Criminal Law Writings (Caiete de Drept Penal)

Request of the European Court of Human Rights for the issuing of an advisory opinion

Lucian Criste — 2024-10-01

Romania ratified Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms by Law no. 172/2022. Protocol no. 16 extends the jurisdiction of the European Court of Human Rights by allowing it the possibility of issuing advisory opinions on questions of principle concerning the interpretation or application of the rights and freedoms defined in the Convention or the Protocols thereto. The procedure regarding the request to the European Court of Human Rights for the issuing of an advisory opinion was regulated in domestic law by Law no. 173/2022.

This article addresses the procedural aspects specific to the referral to the European Court for the issuing of an advisory opinion in jurisdictional issues related to criminal procedures. Under the current regulation the national jurisdictions designated to submit a request for an advisory opinion are the High Court of Cassation and Justice and the Constitutional Court. I have pointed out that the legislator's option regarding the institutions designated for the request practically annihilates the access to this mechanism for the participants in the criminal trials carried out in the first instance by the district courts and tribunals. A separate section is dedicated to the substantive and formal conditions for referral to the European Court. In this context, I indicated a series of relevant specialized legal literature and case-law. Subsequently, I presented the particular procedural aspects that occur before the national jurisdictions whenever this procedural mechanism is triggered.

Afterwards, I analyzed the procedure carried out before the European Court of Human Rights, which involves two steps: the verification regarding the admissibility of the request and the delivery of the Court’s advisory opinion. Even though the advisory opinion is not binding on the national jurisdiction that requested it, I have allocated a separate section to the effects it produces in relation to the interpretative authority of the judgments and decisions handed down by the European Court of Human Rights (res interpretata).

Recognizing and guaranteeing the privilege of confidentiality in national anti-money laundering legislation

Raul Alexandru Nestor — 2024-10-01

In the context of Romania's location in the area of financial circuits used in the capitalization of money originating from criminal activities, considering the extremely sad experience of pyramid-type financial games with hundreds of thousands of people harmed, the national legislator becomes aware of the importance of an intervention in this sector, opting for the regulation of legal provisions to prevent and combat money laundering.

Starting from 1999, rallying to an international current of opinion that prioritizes the neutralization of criminal proceeds in the fight against economic-financial crime, the Romanian legislator begins to become more and more interested in identifying the financial beneficiary of the criminal activities, as in identifying, freezing and capitalization of the money obtained from illegal activities, several measures being adopted to prevent and combat money laundering, including the criminalization of certain behaviours as money laundering crimes.

As a consequence of this new vision adopted by the Romanian legislator, several traditional legislative concepts began to know limitations or redefinitions, the classic means of intervention against financial macro crime being necessary to be redefined or at least improved.

Under the influence of the F.A.T.F. Recommendations, during 2019, the national legislator proceeded to a substantial change in the legislation on the prevention and combating of money laundering, thus entering into force a new law, namely Law no. 129/2019 which generated the reconfiguration of some traditional doctrinal positions relative to the holders of the obligation to report a suspicious transaction, to the nature of the transactions that must be reported, as well as to the method of fulfilling the obligation to report to the competent structure at national level to record such reports issued by representatives of the legal professions.

Considering the specificity of the regulatory object, in practical activity there were several dysfunctions in the execution of the reporting obligation. Such difficulties were also generated by the fact that, under the decisive influence of the European legislation, the normative framework was adopted in the context in which, for a large part of the reporting entities, traditional legislation enshrined the guarantee of professional secrecy, such a guarantee having specific explanations for each profession, in the relationship between lawyer and client being considered even an essential aspect of the right to defence.

A regulation of the obligation to report suspicious transactions in accordance with the provisions of the Constitution, also represents a form of guaranteeing the prestige and independence of these professions, the legislator having both the obligation to prevent and combat any money laundering mechanism, as well as the obligation to ensure the attorney/client privilege of confidentiality.

The national legislative regulation is designed so that the intervention of the authorities in an activity characterized essentially by confidentiality, has a proportional and necessary character, being avoided any tendency that would lead to the denial of the substance of professional secrecy.

With certainty, the lawyer's role as guarantor of the right to defence in any legal proceeding would be essentially affected if, within a legal proceeding or in the period leading up to it, they were obliged to cooperate with the public authorities, by regulating an obligation to report data or information provided by the client himself based on specific contractual relationships.

The relationship between the offense of entrusting a vehicle and manslaughter

Alin Chifor — 2024-10-01

The legal doctrine and the judicial practice are currently in a labyrinth of opinions regarding the relationship between the offense of entrusting a vehicle (obstacle offence) and manslaughter. The stake of the legal doctrine efforts to emerge from this labyrinth is not limited to providing the judiciary with useful benchmarks for resolving cases that pose this issue. On the contrary, the intellectual exercise it entails is complex, prompting discussions about the objective side of offenses and their defining traits, the institution of causality with its multitude of more or less effective theories, discussions about the institution of guilt, or reflections on the fairness behind a legal classification in relation to the principle of subjective liability in Romanian criminal law. Thus, the solutions reached by the legal doctrine in this matter are intended for generalization, in the sense that they can serve as a starting point for analysing similar hypotheses involving other offences or legal institutions. The relationship between the two offenses highlights their importance as analytical tools in the study of obstacle offenses, an area still insufficiently explored by the national legal doctrine. Without claiming exhaustiveness or proposing definitive solutions, this endeavour aims to assess the current state of the debate in the Romanian legal doctrine and to contribute to this relevant discussion.

In this regard, in the development of the syllogism we propose, we will briefly analyse the state of the legal doctrine and practice in connection with the relationship between the two offences (section 1). Subsequently, we will establish the essential premises of the legal rationale, starting with the essential traits of the offence of entrusting a vehicle (subsection 2.1.), with an emphasis on its inclusion in the category of obstacle offences (subsection 2.2.), and then presenting the atypical way of addressing liability for the offence of manslaughter (subsection 2.3.). After that, we will determine to what extent the action of entrusting a vehicle can be considered a legal cause of the victim's death, using the theory of the objective imputation of the result, but combined with elements of other important institutions, such as the theory of mediate perpetration (subsections 2.4.3. and 2.4.4.).

Double criminality in judicial cooperation in criminal matters at the European level

Lavinia Gabriela Zdrob — 2024-10-01

This paper seeks to analyse the institution of double criminality as a procedural condition for various judicial cooperation procedures in criminal matters in the European legal system.

The analytical approach will begin by establishing the legal nature of double criminality, which has been the subject of an extensive legal doctrinal debate. The study will tackle the main arguments presented and will comment on the consequences of each one, establishing why a certain view of double criminality is preferable over another.

Next, the author will focus on how the requirement of double criminality is assessed in transnational criminal proceedings, focusing on the in concreto-in abstracto dichotomy, as it has been promoted in the legal literature. This section of the study will be built around the case-law of the Court of Justice of the European Union, which, as it will become apparent throughout the paper, has promoted a view that is not free of inconsistencies in regard to identical issues. The author will try, as well, to discuss the way in which the case law of the European Court and the guiding principles on the assessment of double criminality have been transposed nationally.

In addition, the author will analyse the situations in which the double criminality check is abolished, having as a starting point the rationale behind the choice of those specific criminal behaviours.

Finally, the author will also consider the possible problems arising in regard to the effectiveness of the cooperation procedures, by trying to establish whether the 32 offences on the list can be harmonised at an European level so as to protect the effectiveness of the cooperation procedures.

The equivalent of art. 7 of Directive 2013/40/EU in Romanian criminal law. Obstacles in the transposition of the obstacle offence

Vlad Nicolas Ulici — 2024-10-01

The present paper aims to analyse whether art. 365 of the Criminal Code represents a correct or flawed transposition of art. 7 of Directive 2013/40/EU. Taking into consideration the evolution of cybercrime from the perspective of using new forms of “software programs”, this analysis will address some questions raised during the study of the transposition choices made by the Romanian legislator.

Ratio legis obscurus est ‒ Perspective on the malversation of public tenders

Cristian Andrei Ciornea — 2024-10-01

The legal provisions in the special part of the Criminal Code aim to protect various social values. Although, in general, crimes have a legal object that can be inferred from the interpretation of the legal text, together with the placement of the crime within the titles or chapters, in the case of malversation of public tenders, the rationale of criminalisation is not so clear.

The article focuses on explaining the extension of the objective side of the crime, which is of real legal practice interest. In fact, it is necessary to analyse the applicability of this crime: either it concerns only public tenders, as specific procedures carried out under special laws; or this phrase conceals a rich content, which leads to the application of the legal provision to public procurement procedures as well, with which, after all, it shares common procedural aspects.

In my scientific approach, I will argue that, although free competition in public tenders is the protected social value, which should also determine the applicability of the crime, the wording chosen by the legislator in the case of malversation of public tenders raises some issues, an aspect that is also highlighted by the small number of court rulings on the matter.

The (in)utility of art. 4 of Law no. 241/2005 for preventing and combating tax evasion

Diana Andreea Ardelean — 2024-10-01

Tax evasion is a constant problem of the Romanian state. Therefore, out of the desire to prevent and combat this phenomenon, it resorted to the incrimination of a conduct relatively related to tax evasion itself. This paper aims to analyse one of the related offences, specifically art. 4 of Law no. 241/2005.

Starting from the reason for the incrimination, this article aims to analyse the crime provided by art. 4 from the perspective of its entire content, namely: the material and legal object, the objective and subjective side, as well as the persons likely to commit such an act. Considering the abundant case-law in the matter, I analysed the crime from the perspective of the applicable punishment, and finally, of its relationship with another crime of tax evasion, but also with the crime of obstruction of justice provided for by the Criminal Code.

The final section of this study also presents a de lege ferenda proposal, which could be much more effective in the process of preventing and combating tax evasion.

The Chief Prosecutor of the Judicial Section position, at the Prosecutor’s Office attached to the Targu Mures Court of Appeal, for the period of 2017-2022

Cristian Valentin Ștefan — 2024-10-01

The normative framework for exercising the position of chief prosecutor of the Judicial Section at the Prosecutor's Office attached to the Court of Appeal includes the regulation of both judicial and administrative duties. The regulation of the judicial duties must be known for two reasons. First, the position of Chief Prosecutor of the Judicial Section is not entirely administrative. It also has judicial duties, as long as the Chief Prosecutor of the Judicial Section participates in the trial of criminal and civil cases, according to the law. Then, the administrative duties are exercised over the judicial duties of the prosecutors with executive positions. Therefore, we note that the duties of the chief prosecutor of the Judicial Section are of two types: judicial and administrative. The judicial duties, belonging to the executive position (specific for the case of a trial prosecutor), are: participation in the trial of cases, declaration of appeals, examination of situations of non-unitary application of the law and analysis of acquittal, restitution to the prosecutor's office and referral to the prosecutor, solutions. The administrative duties, belonging to the management position (specific to chief prosecutor), are: organization, management and control of the activity of prosecutors with executive positions.

In the present study, I propose to seek the way in which both the administrative and the judicial duties of the chief prosecutor of the Judicial Section, at the Prosecutor's Office attached to the Targu Mures Court of Appeal, were implemented, for the period of 2017-2022.