The Application of the Ultima Ratio Principle in Criminal Matters

Abstract

Starting from the interpretation that the Constitutional Court of Romania (in the considerations of Decision no. 405/2016) gives to the principle of ultima ratio in criminal matters, this study addresses the issue of the application of this principle, by distinguishing between its application at the legislative level (by the legislator) and the application at the judicial level (by the criminal judicial bodies). We consider that, while, at the legislative level, the application of the principle of ultima ratio in criminal matters is manifested by the legislator exercising his power to legislate (in the sense of criminalizing an act as a crime only as a last resort to protect a social value), at the judicial level, the application of this principle, by the judicial bodies, is achieved through their possibility to order/pronounce a solution of non-engagement of criminal liability, even if the act is provided for by the criminal law, to the extent that all the conditions required by the law are met for ordering/pronouncing such a solution. In conclusion, we appreciate the solution of closing the case or acquittal under art. 16 para. (1) lit. b) thesis I from the Romanian Criminal Procedure Code ("the criminal law does not provide for the act") cannot be argued by the judicial body by applying the ultima ratio principle in criminal matters; only a solution of waiving the criminal prosecution, respectively waiving the application of the penalty, or postponing the application of the penalty can be justified by the application, at the judicial level, of this principle.