as we have seen, is not compatible with the Convention (Vinter v. United Kingdom, cited above). In the case of Trabelsi v. Belgium, 4 September 2014, the Court considered that the life sentence which the applicant faced in the United States was irreducible inasmuch as US law did not provide for an adequate mechanism for reviewing that type of sentence, which meant that his extradition to the United States had amounted to a violation of Article 3 of the Convention.

It looks like what's happened in Romania was (in part) for the benefit of some corrupt politicians. The specter of something like that has been raised in the US recently with Trump mentioning he might pardon himself. As a high-level historical precedent, Ford pardoned Nixon, but this decision proved very damaging for Ford's subsequent presidential campaign. So yeah, there might be political consequences for actions that are nevertheless legal. (I'm curious how that turned out in Romania, I'll have to check out the recent election news.)

The 2016 affair in which some Romanian politicians got reduced sentences supposedly for writing books [that sometimes turned out to be ghostwritten or plagiarized] is perhaps also worth recalling here. I think that was rather more original and rather obviously an avenue for corruption itself.


As for the main question on the application of the more favorable sentence... there are some partial (and complicated) examples from the US, e.g. the Fair Sentencing Act of 2010. It

reduces the disparity between the amount of crack cocaine and powder cocaine needed to trigger certain federal criminal penalties from a 100:1 weight ratio to an 18:1 weight ratio and eliminated the five-year mandatory minimum sentence for simple possession of crack cocaine, among other provisions.

This law was not entirely retroactive as it was initially passed,

Effective November 1, 2011, the Fair Sentencing Act of 2010 applies retroactively to reduce the sentences of certain offenders already sentenced for federal crack cocaine offenses before the passage of the bill. However, the nonprofit organization Families Against Mandatory Minimums, a major advocate of the Fair Sentencing Act, has lobbied Congress to make the entire act retroactive.

And eventually...

The FIRST STEP Act, passed in December 2018, retroactively applied the Fair Sentencing Act, aiding around 2,600 imprisoned people.

Amusingly perhaps, the latter act also has non-retroactive sentence reduction provisions, although apparently the non-retroactivity of these was a mistake rather than intentional, this time:

The legislation increases the number of good conduct time credits that prisoners receive from 47 days per year to 54 days. Due to a legislative drafting error, this change is not being applied retroactively.

So as far as the US goes, there are examples and (intentional) counterexamples, i.e. it's not a universally applied principle that laws stipulating sentencing reductions apply to those already convicted.

And the fact that Congress needs to spell it out each time was actually mentioned in a Supreme Court case:

In Dorsey v. United States, the Supreme Court made clear that Congress possesses sole responsibility for drawing the line between justice and finality in sentencing. That is, when Congress passes a law reducing sentences, it must also choose whether to apply those reductions retroactively or to accept the sentence disparities between pre- and post-reform offenders that will otherwise inevitably result.

The case is rather recent (2012) and was one of those controversial 5-4 decisions. It involved exactly the application of the Fair Sentencing Act.


And shamelessly stealing your discovery of lex mitior as applying to European law... it does seem that reducing sentences that way (post-conviction) is actually the norm in Europe:

In 2009, New Mexico prospectively repealed the death penalty. Three years later in 2012, New Mexico prosecuted a defendant for a capital murder that was committed before repeal, and it sought to subject him to the death penalty. If state prosecutors had prevailed with the jury, they would have secured the very kind of sentence—death—that state officials had been lauded in Europe for outlawing three years earlier. A prosecution like New Mexico’s could never occur in Europe, and not merely because Europe has long outlawed the death penalty. It could never occur because, in contrast to the law of most American jurisdictions, European states embrace a doctrine known as “ lex mitior ” (“the milder law”). The latter doctrine is a counterpart to the ex post facto prohibition. Both doctrines concern retroactivity in criminal law, but they are the converse of one another. The ex post facto doctrine prohibits retroactivity by prohibiting the state from prosecuting persons under criminal statutes that either retroactively criminalize conduct that was hitherto lawful or retroactively increase penalties for conduct that, while unlawful all along, was hitherto punishable less severely. In contrast, lex mitior mandates retroactivity by mandating that criminal defendants receive the retroactive benefits of repealing statutes that either decriminalize conduct altogether or reduce punishment for it. After surveying laws in the United States regarding the retroactive effect of ameliorative repeals, the author addresses whether punishing offenders under harsher laws that obtained at the time of their conduct can serve consequentialist and/or retributive purposes of punishment. He concludes that, although doing so can be morally justified under limited circumstances, typically it is not—a conclusion that bears upon lex mitior’s proper scope, whether it consists of a binding norm (as it is among European nations), a nonconstitutional norm (as it presently is within the United States), or, when legislative intent is uncertain, a function of the rule of lenity.

Apparently, the expansion of lex mitior in Europe was made by the CJEU:

The principle of applying the more lenient sanction – also called principle of lex mitior - constitutes a general principle of national criminal laws as well as a general principle of Union law, as confirmed by the Court of Justice of the European Union over time.

The same article notes that Romania was even sued at CJEU for not applying the principle to some cases decided before it joined the EU.

Actually the more widely applicable ECHR doctrine includes it as well:

Scoppola v Italy (No 2) (2010) 51 EHRR 12 where the European Court of Human Rights affirmed that the ‘fundamental principle’ of lex mitior was embodied within art. 7 (at [109]).


Also of interest are international conventions in this regard, the International Covenant on Civil and Political Rights in particular:

The international treaty law governing retroactive amelioration is explicit and clear. The major governing human rights treaties allow an offender to benefit from a change in law that imposes a lighter penalty than the one in existence at the time the offense was committed. Article 15 of the ICCPR, to which the United States is a party, contains a provision that prohibits criminal ex post facto laws noting however, “[i]f, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.” The United States is one of 167 countries that are party to the ICCPR. The ICCPR sets the main legal framework for the lex mitior principle under which the countries of the world have fashioned their constitutions and penal codes. There has been little dispute from the international community about this section of Article 15. Germany attached a reservation indicating that a lighter penalty would not be provided in certain instances. Nonetheless, Germany enshrines the right to retroactive application of ameliorative law prior to final judgment in its criminal code. Italy and Trinidad and Tobago specified that this right would only apply to cases still in progress or prior to a final judgment. The United States is the only country that has attached a reservation indicating that this section of the Article would not apply under any circumstance. The reservation states “[t]hat because U.S. law generally applies to an offender the penalty in force at the time the offence was committed, the United States does not adhere to the third clause of paragraph 1 of article 15.” However, Article 4(2) of the ICCPR lists this Article as non-derogable, which means that it may not be reduced in any way.

Text of ICCPR article 15:

Article 15

  1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.

  2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.

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