The application of lenient law in croatian legislation
The Criminal Code changes over time, which often leads to a situation where the criminal offence was committed while one version of the Code was in force, and that criminal offence was completed or the legal proceedings in relation to same criminal offence was initiated when a new version of the same Code came into force. This legal situation raises a lot of questions, and the most important of them is “Which law should be applied in this case?”
The institute of the application of the more lenient law ( principle of lex mitior) means that, if the law is amended one or more times after the commission of the criminal offence and before the delivery of the judgment, the law most favorable to the offender will apply.
Before deciding which law is more lenient for the offender, the court must first establish the existence of legal continuity. Therefore, if the name or description of the criminal offence is changed in the amendments of Criminal Law, the court must examine whether there is legal continuity between the old and the new code, or whether the facts of the criminal offence committed at the time when the old code was in force can be classified as a criminal offence under the new code. If the court determines that such a possibility exists, it will apply a law more lenient to the offender, and if there is no legal continuity then there will be no criminal offence, which means that in that case, the court will issue a judgment of acquittal of the offender.
Issues that are arising from adopting the amendments to the Criminal Code can be demonstrated within the criminal offence of tax and customs evasion. In the Criminal Code of 1997 (CC / 97) can be found only the criminal offence of abuse of power in economic affairs, which included all actions that, among other damages, damage the state budget.
Only with the 2003 amendments, the Criminal Code introduced the criminal offence of Tax and Customs Evasion, followed by the 2011 Criminal Code (CC / 11), that eliminated the criminal offence of abuse of power in economic affairs. A result of this situation was that, all indictments charging offenders with the criminal offence of abuse of power in economic affairs on which there has not been decided by 2011., had been modified so that the earlier suspects of committing the criminal offence of abuse in economic affairs have been charged for tax and customs evasion.
For the court to determine whether the factual background of tax and customs evasion from the Criminal code 2011 can be classified as the criminal offence of abuse of powers in an economic affair for which a person was charged under the 1997 law, he had to determine whether there was a legal continuity between the incriminating act under the criminal codes 2011 and 1997. In some cases, it has been established that there is no legal continuity and that some acts have been decriminalised. For example, a criminal offence of abuse in the economic affair could also have been committed by the failure to pay a duly declared and assessed tax or customs obligation before, but according to the legal description of the criminal offence in Criminal Code 2011 that act was no longer a criminal offence. Also, CC / 11, concerning the criminal offence of Tax and customs evasion, stipulates that for the existence of the criminal offence in question, the amount for which the tax or customs duty is reduced or undetermined must exceed HRK 20,000.00. This means that in cases where the tax liability was duly reported but not paid if it was the amount lower than HRK 20,000.00, the court issued an acquittal judgment due to the lack of continuity of criminal offences.
Consequently, the court must determine in each case whether there is a legal continuity between the legal descriptions of the offences from the different types of the criminal code, to determine whether the conduct that was qualified as a criminal offence under the earlier code is incriminating after the new code enters into force. Only when the court finds that there is continuity between the incriminating conduct in the new and the old code, it evaluates which law is more lenient for the offender, of course, the first criteria is, which law provides a lighter penalty for the offender.