Criminal Law Writings (Caiete de Drept Penal)

The effect of legislative changes in the matter of crimes against sexual freedom and integrity on the consequences of the criminal liability of minors

Lavinia Valeria Lefterache — 2024-06-02

The legislative changes in the matter of the sanctions provided by law for crimes against sexual freedom and integrity bring into question, given the way in which the sanctions were legally individualized (providing, for example, only the application of educational measures or only the application of punishments for crimes having as an active subject a juvenile) the question of whether there has been a genuine change in the sanctioning regime for juvenile delinquency or if there are issues that, through the interpretation of the legal texts, lead to the maintenance of the current sanctioning system.

Precisely the educational measure, in opposition to the way in which the educational measures are legally individualized, namely by reference to the limits of the punishment provided by law, represents the atypical situation through which controversies are opened regarding the way of sanctioning other participants to the commission of the crime (subjects who have exceeded the age of the minor), regarding the observance of equality before the law (between juvenile subjects and adult subjects of the crime), or regarding the legislative coherence in the hierarchy of sanctions or regarding the result of the interpretation of the legal texts that, in some situations leads to the emergence of a genuine cause of non-punishment of some of the participants (accomplices who turned 18 years old on the date of the crime).

Resumption of the Preliminary Chamber

Gheorghiţă Mateuț — 2024-06-02

This article contains an analysis of the provisions of article 386^1, introduced in the current Code of Criminal Procedure by Law no. 201/2023, allowing the court judging the merits of the case (in first instance and on appeal) to intervene in cases of violation of legal provisions subject to the sanction of absolute nullity in the preliminary chamber and to annul the court's investiture act, thereby legitimizing the resumption of the previous procedural phase. The new regulation reconfigures the object of the trial, therefore some clarifications regarding its legal nature in terms of the effects it produces in the criminal proceedings are required. Afterwards, we will approach the area of applicability of the new procedure, referring to cases of absolute nullity that can be invoked after the disposition to begin the merits trial has remained definitive. The last part of the article is dedicated to the specific conditions under which this incidental procedure can be used during the merits trial, both in first instance and on appeal. The present study presents both the specific way in which the procedural remedy can be applied, as well as some incomplete and imprecise aspects that can be imputed.

Consumption of alcohol or other psychoactive substances after a traffic accident. Brief opinions on a (re)incrimination

Adrian Stan — 2024-06-02

In the summer of 2023, no less than five laws amending the Romanian Criminal Code and Criminal Procedure Code were adopted by the legislator. Most of the provisions refer to the harmonization of the legislation with the last years decisions of the Constitutional Court, through a late but still salutary step. Others represent manifestations of a veritable repressive criminal policy, with accents that we dare to name as populist (Law no. 213/2013). Others are the effect of an increased desire by the legislator for an overcriminalization of sensitive areas, manifested by an excess of aggravating circumstances (Law 217/2023). However, our attention is drawn to a norm of (re)criminalization, found in Law no. 200/2023, by which the legislator "reactivates" a crime forgotten by the doctrine and case-law: the consumption of alcohol or other psychoactive substances after a traffic accident.

The recriminalization, almost ten years after the abolitio criminis, gives us the opportunity to analyse the history of the legal text and the rationale of the legislator. Then, we will try to discover whether, during the absence of this criminalization, the existence of a prohibition doubled by a presumption instituted by G.E.O. no. 195/2002 regarding traffic on public roads would have fulfilled this aspect. Further, we will observe what is the legal object of the crime, concluding that it concerns primarily the relations regarding the realization of justice. We also aim to delimit the premise of the crime, the material element and the connection with other offences. Finally, we observe the regulation of Swiss criminal law, identifying a practical solution in this sense.

The unity of offence and the legal person. Specific conditions

Dorel Herinean — 2024-06-02

The conditions of the unity of the offence have been created for natural persons as subjects of criminal liability, but they must also be verified in regards to legal entities when they are involved in a criminal activity. From this perspective, this paper contains a selective analysis of some of those conditions which raise specific problems when the legal person is the perpetrator of a crime or where the solution is different from the hypothesis of natural persons. We will analyse both the conditions which are common to some of the forms of the unity of offence, such as the perpetrator identity and judicial consistency, as well as some specific ones, such as the condition of the unity of action required by the singular offence with multiple acts, the unity of the criminal subjective planning that must characterize the continuing offence and the manner in which the entire, continuing criminal activity can be reflected for the case of legal entities and, last but not least, the specific conditions of the offence of habit.

Towards a new European Union policy on asset recovery and confiscation?

Ana Neagoe — 2024-06-02

This article explores the dynamics of the European legislation in the area of asset recovery and confiscation. At the same time, it provides a critical perspective on the provisions of the Proposal for a Directive of the European Parliament and of the Council on the recovery and confiscation of assets. The adoption of the legislative project will repeal the provisions of Directive 2014/42/EU, respectively four other European normative acts, including Council Decision 2007/845/JAI on asset recovery proceedings. The first part of the article presents the legislative framework in force, by referring to the evolution of the legislative process that led to the adoption of a new legal instrument whose purpose is to remedy the shortcomings that the current legislative framework encounters in the fight against organized crime. In the following section, from the point of view of the legal terminology used, the main changes and inadvertencies that the Directive Proposal generates are highlighted. The third part of the paper presents the six stages of the asset recovery and confiscation process, in comparison to Directive 2014/42/EU. Finally, the paper proposes its own ideational stance on the direction that the European legislator wishes to implement in creating a unique harmonization instrument for the European Union in the field of asset recovery and confiscation.

Artificial Intelligence Systems in the European Union's Perspective: Implications in Criminal Law

Georgian Marcel Husti — 2024-06-02

On 21.04.2021, the Proposal for a Regulation of the European Parliament and of the Council laying down harmonised rules on artificial intelligence (Artificial Intelligence Act) and amending certain Union acts was presented to the public. This Regulation would be a first in terms of regulating A.I. This paper aims to analyse the Regulation and its implications for criminal law.

Appeal. Non-aggravating effect. Violation

Cristian Valentin Ștefan — 2024-06-02

The effect of not aggravating the situation in one’s own appeal is violated, if – in the appeal filed exclusively by the defendant – the court of appeal enforces the accessory punishment of prohibiting the exercise of certain rights, which the first court did not enforce, even if – in the same appeal – the court of appeal replaces the main punishment of life imprisonment, which the first court enforced, with the main punishment of imprisonment.

(High Court of Cassation and Justice, Criminal Section, decision no. 361/RC/6.09.2022)

The application of the principle of res judicata power in the case of preventive arrest

Bogdan Mihai Dumitru — 2024-06-02

In the present study, the author exposes an unprecedented situation extracted from Romanian criminal case-law, which generated controversies regarding the possibility of ordering the preventive arrest of a person.

In essence, the possibility of replacing judicial control with preventive arrest in a criminal case, for the commission of a new crime, in the conditions where the person has already been arrested in the second case, where the criminal action was initiated against him for its commission, is analysed.

The study takes into consideration the necessary replacement conditions according to art. 215 para. (7) of the Criminal Procedure Code, those of arrest provided in art. 223 para. (1) let. d) of the Criminal Procedure Code, if separate arrest can be ordered in the two cases, or if we are dealing with a problem of legality.

At the same time, the incidence of some principles that could make the arrest illegal in both cases is analysed, namely the principles of ne bis in idem, res judicata authority and res judicata power.