Aplicarea principiului legalității din dreptul penal în dreptul contravențional

Abstract

The aim of this work is to emphasize the reasons for enforcing the principle of legality, as it is perceived in criminal law, to contravention law. Crime and contravention have a common origin in the Criminal Code of 1865. Although contraventions have been excluded from criminal offences and transformed into administrative infringements, many of the criminal law principles still apply. The main sanctions established by Government Ordinance no. 2/2001, fine and community service, have, without doubt, a preventing-repressive nature. This is the reason why, enforcing a contravention sanction fulfills the meaning of a ‘criminal charge’ as an independent notion defined by the European Court of Human Rights. From this perspective, the principle of legality, with all its components: nullum crimen sine lege, nulla poena sine lege, nullum judicium sine lege, has to be considered in connection with contraventions. The procedure provided by the act regulating contraventions does not refer to such principles and the judicial procedure, when contesting the sanction, is subjected to civil procedure law. This situation does not exclude the application of principles, as the principles of law are both a foundation of the law system and a way of coordinating the norms around guiding ideas.