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

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.

 

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High Court of Review and Justice

PRESS RELEASE

In its session of 25 May 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 #35 in Case #764/1/2021

Denies as inadmissible the request brought by the Tribunal Cluj, Criminal Chamber, in Case #1494/219/2020*, for a preliminary ruling for the clarification in principle of the following point of law:

“When, in the procedure of the challenge to service of a sentence, in the interpretation of Art. 598 para. (1) letter c) final thesis in the Criminal Procedure Code (prevention of service), the foreign authority for sentence service denies surrender of a person for part of the sentences indicated in the European arrest warrant issued by the Romanian requesting judicial authority, while for another part of sentences it sustains surrender of a person:

– is the impediment, in the matter of sentences whose service was denied on grounds that the convicted individual does not have avenues to challenge the conviction pronounced in absentia, of a temporary nature and thus such sentences can be served later, in the conditions of Art. 117 para. (4) letter c) in Law #302/2004 as republished (a text that is also applicable, by analogy, to the hypothesis of denied surrender), or

– is the impediment, in the matter of sentences whose service was denied on grounds that the convicted individual does not have avenues to challenge the conviction pronounced in absentia, of a definitive nature, and such sentences returned by Romanian courts cannot be served on Romanian territory after service of the sentences for which surrender was sustained.”

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 May 2021.

Decision #36 in Case #797/1/2021

Denies as inadmissible the request brought by the Tribunal Bihor – Criminal Chamber, in Case #8288/272/2020/a1 for a preliminary ruling for the clarification in principle of the point of law concerning the interpretation and application of the stipulations of Art.65 para.(1) corroborated with Art.64 para.(1) letter c) in the Criminal Procedure Code and Art.114 para.(4) in the Criminal Procedure Code, in the sense of establishing whether the criminal investigator who developed the report on a crime found as it was taking place can continue with their investigation and subsequently be interviewed as a witness in that Case; if that is not possible, what is the available legal punishment, is it absolute nullification of the results of the criminal investigation as a consequence of a violation of jurisdiction regulations, in agreement with Art. 281 para. (1) letter b) in the Criminal Procedure Code and Decision by the Constitutional Court of Romania #302/2017, or is it relative nullification on the basis of Art. 282 in the Criminal Procedure Code, as a consequence of finding a case of incompatibility because the investigator becomes a witness to the commission of the crime.

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 May 2021.

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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High Court of Review and Justice

PRESS RELEASE

In its session of 21 April 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 preliminary ruling for the clarification of certain points of law, and returned the following Judgment:

Judgment #27 in Case #293/1/2021

Sustains the request brought by the Court of Appeals Cluj – Chamber for Criminal matters, in Case #9318/328/2018, for a preliminary ruling for the clarification of the following point of law:

“Can the active subject of the criminal violation stipulated at Art. 335 para. (2) in the Criminal Code be a person who, after return of the final verdict of conviction on the charges stipulated by Art. 336 para. (1) in the Criminal Code and who, until their driver’s license is canceled by order of the Chief of Police, drives a vehicle on public roads?”

The Court rules that the active subject of the criminal violation stipulated at Art. 335 para. (2) in the Criminal Code can be a person who, after return of the final verdict of conviction on the charges stipulated by Art. 336 para. (1) in the Criminal Code and who, until their driver’s license is canceled by order of the Chief of Police, drives a vehicle on public roads.

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 21st of April 2021.

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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High Court of Review and Justice

PRESS RELEASE

In its session of 17 March 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 preliminary ruling for the clarification of certain points of law, and returned the following Judgment:

Judgment #17 in case #156/1/2021

Denies as inadmissible the request brought by the Court of Appeals Brașov – Criminal Chamber, in Case #19809/197/2018*, for a preliminary ruling for the clarification of the following point of law:

“In the interpretation of Art. 40 para. (1) in the Criminal Code, the court before which a case is brought shall also merge the punishment for the charges in the case before it, and the punishments ordered previously against the defendant for concurring crimes, in the particular situation where following application of Art. 10 in Law #187/2012 it would come to the defendant having to serve a punishment of a longer duration than that resulting from the successive service of all the sentences returned against them?”

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 17th of March 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 18 February 2021, the High Court of Review and Justice – Panel for the Clarification of Certain Points of Law in Criminal Matters, lawfully established, considered requests for preliminary rulings for the clarification of certain points of law, and returned the following Judgments”

Decision #10 in Case #3096/1/2020

Denies as inadmissible the request brought by the Court of Appeals Brașov – Criminal Chamber, in Case # 19055/197/2019, for a preliminary ruling for the clarification of the following point of law:

“Can the criminal court consider the elements of civil tort against the defendant in the hypothesis that the injured party files civil legal action in compliance with the deadline stipulated at Art. 20 para. (1) in the Criminal Procedure Code, but after completion of the preliminary chamber procedure, and the vehicle civil liability insurer refuses to participate in the criminal trial as a party with civil liability?”

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 February 2021.

Decision #11 in Case #3104/1/2020

Denies as inadmissible the request brought by the Court of Appeals Bucharest – Chamber II for Criminal Matters, in Case #6396/740/2019 (1993/2020), for a preliminary ruling for the clarification in principle of the following point of law: “Does the expression at Art. 335 para. (3) in the Criminal Code, namely ‘by the same punishment’, refer to the punishment stipulated by Art. 335 para. (2) in the Criminal Code or the punishment stipulated by Art. 335 para. (1) in the Criminal Code, Art. 335 para. (2) in the Criminal Code or Art. 336 in the Criminal Code, depending on the alternative material element 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 18th of February 2021.

Decision #12 in Case #3274/1/2020

Denies as inadmissible the request brought by the Tribunal Argeş – Chamber for Criminal Matters, in Case # 12831/280/2019/a1, for a preliminary ruling for the clarification of the following point of law:

1. Is the crime of misuse of position within the jurisdiction of the National Anticorruption Department, in reference to the stipulations of Art. 13 para. (1) letter a) in Emergency Government Order #43/2002, in the circumstances where the public official has obtained an undue benefit for self or another, as stipulated at Art. 132 in Law #378/2000 corroborated with Art. 297 in the Criminal Code or Art. 248 in the Criminal Code din 1969, in the qualification of which it was charged that irrespective of the capacity of the defendants an undue benefit was obtained for another equivalent to the amounts established as constituting the damage and in a total amount exceeding 10,000 EUR?

2. Is the notion of ‘undue benefit’ stipulated by Art. 132 in Law #78/2000 circumscribed to the phrase ‘the value of the amount of money or the asset that forms the object of the crime of corruption exceeds the Romanian Lei equivalent of 10,000 EUR’, as included in Art. 13 para. (1) letter a) Thesis II in Emergency Government Order #43/2002, with the consequence of bringing about the material jurisdiction of the National Anticorruption Department as established by Art. 13 para. (1) in Emergency Government Order #43/2002?

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 February 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 25 January 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 preliminary ruling for the clarification of certain points of law, and returned the following Judgment:

Judgment #4 in case #2534/1/2020

Sustains the request from the Court of Appeals Brașov – Chamber for Criminal Matters in case #9010/197/2019, for a preliminary ruling for the clarification of the following point of law: “If the action of opening and using an account on a public social network (a network that does not require evidence that the account holder is using their real name), and sets their user name as the name of another individual and, by inputting real data concerning that individual (information, photographs, videos, etc.), achieves the conditions for the finding of a crime of electronic counterfeiting stipulated at Art. 325 in the Criminal Code, in terms of its requirement that the action of inputting electronic data should have been performed without authorization and also should result in information that is untrue” and rules that:

The action of opening and using an account on a public social network, setting one’s user name as the name another individual and inputting real personal data that allow the identification of that other individual meets two of the essential requirements of the crime of electronic counterfeiting stipulated at Art. 325 in the Criminal Code, in terms of its requirement that the action of inputting electronic data should have been performed without authorization that the action of inputting electronic data should result in information that is untrue.

            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 January 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 20 January 2021, the High Court of Review and Justice – Panel for the Clarification of Certain Points of Law in Criminal Matters, lawfully established in each of the cases, considered two requests for preliminary ruling for the clarification of certain points of law, and returned the following Judgment:

Judgment #2 in case #2882/1/2020

            Denies as inadmissible the request from the Court of Appeals Bucharest – Chamber II for Criminal Matters in case # 8066/3/2020, for a preliminary ruling for the clarification of the following point of law:

            “Does withdrawing cash using counterfeit cards with the card data copied from stolen cards meet the constitutive elements of the crime of performing fraudulent financial operations stipulated at Art. 250 para. (1) and (2) in the Criminal Code, ideally corroborated with the crime of illegal access to a computer system stipulated at Art. 360 in the Criminal Code, or is it to remain the crime of performing fraudulent financial operations stipulated at Art. 250 para. (1) and (2) 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 20th of January 2021

Judgment #3 in case #2986/1/2020

Sustains the request from the Court of Appeals Bucharest – Chamber II for Criminal Matters in case #1841/740/2017, for a preliminary ruling for the clarification of the following points of law:

“1. Is the crime of stealing or destroying evidence or documents as stipulated at Art. 275 para. (1) in the Criminal Code predicated on the existence of a judicial procedure already under way?

 2. Can the author of the crime stipulated by criminal law that makes the object of the criminal trial where the documents or physical evidence that were allegedly stolen or destroyed be the active subject of the crime of stealing or destroying evidence or documents in the manner stipulated at Art. 275 para. (1) in the Criminal Code?”

Rules that:

  1. The crime of stealing or destroying evidence or documents as stipulated at Art. 275 para. (1) in the Criminal Code, is predicated on the existence of a judicial procedure already under way.
  2. The author of the crime stipulated by criminal law that makes the object of the criminal trial where the documents or physical evidence that were allegedly stolen or destroyed can be the active subject of the crime of stealing or destroying evidence or documents in the manner stipulated at Art. 275 para. (1) 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 20th of January 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 3 November 2020, the High Court of Review and Justice – Panel for the Clarification of Certain Points of Law in Criminal Matters, lawfully established in each of the cases, considered a request for preliminary ruling for the clarification of certain points of law, and returned the following Judgment:

Judgment #68 in case #2352/1/2020

            Sustains the request from the Bucharest Tribunal – Chamber I for Criminal Matters, in case #24527/302/2019 for a preliminary ruling for the clarification of the following point of law:

            “In the interpretation of the stipulations of Art. 452 para. (1) in the Criminal Procedure Code, can a motion for review reliant on Art. 453 para. (1) letter f) in the Criminal Procedure Code also be filed against a final criminal Judgment that does not include a ruling on the merits of the criminal action?

            Rules that in the interpretation of Art. 452 para. (1) in the Criminal Procedure Code a motion for review reliant on Art. 453 para. (1) letter f) in the Criminal Procedure Code can also be filed against a final criminal Judgment returned in disposition of a motion filed under Art.595 in the Criminal Procedure 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 3rd of November 2020.

Judgment #69 in case #2413/1/2020

Denies as inadmissible the request from the Brăila Tribunal in case #2682/196/2020, for a preliminary ruling for the clarification of the following point of law:

“in the hypothesis where an adult defendant was convicted after the date of 01 February 2014 in 3 judgments, as follows:

– the first, chronologically, is the first term of the post-conviction re-offense to the second judgment;

– the second punishment is at the stage of post-conviction re-offense with the first judgment and in conjunction with the third judgment;

– the third judgment, chronologically, contains a punishment for a criminal violation committed before the first judgment became final and a remainder from an educational punishment.

What is the mechanism for the merger of punishments?”

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 03rd of November 2020.

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 July 2020, 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 preliminary ruling for the clarification of certain points of law, and returned the following Judgment:

Judgment #22 in case #856/1/2020

Sustains the request from the Court of Appeals Bucharest – Chamber II for Criminal Matters, in case #12265/299/2019, requesting a preliminary ruling for the clarification in principle of the following point of law: “In the situation where a criminal violation (A) is concurrent both with the violation that represents the first term (B) and with the violation that represents the second term (C) of a post-conviction re-offense, the work to establish the resulting punishment involves: 1) First applying the rules for post-conviction re-offense to the punishments to be ordered for violations (B) and (C), and subsequently merging the result, as under the rules for multiple violations, with the punishment established for violation (A), in concurrence with both violation (B) and violation (C) ? or 2) Applying the rules for multiple violations between the punishments established for violations (A) and (B), with the subsequent result coming under the rules for post-conviction re-offense by relating them to the punishment established for violation (C), thus finding that the occurrence of reoffending breaks the concurrence between violations (A) and (C)?”

Establishes that in case a violation (A) is concurrent both with the violation that represents the first term (B) and with the violation that represents the second term (C) of a post-conviction re-offense, the work to establish the resulting punishment involves applying the rules for post-conviction re-offense to the punishments to be ordered for violations (A) and (B), with the subsequent result coming under the rules for post-conviction re-offense by relating them to the punishment established for violation (C).

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

Returned in public session today, 9 July 2020.

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 July 2020, the High Court of Review and Justice – Panel for the Clarification of Certain Points of Law in Criminal Matters, lawfully established in each of the cases, considered two requests for preliminary ruling for the clarification of certain points of law, and returned the following Judgments:

Judgment #20 in case #1060/1/2020

            Sustains the request from the Court of Appeals Bucharest, Chamber I for Criminal Matters in case # 792/1748/2019, for a preliminary ruling in clarifying the following point of law: “Interpretation of Art. 39 para. (1) letter c) in the Criminal Code on calculating the amount of fine to be applied in case of multiple violations committed by one and the same person, in the situation where the amount corresponding to one day-fine for each of the multiple violations is different between them.”

            Establishes that in interpreting Art.39 para.(1) letter c) in the Criminal Code in the case of multiple violations under the hypothesis that one day-fine for each of the multiple violations is different between them, the resulting punishment shall be calculated as follows:

            – the highest fine shall be supplemented by one-third of the total of the other ordered fines;

            – the number of day-fine units shall be calculated by adding the largest number of day-fine units ordered for a violation to one-third of the total day-fine units corresponding to the other violations;

            – the amount corresponding to one day-fine shall be calculated by dividing the total amount of the fine corresponding to the punishment by the number of resulting day-fine units.

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

            Returned in public session today, the 7 July 2020.

Judgment #21 in case #1144/1/2020

Denies as inadmissible the request from Court of Appeals Iași – Chamber for Criminal and Juvenile Matters, in case # 2113/89/2019/a1 requesting a preliminary ruling for the clarification in principle of the following point of law:

“Can the members of the judicial police employed by the General Anticorruption Department, under Art. 324 para. (3) in the Criminal Procedure Code, also perform criminal investigation measures by delegation in cases other than those stipulated at Art. 1 para. (2) in Emergency Government Order #120/2005 concerning the activation the General Anticorruption Department under the Ministry of the Administration and Interior.”

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

Returned in public session today, 07 July 2020.

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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