Press releases – preliminary rulings on questions of law in criminal matter

High Court of Cassation and Justice 

PRESS RELEASE

In its session of 11 March 2024, the High Court of Cassation and Justice – Panel for the Clarification of Certain Points of Law in Criminal Matters, lawfully established in the Case, in each Case, considered a request for a preliminary ruling for the clarification of certain points of law, and returned the following Judgment:

Decision No 12 in Case No. 3017/1/2023

Denies as inadmissible the request brought by the Court of Appeal of Iaşi – Criminal and Juvenile Chamber in case no. 5157/99/2020, for a preliminary ruling for the clarification of the following point of law:

“In the case of tax evasion offences covered by Article 9 of Law No 241/2005, for which the aggravated forms, incriminated by Article 9 para. (2) and (3) of the same law, is conditional on the value of the damage exceeding EUR 100,000 or EUR 500,000, respectively, in the equivalent of the national currency, the change in the exchange rate set by the BNR (National Bank of Romania) after the commission of the offence, so that the same concrete act, analysed in relation to a higher exchange rate, would no longer fall under the aggravating form provided for in Article 9 para. (2) or (3) of Law No 241/2005, but in the basic form, governed by Art. 9 para. (1) of Law No 241/2005, is able to activate the principle of the application of the more favourable criminal law, with the consequence that the most favourable legal framing for the defendant under Article 5 of the Criminal Code is established in the case, in relation to the successive exchange rates subsequent to the consummation of the offence or, on the contrary, in such a situation, the BNR exchange rate applicable at the time of the consummation of the offence is taken into account exclusively”.

Mandatory 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, 11 March 2024.

After the justification is written and the Judgment signed it shall be published in the Official Journal of Romania, Part I.

High Court of Review and Justice

PRESS RELEASE

            In its session of 23 October 2023, the High Court of Cassation and Justice – Panel for the Clarification of Certain Points of Law in Criminal Matters, lawfully established in the Case, considered a request for a preliminary ruling for the clarification of certain points of law, and returned the following Judgment:

Decision 71 in Case 1519/1/2023

 

            Sustains the request from the Military Court of Appeal of Bucharest, in case 1/751/2023, for a preliminary ruling for the clarification of the following point of law:

“If, in interpreting and applying the provisions of Article 85 para. (2) point (g) of the Criminal Code, the court may impose on the person against whom the sentence has been postponed the obligation not to drive certain vehicles determined by the court for a period shorter than the period of supervision provided for in Article 84 of the Criminal Code” and states that:

In interpreting and applying the provisions of Article 85 para. (2) point (g) of the Criminal Code, the court may not impose on the person against whom the sentence has been postponed the obligation not to drive certain vehicles established by the court for a period shorter than the period of supervision provided for in Article 84 of the Criminal Code.

Mandatory 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, 23 October 2023.

After the justification is written and the Judgment signed it shall be published in the Official Journal of Romania, Part I.

High Court of Review and Justice

PRESS RELEASE

            In its session of 2 October 2023, the High Court of Review and Justice – Panel for the Clarification of Certain Points of Law in Criminal Matters, lawfully established in the Case, considered two requests for a preliminary ruling for the clarification of certain points of law, and returned the following Judgments:

Decision 64 in Case 1796/1/2023

 

            Sustains the request from the Court of Appeal of Bacău – Criminal, Juvenile and Family Chamber in case 3556/103/2022/a1, for a preliminary ruling for the clarification of the following points of law:

“Does the provision of the necessary infrastructure by the National Centre for Interception of Communications of the Romanian Intelligence Service, for the purpose of ensuring the technical conditions for the implementation of technical surveillance measures, constitute an activity of execution of the technical surveillance warrant, pursuant to Article 142 of the Code of Criminal Procedure?”, namely

 “If in the procedure provided for in Article 148 para. (3) of the Code of Criminal Procedure and Article 150 para. (5) of the Code of Criminal Procedure, the referral to the judge of rights and freedoms for the issue of a technical surveillance warrant is mandatory if the prosecutor considers it necessary for the investigator to be able to use technical recording devices, these legal provisions establishing a special procedure derogating from the provisions of Article 139 of the Code of Criminal Procedure, since a technical surveillance warrant previously issued pursuant to the latter provisions exists in the case”, and determines the following:

  1. The provision of the necessary infrastructure by the National Centre for Interception of Communications of the Romanian Intelligence Service, for the purpose of ensuring the technical conditions for the implementation of the technical surveillance measures, does not constitute an activity of execution of the technical surveillance warrant, pursuant to Article 142 of the Code of Criminal Procedure.
  2. In the procedure provided for in Article 148 para. (3) of the Code of Criminal Procedure and Article 150 para. (5) of the Code of Criminal Procedure, the referral to the judge of rights and freedoms for the issuance of the technical surveillance warrant is mandatory if the prosecutor considers it necessary for the investigator to be able to use technical recording devices, even if there is a technical surveillance warrant of the same nature issued earlier, these legal provisions establishing a special procedure, derogating from the provisions of Article 139 of the Code of Criminal Procedure.

Mandatory 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, 2 October 2023.

Decision 65 in Case 1910/1/2023

            Denies as inadmissible the request brought by the Court of Appeal of Constanta, Criminal Chamber for Juvenile and Family Cases, in case 8371/118/2021/a1*, for a preliminary ruling for the clarification of the following points of law:

“1. Application of the provisions of Article 324 para. (3) of the Code of Criminal Procedure – in cases in which the criminal prosecution is mandatory to be carried out by the public prosecutor – consisting in the delegation by the prosecutor carrying out the criminal prosecution of the performance of certain acts of prosecution to the investigative bodies of the judicial police, is it or is it not conditional on compliance with the provisions of Article 201 of the Code of Criminal Procedure, with reference to the provisions of Article 200 of the Code of Criminal Procedure?

  1. In application of Article 56 para. (3) of the Code of Criminal Procedure – with possible reference to Article 281 para. (1) point (b) of the Code of Criminal Procedure, in conjunction with Decision No 302/2017 of the Constitutional Court – is or is not the delegation of the performance of a criminal prosecution act by the prosecutor who is obliged to carry out the prosecution limited to the hypothesis that it is impossible for him to carry out the act or to a certain volume/proportion of the performance of prosecution acts by delegation?
  2. The provisions of Article 7 para. (1) and para. (6) of Emergency Ordinance No 78 of 16 November 2016 of the Government of Romania, approved by Law No 120/2018, shall remove the effects of the provisions of Article 56 para. (3) of the Code of Criminal Procedure – possibly correlated with those of Art. 201 of the Code of Criminal Procedure, with reference to the provisions of Art. 200 of the Code of Criminal Procedure – to the effect that acts of criminal prosecution carried out by judicial police officers and agents seconded to the Directorate for the Investigation of Organised Crime and Terrorism, by order of the prosecutor, are considered acts of criminal prosecution carried out directly by the prosecutor in the exercise of the power of mandatory prosecution, without any other condition than their performance by written order of the prosecutor?”

Mandatory 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, 2 October 2023.

After the justification is written and the Judgment signed it shall be published in the Official Journal of Romania, Part I.

High Court of Review and Justice

PRESS RELEASE

            In its session of 18 September 2023, the High Court of Cassation and Justice, Panel for the Clarification of Certain Points of Law in Criminal Matters, lawfully established in each Case, considered three requests for a preliminary ruling for the clarification of certain points of law, and returned the following Judgments:

            Decision 56 in Case 1235/1/2023

            Denies as inadmissible the request brought by the Court of Appeal of Piteşti- Criminal, Juvenile and Family Chamber in case 248590/2022/a1, for a preliminary ruling for the clarification of the following points of law:

            “1. Whether the evidentiary procedure of access to a computer system may be used when (i) the computer support is in the physical custody of the prosecuting authority, or whether this evidentiary procedure only allows (i) remote access to such a system for the purpose of monitoring/supervising the activity being conducted?

  1. Is the choice as to whether to issue, obtain and/or use a warrant for access to a computer system or a computer search warrant for the purpose of copying in full the data contained in a computer system in the possession of the prosecuting authority a matter of expediency, within the discretion of the prosecuting authority, or a matter of legality, subject to review by the Preliminary Chamber?”

Mandatory 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, 18 September 2023.

Decision 57 in Case 1407/1/2023

 

            Sustains the request from the Court of Appeal of Bacău, Criminal, Juvenile and Family Chamber, for a preliminary ruling for the clarification of the following points of law:

“It shall be an offence under Article 335 para. (3) of the Criminal Code, the act of entrusting a vehicle to be driven on public roads to a person whom he knows to be under the influence of alcohol, if the latter commits the offence of refusing to take biological samples for the purpose of determining the blood alcohol level and is prosecuted for this offence?”

The act of entrusting a vehicle for which the law provides for the obligation to hold a driving licence for driving on public roads to a person who is known to be under the influence of alcohol, but who has refused or evaded taking biological samples and who is prosecuted for the offence provided for in Article 337 of the Criminal Code, does not meet the typical conditions for the offence provided for in Article 335 para. (3) of the Criminal Code.

Mandatory 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, 18 September 2023.

Decision 58 in Case 1470/1/2023

 

            Sustains the request from the Court of Appeal of Bacău, Criminal, Juvenile and Family Chamber in case 2168/321/2021, for a preliminary ruling for the clarification of the following points of law:

“The general limitation period for the offence of assault or other violence in the form of domestic violence, provided for in Article 193 para. (2) of the Criminal Code with application of Art. 199 para. (1) of the Criminal Code, both rules referred to Art. 187 of the Criminal Code concerning the meaning of the concept of punishment prescribed by law, is that indicated by Art. 154 para. (1) point (d) of the Criminal Code, i.e. the legal nature of Art. 199 para. (1) of the Criminal Code is: 1. an offence in its own right (autonomous); 2. an aggravated form of the offence to which it applies (in the first two situations the general limitation period is thus 8 years) or 3. a special cause for aggravation of the penalty in certain circumstances (in the latter situation the general limitation period is thus 5 years)” and establishes that:

The incrimination in Article 199 para. (1) of the Criminal Code is an aggravated variant of the offence of assault or other violence provided for in Article 193 para. (2) of the Criminal Code.

The general limitation period for the offence of assault or other violence in the form of domestic violence, provided for in Article 193 para. (2) of the Criminal Code with application of Art. 199 para. (1) of the Criminal Code, is that set out in Art. 154 para. (1) point c) of the Criminal Code.

Mandatory 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, 18 September 2023.

            After the justification is written and the Judgment signed it shall be published in the Official Journal of Romania, Part I.

High Court of Review and Justice

PRESS RELEASE

            In its session of 19 June 2023, the High Court of Cassation and Justice, Panel for the Clarification of Certain Points of Law in Criminal Matters, lawfully established in the Case, considered a request for a preliminary ruling for the clarification of certain points of law, and returned the following Judgment:

            Decision 56 in Case 1235/1/2023

Denies as inadmissible the request brought by the Court of Appeal of Constanța, Criminal, Juvenile and Family Chamber, by judgment of the sitting of 10 February 2023, in Case No 4392/118/2022/a1, for a preliminary ruling for the clarification of the following points of law:

“On the application of the provisions of Article 16 para. (1) point (f) of the Code of Criminal Procedure, Art. 309 para. (1) of the Code of Criminal Procedure and Article 315 para. (1) point (b) of the Code of Criminal Procedure, in the preliminary chamber proceedings governed by Art. 342 et seq. of the Code of Criminal Procedure, namely whether, in the context of this procedure – aimed at verifying the legality of the referral to the court, the taking of evidence and the performance of acts by the prosecution authorities (in the context of the examination, in particular, of objections of illegality of the act of bringing the criminal proceedings and the act of referral to the court, on the ground that they were issued after the expiry of the limitation period for criminal liability) – may the preliminary chamber judge consider the expiry of that period as an incidental ground, as a concrete basis for the unlawfulness of the contested acts, that is to say, for the unlawfulness of the taking of evidence after the expiry of the limitation period for criminal liability, subsequent to a finding that the act initiating the criminal proceedings is invalid?”

Mandatory 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, 19 June 2023.

            After the justification is written and the Judgment signed it shall be published in the Official Journal of Romania, Part I.

High Court of Review and Justice

PRESS RELEASE

            In its session of 15 May 2023, the High Court of Cassation and Justice, Panel for the Clarification of Certain Points of Law in Criminal Matters, lawfully established in the Case, considered three requests for a preliminary ruling for the clarification of certain points of law, and returned the following Judgments:

Decision 38 in Case 519/1/2023

            Denies as inadmissible the request brought by the Court of Appeal of Constanţa- Criminal Chamber, for a preliminary ruling for the clarification of the following points of law:

“1. Application of the provisions of Article 158 para. (3) of the Code of Criminal Procedure (with reference to the power of the prosecutor to authorise the continuation of the search in places adjacent to the place in respect of which the judge of rights and freedoms authorised the search) is or is not conditioned by the description of these adjacent places in the content of the decision authorising the search, or in the content of the search warrant, in relation to the provisions of Art. 158 para. (7) letter f) of the Code of Criminal Procedure.

  1. The legality of the decision issued by the judge of rights and freedoms authorising the search may or may not be subject to verification of legality, in the preliminary chamber procedure having to resolve the legality of the administration of evidence, any irregularities in the decision issued by the judge of rights and freedoms authorising the search.”

Mandatory 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, 15 May 2023.

Decision 39 in Case 672/1/2023

            Denies as inadmissible the request brought by the Court of Appeal of Bucharest- Second Criminal Chamber, in case 1120/122/2019, for a preliminary ruling for the clarification of the following points of law:

“If the provisions of Article 10 para. 11 of Law No 241/2005 are applicable in the case of the recovery of damages as a result of a non-voluntary activity, i.e. a compulsory enforcement procedure?”

Mandatory 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, 15 May 2023.

  

Decision 40 in Case 677/1/2023

            Denies as inadmissible the request brought by the by the Court of Appeal of Constanța – Criminal, Juvenile and Family Chamber, in Case No 581/36/2022, and the Court of Appeal of Brasov, Criminal Chamber, in Case No 419/64/2022, for a preliminary ruling for the clarification of the following points of law:

  1. “Whether the procedural error, consisting in the failure of the court of appeal to consider a ground for termination of the criminal proceedings, based on the incidence of the provisions relating to the limitation of criminal liability and the effects of the Decision of the Constitutional Court of Romania No 358/26.05.2022, may be examined as a ground for the appeal for annulment provided for by Article 426 point b) of the Code of Criminal Procedure, at the stage of admission in principle or after the completion of this stage, in relation to the existence of new circumstances, revealed after the final judgment of conviction on the cause for termination of the criminal proceedings and the provisions of Art.1 para. (5) and Art.147 para. (4) of the Romanian Constitution, in conjunction with the provisions of Article 6 of the European Convention on Human Rights and Article 11 para. (3) of Law no.47/1992 on the organisation and functioning of the Constitutional Court, relating to the binding and future effects of the decisions of the Constitutional Court of Romania in cases finally decided”.
  2. In interpreting the provisions of Article 426 point (b) of the Code of Criminal Procedure, does it constitute a procedural error for the court of appeal to fail to consider, in accordance with Article 5 of the Criminal Code, the incidence in the case of a more favourable criminal law in relation to a ground for termination of the criminal proceedings, namely the expiry of the limitation period for criminal liability?

 Mandatory 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, 15 May 2023.

            After the justification is written and the Judgment signed it shall be published in the Official Journal of Romania, Part I.

High Court of Review and Justice

PRESS RELEASE

            In its session of 20 March 2023, the High Court of Cassation and Justice, Panel for the Clarification of Certain Points of Law in Criminal Matters, lawfully established in the Case, considered a request for a preliminary ruling for the clarification of certain points of law, and returned the following Judgment:

 

 Decision 19 in Case 2413/1/2022

            Denies as inadmissible the request brought by the Court of Appeal of Cluj- Criminal and Juvenile Chamber in case 1014/112/2019, for a preliminary ruling for the clarification of the following points of law:

            “If, in interpreting and applying the provisions of Article 105 para. (2) of the Criminal Code, the appellate court has the legal possibility, in finding that the conditions for the grant of conditional release are met in relation to the resulting sentence ordered by the first instance following the merger of the sentence imposed for the offence under trial and sentences previously imposed for concurrent offences by final judgments of conviction, to grant conditional release where the trial court did not consider such a possibility”.

Mandatory 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, 20 March 2023.

            After the justification is written and the Judgment signed it shall be published in the Official Journal of Romania, Part I.

 

High Court of Review and Justice

PRESS RELEASE

            In its session of 13 February 2023, the High Court of Cassation and Justice, Panel for the Clarification of Certain Points of Law in Criminal Matters, lawfully established in each Case, considered two requests for a preliminary ruling for the clarification of certain points of law, and returned the following Judgments:

            Decision 9 in Case 2545/1/2022

Sustains the request from Court of Appeal of Braşov- Criminal Chamber, by judgment of the session of 16 November 2022, delivered in Case No 1802/62/2019, for a preliminary ruling for the clarification of the following points of law:

“If the military unit – military hospital is a public authority or a public institution, and if it is a public institution, if a public institution – military unit – can be an active subject as perpetrator of service and corruption offences, namely the offence of bribery, provided for in Art. 289 para. (1) of the Criminal Code and abuse of office, provided for in Art. 297 para. (1) of the Criminal Code, offences for which the qualified direct perpetrator is a civil servant or public official”, and establishes that:

The military hospital is a public institution within the meaning of Article 135 of the Criminal Code, and it cannot be the perpetrator of the offences of bribery provided for in Article 289 para. (1) of the Criminal Code and abuse of office, provided for in Article 297 para. (1) of the Criminal Code.

Mandatory 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, 13 February 2023.

Decision 10 in Case 2564/1/2022

            Denies as inadmissible the request brought by the Court of Appeal of Galaţi – Criminal and Juvenile Chamber in case 2564/1/2022, for a preliminary ruling for the clarification of the following points of law in criminal matter:

“If the phrase «where two or more final judgments cannot be reconciled », which constitutes the content of Article 453 para.  (5) of the Code of Criminal Procedure, as well as the phrase «all judgments which cannot be reconciled» which constitutes the content of Article 453 para.  (5) of the Code of Criminal Procedure also refers to the situation in which a state of irreconcilability has arisen between a final civil judgment of a punitive nature and, on the other hand, a final criminal judgment, where both final judgments relate to identical or related factual situations”.

Mandatory 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, 13 February 2023.

 

            After the justification is written and the Judgment signed it shall be published in the Official Journal of Romania, Part I.

 

 

High Court of Review and Justice

PRESS RELEASE

            In its session of 19 December 2022, the High Court of Cassation and Justice, Panel for the Clarification of Certain Points of Law in Criminal Matters, lawfully established in the Case, considered a request for a preliminary ruling for the clarification of certain points of law, and returned the following Judgment:

            Decision 82 in Case 1708/1/2022

            Denies as inadmissible the requests brought by the Court of Appeal of Braşov- Criminal Chamber and the Court of Appeal of Bucharest – First Criminal Chamber, in cases no. 4334/2/2022 and no. 4382/2/2022, for a preliminary ruling for the clarification of the following points of law:

  1. Are the provisions of Art. 426 point (b) and Art. 431 of the Code of Criminal Procedure to be interpreted as meaning that the court deciding the appeal for annulment has the power, at the stage of admissibility in principle, to reconsider which of the successive criminal laws is more favourable where a ground for discontinuance of the criminal proceedings is pleaded in relation to a successive law which has not been held to be more favourable in the case?
  2. In application of the provisions of Article 426 point (b) of the Code of Criminal Procedure, as interpreted by Decision No 10/2017 of the High Court of Cassation and Justice – Panel for Preliminary Ruling on Questions of Law, the court hearing the appeal for annulment, based on the effects of Constitutional Court Decisions No 297 of 26 April 2018 and No. 358 of 26 May 2022, be entitled to reconsider the limitation period for criminal liability, if the court of appeal examined the incidence of that cause of termination in relation to the expiry of the special limitation period, but failed to take into account the simple/extreme nature of Constitutional Court Decision No 297/2018, namely the non-existence of a cause of interruption of the limitation period for criminal liability in the period from 26 June 2018 to 30 May 2022?
  3. The failure of the court to take into account the absence of a cause for interrupting the limitation period for criminal liability in the period from 26 June 2018 to 30 May 2022 constitutes a procedural error within the meaning of Article 426 para. (1) point (b) of the Code of Criminal Procedure, in the case of cases judged finally during that period?

Mandatory 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, 19 December 2022.

            After the justification is written and the Judgment signed it shall be published in the Official Journal of Romania, Part I.

 

High Court of Review and Justice

PRESS RELEASE

            In its session of 28 November 2022, the High Court of Cassation and Justice, Panel for the Clarification of Certain Points of Law in Criminal Matters, lawfully established in the Case, considered a request for a preliminary ruling for the clarification of certain points of law, and returned the following Judgment:

            Decision 78 in Case 1418/1/2022

 

Sustains the request from the Court of Appeal of Alba Iulia, Criminal Chamber, for a preliminary ruling for the clarification of the following points of law:

„Where, under Romanian law, it is compulsory for the person driving a vehicle on public roads to hold a driving licence, and that person holds only a provisional driving licence issued by the competent authority in the United Kingdom (Provisional Driving Licence), the mitigated form of the offence of driving a vehicle without a driving licence provided for in Article 335 para. (2) of the Criminal Code, that is to say, where the person is not entitled to drive a motor vehicle in Romania is retained?” and states that:

  Under Romanian law, driving a vehicle on public roads by a person who holds a valid provisional driving licence issued by the competent authority in the United Kingdom (“Provisional Driving Licence”) constitutes the offence of driving a vehicle without a driving licence provided for in Article 335 para. (2) of the Criminal Code, where the person is not entitled to drive a motor vehicle in Romania.

Mandatory as of the date of publication in the Official Journal of Romania, Part I under Art 477 para. (3) in the Criminal Procedure Code.

            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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