Criminal Law Writings (Caiete de Drept Penal)

Preventive measures in the case of returning the case to the prosecutor’s office

Daniel Atasiei, Mirela Mihaela Apostol — Fri, 20 Dec 2024 00:00:00 +0200

In this study, we aim to analyse a problem generated at the crossroad of two phases of the criminal trial – namely the effect on preventive measures in cases where the preliminary chamber judge (in the preliminary chamber procedure) decides to return the case to the prosecutor’s office. Although at first glance we could consider that this situation is covered by the binding case-law of the High Court of Cassation and Justice which interprets the legal provisions of the previous Criminal Procedure Code, we will observe that the structure of the criminal process under the current legal framework does not support the same solutions. Furthermore, we will identify, based on the specific circumstances of cases where the file is returned to the prosecutor’s office, whether and to what extent the rulings of the preliminary chamber judge impact the conditions for maintaining a preventive measure.

Aspects relating to the factual error regarding the constitutive elements of the offense (I)

Cristian Vlad Drăjan — Fri, 20 Dec 2024 00:00:00 +0200

With the entry into force of the New Criminal Code on February 1, 2014, the legislator established a new definition of the criminal offense, embracing the normative theory of guilt. According to this theory, a clear distinction must be made between the subjective elements of the offense (intent, negligence, praeter-intention) and the reproach that can be brought to the agent for committing the deed, which represents a standalone feature – imputability. This vision of the offense has led to a new architecture of the error.

Abandoning the old classification of error, which was enshrined in the old Romanian criminal codes, into factual error and legal error, the current Criminal Code has promoted a modern conception of error, distinguishing between error regarding the constitutive elements of the criminal offense and error regarding the illicit nature of the deed, drawing inspiration from European legislations. This classification focuses on the effects that the error produces in relation to the general characteristics of the offense, rather than its object.

The present study centres on the factual error regarding the constitutive elements of the offense, a concept that will be analysed in two parts. Throughout this work, the theoretical perspective will be supported by numerous examples of judicial practice, both old and current, highlighting its evolution over time. Additionally, the article offers a comparative presentation between the way Romanian legislation regulates the error and the manner in which other legal systems, such as the German, Spanish, Italian, and French, approach this concept.

The first part of this study aims to address the factual error regarding the constitutive elements of the offense not only in a theoretical manner, with the associated definitions and conceptual delimitations, but also from a historical perspective, as the evolution of the error as a criminal law concept represents a long process on the part of specialized literature and case law.

The domain of the factual error regarding typicity is extremely complex, the analysis involving not only the concurrence of criminal law concepts but also certain concepts and mechanisms from the field of psychology. Thus, we have also tried to approach the error from a psychological perspective, as the mechanisms that occur at the level of the agent’s psyche influence the way in which he perceives and responds to the world around him.

Furthermore, the article analyses the object of factual error regarding typicity, an object that may be circumscribed to any objective element within the content of the deed: object, subject, action/inaction, consequence/result, causal link, including elements regarding the place, time, manner, or means of committing the deed, as long as these represent constitutive elements of the offense.

Moreover, before analysing the effects of the error, its relationship with other criminal law concepts, as well as particular hypotheses, which will be the subject of the second part of the article, we considered it necessary to review the different classifications of the error, also presenting the practical relevance of each and how they influence the legal regime of the error.

At the end of the first part, we focused on the conditions that the error regarding the constitutive elements of the offense must meet in order for it to produce its legal effects: the deed of the author must be provided by criminal law; the agent must not have known or must have known incorrectly, at the time of committing the deed, certain states, situations, or circumstances; these descriptive or normative circumstances must represent constitutive elements of the offense; the error must be, in principle, invincible.

The impact of the statute of limitations of criminal liability on the right of the human trafficking’s victims to a fair trial

Ciprian Coadă — Fri, 20 Dec 2024 00:00:00 +0200

The passivity of the national legislator, which failed to correct some provisions with a particular impact on the statute of limitations of criminal liability and the less inspired interventions brought to some general provisions of the Criminal Code, in reference to the statute of limitations of certain crimes of trafficking and exploitation of vulnerable persons, can be considered as legislative events with a profound impact on the victim’s right to a fair trial.

These events can produce effects both at the criminal level, by hindering the efforts to apply effective, proportionate, and dissuasive sanctions against the perpetrators of serious crimes, and at the civil level, as a result of the difficulties of evidence generated by the passage of time.

Although, in the view of the European Court of Human Rights, the obligation of effective investigation does not necessarily imply the punishment of those guilty of committing crimes, in the case of serious acts, the conduct of national authorities may contribute to the reduction of the standards of protection of victims and may come into conflict with the norms of art. 4, art. 6 or other provisions of the Convention, as this behaviour compromises the positive obligation of the state to investigate and sanction some crimes repressed by international treaties and conventions.

The failure to fulfil this positive obligation on the part of the state and the implications of a deficient legislative policy can leave their mark not only on the way in which the rights and freedoms guaranteed to victims are respected but also on the collective security that any judicial system is required to protect. This conclusion is further strengthened by the fact that crime is no longer seen as a simple violation of laws but as a harm to individuals and the community, so that the deviation from the duty to investigate, in the case of serious acts, represents a major failure of the criminal policy of the state and an unfair signal for the victim of the crime, whose legitimate hopes depend to the most extent on the method of carrying out criminal justice.

The present work brings to the attention of legal theorists and practitioners the importance of the state’s obligation to legislate and to investigate the crimes of human trafficking and related facts, in a historical stage in which the obstruction of justice becomes fairly visible.

The passivity of some law-making and enforcement authorities raises many reservations about the effectiveness of the rights and protection of victims of human trafficking, as at least 2.4 million people are trafficked at any given time worldwide, while only a few thousand traffickers are sentenced annually.

In Europe, this risk of inactivity, noted by the various convictions of the European Court of Human Rights, seems to be fuelled by the lack of adequate operational measures, but also by the lack of determination in combating and investigating the phenomenon on the part of the host states, those in which transit takes place, or those where the recruitment of victims is carried out.

That is precisely why, being aware that our approach can generate controversies, like any other process of interpreting the law, we do not intend to express a verdict through this article, but to encourage reflection, in a period that appears to be unfavourable for the protection standards of crime victims.

This approach is added to other signals that draw attention to the failure of states to effectively protect the victims of transnational organized crime, a fact that causes concerns for the so-called "legal injustices" that the victim of the crime may face, as a result of the solutions based on the expiration of the criminal liability limitation period or on other incidents that prevent the criminal liability of the perpetrators.

From the very beginning, we make it clear that although the title of this paper suggests that the statute of limitations of criminal liability could infringe on the right of the victim of human trafficking to a fair trial, our expression only aims to simplify the message sent to readers.

Therefore, the reference we make regarding the victim’s right to a fair trial does not specifically consider the right protected by art. 6 of the Convention, but the overall fairness of the procedure, which can also be affected in the event of the violation of other rights protected by the Convention, as a result of the non-compliance with the reasonable deadline for resolving the case and the deficient way in which the state’s obligation to investigate can be fulfilled.

Lack of the causal link. Application of causality theories in a case involving the death of a police officer escorting the Minister of Internal Affairs

Ioana Curt — Fri, 20 Dec 2024 00:00:00 +0200

The former Minister of Internal Affairs, O.G., has been prosecuted for manslaughter, being accused of causing the death of a police officer who fell into a poorly marked pit while on duty as part of his "official" convoy, which was established in violation of the legal provisions. Alongside him, the administrator of the company that performed the work on the roadway and the legal entity (the limited liability company) were also indicted. Both the first instance and the appeal court rendered a verdict of acquittal for the first defendant; however, the last two defendants were convicted of the crime of manslaughter. Our intention is to analyze the grounds that led to the exoneration of criminal liability for the Minister defendant.

The decision of the first instance provides an opportunity for reflection on how doctrinal theories regarding causation are applied and how the case-law of our courts has evolved in this matter. The discussion surpasses the interest sphere of the case at hand, becoming relevant to any ongoing trial in which multiple actions or omissions from the perpetrator, a third party, or even the victim, alongside other factors, simultaneously or successively, contribute to the outcome.

The analysis aims, in the first section, to determine whether the action attributed to the defendant in the indictment is legally relevant (as the two discussed judgments seem to contradict each other in this regard. Following a brief overview of theoretical observations concerning the relationship of causation within the framework of the crime and related theories (Section II), we examine how the first instance understood to apply the theories of causation and the tools they provide in the case brought to trial (Section III).

Observations on a decision to return the case to the prosecutor’s office in the appeals proceedings

Lucian Criste — Fri, 20 Dec 2024 00:00:00 +0200

At the beginning of our analysis, we presented, in extract, Decision no. 1082/A issued by the Bucharest Court of Appeal – 1st Criminal Division, on September 5th, 2024, by which the case was returned to the prosecutor’s office due to the appeal court’s finding regarding the unclear nature of the accusation, pursuant to art. 421 para. (1) and (2) of the Criminal Procedure Code, art. 6 para. (3) of Directive 2012/13/EU, and art. 47 of the Charter of Fundamental Rights of the European Union, as interpreted by the judgment of the Court of Justice of the European Union in Case C-282/20, dated October 21st, 2021.

In accordance with this decision, we have likewise expressed the opinion that the regularity of the indictment may also be reviewed by the appeal court during the trial phase, based on the CJEU case law. We argued that throughout the trial, the regularity of the indictment may be challenged incidentally, by raising an exception similar to that found in Belgian law: obscuri libelli.

However, we did not concur with the appeal court’s decision to order the direct restitution of the case to the prosecutor’s office without complying with the procedures established by the CJEU in its judgment in case C-282/20. In this regard, we presented a series of arguments supporting the view that the optimal solution, upon discovering irregularities in the indictment at the appeal stage, is the invalidation of the first-instance judgment and the restitution of the case for retrial.

Is concealment of pregnancy an argument for retaining premeditation in domestic violence in the form of maternal infanticide?

Gabriela Ligia Groza — Fri, 20 Dec 2024 00:00:00 +0200

In the case under analysis, we will focus on the elements that supported the retention of the premeditation circumstance for committing the crime of domestic violence in the form of murder in the national case-law. We believe there are important scientific arguments suggesting that concealing the state of pregnancy should not be considered an argument for retaining the premeditation. We demonstrate that the psychological phenomenon of not being aware of the state of pregnancy leads to the unintentional concealment of the pregnancy, without any intention of killing the newborn.