Changing the legal qualification in the appeal proceedings. Definition of cruelty and reference to retrial. A critical note toward the Cluj Court of Appeal Criminal Decision no. 1618/A/2021

  • Răzvan Anghel Cluj Court of Appeal
Keywords: changing the legal qualification of the criminal offence in the appeal proceedings, referral for retrial, simplified procedure, aggravated murder by cruelty


In the following, I set out to briefly analyze, in relation to a specific case, both the concept of cruelty, provided in Article 189 paragraph (1) letter h) of the Criminal Code, as well as the consequence of changing the legal qualification, from an offence that allows for the application of the simplified procedure to one that does not allow it, by the decision of the appeal court, after the entire trial phase took place according to the former procedure.

The simplified procedure entails a full acknowledgment of the accusation and acceptance of the factual situation as presented in the indictment, and of the evidence administered in the criminal investigation phase that passed the filter of the preliminary chamber judge. This procedure constitutes a real restriction of the defendantʼ s right of defense, as they waived a large part of the leverage they would have had at their disposal during the trial. In order to encourage the use of this procedure, the legislator guaranteed a benefit for the defendant, in the content of the Article 396 paragraph (10) of the Criminal Procedure Code, respectively the reduction of the penalty limits by 1/3 in the case of imprisonment and 1/4 in the case of a fine.

It is easy to notice that the legislator guaranteed a benefit for two of the three types of punishment provided by the criminal law, expressly excluding, as per Article 374 paragraph (4) of the Criminal Procedure Code, the offences for which the punishment provided by law is life imprisonment from a trial in the simplified procedure. Thus, the simplified procedure cannot be used in cases concerning aggravated murder.

The problems that arose in the case under the analysis are, on the one hand, the correct legal qualification of the deed(s), in relation to the interpretation of the notion of cruelty, and on the other hand, the solution required in the hypothesis that, after a trial in first court and appeal according to the simplified procedure, by the decision taken by the court of appeal, the legal qualification of offences is changed from domestic violence in the form of attempted murder to domestic violence in the form of attempted aggravated murder, thus making it impossible for the granting of the benefit provided by Article 396 paragraph (10) of the Criminal Procedure Code.

„In the legal literature (I. Dobrinescu, Crimes against the life of the person, Academiei Publishing House, Bucharest, 1987, page 83) it was emphasized that in repeated acts of violence it is necessary to distinguish between situations in which these acts have the purpose of tormenting the victim, on the one hand, and the situations in which through the repetition of the hits is expressed, by their specificity, only the way to carry out the murder, on the other hand. The divergent positions of the procedural participants are precisely on the latter distinction, the holder of the criminal action and the defense claiming, contrary to the position of the appellant-civil party, that the acts of repeated violence are nothing but the manner of executing the murder (...)

Although the defendantʼ s lawyer argued the sending of the case for a retrial for the solving of the case in the ordinary procedure, as the limits of punishment of the crime of domestic violence in the form of attempted aggravated murder make it impossible to judge in the abbreviated/simplified procedure [Article 374 paragraph (4) of the Criminal Procedure Code], the Court will reject this request for the following arguments: (...)

Seeing, on the one hand, the procedural position manifested by the defendant (who, as it was shown, did not contest at any time the evidence administered in the criminal investigation phase), and, on the other hand, the fact that, according to the provisions of Article 374 paragraph (7) of the Criminal Procedure Code, the evidence administered during the criminal investigation phase and not contested by the procedural participants are not re-administered during the judicial investigation, the Court of Appeal finds that the possible referral for retrial of the case for the purpose of conducting the judicial investigation appears to be aimless, as long as the procedural position of the parties was the one revealed by the previously mentioned legal text”.