Criminal Law Writings (Caiete de Drept Penal)

Prolegomena regarding unfair stratagems in evidentiary criminal proceedings

Mihail Udroiu — 2023-10-15

The prolegomena hereunder aim to enlighten the pillars of an emerging axiology which is conceived to rule transcendentally the epistemic engine of the criminal trial, thereby crafting a modern theory of evidence and proof.

We argue that the evidence law of the criminal trial and its principles are to be underpinned inter alia by values such as liceity and rightfulness. Thereby, the statutory principle of rightfulness is designed to secure the rule of law in evidentiary criminal proceedings beyond the mere formal conformity – but, simultaneously, fraudulent, cunning or deceitful – with the legislation in force.

In a puzzling statutory environment along with a reluctant case-law, mainly focused on the entrapment matter, rather than identifying the broad features of an unfair conduct pattern in evidentiary proceedings, we argue that one of the main drivers to promote this axiology lies in establishing an accurate distinction between lawfulness, legality and legalism. Under these circumstances, we are trying to canvass the concept of (evidentiary) rightfulness beyond the statutory rule which ascertain the homonymous principle of law, thus enhancing its comprehensibility, and thereby integrating such a topic into the basic concepts of Perelman’s philosophy about reasonable and unreasonable in law.

Henceforth, the taxonomical approach shall set the grounds for the distinction between entrapment and unfair stratagems, as main typologies of unfair conducts, and furthermore between statutory and implicitly prohibited unfair stratagems. Hence, we stress that stratagems represent a high-ranking taxon – a hypernym – that brings together the eluding of the procedure, its misuse, the deceitful unfair hearings, respectively the tricks and traps to obtain confession bypassing a hearing. Each of these types of unfair stratagems will be examined in detail.

Problematic aspects in relation to the active subject of the money laundering criminal offence

Laurențiu Vasile Negrean — 2023-10-15

The legal debate regarding the active subject of the money laundering criminal offence is not a new issue in the legal landscape. However, given the complexity of this offence, as well as the duality of international-national regulations, a series of problematic aspects regarding this topic subsist.

In the first part of the study, the possibility of holding a person criminally liable both for the commission of the predicate offence and for the commission of a possible money laundering offence will be analysed, focusing especially on the provision of Law no. 129/2019.

In the second part of the study, starting from the famous "autonomy" of the money laundering offence, certain problematic aspects regarding the violation of the presumption of innocence of a person who is also accused of committing the predicate offence will be addressed.

In the final part of the study, the focus will be on the analysis of the ne bis in idem principle and how it can be reconciled with the criminal liability of a person both for committing the predicate offence and the money laundering offence.

Solving of the preliminary chambers procedure following the initial debates

Cătălin Marin — 2023-10-15

In accordance with the criminal procedural provisions currently in force, the preliminary chamber phase can be concluded by the judge at the end of the initial debates or after the prosecutor fixes the indictment, according to the intermediate minute of the preliminary chamber judge.

The consequences of the way of solving the requests and exceptions filled by the parties and the aggrieved person or raised ex officio are reflected in the solutions provided by article 346 of the Criminal Procedure Code (start of the trial and the restitution of the case to the prosecutor's office). In other words, following the verification activities, the judge may or may not allow the start of the merits trial. In all situations, regardless of the solution in the preliminary chamber, the procedural activity continuation is mandatory (in a progressive sense or, as the case may be, in a regressive sense).

The solutions that can be adopted by the judge at the end of the intermediate procedure are limited and cannot effectively solve, in our opinion, all the deficiencies that can arise in practice in relation to the legality of notifying the court, the legality of the administration of evidence and the performance of the criminal prosecution activities.

Illegal removal of tissues or organs from a deceased person

Diana Lucaciu — 2023-10-15

The aim of this study is to analyse the criminal offences of illegal removal of tissues or organs, as provided by art. 384 of the Criminal Code and that of performing a removal if by this the result of a forensic autopsy (requested under the conditions of the law) is compromised, as provided by art. 155 of the Law nr. 95/2006 regarding health reform, in order to establish the activities and behaviours that fall under their application and, also, at the same time, for easily separating these activities from those that fall under the incriminations related to organ trafficking or human trafficking for the purpose of illicit organ removal.

Custodial educational measures – a case-law perspective

Ștefana-Iuliana Sorohan — 2023-10-15

Through the adoption of the current Criminal Code, the legislator has abandoned the old vision of a dual sanctioning system for minors who are criminally liable, specific to the old regulation, consisting of punishments and educational measures and has moved towards a unitary system, consisting only of educational measures, governed by the rule that deprivation of liberty should be a last resort solution. However, it can be seen that the new regulation still allows the courts to order the deprivation of liberty of minors for a considerable period of time, during which they are isolated from their social environment, under the desideratum of them being re-educated. Therefore, it can be useful to analyse whether the reform of the system of penalties for juvenile offenders that are criminally liable has led to a clear distinction of the sanctions applicable to them from traditional punishments, as well as the manner in which the concerns for differential treatment of juvenile defendants have been absorbed into the judicial practice.

Particular circumstances concerning the plurality of offences in the case of minors and the rules for extending or replacing educational measures

George Cristian Ioan — 2023-10-15

The main goal of this study is to analyse some particular cases concerning the legal regulation of multiple offences in the case of minors. By analysing both the Criminal Code and the relevant case law we found that there are significant issues in this field, as the relevant legal provisions are fundamentally different from those concerning adults. We find that there are situations where the issues can be solved by systematic interpretation, situations where interpretation must fill voids in the legislation and situations in which legislative mismatches create unequitable results, that must be identified. Also, the system of replacement or extension of educational measures, by itself, raises certain issues that we believe deserve attention.

After some (very) succinct briefing on the theoretical background, we will analyse, one by one, some situations which could raise problems concerning plurality of offences in the case of minors and we will try to propose reasonable solutions to them, supported by current law.

Violation of the special competence of the National Anticorruption Directorate. Inapplicability of the provisions of art. 50 para. (2) of the Criminal Procedure Code during the criminal investigation

Dan Lupașcu — 2023-10-15

Under the conditions in which the prosecutor did not proceed, according to art. 58 para. (1) of the Criminal Procedure Code., upon checking, immediately after its notification, of his competence and, as such, it violated the legal provisions regarding the competence according to the quality of the person, in relation to the provisions of art. 281 para. (1) let. b) of the Criminal Procedure Code and by Decision no. 302/2017 of the Constitutional Court, all criminal prosecution acts and administered evidence are struck with absolute nullity.

In the criminal investigation phase, the provisions of art. 50 para. (2) of the Criminal Procedure Code are not applicable, the prosecutor having no legal possibility, in the situation where the sending of the case to a different Prosecutor’s Office was determined by the material competence or by the quality of the person, to maintain the administered evidence, the completed acts and the measures ordered by the prosecutor who declined his competence.

(Bucharest Court of Appeal, 1st Criminal Division, Minute no. 100/CP of 22.02.2023)

Preliminary chamber issues in the matter of tax evasion criminal offences

Cristian Valentin Ștefan — 2023-10-15

The need to indicate in the indictment act the amount of the damage. In the matter of tax evasion offenses, the prosecutor has the obligation to indicate the amount of the damage in the indictment act. An omission in this respect constitutes an irregularity, which leads to the impossibility of establishing the object and the limits of the judgment.
The adequate way to remedy the irregularity consisting in the incomplete description of the deed. If the preliminary chamber judge finds that the description of the deed is incomplete, the prosecutor, in response to the interim minute, must not limit himself to indicating the elements that the preliminary chamber judge considered to be missing, but must detail all the elements of the criminal offence. If he would limit himself, in response to the interim minute, to indicate the elements that the judge considered to be missing, the prosecutor would create the premise that the legal framework results from the combination of two procedural acts: the indictment act and the response to the interim minute. This would put the court in the situation that, after the start of the merits trial, it would present the defendant a legal framework resulting from the combination of the two procedural acts. In this way, the court would be the first judicial body to fully determine the legal framework, which is a violation of the separation of the judicial functions principle.
The need to indicate in the indictment act the identification data of the civilly liable party. In the matter of tax evasion offenses, the prosecutor has the obligation to indicate in the indictment act the identification data of the civilly liable party. An omission in this respect constitutes an irregularity, but this irregularity does not lead to the impossibility of establishing the object and the limits of the trial.

(Târgu Mureș Court of Appeal, Criminal Minute no. 43/C/CP of the 4th of December 2020)