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Reconciliation of the parties is one of the causes that removes criminal liability, together with amnesty, prescription of criminal liability, lack of prior complaint, withdrawal of preliminary complaint. The new regulation has limited the situations in which reconciliation operates only to offenses in which the criminal proceedings are initiated ex officio, in cases where they are expressly provided for by law. In practice, the institution of reconciliation can only be applied to offenses of theft (Article 228 of the Criminal Code) or qualified theft (provided in Article 229 (1) and (2) (b) and (c) of the Romanian Criminal Code), misappropriation of property found or mistaken for the perpetrator, Article 243 Penal Code), deception (Article 244 of the Criminal Code), insurance fraud (Article 245 Penal Code), but also in the case of offenses of violence and other violence and harm personal injury committed against a family member in accordance with Article 199 paragraph 2 of the Romanian Criminal Code. In the old regulation, the establishment of reconciliation also applied to offenses in which the criminal action was brought to the prior complaint of the injured person.
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This article analyses the mutual recognition of criminal decisions and custodial sentences between the member states of the European Union which represents the cornerstone of judicial cooperation. A matter of this importance requires a range of legal instruments designed and capable to envisage an area of freedom, security and justice. In the following, I have presented the evolution of the legal framework from the Hague Convention in 1970 to the adoption of the package containing Framework Decisions that address the issue of detention of European Union citizens. I’ve tried to highlight the problems that occurred during the implementation in the national law and even when I could not submit a solution, I urged to discover the correct attitude. The main subject of my work regards the Council Framework Decision 2008/909/ JHA on the application of the principle of mutual recognition to judgements imposing custodial sentences or measures involving deprivation of liberty and the way it was implemented in Romania. After presenting the main details of the procedures, I address the first problem regarding the situation of a Romanian citizen, convicted in his home state, who would consider executing the custodial sentence in another member state. Afterwards, starting from a practical case I analyse the opinion of our Supreme Court with references to the directions stated by the European Court of Human Rights. At last, I examine the situation regarding the taking into account of a conviction, fully executed in another member state, in the course of new criminal proceedings.
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This article treats the issue of recovery of assets derived from the Commission of offences as a component of national security, both at European Union level, as well as internally. The paper also addresses issues relating to the need to develop some form of cooperation as complex and effective as possible in preventing and combating transnational economic and financial criminality and the risks it generates in relation to the rule of law, with national budgets and the budget of the European Union. The confiscation of assets derived from the Commission of an offence can contribute effectively to the prevention and combating of crime, whereas it attacks directly the financial objectives of the criminals and protects the economy against corruption and reintroduction of illicit income in financial circuits.
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The study does not intend to make an in extenso presentation of cassation appeal as an extraordinary way of attack, but only briefly outlines the evolution of regulations in this field, as well as actual trends in recent history. Remedies are means provided by the law by which the State, through the Public Ministry, and the persons designated by law promote a judicial control in which criminal judgments are verified in order to abolish those judgments which contain factual and legal errors and replacing them with judgements in accordance with law and truth. Remedies against court decisions, both ordinary and extraordinary, are based on the need to control the work of the courts. Following the exercise of judicial control, possible errors in the judicial process can be avoided either in establishing facts or in law enforcement.
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The article deals with recidivism, i.e. committing an offence again. It was introduced from a historical perspective – the evolution of the concept of recidivism in the Polish penal codes from 1932, 1969 and from 1997, being in force at present, and from comparative perspective – compar-ing the regulation of recidivism in these acts. This notion is functioning this way in popular, as well as specialist circulation. In the presented article we concentrated on legal-criminal notion of recidivism, i.e. the problem of crime return, requiring an appropriate reaction to the kind of threats it is carrying on the part of the criminal law. At first we focused on different definitions of recidi-vism in the contemporary criminal law. Then we checked the definition of recidivism – analyzing recidivism in mentioned acts of penalties. In conclusion, they pointed at resemblances which in this respect are appearing between the Penal Codeʾ 32 and Penal Codeʾ 69, reflecting the coercive approach of the legislator towards the occurrence of return crime, concentrating especially on the protection of the society against the multirecidivism and multirecidivists. A manifestation of this was a possibility of administering means of isolation and extraordinary means of repressive pun-ishment towards them. Penal Codeʾ 97 is standing out with the liberal approach, however, leaving many doubts concerning the intention of the legislator, undecided whether to treat repeated crime with the entire harshness of the law, or to try to influence it with some probation means. These observations were elaborated in final conclusions.
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Although the legal provisions governing the complaint against the acts of the prosecutor and the reopening of the prosecution may seem clear at first glance, the case law has shown the opposite in a case in which, from a simple complaint against the order to close a case filed by the defendant, a ”tangle” of procedures resulted, from the fact that the hierarchical prosecutor invalidated the order and decided the reopening of the criminal prosecution in view of the fact that the initial legal classification was wrong, thus ignoring the principle of non reformatio in pejus. In this article it is analyzed the extent to which the solution adopted by the prosecutor was a legal one, the grounds on which the hierarchical prosecutor may order the invalidation of the order to close a case and the remedies that may be followed in such a situation. It also analyzes the solutions given by the judge entrusted with the adjudication of the complaint against the order to close the case, by the judge who analyzed the lawfulness of the reopening of the prosecution and the relationship between the two procedures, an alternative solution for solving the problem subject to the analysis being proposed.
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The New Criminal Procedure Code has introduced a judicial procedure for the confirmation of a reopening of the pre-trial phase, thereby eliminating the discretionary power of the prosecutor to resume the proceedings at his/her will, even in violation of rights guaranteed by the European Convention of Human Rights.
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Abstract: This paper is dedicated to analysis the impact of some dispositions in Law no. 202/2010 regarding the degrees of jurisdiction in criminal cases. Although it is not expressly regulated by the Romanian Criminal Procedure Code, the celerity is required as fundamental principle of the criminal trial, assuming the requirement that the conduct of the criminal trial and the settlement of the criminal cases should take place as soon as possible. The principle of celerity is combined though with the fundamental principle of disclosure of truth in the criminal trial (Art.3 of the Criminal Procedure Code), requiring the insurance of a balance between the need to accelerate the procedures for settlement of the cases in a reasonable time and the need to run through more degrees of jurisdiction for the proper settlement of these cases. The author try to demonstrate that in order to ensure the celerity of the Romanian criminal trial, the latest legislative amendments to the Criminal Procedure Code (by Law no. 202/2010) also lead to the reduction of the number of degrees of jurisdiction in most of the criminal cases, without this to affect, though, the application of principle of disclosure of truth. In order to achieve better results the analysis is based on survey, observation, comparison of various dispositions (Law no. 202/2010, the 1968 Criminal Procedure Code, the new Criminal Procedure Code) and systematization of the available doctrine in this area. The study may be of special interest to academics and members of the judiciary because it presents in detailed and clear the impact of some dispositions in Law no. 202/2010 and the provisions of the new Criminal Procedure Code in the matter of degrees of jurisdiction.
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The article is an attempt to look more closely at the institution of court referendary, who is a judicial authority introduced to criminal proceedings in 2011. Ills initial role,which was to help in the course of proceedings, and significance are going to be expanded under the government’s draft bill to amend the Code of Criminal Procedure, the Criminal Code and certain other laws, which was submitted to the Parliament in November 2012 (Sejm’s document No. 870). The Author presents the characteristic of a court referendary as a body of legal protection as defined in the case law of the Constitutional Tribunal. The Tribunal allows to perform some activities by court referendaries in civil proceedings, not seeing any significant legal obstacles to provide them with some competence also in criminal proceedings. I low ever, the kind of competences court referendaries would be entitled to perform after the entry into force of the draft amendment raises some doubts. It is pointed out that in any case, a court referendary may be eligible for activities related to decisions regarding criminal charges. A large part of the article is also devoted to procedural interactions between the two judicial bodies which are a court and a court referendary. The shape of this relationship emerging from the draft demonstrates its vague nature.Providing the two bodies of different status with the same competencies may give rise to disputes in practice. In this context the problem of the independence of court referendaries is also discussed.
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The current Code of criminal procedure recognises, under the name of "principles of procedural criminal law enforcement", a number of fundamental principles of criminal process (the principle of separation of judicial functions in criminal procedure, the fairness and reasonableness of the trial period, the obligation criminal action closely related to the alternative of opportunity, the principle of "ne bis in idem"), and ingénue some in the old regulations (the principle of legality of criminal process, truth finding, the principle of presumption of innocence, the right to defense, the right of human dignity, the official language).So, among the "classical principles," the regulation of which is maintained in the current code, there is also the presumption of innocence, along with other provisions of the Code, which constitute procedural safeguards for the observance of this principle; the analysis of some of these provisions is useful in determining the extent to which the Romanian Criminal Procedure Code needs to be amended in order to implement Directive No.343/2016 of the European Parliament and the Council of the European Union
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According to Art 4 of the European Convention on Human Rights, no one shall be held in slavery or servitude. Also, no one shall be required to perform forced or compulsory labour.For the purpose of this article the term forced or compulsory labour shall not include: any work required to be done in the ordinary course of detention imposed according to the provisions of Art 5 of this Convention or during conditional release from such detention; any service of a military character or, in case of conscientious objectors in countries where they are recognized, service exacted instead of compulsory military service.
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The article analyses the phrases “time of war”, “state of emergency” and “state of siege”, and highlights some particular aspects of these concepts.
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The paper aims to bring some clarifications regarding the typicality as an essential feature of the offence, as it is reflected in Article 15 of the Criminal Code.In fact, the paper begins by noticing that the typicality or providing the deed in the criminal law was the first of the essential features of the offence identified by the representatives of the Classical School.At the same time, it notes that, if initially typicality included only the objective requirements of the offence, now it is admitted to have a wider content, including both objective and subjective elements, as well as anti-judiciality elements. Through his study, the author brings some doctrinal explanations about the notion of typicality.
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The law amending and supplementing the Law No 254/2013, a law which has not been promulgated and has not entered into force, has been through a controversial legislative process, involving the disregarding by the legislative power of the effects specific to the decisions of the Constitutional Court, pronounced before the enactment of the laws, assisting in the delivery of three decisions of the Court with regard to the same law, by two of them being established the unconstitutionality of the law as a whole. Finally, as a result of the cessation by law of the legislative process, the only possibility of the legislative power to regulate the regime of home detention is represented by the start of a new legislative approach, this time in compliance with the principle of bicameralism. At the same time, the intrinsic analysis of the provisions regarding the regime of home detention has resulted in the identification of legislative gaps, of the lack of clarity of the legal nature of the institution, of the lack of precision and predictability in the process of applying the regime of home detention, as well as in the identification of numerous cases of legislative parallelism. In compliance with the legislative will to establish the regime of execution of the imprisonment sentence at home, the results of the intrinsic analysis have led to the formulation of some de lege ferenda proposals regarding the regulation of the regime of detention at home, by amending Law No 254/2013.
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This material is based on the scientific communication made at the conference “4 years after the entry into force of the new criminal codes” held at the Faculty of Law, University of Bucharest, 16-17 March 2018. Several subjects related to the criminal treatment of the multiple offenses and of the repeat offense were discussed. It has been questioned the possibility of differentiating the formal multiple offenses (when a single act leads to multiple offenses) from the real multiple offenses (when multiple offenses are perpetrated through separate acts).
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In the content of the rule of the criminalization, the legislator describes the conduct he intends to ban or impose. By generalizing the concrete facts observed during the pre-legislative period, the legislator is concerned to present clearly, precisely and completely the essential characteristic features of the behavior he assesses as harming or endangering the social values protected by the criminal law. In the process of the criminalization, the legislator does not seek to identify the acts or actions in which the incriminated conduct is regarded as a physiological manifestation, or as a volitional impulse. Nevertheless, the legislator is aware that the concrete facts to which the generalized expression refer to in the description of the criminalization are inevitably composed of such elements. In this study, we intend to analyze the main opinions expressed in the specialized literature, in order to extract the definition and general rules applicable to the crime unity.
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The corruption phenomenon in Romania is one of the factors that have slowed the progress of economic and political development, and therefore the fight against this phenomenon constitutes a primary concern of the entire Romanian society, in order to increase the level of integrity and trust towards state institutions and in order to integrate the Romanian society in the European community. Law no. 286/2009 regarding the new Criminal Code brings a number of changes in terms of corruption offenses, changes that have drawn much criticism. The faulty wording in the general part has resulted in the decriminalization of the largest part of the corruption crimes already committed and, as such, a partial indirect amnesty of the corruption acts, which have seriously affected the social system and Romania's development. The manner in which a crime is defined by law or the ambiguity of the definitions regarding the criminal nature of an act seriously affects the clarity and predictability of the criminal policy. Moreover, the draft Criminal Code and the draft Criminal Procedure Code contain a number of provisions which are contrary to the Constitutional Court's jurisprudence and may affect the efficiency of the law.
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The starting point for the present study is represented by the observation of some particularities of the criminal acts regarding the protection of computer data, computer programs and computer systems (and others as well), namely the long period throughout which they can be carried out and the indefinite number of targeted persons, which deter¬mine the establishment of the main punishment in the case of multiple crimes according to the regulations in force to generate some less anticipated effects that exceed (we consider) the logic of the legislator when the legal text which regulates the analyzed issue is formulated.Although the jurisprudence of the Constitutional Court of Romania was constant, considering the provisions of art. 39 of the 2009 Criminal Code as being constitutional, in relation to the criticism formulated in the constitutional exceptions which were raised, it would be possible (even desirable, we consider) for the constitutional court to change its jurisprudence in the future, just as it did in the case of art. 35 paragraph (1) from the same regulation, reevaluating the impact of these provisions through the perspective of the criticism formulated in the doctrine and the situations which appeared in legal practice.
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The article is dedicated to the prohibition for reformatio in pejus in criminal procedure and considers issues that may occur in the determination of that prohibition in the different stages of criminal proceedings. The proper resolution of such issues is a precondition for courts to decree correct and legal verdicts and sentences when they apply judicial review. No less important is the fact that prohibition for reformatio in pejus of the defendant offers a guarantee to achieve his/ her claim of vindication. That is why the prohibition for reformatio in pejus is so important in relation to the fairness of court proceedings in criminal matters and for accordance o the Bulgarian criminal procedure to the requirements which are set by the European standards before the justice system. Working on this article I was looking to examine in the most condensed form issues which are covered by the prohibition of reformatio in pejus in the different stages of criminal proceedings. As a starting point, I used the guiding instructions referred to in the practice of the Supreme Court of Cassation and research in legal doctrine about the prohibition for reformatio in pejus.
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