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

High Court of Review and Justice 

PRESS RELEASE

In its session of 31 March 2022, the High Court of Review and Justice – Panels for the Clarification of Certain Points of Law, 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 #17 in Case #88/1/2022

Denies as inadmissible the request brought by the Mureş Tribunal – Criminal Chamber, in Case #10972/320/2021 for a preliminary ruling for the clarification of the following point of law:

“In the interpretation and application of Art. 5 para. (3) in Law #255/2013 for the enactment of Law #135/2010 on the Criminal Procedure Code and to amend and supplement certain regulatory acts that include criminal procedure stipulations, does the concept of ‘cases, proposals, challenges, complaints or other motions where the criminal investigation was performed by the National Anticorruption Department’ also include dealing with motions for conditional release from service of a criminal sentence that was ordered on conviction for such charges?

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 31st of March 2022.

 

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

OFFICE FOR PUBLIC INFORMATION AND RELATIONS

High Court of Review and Justice 

PRESS RELEASE

In its session of 27 January 2022, the High Court of Review and Justice – Panels for the Clarification of Certain Points of Law, lawfully established in each of the cases, considered three requests for a preliminary ruling for the clarification of certain points of law, and returned the following Judgments:

Decision #1 in Case #2737/1/2021 

Denies as inadmissible the request brought by the Court of Appeals Oradea – Chamber for Criminal and Juvenile Matters, in its session report of 19 October 2021, in Case # 9633/296/2017*, for a preliminary ruling for the clarification of the following point of law:

“As regards the regime of conditional suspension of sentence service, in terms of its revocation, is it the one stipulated by the 1969 Criminal Code, in application of Art. 15 para. (2) in Law #187/2012, in the situation where the main punishment for a criminal violation committed before 01 February 2014 was established according to the current Criminal Code and the manner of serving the sentence was ordered according to the 1969 Criminal Code, as an effect of applying the more favorable criminal law per autonomous institutions, in the circumstances where Constitutional Court Decision #265 of 06 May 2014, published in the Official Journal of Romania Issue #372/20 May 2014, states that the stipulations of Art. 5 in the Criminal Code are constitutional insofar as they do not allow combining stipulations from successive laws in establishing and enforcing the application of the more favorable criminal law?” 

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 27th of January 2022. 

 

Decision #2 in Case #2749/1/2021

Denies as inadmissible the request brought by the Court of Appeals Timișoara, Criminal Chamber, in Case # 392/30/2021 for a preliminary ruling for the clarification of the following point of law:

“In the interpretation of Art. 452 para. (1) in the Criminal Procedure Code, can a motion for review reliant on Art. 453 para. (1) letter e) in the Criminal Procedure Code also be directed against a criminal judgment that is final but does not deal with the merits of the criminal action?”

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 27th of January 2022.

 

Decision #3 in Case #2763/1/2021

Sustains the request brought by the Court of Appeals Cluj, Criminal Chamber, in its session report of 14 October 2021, in Case #2259/117/2019, and rules that:

In the interpretation of Art. 3 in Law #143/2000, in the situation where a person travels in Romania by plane and carries drugs, the latter shall be construed as introduced in the country (with the consequence of the action being considered as consummated) at the moment when the person on board the aircraft crosses the border, thus entering the airspace located inside the national borders, without the performance of a customs inspection presenting any relevance in terms of consummation of the criminal violation.”

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 27th of January 2022.

 

Decision #4 in Case #2813/1/2021

Sustains the request brought by the Court of Appeals București – Chamber II for Criminal Matters, in Case # 16037/301/2021, for a preliminary ruling for the clarification of the following point of law:

“In the situation where a crime of theft is committed by an individual wearing a mask in a space where wearing a mask is mandatory, the court shall consider the aggravated form of the crime of theft as described under Art. 228 para. (1) – Art. 229 para. (1) letter c) in the Criminal Code” and consequently rules that:

Compliance with the obligation to wear a protective mask that has the ability to conceal one’s physiognomy, in public spaces where applicable law mandates wearing such a mask, causes applicability of the aggravating circumstance element stipulated by Art. 229 para. (1) letter c) in the Criminal Code in regards to a crime of theft committed by an individual wearing a mask.

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 27th of January 2022.

 

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

OFFICE FOR PUBLIC INFORMATION AND RELATIONS

High Court of Review and Justice

 PRESS RELEASE

In its session of 8 December 2021, the High Court of Review and Justice – Panels for the Clarification of Certain Points of Law, 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 #83 in Case #2611/1/2021

Denies as inadmissible the request brought by the Satu Mare Tribunal, for a preliminary ruling for the clarification of the following point of law:

An interpretation of the stipulations in Art. 65 para. (1) corroborated with Art. 64 para. (1) letter c) and Art. 114 para. (4) in the Criminal Procedure Code, namely whether the law enforcement body that filed the report finding the commission of a crime in the act of its commission can also proceed to performing the criminal investigation; what is the applicable penalty in case the entity is subsequently heard as a witness in that same case, namely is it absolute nullification of the criminal investigation steps performed, because of a violation of the rules of jurisdiction as under Art. 281 para. (1) letter b) in the Criminal Procedure Code and Constitutional Court Decision #302/2017, or is it relative nullification as under Art. 282 in the Criminal Procedure Code because of the existence of a situation of incompatibility arising from the capacity as witness to the commission of a crime while also being the entity that found the commission of a crime in the capacity of law enforcement body.

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 8th of December 2021.

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

OFFICE FOR PUBLIC INFORMATION AND RELATIONS

High Court of Review and Justice

PRESS RELEASE

In its session of the 18th of November 2021, 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 a requests for a preliminary ruling for the clarification of certain points of law, and returned the following Judgment:

Decision #79 in Case #2474/1/2021

Sustains the request from the Court of Appeals Craiova – Chamber for Criminal and Juvenile Matters, requesting  preliminary ruling for the clarification of the following points of law: „If the application of the benefit of the provisions of Article 19 in Law No 682/2002 to the defendant who has the status of denouncer in a criminal case is subject to the continuation of the criminal prosecution in personam, to the setting in motion of the criminal action or whether it is sufficient to start the prosecution in rem in the case in which he/she is a denouncer-witness” and establishes the following:

The application of the benefit of the provisions of Article 19 in Law No 682/2002 to the defendant who has the status of denouncer in a criminal case is subject to the continuation of the criminal prosecution in the case in which he/she has the status of a denouncer-witness, necessary but not sufficient condition, the court will assess the cumulative fulfillment of the conditions of application of the text.

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 18th of November 2021.

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 the 4th of November 2021, 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 a requests for a preliminary ruling for the clarification of certain points of law, and returned the following Judgment:

Decision #75 in Case #2439/1/2021

Sustains the request from the Court of Appeals Suceava – Chamber for Criminal and Juvenile Matters, requesting  preliminary ruling for the clarification of the following points of law:

„If, in the case of an offense referred to in Article 7 para. 1 in Law No 39/2003 (form prior to 01 February 2014), the limitation period of criminal liability shall be set in relation to the maximum penalty provided for by that law, namely 20 years, or depending on the penalty provided for by law for the most serious offense for the purpose of the criminal group, taking into account, in relation to the term “penalty provided for by law”, the provisions of paragraph 2 of Article 7 in Law No 39/2003 (previous form)”.

Establishes that in the case of an offense referred to in Article 7 para. 1 in Law No 39/2003 (form prior to 01 February 2014), the limitation period of criminal liability shall be calculated in relation to the maximum penalty provided for by this law, namely 20 years, regardless of the penalty laid down by law for the most serious offense for the purpose of the criminal group.

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 4th of November 2021.

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 29 September 2021, 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 four requests for a preliminary ruling for the clarification of certain points of law, and returned the following Judgment:

Decision #65 in Case # 1607/1/2021

Denies as inadmissible the request brought by the Court of Appeals Bucharest – Chamber I for Criminal Matters in case #1629/2/2021, for a preliminary ruling for the clarification of the following points of law:

„Article 426 para. (1) letter (d) of the Code of Criminal procedure shall be interpreted as meaning that the appellate court was not composed in accordance with the law in relation to the appeal before it and/or in relation to the solution given by the criminal decision.”

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, 29 September 2021.

 Decision #66 in Case # 1629/1/2021

 Sustains the request from the Court of Appeals Bucharest – Chamber II for Criminal Matters in case #1059/98/2018, for a preliminary ruling for the clarification of the following points of law: „If interest and penalties are applied to the damage caused by the offense, plus 20 % of the basis of calculation or if interest and penalties shall be calculated only on the damage caused by the offense” and establishes the following:

Interest and penalties referred to in Article 10 para. (11) of Law No 241/2005 on prevention and combat of tax evasion are only applicable to the damage caused by the offense, without taking into account the increase of 20 % of the base of calculation.

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, 29 September 2021.

Decision #67 in Case # 1795/1/2021

Denies as inadmissible the request brought by the Court of Appeals Bacău – Chamber for Criminal and Juvenile Matters, in case #473/321/2020, for a preliminary ruling for the clarification of the following points of law:

„The appellate court vested with the appeal declared by the prosecutor exclusively on grounds of illegality of the sentence given in the first instance, one/more of which being in favor of the defendant, the other/s being against the same defendant, the latter reasons concerning matters other than the penalty applied by the first instance, may examine in respect of that defendant the sentence appealed in respect of the merits of the penalty imposed, which would result in an increase in the amount of the penalty or the removal of provisions concerning the suspension under supervision of the execution of that sentence ordered by the appealed judgment, without prejudice to the provisions of Article 418(2) of the Code of Criminal procedure.”

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, 29 September 2021.

Decision #68 in Case # 1876/1/2021

Denies as inadmissible the request brought by the Court of Appeals Ploieşti – Chamber for Criminal and Juvenile Matters for a preliminary ruling for the clarification of the following points of law:

„In the interpretation of the provisions of Article 360 para. (1) of the Criminal Code on illegal access to an information system, in the case of persons who may at any time query a database containing non-public information, such a query not followed by the subsequent performance of specific acts to the performance of duties relating to the query performed, may represent an exceed of the limits for which the authorization has been granted.”;

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, 29 September 2021.

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 June 2021, 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 a request for a preliminary ruling for the clarification of certain points of law, and returned the following Judgment:

Decision #52 in Case #1236/1/2021

Sustains the request brought by the Court of Appeals Oradea – Chamber for Criminal and Juvenile Matters, for a preliminary ruling and returns this Judgment:

In the interpretation and application of Art. 377 in the Criminal Code, correlated with Art. 177 para. (2) in the Criminal Code, in order to establish the subjects of the crime of incest, can establishing the capacity as biological relatives in a direct line or between brothers and sisters, in the situation where the subject of the crime is an adopted person, take place in the conditions of Art. 52 para. (1) and (2) in the Criminal Procedure Code independently from the stipulations of Art. 440 and Art. 470 para. (2) in the Civil Code.

To establish the subjects of the crime of incest as stipulated at Art. 377 in the Criminal Code, in the situation where one of them is adopted, it is not required to firstly establish the existence of a civil legal kinship in a direct line or between brothers and sisters as under Art. 409 in the Civil Code correlated with Art. 416 in the Civil Code or Art. 424 in the Civil Code, as the case may be; this aspect can be established in the absence of civil status documents and a civil action with that object, as part of the ongoing criminal trial and based on the evidence required under Art. 97 para. (1) in the Criminal Procedure Code correlated with Art. 52 para. (1) and (2) in the Criminal Procedure Code.

The effects of biological kinship established in a civil trial or even in the criminal trial that follows after the commission of a crime of incest will become retroactive all the way till the moment the child was born.

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 28th of June 2021.

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

 

OFFICE FOR PUBLIC INFORMATION AND RELATIONS

High Court of Review and Justice 

PRESS RELEASE

In its session of 24 June 2021, 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 a request for a preliminary ruling for the clarification of certain points of law, and returned the following Judgment:

 

Decision #51 in Case #1321/1/2021

Sustains the request brought by the Court of Appeals Oradea – Chamber for Criminal Matters and for Juvenile Matters, in Case #11575/271/2019, for a preliminary ruling on the following point of law:

“Is the typicality of the crime of violation of private life in the manner criminalized at Art. 226 para. (2) in the Criminal Code conditioned by possession of sounds, conversations or images, obtained unlawfully by the photographing, capturing or recording images, listening using technical means or audio recording a person located in a residence or room or annex thereof, or of a private conversation?”

The Court rules that the typicality of the crime of violation of private life in the manner criminalized at Art. 226 para. (2) in the Criminal Code is not conditioned by possession of sounds, conversations or images, obtained unlawfully by the photographing, capturing or recording images, listening using technical means or audio recording a person located in a residence or room or annex thereof, or of a private conversation.

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 24th of June 2021.

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

 

OFFICE FOR PUBLIC INFORMATION AND RELATIONS

High Court of Review and Justice

 PRESS RELEASE

In its session of 9 June 2021, the High Court of Review 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 #48 in Case #833/1/2021

Sustains the request brought by the Court of Appeals Ploieşti, Chamber for Criminal Matters and for Juveniles and Family Matters, in Case #5989/315/2020, for a preliminary ruling on the following point of law:

“In the matter of the use of the phrase ‘psychoactive substances’ as part of the criminalization text, does it involve a limitation of the sphere of applicability of said criminalization to the category of substances described by Law #194/2011 on Combating Operations with Products Likely to Have Psychoactive Effects, other than those already Scheduled in applicable law in its latest version, or should the sphere of psychoactive substances be treated in a broad manner with the inclusion, as the case may be, of substances included in Special Law #143/2000 on Preventing and Combating Illegal Trafficking and Consumption of Drugs, as republished with amendments and supplements, and Special Law #339/2005 on the Legal Regime of Narcotic and Psychotropic Plants, Substances and Preparations.”

The Court rules that “The use of the phrase ‘psychoactive substances’ as part of the criminalization in Art.336 para. (2) in the Criminal Code includes both the category of substances described by Law #194/2011 on Combating Operations with Products Likely to Have Psychoactive Effects, other than those already Scheduled in applicable law, and the substances included in Special Law #143/2000 on Preventing and Combating Illegal Trafficking and Consumption of Drugs, as republished with amendments and supplements, and Special Law #339/2005 on the Legal Regime of Narcotic and Psychotropic Plants, Substances and Preparations.”

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 9th of June 2021.

 

Decision #49 in Case #860/1/2021

Denies as inadmissible the request brought by the Court of Appeals Târgu Mureş – Chamber for Criminal Matters and for Juveniles and Family Matters, in Case # 3835/308/2019, for a preliminary ruling on the following points of law:

1. Does applying Art. 37 in the Criminal Code result in reversing the previous criminal conviction for part of the material acts that are included in the contents of a crime in continuous form, and in the affirmative case must such reversal be done in its entirety, on both the criminal and the civil side?

2. In the application of Art. 37 in the Criminal Code, is the duration of supervision established as under Art. 92 in the Criminal Code calculated as of the date of finality of the previous judgment that is reversed, or as of the date of finality of the judgment that returns a ruling on the entirety of the criminal violation?

3. Is the sentence of community service, returned as under Art. 93 para.(3) in the Criminal Code by the previous judgment that is reversed, to be deducted from a potential obligation of the same nature ordered in the case where the entirety of the criminal violation is being tried?”

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 9th of June 2021.

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

OFFICE FOR PUBLIC INFORMATION AND RELATIONS

 

High Court of Review and Justice

 PRESS RELEASE

 

In its session of 7 June 2021, 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 a request for a preliminary ruling for the clarification of certain points of law, and returned the following Judgment:

 

Decision #37 in Case #769/1/2021

Sustains the request brought by the Court of Appeals Alba Iulia – Chamber for Criminal and Juvenile Matters, for a preliminary ruling on principle in the following point of law: “Does the posting of fictitious ads online thereby causing a loss to be sustained, without thereby tampering with the computer system or the digital data processed by said system, meet the conditions of typicality of the crime of computer fraud stipulated by Art. 249 in the Criminal Code (in the alternative modality of “introduction of digital data”) or of the crime of misrepresentation stipulated by Art. 244 para. (2) in the Criminal Code (in the alternative modality of “by other fraudulent means”)?”

The Court rules that the posting of fictitious ads online thereby causing a loss to be sustained, without thereby tampering with the computer system or the digital data processed by said system does meet the conditions of typicality of the crime of misrepresentation stipulated by Art. 244 in the Criminal Code.

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 7th of June 2021.

 

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

 

OFFICE FOR PUBLIC INFORMATION AND RELATIONS

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