Clasarea în absența suspectului sau inculpatului, între inerție și legalitate
Dismissal in the absence of a suspect or defendant: between inertia and legality

Summary/Abstract: The article examines the legal regime applicable to cases involving an unidentified perpetrator in which the criminal investigation can no longer realistically progress towards the initiation of criminal proceedings, either because the offender cannot be discovered or because the evidentiary threshold required to establish the “reasonable suspicion” necessary for acquiring the procedural status of suspect or defendant cannot be reached. The subject of the analysis is the tension between the procedural solution of discontinuance of the case (as a reasoned and reviewable act) and the practice of maintaining the case file in administrative records until the expiry of the limitation period. The central hypothesis is that, under the law as it currently stands (de lege lata), where a structural evidentiary impasse exists, the legally required solution is the discontinuance of the case pursuant to the provision in Article 16(1)(c) of the Romanian Code of Criminal Procedure. Avoiding such a solution circumvents the procedural act subject to judicial review and blocks access to the complaint procedure examined by the preliminary chamber judge. The objectives of the article are threefold: to clarify the mechanism linking grounds precluding criminal proceedings, the corresponding procedural solution, and the available remedies; to rebut the recurrent counter-arguments in doctrine and practice (the alleged incompatibility between in rem and in personam investigations, the “purpose” of criminal investigations, and arguments based on criminal policy or administrative considerations); and to assess the implications of this practice for the effectiveness of procedural remedies, including – where applicable – in light of the European Convention on Human Rights (ECHR) and European Union law. The methodology is doctrinal. It combines a systematic interpretation of the provisions of the Romanian Code of Criminal Procedure with a functional analysis of the procedural sequence discontinuance– complaint–judicial review (including binding directions for further investigative steps), as well as a conceptual distinction between procedural acts and administrative record-keeping mechanisms. The main finding is that the practice of maintaining cases in passive administrative records creates a procedurally undefined area that removes the case from the circuit of reviewable procedural acts and effectively preserves investigative stagnation. In relevant cases, this practice may affect the effectiveness of remedies under Article 13 of the ECHR, Article 47 of the Charter of Fundamental Rights of the European Union, and Article 11 of Directive 2012/29/EU. The theoretical implications of the analysis consist in re-anchoring the in rem/in personam distinction within the logic of evidentiary thresholds and judicial reviewability, while the practical implications concern the need to discipline case-management practices through solutions subject to judicial control and to strengthen institutional accountability.

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