Postponement of punishment application (art. 89 Penal Code) Cancellation. Consequences
DREPT PENAL ŞI DREPT PROCESUAL PENAL
Abstract
The operation subsequent to the cancellation of postpoenemt of the sentence is the application of the provisions regarding the competition of offenses, recidivism or intermediary plurality and not the pronounciation of a new solution regarding the criminal action definitively solutioned when a court has postponed the application of the sentence. The adopted legislative solution is justified by the fact that art. 89 C. pen. regulates a cause of removal of one of the ways in which the person who committed an offense bears its consequences. In this procedure the case in which the criminal action was resolved by pronouncing the solution to postpone the application of the sentence is not re-judged and, therefore, the court cannot give a new resolution to the criminal action, according to art. 396 Pen. Pr. Code, because it would harm the authority of judged matter of the previous judgment on this matter. The obligation of the conviction solution leads to the inapplicability of the provisions of art. 89 paragraph 2 Penal Code which allow the court that, after ordering the cancellation of the postponement of the application of the punishment, in the event of a competition of offenses to order „the postponement of the application of the resulting punishment if the conditions stipulated in the provisions of art. 83 Pen. C. are fulfilled”. However, since one of the conditions of art. 83 Pen. C. Stipulates that there must be „a fixed sentence” and not a sentence to which the conviction was ordered, these provisions would become inapplicable if the legislator established for such a situation including the date from which the term of supervision will run – according to art. 89 par. (2) final sentence Pen. C. „If the application of the sentence is postponed, the term of supervision is calculated from the date of the definitive stay of the decision by which the it was previously pronounced that sentence has been postponed”.
