Pentru Curtea de Justiție, o interpretare judiciară poate aduce atingere principiului lex stricta atunci când …

18 noiembrie 2018
245 citiri

Therefore, an interpretation can violate the principle of lex stricta if it „produces a result which was not reasonably foreseeable at the time when the offence was committed, especially in the light of the interpretation put on the provision in the case-law at the material time„(cu trimitere la C-189/02 P, 202/02 P, 208/02 P et al. Dansk, para. 218)

Christina Peristeridou
(The Principle of Legality in European criminal law, ed. Intersentia, decembrie 2015, la p. 209)

Putem găsi diferite exemple de norme de drept penal consacrate în instrumentele europene care au potențialul de a fi vagi

17 noiembrie 2018

There are various examples of criminal norms in European instruments that are potentially vague.
Examples include the European instruments on terrorism, child pornography, racism and xenophobia.
The core criticism of vague European definitions of crimes is that they prevent the national legislator from respecting the lex certa principle.
An additional example relates to the definitions of the elements of the general part of criminal law. Framework Decisions and Directives include the obligation to criminalise certain forms of participation, negligence and attempt without providing a definition of those terms. Thus, the Commission in its Annex to the report on the implementation of the Framework Decision on terrorism refers to the problems created by the different interpretations of the term ‘incitement’ in Italy, Spain, France and UK.

Christina Peristeridou
(The Principle of Legality in European criminal law, ed. Intersentia, decembrie 2015, la p.pp. 200-2)

Curtea de Justiție a stabilit că un Regulament nu poate constitui baza răspunderii penale fără un temei juridic național, și asta indiferent de …

17 noiembrie 2018

Such a legal basis is also needed when the national prosecution is based on a Regulation. While Regulations should not be implemented into national law, because they have direct effect, the ECJ has held that a Regulation cannot form the basis of criminal liability without a national legal basis (cu trimitere la C-60/02, paragrafele 60-62). This holding should be followed by the national systems, irrespective of the obligations of the national legality principle.

Christina Peristeridou
(The Principle of Legality in European criminal law, ed. Intersentia, decembrie 2015, la p. 181)

Arbitrariul judiciar poate lua diferite forme

17 noiembrie 2018

This is because judicial arbitrariness can take different forms. Certainly, one form is taking over the legislative functions. Another form, though, may be found in judicial reasoning per se, namely the arguments that courts use for interpreting criminal liability. To illustrate this, a case will be presented where a judicial interpretation was declared to be in violation of lex stricta. This case is a landmark German judgment on the principle of legality.
The Sitzblockaden case was about the interpretation of Article 240 GCC, which criminalises coercion and it includes the term „force”(Gewalt). The question was whether „force” referred to psychological as well as physical force. Participants in a sit-in demonstration were regarded as exercising psychological force over the driver of the truck who supplied a nuclear plant. Here the grammatical interpretation would suggest that also psychological force fall within the scope of criminalisation, as the provision only mentions the term ‘force’ without any further distinction. Yet the German Constitutional Court concluded that interpreting psychological force as coercion would be an arbitrary interpretation and, thus, against the principle of legality. What is interesting about this case is that the German Constitutional Court did not come to this conclusion by using the prohibition of analogy. It rather argued that the interpretation of the conflicting rights followed by the lower court was irreconcilable with the will of the legislator and the German legal order in general.
With subtlety, the German Constitutional Court adopted a ‘rights-conception’ to the legality principle similar to the ECtHR by focusing on the concept of foreseeability and how this would be influenced by judicial interpretation. It explored possible interpretations in the light of the specific situation at hand and weighed the right to foreseeable criminalisation of passive acts of intimidation during demonstrations against the purpose of the criminal provision. It found that the right to foreseeability outweighs the obligation to protect individuals from emotional coercion in the specific context of the German society. The claim to foreseeability in this case was successful because criminalisation of psychological force would create chaos in future cases. The norm would become so broad that it would be impossible to predict what intimidating act would be coercive for the purpose of criminalisation. It would create confusion regarding permissibility of acts during demonstrations and also other situations, involving intimidation at work or school. (s.n. – M.M.-B.)

Christina Peristeridou
(The Principle of Legality in European criminal law, ed. Intersentia, decembrie 2015, la pp. 110-1)

Lex stricta impune ca atunci când o normă are un înțeles ambiguu, cea mai favorabilă interpretare – pentru inculpat – să fie aplicată

16 noiembrie 2018

The principle of lex stricta is of paramount importance as it restricts judicial arbitrariness. Criminal norms should be interpreted within the margins of the wording of the text. The purpose of this is to bind judicial interpretation to the wording of the statute. This is meant to subject the courts to the superiority of the legislature: the legislature – and not the courts – is the one that expresses through its statutes the values to be protected and the scope of their protection.
Naturally, the principle is addressed solely to the courts and obliges them to deduce the scope of criminalisation solely from the wording of the text, which marks the limits of criminalisation.
As the examination of the wording of a statute is very important, the lex stricta principle aims at safeguarding a strict interpretation, through the prohibition of certain methodologies that allow courts to import their own views.
Similarly in common law, the presumption of strict construction applies only after all other methods are used and the statute still remains unclear. A strict construction means that where there is ambiguity, the most favourable – for the accused – interpretation should be adopted.

Christina Peristeridou
(The Principle of Legality in European criminal law, Intersentia, decembrie 2015, la la pp. 90-1)

În Franța, termenul pentru păstrarea datelor de către operatorii de telecomunicații nu poate depăși un an

16 noiembrie 2018

c) Interception by service providers of the content of the information accessed by their users

aa) Maximum length of interception order

The preservation of the text of the information consulted by persons using the services provided by the operators must not exceed one year.

Estelle de Marco
(France Report în Access to Telecomunication Data in Criminal Justice (coord. U. Sieber, N. von zur Muhlen), Duncker & Humblot, decembrie 2016, la p.476)

Platforma interceptărilor judiciare (în Franța)

15 noiembrie 2018

In addition, a decree plans the creation of a ‘judicial interceptions platform’, placed under the responsibility of the Ministry of Justice, the purpose of which is to receive and store:
– The content of electronic communications intercepted on the basis of articles 74-2, 80-4, 100 to 100-7 and 706-95 of the Penal Procedure Code;
– Data and information communicated by service providers within the framework of three procedures: the procedure for the interception of the content of the information accessed by users of electronic communications operators’ services (articles 60-2 (2) et seq; 77-1-2(2) et seq. and 99-4(2) et seq. of the Penal Procedure Code), the procedure for requesting traffic and connection data (articles 60-1; 77-1-1 and 99-3 of the Penal Procedure Code), and the procedure for accessing, including remotely, information stored in computer and data processing systems (60-2(1) and (5), 77-1-2-(1) and 99-4(1) of the same Code).
This platform was not yet operational at the time of writing.

Notă MMB: pentru reglementarea aplicabilă, a se vedea aici.

Estelle De Marco
(France Report în Access to Telecomunication Data in Criminal Justice (coord. U. Sieber, N. von zur Muhlen), Duncker & Humblot, decembrie 2016, la p. 470)

În Germania, furnizorii de telecomunicații au obligația de stocare a datelor de trafic doar pentru o perioadă de 10 săptămâni, iar unele date doar pentru o perioadă de 4 săptămâni

12 noiembrie 2018

An obligation to retain traffic data for a certain period was introduced into the TKG (Section 113a) by the legislature in 2007 while implementing Directive 2006/24/EC. However, the provision was declared null and void by the Federal Constitutional Court in its decision from 2 March 2010 due to constitutional deficiencies. Meanwhile, the directive which the provision was based on has also been declared invalid by the ECJ. In October 2015, the Bundestag passed the „Law for the implementation of a retention obligation and a maximum retention period for traffic data,” which has been in force since 18 December 2015, thereby once again providing for the unoccasioned retention of traffic data for a certain period (nota de subsol 145: In academic literature, however, doubts are being voiced regarding the compatibility of the new provisions with EU law, see Boehm/Andrees, CR 2016, 146 et seqqș Rossnagel, NJW 2016, 533 (539)). However, the retention and other associated obligations need not be complied with before 1 July 2017.

Pursuant to Section 113b Subsetion 2 TKG, providers of publicly available telecommunication services are now required to retain, for a period of ten weeks, inter alia, the concerned telephone numbers or other IDs, the time, and the duration of all telephone calls (including the IP addresses involves as well as the assigned user ID in cases of VoIP). Furthermore, regarding mobile telecommunication, the retention obligation also covers the IMSI and IMEI, as well as the telephone numbers, and the time at which every SMS or MMS was sent or received.
Also to be retained for ten weeks according to Section 113b Subsection 3 TKG are a participant’s assigned IP address, a definite connection ID, and an assigned user ID, as well as the time and duration of the respective internet use. Pursuant to Section 113b Subsection 4 TKG, the location data of users of mobile telephone or internet services must be retained for four weeks. Section 113 Subsection 5 TKG explicitly stipulates that the content of communication, data regarding the internet sites accessed, and data from electronic mail services may not be retained. Also, pursuant to Section 113 Subsection 6 TKG, the retention of traffic data may not cover connections to lines of telephone counseling services as per Section 90 Subsection 2 TKG.

Pursuant to Section 113c Subsection 2 TKG, data may not be transmitted for purposes other than the prosecution of particularly serious crimes, the prevention of concrete dangers to life, limb, or liberty of a person or for the continued existence of the Federal Republic of Germany or one of its Lander, or for the purpose of subscriber data disclosure on the basis of Section 113 Subsection 1 Sentence 3 TKG, in which an IP address is used to determine the line assigned to it at a certain point in time. According to Section 113c Subsection 3 TKG, these data must be marked in such a fashion that it is distinctly recognisable that one is dealing with data retained pursuant to Section 113 b TKG.

Notă MMB: a se compara cu termenul de 3 ani introdus prin Legea nr. 235/2015, dar și cu celelalte dispoziții din Legea nr. 506/2004. Totodată, a se citi și decizia CCR nr. 621/2016 care a respins excepțiile ca fiind inadmisibile.

Benjamin Vogel, Patrick Koppen, Thomas Wahl
(Germany Report în Access to Telecomunication Data in Criminal Justice (coord. U. Sieber, N. von zur Muhlen), Duncker & Humblot, decembrie 2016, la p. 548)

În Germania, legalitatea măsurii interceptării poate fi contestată chiar și în cursul interceptării, de către persoanele vizate de interceptare, atunci când …

12 noiembrie 2018

As stipulated by Section 101 7 StPO, the persons participating in intercepted communication may apply for a judicial review of the lawfulness of the measure, as well as of the manner and means of its implementation for up to two weeks following their notification. When an affected party gains knowledge of the measure, that person may file an application even before the measure’s completion.

Notă MMB: a se compara cu Decizia nr. 244/2017 a Curții Constituționale a României, și mai ales cu punctele de vedere emise de Președintele Senatului și Președintele Camerei Deputaților la excepția de neconstituționalitate ridicată de DNA.

Benjamin Vogel, Patrick Koppen, Thomas Wahl
(Germany Report în Access to Telecomunication Data in Criminal Justice (coord. U. Sieber, N. von zur Muhlen), Duncker & Humblot, decembrie 2016, la p. 541)

În Germania, operatorii de telecomunicații sunt cei care au obligația de a suporta costurile interceptărilor dispuse de instanță

11 noiembrie 2018

Pursuant to Section 100b Subsection 3 Sentence 2 StPO in connection with Section 110 Subsection 1 Sentence 1 No. 1 TKG, the operators of telecommunication facilities that offer publicly available telecommunication services, must, at their own cost, maintain the technical means (hardware and software) for the execution of telecommunication interception and make the organisation arrangements necessary for its prompt implementation. (…) Thus, providers of publicly available telecommunication services using email servers located in a foreign country to provide email services in Germany are also covered.
The organisational and protective requirements are stipulated in Sections 12 to 17 TKUV. Pursuant to Section 12 TKUV, the telecommunication service provider must ensure that it has taken all necessary organisation steps for handling orders. In particular, it must also ensure that it can receive an order outside of its usual business hours without delay. Furthermore, it must ensure that it has competent personnel available at all times to answer enquiries from the authorized body.
Section 15 provides for confidentiality obligations concerning the way in which orders are implemented and requires that the protection of information related to interception measures be ensured.
Also, there exists no obligation to decrypt encrypted communication. Section 5 Subsection 2 TKUV merely obliges telecommunication service providers to provide the authorities with a copy of the telecommunication to be intercepted.

Benjamin Vogel, Patrick Koppen, Thomas Wahl
(Germany Report în Access to Telecomunication Data in Criminal Justice (coord. U. Sieber, N. von zur Muhlen), Duncker & Humblot, decembrie 2016, la pp. 533-4)