High Court of Cassation and Justice
PRESS RELEASE
In its session of 7 October 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, considered one request for a preliminary ruling for the clarification of certain points of law, and returned the following Judgment:
Decision 49 in Case 1521/1/2024
Sustains the request from the Court of Appeal of Suceava – Chamber for Criminal Matters and for Juveniles Matters, for a preliminary ruling for the clarification of the following point of law:
“Whether in interpreting the provisions of Art. 198 para. (1) of the Criminal Code, Article 19 para. (2) of the Code of Criminal Procedure and Article 1370 of the Civil Code, a civil action brought by a defendant – a participant in the commission of the offense of brawl under Article 198 para. (1) of the Criminal Code against another defendant – a participant in the same offense of brawl referred to in Article 198 para. (1) of the Criminal Code, relating to civil claims arising from injuries sustained as a result of the brawl can be admissible” and establishes that:
In the interpretation and application of Article 198 para. (1) of the Criminal Code, Article 19 para. (2) of the Code of Criminal Procedure and Article 1370 of the Civil Code, the civil action brought by a defendant – a participant involved in the perpetration of the offense of brawl under Article 198 para. (1) of the Criminal Code against another defendant – a participant in the same act of brawl referred to in Article 198 para. (1) of the Criminal Code can be admissible.
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, 16 September 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 Cassation and Justice
PRESS RELEASE
In its session of 16 September 2024, 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 Judgment:
Decision 45 in Case 1095/1/2024
Sustains the request from the High Court of Cassation and Justice, for a preliminary ruling for the clarification of the following point of law:
“Whether, with regard to the crime of misappropriation of public bids under Article 246 of the Criminal Code, the substantive element consisting in the modality of “removal” is also present when, through bribery, the perpetrator of the offense, i.e. the active subject of the crime, withdraws from a public bid” and establishes that:
The substantive element of the crime of misappropriation of public bids under Article 246 of the Criminal Code, consisting in the modality of “removal”, is not present even when the perpetrator of the act, the active subject of the act, withdraws from a public bidding procedure as a result of bribery.
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, 16 September 2024.
Decision 46 in Case 1318/1/2024
Sustains the request from the Court of Appeal of Braşov – Criminal Chamber in case no. 7387/197/2021 for a preliminary ruling for the clarification of the following point of law:
„Whether the crime under Article 24(b) of Law no. 50/1991, consisting in proceeding with the execution of construction work after the competent supervisory bodies have ordered it to be stopped, also covers the same prohibited conduct which is criminalized even if the work is not halted but the order to stop it has been issued by the prosecuting authorities?” and establishes that:
The crime under Article 24, b) of Law no. 50/1991, consisting in proceeding with the execution of works after the order to stop them has been issued by the competent supervisory bodies according to law, does not cover the situation where the works continue after the order to stop them has been issued by the prosecution authorities.
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, 16 September 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 Cassation and Justice
PRESS RELEASE
In its session of 17 June 2024, 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 Judgment:
Decision 36 in Case 516/1/2024
Sustains the request from the Court of Appeal of Bucharest – The 2nd Criminal Chamber, for a preliminary ruling for the clarification of the following point of law:
Whether the business premises, within the meaning of Article 229 paragraph (2) letter b) of the Criminal Code, represents a professional headquarters – which constitutes the place of business of a legal person – during the hours in which public access is not allowed and establishes that:
The business premises – which constitutes the working point of a legal person – is a professional headquarters as defined by Article 229 paragraph (2) b) of the Criminal Code, if a private corporate life is conducted there.
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, 17 June 2024.
Decision 37 in Case 681/1/2024
Sustains the request from the Court of Appeal of Târgu Mureş – Chamber for Criminal Matters and for Juveniles and Family Matters, for a preliminary ruling for the clarification of the following point of law:
Are the courts obliged to disregard the settlement of the point of law concerning the application of the mitior lex principle to the interruption of the statute of limitations, rendered by Decision No 67/2022 of the High Court of Cassation and Justice – Panel for the Clarification of Certain Points of Law in Criminal Matters, within the limits resulting from the judgment of the Court of Justice of the European Union delivered on July 24, 2023 in Case C-107/23 PPU? and establishes that:
- The courts may not disregard the settlement of the point of law on the application of the mitior lex principle to the interruption of the statute of limitations of criminal liability, rendered by Decision No 67/2022 of the High Court of Cassation and Justice – Panel for the Clarification of Certain Points of Law in Criminal Matters, within the limits resulting from the judgment of the Court of Justice of the European Union delivered on July 24, 2023 in Case C-107/23 PPU (limits set out in the operative part of the judgment in paragraph 1, second sentence).
- The settlement given by Decision No. 67/2022 of the High Court of Cassation and Justice – Panel for the Clarification of Certain Points of Law in Criminal Matters shall apply, under the conditions therein established, to procedural acts conducted before June 25, 2018, which is the date of publication of Decision No. 297/2018 of the Constitutional Court.
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, 17 June 2024.
Decision 38 in Case 908/1/2024
Sustains the request from the Court of Appeal of Cluj – Chamber for Criminal and Juvenile Matters, requesting preliminary ruling for the clarification of the following point of law: “When a person perpetrates actions at different intervals of time, on the basis of the same criminal resolution, which may constitute the constituent element of both the offense covered by Article 16 para. 1 of the Law No. 194/2011 and the offense covered by Article 2 of Law No. 143/2000, actions which relate to the same type of prohibited substance (the same substance), which, prior to the entry into force of Law No. 77/2023, was covered by Law No. 194/2011 and, after the entry into force of the aforementioned normative act, by Law No. 143/2000 (thus added to the table annexed to Law No. 143/2000 as a high-risk drug), is there a concurrence of criminal offenses between the acts committed prior to the entry into force of Law No 77/2023 and those committed after that time, or is there a continuing criminal offense whose classification is based on the exhaustion of the alleged criminal activity?” and establishes that:
When a person perpetrates actions at different intervals of time, on the basis of the same criminal resolution, which may constitute the constituent element of both the offense covered by Article 16 para (1) of Law No. 194/2011 and the offense covered by Article 2 of Law No. 143/2000, actions which relate to the same type of prohibited substance (the same substance), which, prior to the entry into force of Law No. 77/2023, was covered by Law No. 194/2011 and, after the entry into force of the aforementioned normative act, by Law No. 143/2000, their activity amounts to a single legal unit in the form of a continuing offence, to which shall apply the criminal law in force at the time when the last action was committed.
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, 17 June 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 Cassation and Justice
PRESS RELEASE
In its session of 3 June 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, considered a request for a preliminary ruling for the clarification of certain points of law, and returned the following Judgment:
Decision 30 in Case 400/1/2024
Sustains the request from the Court of Appeal of Braşov – Criminal Chamber for a preliminary ruling for the clarification of the following point of law:
”In the case of offences for which criminal proceedings are initiated upon a prior complaint by the injured party or ex officio, and the injured party has already lodged such a complaint, can criminal proceedings still be initiated ex officio?” and establishes that:
In the case of offences for which criminal proceedings are initiated upon the prior complaint of the injured person or ex officio, and the injured person has already lodged such a complaint, the criminal proceedings must be considered as having been initiated upon the prior complaint of the injured person, so that the withdrawal of the prior complaint may take place in accordance with Article 158 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, 3 June 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 Cassation and Justice
PRESS RELEASE
In its session of 22 April 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, considered a request for a preliminary ruling for the clarification of certain points of law, and returned the following Judgment:
Decision 18 in Case 359/1/2024
Sustains the request brought by the Court of Appel of Bucureşti – Second Criminal Chamber, in Case 3288/300/2023 (2274/2023), for a preliminary ruling for the clarification of the following point of law:
If the concepts of dwelling, room or outbuilding referred to in Article 226 para. (1) of the Criminal Code are broader than the concept of home in Article 224 of the Criminal Code, including those premises which, even if they cannot be described as a home, provide protection for the person’s privacy, such as the sanitary unit of a clinic or to which several persons have access, a changing room in a shop, the changing room of a gym, and establishes that:
The concepts of dwelling, room or dependency in the content of the offence of invasion of privacy, provided for in Article 226 para. (1) of the Criminal Code have the same meaning as the concepts of dwelling, room or dependency in the offence of breaking and entering, provided for in Article 224 para. (1) of the Criminal Code, being subsumed under the notion of home for the purposes of criminal law.
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, 22 April 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 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:
- 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.
- 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?
- 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?
- 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?
- 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.
