High Court of Review and Justice
PRESS RELEASE
In its session of 25 October 2022 the High Court of Review and Justice – Panel for the Clarification of Certain Points of Law, lawfully established in each of the cases, considered two requests for a preliminary ruling for the clarification of certain points of law, and returned the following Judgments:
Decision #67 in Case #1341/1/2022
I Sustains the requests brought by the Bucharest Court of Appeals, Chamber II for Criminal Matters in Cases #1341/1/2022 (item I. 1), #1344/1/2022 (item IV.1.1), #1346/1/2022 (item IV.2.1), #1348/1/2022 (item IV.3.1), #1396/1/2022 (item IV.4) and #1495/1/2022 (item IV.10.2), and by the Braşov Court of Appeals, Criminal Chamber, in Case #1465/1/2022 (item IV.7. 1) for a preliminary ruling for the clarification of the following point of law: “Are the rules that regulate the interruption of the statute of limitations on procedural acts considered as rules of substantive law, likely to be applied as the more favorable criminal law, or as rules of procedural law subject to the principle tempus regit actum” and “In applying the stipulations of Art. 426 lit. b) Criminal Procedure Code, as interpreted under Decision #10/2017 returned by the High Court of Review and Justice – Panel for the Clarification of Certain Points of Criminal Law, can the court that considers the appeal for annulment, reliant on the effects of Constitutional Court Decisions #297/26.04.2018 and #358/26 May 2022, re-assess the statute of limitations on criminal liability in case the appellate court has already discussed and analyzed the applicability of such cause of termination of a criminal trial as part of the trial previous to this latter decision” and rules as follows:
- The rules that regulate the interruption of the statute of limitations are considered rules of substantive law, and in terms of their application they are subject to the principle of the active criminal law, as stipulated at Art. 3 in the Criminal Code, except for the more favorable stipulations, according to the principle mitior lex stipulated under Art. 15 para. (2) in the Constitution and Art. 5 in the Criminal Code.
- The court that considers the appeal on annulment, reliant on the effects of Constitutional Court Decisions #297/26.04.2018 and #358/26 May 2022, cannot re-assess the statute of limitations on criminal liability in case the appellate court has already discussed and analyzed the applicability of such cause of termination of a criminal trial as part of the trial previous to this latter decision.
II. Denies as inadmissible the requests brought in the following Cases:
– Cases #1344/1/2022 (item IV.1.2), 1346/1/2022 (item IV.2.2) and 1348/1/2022 (item IV.3.2) for the clarification of the following point of law: Is Art. 155 para. (1) in the Criminal Code, in its format applicable in the period between June 26, 2018 and May 30, 2022, likely to be applied as the more favorable criminal law;
– Case #1415/1/2022 (item IV.5.2) for the clarification of the following point of law: Based on the principle “tempus regit actum,” is Art. 155 para. 1 in the Criminal Code applicable to criminal violations committed before June 25, 2018; based on the same principle, does Art. 155 para. 1 in the Criminal Code become applicable, with the enactment of OUG #71/2022, also to criminal violations committed before that date;
– Case #1446/1/2022 (item IV.6) for the clarification of the following point of law: a) Does absence from the active fund of the law of cases making it possible to interrupt de course of the statute of limitations on criminal liability in the period 2018-2022, as under Decisions #297/2018 and 358/2022 of the Constitutional Court, cause applicability of Art. 5 in the Criminal Code; b) In the case of criminal violations committed before June 25, 2018, should we use only the general statute of limitations, without considering the causes for interruption occurred before that date, or should we use the special statute of limitations that considers the causes for interruption occurred before June 25, 2018 and after May 30, 2022;
– Case #1465/1/2022 (item IV.7.2) for the clarification of the following point of law: Is Art. 155 para. 1 in the Criminal Procedure Code to be interpreted in the sense that the effect of interrupting the statute of limitations remains in place in the format previous to Constitutional Court Decision #297/26.04.2018;
– Case #1490/1/2022 (item IV.8) for the clarification of the following point of law: In the case of a criminal activity consummated under the remit of the previous Criminal Code, and concerning which the indictment was filed after the entry into force of the New Criminal Code but before Constitutional Court Decision #297/26 April 2018 published in the Official Journal of 25 June 2018, does communication under Art.344 in the Criminal Procedure Code of the certified copy of the indictment and the decision of the Preliminary Chamber judge as under Art. 346 para. (1) and (2) in the Criminal Procedure Code constitute acts interrupting the statute of limitations as under Art. 155 para. 1 in the Criminal Code;
– Case #1492/1/2022 (item IV.9) for the clarification of the following point of law: In the case of a criminal activity consummated under the remit of the current Criminal Code, is the interview taken with the status of defendant, before a prosecutor, prior to Constitutional Court Decision #297/26 April 2018 published in the Official Journal of 25 June 2018, a procedural act that interrupts the statute of limitations as under Art. 155 para. 1 in the Criminal Code;
– Case #1495/1/2022 (item IV.10.1) for the clarification of the following point of law: Does a procedural act performed as under the law and Art. 155 para. 1 in the Criminal Code, with the text that was applicable at the date when the procedural act was performed, produce a definitive effect of interrupting the statute of limitations on criminal liability, or can that effect be removed following application of the principle of the more favorable criminal law in the case where the contents of Art. 155 para. 1 in the Criminal Code was amended after the performance of the procedural act;
– Case #1506/1/2022 (item IV.11) for the clarification of the following point of law: In the case of a criminal activity consummated under the remit of the current Criminal Code, and concerning which the indictment was filed prior to Constitutional Court Decision #297/26 April 2018 published in the Official Journal of 25 June 2018, does communication under Art.344 in the Criminal Procedure Code of the certified copy of the indictment and the decision of the Preliminary Chamber judge as under Art. 346 para. (1) and (2) in the Criminal Procedure Code constitute acts interrupting the statute of limitations as under Art. 155 para. 1 in the Criminal Code;
– Case #1554/1/2022 (item IV.12) for the clarification of the following point of law: Does absence from the law of cases making it possible to interrupt de course of the statute of limitations on criminal liability in the period 2018-2022(June 25, 2018 – May 30, 2022), as under Decisions #297/2018 and 358/2022 of the Constitutional Court, cause applicability of Art. 5 in the Criminal Code; In the case of criminal violations committed before June 25, 2018, should we use only the general statute of limitations, without considering the causes for interruption occurred before that date, or should we use the special statute of limitations that considers the causes for interruption occurred before June 25, 2018 and after May 30, 2022;
– Case #1576/1/2022 (item IV.13) for the clarification of the following point of law: In the case of a criminal activity consummated under the remit of the current Criminal Code, and concerning which the indictment was filed after Constitutional Court Decision #297/26 April 2018 published in the Official Journal of 25 June 2018, the letter informing the party of their status as defendant and then the defendant interview prior to entry into force of Constitutional Court Decision #297/26 April 2018 published in the Official Journal of 25 June 2018, do these constitute procedural acts that interrupt the statute of limitations as under Art. 155 para. 1 in the Criminal Code;
– Case #1577/1/2022 (item IV.14) for the clarification of the following point of law: In the case of a criminal activity consummated under the remit of the current Criminal Code, and concerning which the indictment was filed after Constitutional Court Decision #297/26 April 2018 published in the Official Journal of 25 June 201, is the Preliminary Chamber judge’s decision to sustain the challenge and revoke the prosecutor’s order, with the consequence of the case being sent back for the collection of additional evidence, a decision returned prior to entry into force of Constitutional Court Decision #297/26 April 2018 published in the Official Journal of 25 June 2018, a procedural act that interrupts the statute of limitations as under Art. 155 para. 1 in the Criminal Code;
– Case #1578/1/2022 (item IV.15) for the clarification of the following point of law: In the case of a criminal activity consummated under the remit of the previous Criminal Code, and concerning which the indictment was filed after the entry into force of the New Criminal Code but before Constitutional Court Decision #297/26 April 2018 published in the Official Journal of 25 June 2018, do the letter informing the party of their status as defendant, the defendant interview and communication under Art.344 in the Criminal Procedure Code of the certified copy of the indictment constitute acts interrupting the statute of limitations as under Art. 155 para. 1 in the Criminal Code;
– Case #1415/1/2022 (item IV.5.1) for the clarification of the following point of law: In establishing which is the more favorable criminal law as under Art. 5 in the Criminal Code, correlated with Constitutional Court Decisions #297/26.04.2018 and #258/26 May 2022, can Art. 154 para. 1 in the Criminal Code correlated with Art. 16 para. 1 letter f in the Criminal Procedure Code, be applied independently from the stipulations in Art. 155 para. 1 in the Criminal Code for criminal violations committed before 9 June 2022, and do these Constitutional Court Decisions become inapplicable in this matter in regards to crimes affecting the financial interests of the European Union, according to the jurisprudence of the European Court of Justice;
– Case #1604/1/2022 (item IV.16) for the clarification of the following point of law: Are the rules that regulate the interruption of the statute of limitations on procedural acts as under Art. 155 para. 1 in the Criminal Code considered as rules of substantive law, likely to be applied as the more favorable criminal law and whose application as under Art. 5 Criminal Code takes place irrespective of the object of the crime, or is it that in case of violations affecting the financial interests of the European Union it is necessary to perform a specific analysis of the need to apply or not apply such stipulations, in correlation with the jurisprudence of the European Court of Justice developed based on Art. 325 in TFUE and of its Decision of 21 December 2021 in joined Cases C-357/19 Euro Box Promotion et al, C-379/19DNA-Oradea Territorial Service, C-547/19 Association the Forum of Judges in Romania, C-811/19 FQ et al, and C-840/19 NC.
Obligatory as of the date of publication in the Official Journal of Romania, Part I under Art. 477 para. (3) in the Criminal Procedure Code.
Returned in public session today, the 25th of October 2022.
Decision #68 in Case #1422/1/2022
Denies as inadmissible the request brought by the Timişoara Court of Appeals – Criminal Chamber for a preliminary ruling for the clarification of the following point of law:
„I. In case a criminal violation (A) (not tried yet) is concurrent with violation (B) which is a second strike of reoffending and also with violation (C) which is a third strike of reoffending after serving a sentence, and before the trial is complete with a final judgment for violation (A) the sentence for violation (B) is served in full, the calculations to establish the resulting sentence involve:
I.1 Applying the rules for multiple offenses to the sentencing for violations (A) and (B), and amending the subsequent result by applying the rules for post-conviction reoffending; the resulting sentence will be merged with the sentence for violation (C) (if following the merging of sentences for multiple offenses a state of recidivism arises); it will be deemed that the arising of a state of recidivism breaks the connection between violations (A) and (C) and thus it is irrelevant whether the sentence for violation (B) has been served in full, or
I.2. Applying the rules for multiple offenses to the sentencing for violations (A) and (C), without subsequently subtracting the part of the sentence for violation (B) that has been served, or
I.3. Applying the rules for multiple offenses to the sentencing for violations (A), (B) and (C), and subsequently subtracting the duration of sentences already served as resulting from the structure of the resulting sentence.
II.In the hypothesis of merging the sentences as under option I.1 above, the nature of the reoffending (after serving a sentence) standing as res judicata in considering violation (C) remains unchanged, with the consequence of also unchanged charges and sentencing, the only difference is that the treatment in establishing the resulting sentence for violations (A), (B) and (C) will be the one specific to post-conviction reoffending; or it is necessary to amend the charges for violation (C), it being therefore possible to amend the sentence applied for this violation; this will be the task of the court of law that tries violation (A).”
Obligatory as of the date of publication in the Official Journal of Romania, Part I under Art. 477 para. (3) in the Criminal Procedure Code.
Returned in public session today, the 25th of October 2022.
After the justification is written and the Judgment signed it shall be published in the Official Journal of Romania, Part I.
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