COD PENAL ÎNTRE UTOPIE ȘI DISTOPIE. INDIVIDUALIZAREA PEDEPSEI

Abstract

The utopia in the matter of the individualization of punishment is related to the desires that society always links to a new code, to reduce the number and severity of crimes, to reduce the severity of the violation of the victims' rights. The dystopia comes from the way some related provisions have been interpreted or applied, from the differences between the purpose of the law and its implementation. The content of the analysis, however, is not polemical. It brings out the living law meaning of jurisprudence, as well as the importance of defense arguments in a criminal trial. The current penal code, like any other previous penal code, is interpreted by those who apply it or ensure its constitutional consistency, which allows the application of legal texts for a long period of time, without legislative interventions. The arguments for the present analysis assume that we have a solid base in the current code to evolve from. Law evolves through questions and answers. Through the questions sometimes raised in the courtroom, sometimes asked to ourselves, through the answers 
given in the court decisions or through the answers given through the decisions of the constitutional court of Romania, or the Strasbourg Court or the Luxembourg Court. In drafting legal texts from the special part of the criminal code, or the rules of the criminal procedure code or special laws, it would be required, in order to give the same legal efficiency, to use the notions or expressions from the general part of the criminal code, to the 
notions/expressions/terminology of the general part are repeated in the special part, if the meaning of the terms is to be consistent. However, the legislator does not always use the same technique, as it would seem obvious, so it is up to the interpretation to determine whether the terminological differences lead to divergent or convergent criminal policy solutions to those established in the general part of the criminal code.