Judicial Rulings with Prospective Effect in Venezuela
© Springer International Publishing Switzerland 2015
Eva SteinerComparing the Prospective Effect of Judicial Rulings Across JurisdictionsIus Comparatum – Global Studies in Comparative Law310.1007/978-3-319-16175-4_1414. Judicial Rulings with Prospective Effect in Venezuela
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Urbanización Santa Sofía, Calle Norte, Quinta Bursan, N 229, El Cafetal, Municipio Baruta, 1060 Caracas, Venezuela
Abstract
This study analyzes and presents the situation of Venezuelan jurisprudence or case law with regard to the acceptance of rulings with prospective effect, understood as those rulings, the effect of which is intended to control future situations that are fully comparable to the situation currently being dealt with. The analysis of prospective ruling determines the value of precedent in the Venezuelan system and, specifically, that with a binding nature, like in the case of the provision of Article 335 of the Constitution of the Bolivarian Republic of Venezuela.
Keywords
Prospective effectRetroactive effectStare decisisLegal precedentProspective overrulingTemporary or interim constitutionalityModulation of sentences: interpretative or conditional rulingsSubstitutive rulingsRulings with temporary effectsThe paper refers to point I.b of the questionnaire prepared for the XIXth Congress on Comparative Law, to be held in Vienna in 2014. This point deals with the “General Theory of Law,” and this paper delves into the subject of “Judicial Rulings with prospective Effect” The subject in French is found under the title: “L´effet prospectif des décisions de justice.”
In Venezuelan law, the use of the term “prospective” as an adjective is uncommon, even though it is understood as referring to a future effect. It is possible that in other Latin American countries, which have been more intensely influenced by the Anglo-Saxon Law, the use of this term to refer to the effectiveness of rulings or actions in general is widespread. If one thing is true is that in our system, the term “retroactive” to refer to past effects is very usual even in regulatory texts, unlike the “prospective” effect, which is seldom mentioned.
We now proceed to answer the questions made by the General Rapporteur, following the same order in which they were posed.
1.
Could you briefly describe how does the concept of precedent operate in your legal system? Is there any particular provision establishing precedent? Are there practical, legal or constitutional rules on this matter?
Even though the question refers to “your legal system,” we can infer from its context that the aim of the question is to address the judicial application of precedent.
We will deal with judicial precedent in a brief manner, before delving into it in more detail throughout this paper, by noting that it is a decision made ahead of the cases that are being heard by a judge, which refers to identical or similar circumstances to those submitted to the said decision. Therefore, a precedent could guide the judge in the issuance of the corresponding ruling. If a precedent has been classified as “binding,” it will be mandatory for the judge and becomes a true legal rule in itself with full force and effect of a repealing law of any source deciding in a different sense. Therefore, it could repeal laws with different contents.
It should be borne in mind that Western legal systems are divided into those that address precedent as a fundamental source, like the Common Law or the Anglo-Saxon system, and the German-French or legalist system the essential source of which is the written law.
The principle of “stare decisis,” a Latin phrase that is interpretatively translated as “to stand by decisions and not disturb the undisturbed,” is applied in the legal system based on Common Law. This phrase is used in Law to refer to a doctrine according to which rulings handed down by a court give rise to a judicial precedent and are binding, as jurisprudence or case law, on those that may be issued in the future on similar matters. This shortened phrase comes from a longer one: “Stare decisis et non quieta movere,” which refers to the condition of an individual who has to quietly wait, without any disturbance, for the decision to be made.
According to the principle of stare decisis quoted above, previous rulings on identical matters should be assumed by courts, which, therefore, are obliged to abide by or comply with already resolved matters. This is a general maxim that expresses that when a matter has been resolved by means of a ruling that sets a precedent, said precedent shall be applied, unless other circumstances modify the status quo. Standing by the ruling issued before makes it necessary to back up the change adopted in a robust manner; therefore the stare decisis doctrine does not prevent previous decisions from being revised and, if necessary, annulled, with the added difficulty of considering a number of factors, including: the age of the preceding decision that is to be followed; the nature and degree of public and private confidence on which variation is supported and its compatibility or incompatibility with other legislative rules.
However, judges in the Common Law system, above all the American, are relatively free to dissent from the doctrine set by the precedent and have the power to create their own rule, thus emerging a new precedent, which allows Common Law to maintain a continuous dynamics of change.
The Royal Courts of Justice of Westminster developed the stare decisis system referred to above, according to which once a judge had decided on a cause, the other judges were obliged to follow suit.
The second branch of English law is “equity” which was a way to overcome the main flaw of Common Law, i.e. the fact that the precedent stopped Law from evolving. The Court of Chancery handed down its rulings based on equity.
Concerning countries of Roman-German tradition, they receive Roman rules directly, because in almost all peoples dominated by the Roman Empire, general law rules were applied. This circumstance led to a limited adoption of the custom system which, if existed, only constituted a subsidiary source. This means that due to the existence for historical reasons of general legal rules imposed by public power, those countries did not have to provide judicial rulings with an imperative and mandatory character for their judges; even rulings issued by the Constitutional Courts or the Courts of Cassation had a merely informative characters and could be an interpretation reference for lower court judges, without them having to restrict their possibility of dissenting and separating from jurisprudence decisions of higher courts.
Most systems, however, recognize that reiterated jurisprudence should somehow bind judges, because, while they are independent, it is necessary to prevent their rulings from being fully unforeseeable or that contradictory rulings are handed down.
The current Constitution of the Bolivarian Republic of Venezuela, dated December 30, 1999,1 announces that a severe legalism is imposed in its Article 137 when it reads that the Constitution and the Law shall define powers of entities exercising the Public Power, which they shall abide by during the development of their activities.
In principle, articles of the Constitution do nothing but praise the supremacy of law, noting, in this regard, in its Preamble, as purposes of the Constitution “the rule of law for this and future generations.” In defining sovereignty, Article 5 ejusdem reads that sovereignty resides untransferable in the people, who exercise it directly in the manner provided for in this Constitution and in the law.
Article 7, in turn, provides for the principle of constitutional supremacy, pointing out that the Constitution is the supreme law and foundation of the legal order and individuals and bodies exercising Public Power are subject to it. At all time, throughout the Constitution, but especially in the enunciation of duties, rights and guarantees, the law is described as the supreme source of Law and power regulation.
The Civil Procedure Code contains the sources governing civil proceedings. For instance, Article 9 of the Code stipulates that procedural law has been applied since the Code’s entering into force, regardless whether proceedings were still ongoing. Article 12 of the same Code, in turn, requires judges to adjust their rulings to “legal rules,” unless the law empowers them to decide based on equity.
According to the Civil Procedure Code, the law only ceases to govern when it collides with any constitutional provision. In this regard, Article 20 of the aforementioned Code points out that “in the event that the current law which application is requested collides with any constitutional provision, judges shall preferably apply the latter.” This rule allows the so-called “diffuse control of the Constitution,” because any judge may “disregard” the law that is breaching the Constitutional provision.
Up to this point, the system appears to be properly legalist; however, a number of elements have made us abruptly go from said system to the theory of precedent as the main source of law. In this sense, 1999 Constitution, in its Article 335, surprisingly, provides for that interpretations by the Constitutional Chamber with regard to the content, scope and principles of the Constitution shall be considered binding on the other Chambers of the Supreme Tribunal and the other courts of the Republic.
The Organic Law of the Supreme Tribunal of Justice, dated October 1, 2010,2 underscores this trend by remembering that the Constitution foresaw the binding interpretations of the Constitutional Chamber when the said Law speaks about the “content or scope of Constitutional provisions and principles,” which operates on the other Chambers of the Supreme Tribunal of Justice and the other courts of the Republic, as already seen.
To strengthen this principle, the Organic Law of the Supreme Tribunal of Justice stipulates as a competence of the Constitutional Chamber that of “reviewing final rulings handed down by courts of the Republic, in the event that they have ignored any precedent set by the Constitutional Chamber.” Numbers 11 and 12 ejusdem also empower the Chamber to “review rulings issued by the other Chambers,” provided they have ignored a precedent set by the Constitutional Chamber and also when diffuse control of constitutionality of the laws or other rules has been exercised by the remaining Chambers of the Supreme Tribunal of Justice and the other courts of the Republic.
A judge’s disregarding a precedent set by the Constitutional Chamber constitutes grounds for nullification of the ruling and penalization of the judge.
In this regard, the Constitutional Chamber, in its ruling of June 18, 2013, concerning an extraordinary appeal against a decision issued by the Superior Court on Civil, Mercantile, Transit, Labor, Minor and Labor Stability-related Matters of the Judicial District of the State of Aragua, stated that judges that, at the time of deciding on a similar case, refuse to accept the precedent set by the aforementioned Chamber will be held responsible for misconduct in the exercise of their function. In this case, the Chamber found that the judge issuing the ruling pointed out in the same that the Constitutional Chamber had regarded as binding a ruling and that this faced him with the following conflict of consciousness: “applying the doctrine set in the referred ruling or disregarding in favor of justice, for the upholding of which the law is conceived as an instrument.” The judge opted for disregarding the precedent, due to which he was fined with 15 days of salary, following a warning that “henceforth, you shall abstain from disregarding precedents established as binding by the Constitutional Chamber.”
The Organic Law of the Supreme Tribunal of Justice insists in the supreme hierarchy of the Constitutional Chamber concerning the interpretation of constitutional rules, empowering it to declare total or partial nullity of national laws and further acts with full force and effect of law passed by the National Assembly, provided they may collide with the Constitution3; as well as constitutions and laws of the different states of the country, municipal ordinances and other acts by deliberating bodies of states and municipalities, which are issued in direct and immediate enforcement of the Constitution of the Republic but may collide with it, and also acts by the National Executive, which may collide with the Constitution of the Republic and with those of the different state bodies exercising Public Power.
The aforementioned Law also empowers the Constitutional Chamber –and it is at this point where the figure of precedent appears– to “review final rulings handed down by the courts of the Republic, when the said rulings have disregarded a precedent set by the Constitutional Chamber…” (Art. 25, number 10); this rule is also applied to rulings by other courts that fulfill the aforementioned assumption (Art. 25, number 11). The Chamber has also powers to review final rulings through which diffuse control of the constitutional character of laws has been exercised (Art. 25, number 12).
It is in these rules relative to powers of the Constitutional Chamber of the Supreme Tribunal of Justice where jurisdictional precedent is expressly mentioned.
Outside the judicial sphere, precedent is also mentioned in the Organic Law of Administrative Procedures, published in the Official Gazette, Extraordinary Issue, No. 2,818 of July 1, 1981, but only in relation to an administrative res judicata (a matter already judged). In this regard, number 2, Article 19 of the aforementioned Law provides for that administrative acts will be absolutely void “when they resolve a case that has previously awarded a final ruling and that has created particular rights, unless expressly authorized by law.”
A further rule linked to precedent is contained in Article 13 of the same Law referred to above: “under no circumstances whatsoever an administrative act may violate a decision made in another act of higher hierarchy; or those of particular nature may violate an administrative provision of general character, even though they were issued by an authority equal to or higher than the one that issued said general provision.”
Non-retroactivity of the previous criteria is established by a rule of the Organic Law of Administrative Procedures as follows: “Article 11. Criteria set by the different entities of the public administration may be modified, but the new interpretation may not be applied to previous situations, unless said interpretation is more favorable than the previous one. In any case, changing the said criteria shall not give rise to a right to review final acts.”
2.
What is the status of the Judge-made law in your legal system? Is there any theory that describes judicial rulings in an analogous manner as declaratory theories? What is the nature of the joint effect of law and precedent as sources of Law?
Before answering these questions, it should be pointed out that the concept of Declaratory Theory is presented in the literature as the thesis by virtue of which judges’ rulings do not create rights, but are intended to grant evidence of what Law is; this is, to effect a judicial declaration.
The Declaratory Theory establishes that the judge does not create or change Law, but states, utters what Law has always been. Moreover, the judge may review past cases without changing the characterization of Law.
In the XXth century, the Declaratory Theory of State recognition, applicable to International Law, and according to which for a State to exist, other States have to recognize it, prevailed, vis-à-vis the Constitutive Theory of State (XIXth century). We have referred to these latter concepts because they can help to determine the scope of the Declaratory Theory in the judicial sphere.
However, in the specific case of the constitutional judge, whose decisions may be binding, said decisions do not necessarily consist of mere declarations. While original theses concerning constitutional jurisdiction only recognized the negative judge, this is, judges with nullifying powers, in the evolution of the system, these judges have been granted greater decision powers, because they are increasingly seen as the owners of the situations submitted to them, i.e. the most suitable individuals to solve them upon interpretation of the Constitution.
Meanwhile, in relation to the formulation of the second question, we observe that it is, in fact, composed of three different questions:
(a)
The judge has the power to create, modify or extinguish the legal rule, since, as previously stated, originally, judges had been only granted the function of “negative lawmaker,” in the sense that the judge has powers to extinguish the legal rules. However, with the recent development of constitutional jurisdiction, the constitutional judge has been granted the possibility to bridge the gap of a rule that has to be eliminated, thus finding a situation consistent with the principles the judge has to safeguard.
(b)
Is the thesis of the merely declarative character of the ruling also employed in constitutional jurisdiction?
The answer derives from the question itself, because if judges may modify legal situations, condition their decisions and carry out the so-called modulations, which are accepted in almost all systems having constitutional justice and consist of providing judges’ decisions with different contents and, at the same time, changing their effectiveness by modifying or broadening them, it is evident that their function is not limited to confirming a situation, but they are able to create, transform or extinguish legal situations.
Last of all, in constitutional jurisdiction, it is not possible to talk about a merely declarative effect of the sentence.
(c)
The third question is that of determining how law and precedents coexist in a juridical system.
We have said that our system is legalist in the sense that the highest source of law resides in the formal law, obviously after the Constitution. This principle permanently appears in the constitutional text, in such a way that it would appear to be an inarguable axiom. When Article 335 of the Constitution refers to its defense, it considers that the main guardian of sovereignty is the Constitutional Chamber, which, as an instrument to perform its task, is granted the power to hand down rulings on the interpretation of the Constitution, which are binding, that is, they are mandatory for all other courts of the Republic, including the other Chambers of the Supreme Tribunal of Justice.
If rulings of the Constitutional Chamber are binding for the judge, what happens if the judge finds a rule that contradicts the interpretation given by the Chamber? Which one should the judge follow? The ruling or the pure and simple rule? Several answers are possible to elucidate the preeminence of the binding ruling of the Constitutional Chamber over the rule contradicting it, because, above all, you have to precisely determine what the rule is. If it is a legal rule, it would appear that the ruling will prevail, since in this situation, it represents the constitutional text, as interpreted by the body with competence to do it. However, the situation is other if the conflict exists between said interpretation and the text of the Constitution, which has been drafted unambiguously and in a clear and accurate manner. In this case, the ruling misinterpreting this text should be disregarded with the justification of the corresponding judge, because applying it would constitute a violation of the Constitution. That is, if the rule is constitutional and it clearly expressed an opinion that was distorted or disregarded by the ruling, the judge has the power to disregard the ruling and apply the constitutional rule.
In fact, when the judge decides a case by means of an interpretation of a constitutional rule, the binding element in this case is the meaning given to the constitutional rule, which should be applied as a precedent for the case on which the judge must rule.
The judge’s interpretation can never prevail over the specific rule contained in the text of the Constitution, because interpretation is nothing but a jurisdictional act that, because it is interpreting the sense of the Constitution, and it is going to have a high hierarchy among ancillary sources; however, the plain text of the constitutional rule cannot cease to be applied as a result of said interpretation if the same is openly contrary to its meaning. Therefore, we believe that a legalist system, like ours, where the Constitution is at the top of the legal hierarchy, cannot be ignored by a jurisdictional act, even though the same is trying to be the one determining the meaning of the constitutional rule, because jurisprudence on hierarchy of sources is logically found at a lower level than the express text of the constitutional rule, even though it deals with its interpretation.
Therefore, we believe that in the debate on the validity of the meaning and the scope of the constitutional rule, between the solution given by the Constitutional Chamber to the case and what can be inferred from the plain meaning of the words contained in the text of the article, this latter should prevail.
3.
In your legal system, what are the problems related to jurisprudence that derive from the case law and the rules of precedent, in particular those emerging from courts acting as lawmakers, in which both categories (case law and precedents) have not been confronted?
Let us remember that the concept of case law is understood as the rules that have been created based on the interpretation by courts regarding specific cases. Accordingly, case law is not created by the lawmaker, but by the court based on a concrete case or the interpretation of the laws that the court has applied.
The question has been made in relation to the eventual conflict between case laws and the rules of precedent and, in this last instance, in those cases in which courts have assumed the role of lawmakers. In this regard, we have to insist in an idea that is repeatedly referred to in this paper, i.e. that Venezuela is not a system embracing the case law, but, on the contrary, Venezuela’s is, in principle, a legalist system in which judges are obliged to apply the written law, naturally subjecting themselves to the hierarchical order of sources. According to this hierarchical order, the Constitution is the supreme rule, which illustrates the entire system and has an essentially regulatory content. The other rules appear by means of “implementing acts” that are understood as the process by virtue of which a general rule is particularized and an abstract rule becomes concrete, i.e., it comes to life through a specific assumption.
The immediate subsequent step in the order of sources after the Constitution is the rule with force and effect of a law; that is, it is immediately enforceable after the constitutional text which, in turn, may be object of implementing acts. In fact, the result of the implementing act that gives rise to the legal rule, when it is implemented, results in sub-legal acts that will also acquire their own hierarchy.
Specifically in relation to the question made, the case law doctrine is not applicable in the Venezuelan legal system, because judges should consider the law they are supposed to enforce; only if there is a precedent, i.e. a ruling on a case that is identical because it deals with similar assumptions as those pondered in the case object of the decision, the judge may apply it to settle the specific lawsuit. To this effect, a distinction has to be made between non-binding and binding precedent. In this regard, applying a non-binding precedent is optional for the judge, whereas in the case of a binding precedent, like the one that contains the interpretation of a constitutional rule by the Constitutional Chamber, its application is mandatory, to such an extent that failing to apply a binding precedent may constitute grounds for the removal of the judge. However, as stated in relation to the previous question, the judge may consider that the constitutional interpretation by the Chamber departs from the true meaning of the rule when the said rule is simple and easily understandable. For instance, the constitutional rule says that a certain action cannot be undertaken without any exception whatsoever if the ruling enunciates determined exceptional assumptions as existent. The judge should abide by the provisions of the constitutional rule and disregard the interpretation of said rule as it departs from the constitutional terms and norms.
In consequence, there is not any conflict between case law and precedent in Venezuelan law, but it does exist between precedent and implementation of the express rule. With regard to precedent, the same, according to Article 335 of the Constitution, shall be preferably and exclusively applied if it is originated by the Constitutional Chamber and deals with the interpretation of a constitutional rule, in which case, it will prevail over any other source, provided it respects the assumptions of the said rule, as we will explain in the subsequent answers.
4.
Have judicial rulings with retroactive effect been criticized in your jurisdiction? Since when? By whom? Like in France, has this situation led to the creation of working groups intended to discuss the setting of limits to the retroactive effect of judicial rulings?
In this regard, we should point out that in the Venezuelan system the principles of the General Theory of Law are applied. According to these principles, the ruling declaring some acts void, alleging that they are vitiated by absolute nullity, has retroactive effect, because it declares that the act was vitiated from its origin and that, accordingly, it cannot be effective altogether; in this case, it is referred to as ex tunc effectiveness, which, as such, has a retroactive effect.
Among us, the distinction between the forms of termination of acts is clear. These differences are based on the effect that said acts of termination produce. The most important modalities of termination of legal acts include nullity, repeal, derogation (when it is general), abatement of the act, exhaustion of the act and abatement and modification of its content or of any of its characteristic elements. We are going to briefly refer to the effectiveness of each one of these figures, once their existence has been declared.
Nullity of an act occurs because said act is so severely vitiated that it can result in absolute nullity or voidability. The main difference between absolute nullity and voidability is that the first cannot be validated, is not susceptible to be corrected; that is, the individual controlling the act (judge or general official empowered to do this) cannot modify the act to correct the defects affecting it, because absolute nullity is an irregularity with such a nature that the act extinguishes by itself and there is not any means to provide it with new life. Meanwhile, relative nullity or voidability is characterized because both the author of the act or any individual empowered by law to do it can modify it to add or remove some elements. Therefore, if a non-essential stage of the proceedings is missing, it can be exhausted; or if essential documents have to be added to demonstrate the facts, this situation does not appear in the file. Likewise, any missing requirement, the existence of which has been evidenced in the file, is a true judgment element. All acts mentioned above constitute validation or correction acts and, of course, the corrected act has normal effects. Unlike, the act vitiated of absolute nullity, which is declared as such, totally extinguishes. In this case, the Latin aphorism “what is void cannot produce any effect” is applied.
It is therefore unquestionable that the declaration of absolute nullity of an act has a retroactive effect; and it could not be otherwise, because what is stated is that if the act is considered irremediably vitiated, nothing can correct it and it is as if it would have never existed. In consequence, the declaration is retroactive because it confirms that the act was irregular in the past and declares its ineffectiveness from the time when it appears in the judicial world.
The second termination figure is “repeal”. This term has many meanings and some of them point out that it is determined based on whether the termination of the act is produced by the same entity dictating it. Another thesis states that repeal is a termination through the administrative way, unlike nullity that essentially takes place by the judicial way. This thesis is not correct, since the Organic Law of Administrative Procedures provides for the figure of nullification which the Administration may declare of its own vitiated acts. That is, that it is not necessary that an entity alien to the administrative sphere, like a judge, operates for the act to be terminated by means of nullity. Therefore, how is it terminated? Repeal does not refer to nullity or formal defects of acts, but to inconvenience or inopportuneness of the act in terms of the law. The act does not satisfy the interests of the administration or does not satisfy them fully, even though it is a perfectly valid act, constituted in accordance with the more demanding standards of the administrative procedure.
The problem is other when it is related to the possibility that the judge may repeal the act due to its timing or convenience. We have to be very clear in this regard. Let us remember that the “merit” of the act, that is, deciding if it is useful or effective, corresponds to the Administration, something in which judges cannot interfere, because they do not have the power to decide whether it is convenient or opportune for the Administration to dictate or omit a measure. This can only be qualified by the entity empowered to dictate it. However, what the judge can determine is whether there is motivation for the act and whether it is consistent with the situation presented; that is, the only thing a judge can do is verifying whether there is or not a motive and if said motive, regardless of its decisive content, is clear enough and is not contradictory (that is, formal elements that do not constitute an opinion of law).
The Italian doctrine has imposed the notion of the “lack of merit” of the act, that is, the fact that the same does not refer to the purposes and satisfaction of interests for which it has been dictated. The lack of merit occurs as the inopportuneness of the act itself, i.e. the act does not obey to the interests being safeguarded or pursued at that time, or is inconvenient or became inconvenient to satisfy the purposes pursued by the administration. The effects of the inopportune act that is to be repealed i.e. the effects of the repeal are ex nunc, that is, operative in the future.
Another form of termination of acts is abatement, which is the circumstance under which the act loses one of the elements justifying its existence. This happens, for instance, in the case of an act intended to authorize a patent to deal with a determined illness, and later an experimental and innovative drug which cures said illness is developed. In this case, the effects of the act have been abated, i.e. the act has lost its intended purpose and no longer has to pursue it.
A further form of termination is caducity, which consist of termination of the act due to the lack of compliance by the recipient with the burdens the said act imposes. It is known that some administrative acts submit their recipients to the compliance with a series of duties. When these burdens or obligations of the recipient are not complied with and this lack of compliance is verified by the Administration; the act terminates due to caducity. An example of this is the lack of payment of a fee or good, the failure to take a step such as delivering a notice. We just have to point out that in the case of abatement and caducity, the effects always occur upon verification of the fact producing them and toward the future; that is, there are no retroactive effects.
Another form of termination of the administrative act is the one resulting from the modification of its contents or any of its characteristic elements. If the author of the act considers that any of the assumptions comprising its typology has to be changed, it is worth asking if in this case, a new act has emerged or it is the same act that has changed in appearance. The doctrine has not unanimously decided what has to be the answer, but that the same is casuistic depending on the opportunity.
The description of the different modalities of termination of the act leads us to the conclusion that all of them only have effect toward the future, except for nullity, the effect of which is retroactive.
Furthermore, it is possible that the lawmakers grant a specific type of act an only immediate effectiveness, even though it is nullifying. In this same vein, this power can be granted the ruling judge or the administration, even without an express legal provision existing, but leaving the granting of the power of providing or not the act emerging from a determined proceeding with a retroactive effect, once the consequences derived from the effectiveness, either postponed or not, have been valued, to the opinion of the deciding entity or individual.
However, there is a ruling by the Constitutional Chamber, which surprisingly orders to retroactively apply a provision of the Criminal Code in relation to a crime of the disappearance of a person, on the grounds that the crime had a continuous effect, and, therefore, even though the crime was committed before the facts had been typified as crimes, said facts will continue to operate under the new law.