Elena Oancea, Associate Professor, Ph.d., Faculty
of Law, University of Craiova
Abstract
The present article considers the contemporary criminal procedural
doctrine treating the presumption of innocence both as a procedural guarantess
enjoyed by prosecuted or tried persons, but also as a reflection of the
constitutionally protected fundamental right (Art. 23, par. 11 of the Romanian
Constitution). Moreover, the article presents other legal dispositions, for
example the European legal protection and the Romanain Code of Criminal
Procedure and the current juridicial practice.
Keywords:
presumption of innocence, Romania, law, jurisprudence, judicial practice
The contemporary criminal procedural doctrine treats
the presumption of innocence both as a procedural guarantess enjoyed by prosecuted
or tried persons, but also as a reflection of the constitutionally protected
fundamental right (Art. 23 par. 11 of the Romanian Constitution: “Until the
judgment of conviction remains final, the person is considered innocent”, a
text regulated in the section entitled “Fundamental Rights and Freedoms”). The
presumption of innocence was formulated in the “Declaration of human and
citizen rights” of 1789, which was used in different wordings in various
international documents[1].
In the Code of Criminal Procedure of 1968 the pressumption appeared initially
as a probation rule in art. 66[2],
and subsequently[3] consacrated
as a basic rule in criminal trial.
The European protection
standard is found in Art. 6 par. 2 of the Convention, according to which “Any
person accused of an offense is presumed innocent until his/her guilt is
legally established”. This regulation mainly produces two categories of
consequences: (1) as far as judicial bodies are concerned, according to the
text they have to prove their impartiality during their entire activity and to
safeguard the procedural rights of the accused. The judge must be cautious in
summarizing the indictment and to emphasize objectively both the prosecution
and the defense arguments. An example in this regard may be art. 374 par. 2 Code
of Criminal Procedure: “the President explains to the defendant what the charge
is, informs the defendant of the right not to make any statement ... ”. Or if
in the prior stage of the pre-trial chamber after the defendant is served with
the indictment against which he/she can formulate criticisms, what is the
usefulness of reading the indictment and what explanations” must the judge
give? If at this stage the defendant asserts that he/she did not “understand”
the judge that would “explain” to him should not be presumed as being biased[4];
(2) as fas as the accused is concerned, the presumption of innocence implies
for him/her the right to propose evidence in his/her defense and not to testify
against himself/herself. These are included in art. 14 paragraph 3 of the
International Pact on Civil and Political Rights, which states that “any
accused has the right not to be forced to testify against himself/herself or to
acknowledge his/her guilt”. The European Court ruled that, despite the fact
that art. 6 par. 2 of the Convention does not expressly mention the right to
silence and the right not to contribute to its own accusation (nemo tenetur se
ipsum accusareare), these are generally recognized international rules that
bears the notion of “fair trial” consacrated in art. 6.
The jurisprudence and
also the doctrine (Lefterache, 2015: 50) state that by adopting the presumption
of innocence, there have been multiple restructurings of the criminal process
that must meet the following requirements: the guilt is set in a trial, meeting
the procedural guarantees, because the mere accusation does not mean
establishing the guilt; the burden of evidence lies with the judicial bodies,
which is why the interpretation of the evidence is done at each stage of the
criminal process, the conclusions of a judicial body not being mandatory and
definitive for the next phase of the trial; until the conviction decision is
taken, until it remains final the defendant has the status of an innocent
person, when a final conviction decision is taken, the presumption of innocence
is overturned with erga omnes effects; the conviction must be based on clear
evidence of guilt, and in case of doubt that can not be removed by evidence, it
must be pronunced an acquittal decision.
The presumption of innocence is legal in nature and
relative, can be countered, removed by proving the guilt found by a final
criminal judgment. It should be noted that according to the Romanian
Constitution the presumption is removed in the case of a conviction judgment
while art. 4 Code of Criminal Procedure does not include the mention of
conviction. As such, according to the Code of Criminal Procedure, any final
criminal judgment constitutes a reference in this matter and not only those of
conviction. Thus, the presumption also operates in the situation in which the
court pronounces a final criminal judgment ordering the cessation of criminal
proceedings (Theodoru, 2008: 98). This approach enshrined in art. 4 Code of
Criminal Procedure is found as an example in the ECHR decision of 14.04.2009[5]
which stated that “A distinction must be made between decisions that reflect
the feeling that the person concerned is guilty and those who merely describe a
state of suspicion. The former violate the presumption of innocence, and the
others have many times been considered in accordance with the spirit of art. 6
of the Convention ... The Court reiterates also that the presumption of
innocence is violated if without legally establishing in advance that the
accused is guilty and in particular without he/she having had the chance to
exercise the rights of defense, a judgment given against him/her reflects the
view that he/she is guilty. The same can happen without a formal finding. It is
sufficient a motivation to believe that the judge considers the party concerned
to be guilty ... The Court of Appeal has established the limitation of criminal
liability ... The Court has ruled on the offenses of forgery and the use of
falsehoods to be sure… it considered that all of the evidence adduced shows
that the plaintiff had committed that offense. Then it closed the proceedings
by applying the rules on criminal liability limitation. In the Court's view
that reasoning might give the impression that the plaintiff had committed the
offenses for which he/she was indicted.... it did not limited to describe a “state
of suspicion or a hypothesis”, it presented as established certain facts
mentioned in the indictment ... It follows that, by closing the proceedings,
the court of appeal called into question the applicant's innocence”.
If we assume that the beneficiary of the presumption
of innocence is the person on trial for which the court pronunced a solution to
close the criminal trial it arises naturally the question whether it is or not
fulfilled the requirement of impartiality of the same court called to rule
bindingly on the civil side in that criminal trial.
It should be noted that by the decision 586 of
13.12.2016 of the Constitutional Court we returned to the legislative solution
of the Code of Criminal Procedure of 1968, which by art. 346 par. 4 obliges the
criminal court to resolve the civil side in the case of termination of the
criminal proceeding as a result of the intervention of the criminal
prescription. The considerations of this decision are structured on the need to
solve the judicial proceedings for the recovery of damages within a “reasonable
time” notion that, in the view of the Constitutional Court, constitutes “an
imperative that results from the principle of the lawfulness of the criminal
trial provided in art. 2 of the Code of Criminal Procedure” (par. 22) and on
the fairness of the procedure[6].
The question arises
whether a defendant in respect of which the court ordered the cessation of the
criminal proceedings as an effect of the prescription may be considered “innocent”
if the same court ruling the civil side obliges the defendant to pay the sums
representing the damages claimed by the injured person who was civil party.
It remains to be seen
whether this comeback will re-launch the debate on the meaning of the notion of
“guilt” as having a different meaning in criminal proceedings than the meaning
used in the Criminal Code ( (Pavel, 1978: 10).
Recent doctrine
(Ghigheci, 2014: 68) highlighted that “the presumption of innocence is
different from the assumption of innocence because the latter would be
compatible (only with a solution of acquittal but not with any solution of
acquittal) because it clearly demonstrates the innocence of the defendant while
the innocence solution is also compatible with other solutions, such as those
ordering the cessation of the criminal proceedings because it was prescribed
the criminal liability or those in which a person could not be held guilty by
procedural reasons ... ”.
The beneficiaries of the
presumption are the suspect and the defendant but also any other persons even
if it was not filed a criminal charge against them. Such situations may arise,
for example, in the situation provided by art. 61 Code of Criminal Procedure when
“there is a reasonable suspicion of committing a crime, “but there is still no
criminal prosecution initiated even in rem. The presumption of innocence has
been extended beyond the criminal proceedings in areas such as contraventions, having
as a benchmark in ECHR jurisprudence, the gravity of the sanction that the
person sanctioned by contravention[7]
might receive.
The presumption of innocence is operative even when
there are indications or even evidence of guilt, the defendant being a
beneficiary of the presumption throughout the criminal proceedings. The
authorities of the state in general, the judicial bodies in particular have to
respect the presumption that the suspect or the defendant benefits from. The
existence of the presumption of innocence has as a consequence the freedom of
the person accused of having a passive attitude, not being obliged to prove
anything. The burden of proof is on the accuser during the criminal proceedings
(eius incumbit probatio qui dicit, non qui negat).
The presumption of innocence cannot be an impediment in
carrying out the criminal proceedings. Each judicial authority facing a
criminal case has as its starting point the presumption of innocence, the
bringing of the criminal case in the next procedural stage can be done in the
presence of certain evidence of guilt. For the prosecutor who orders the
prosecution of a defendant, the presumption of innocence is not operative in
relation to the evidence on which the indictment is based. For the Pre-trial
Chamber judge, the presumption is fully applicable, including when it orders
the trial to begin, for the court (first instance or appeal) the presumption operates
during the settlement of the case, becoming inoperative for the judge of the first
instance if it pronounces a conviction and erga omnes if it remains the
conviction on appeal, at the same time with pronuncing the final judgment.
The presumption of innocence has all its effects
during the criminal proceedings until the final judgment is pronunced and in
the case where preventive measures have been taken against the accused person
because taking preventive measures is conditioned by the existence of a
reasonable suspicion that a person has committed an offense, suspicion that
results from ‚reasonable evidence or indications” (article 202 of the Code of
Criminal Procedure), whereas “the conviction shall be pronounced if the court
finds beyond reasonable doubt that the deed exists, constitutes an offense and
has been committed by the defendant” (article 396, par. 2 Code of Criminal
Procedure). This text is corroborated with art. 103 par. 2 Code of Criminal
Procedure which establishes the obligation to make a decision “with reference
to all the assessed evidence” the conviction may be ordered “only when the
court is convinced that the allegation has been proven beyond any reasonable
doubt”.
Taking, prolonging or maintaining preventive measures
during the criminal proceedings is not incompatible with respecting the
presumption of innocence, it does not imply that the court rules on the case
merits[8]
but only on the existence of reasonable evidence or indications that leads to a
reasonable suspicion that a person has committed a criminal offense. At this
stage, the evidence is not assessed by reference to the guilt or innocence of
the defendant on the merits of the criminal case. The presumption is not
removed in case of doubt as to the factual determination of the facts, doubt that
is in the benefit of the suspect or defendant. The jurisprudence has raised the
question of the scope of the rule in dubio pro reo. More precisely when can it
be capitalized? The question is legitimate given the words at the beginning of
art. 4 par. 2: “After acquiring the entire rules of evidence ... ”.
The current judicial practice seems to incline towards
the solution that this rule can be capitalized at the end of the criminal
prosecution phase and appropriately at the end of the substance judgment and respectively
in the appeal. The problem arose when the defendants invoked in the course of
criminal prosecution when the judge of rights and freedoms solved the proposal
for a preventive measure formulated by the prosecutor. The recourse to this
rule at the time of the mentioned trial has attracted the interpellation of the
judge of rights and freedoms, which, through a semi-rhetorical wording
(emphasizing that the proposal explicitly indicates that there is still evidence
to be acquired) it asked for explanations on the possibility of invoking the rule
in dubio pro reo. Simply listening to the recordings of such meetings is
sufficient to show the frequency of such situations. This interpellation is the
best situation because it raises the idea that the problem deserves at least
attention. However, it is common practice that in the conclusion of the
proposal to avoid simply recalling the rule in dubio pro reo which implicitly
points to the orientation of the judicial practice to pay attention to the rule
at the exhaustion of the mentioned procedural phases. It is possible that this
approach is based on the idea that since the existence of reasonable suspicion
is verified in the light of reasonable evidence or indications referred to in art.
202 Code of Criminal Procedure, including, it is not appropriate to recourse to
dubio pro reo.
It should be noted, however, that the rule is set by
the legislator in the title reserved for the principles and not as a rule in
the titles governing different phases of the criminal proceedings. It is no
less true that in the procedure the more a norm is “special” (in the sense that
it has been decreed to solve certain situations), the more that norm is
considered to be justified to be applied than a norm that has a broader field
of application and it is obvious that the matter of preventive measures is
regulated in a special title.
A practical solution to
this problem would be that this rule can be invoked in the course of criminal
prosecution taking into account the “entire evidence” acquired up to that point,
in the given example - the proposal to take a preventive measure. In favor of
this view it is also the argument that the proposal can only focus on
preventive arrest or home arrest (the others may also be ordered by the
prosecutor), and the legislator conditions[9]
ordering them by the existence of evidence without or “indications” expression
which is part of a norm refering to all preventive measures.
The synthesis of this
issue was made by the Supreme Court[10]
that retains the complementary character of the rule in dubio pro reo, pointing
out that to the extent that the evidence adduced in support of the person’s
guilt contains information that is doubtful about the perpetrator's guilt in
relation to the imputed act, the criminal judicial authorities cannot form a
conviction that becomes a certitude so that the accused must be acquitted. The
same decision states that “before being a matter of law, the rule in dubio pro
reo is a matter of fact”. The criminal justice requires judges not to rely on probability
but on the certainty acquired on the basis of decisive, complete, certain
evidence in the judgments they pronounces.
All lawyers (and not only) know the saying “better
than ten guilty persons unpunished than an innocent in prison”. The number of “unpunished
guilty persons’ may be higher or lower than “ten” depending on the emphasis
that is being made on respecting the presumption of innocence and its
corollary, “the accused benefits from doubt”. The justification for this claim
lies not only in the need to avoid a judicial error that has resulted in the
punishment of an innocent person but also in the argument that once the
innocent person is punished the real guilty person is free.
The principle of the presumption of innocence is not equivalent to the
expectations of the judicial bodies (the burden of proof is mainly on the
prosecutor), but presupposes the necessity of proving the guilt through certain
evidence.
Voices authorized in doctrine
(Volonciu, 2015: 15-16) support the choice of a “middle way”, the need that the
application of the presumption of innocence to make possible for persons who
have commited crimes to be held criminally responsible without violating their
fundamental rights and freedoms. Carefully and charily, this desiderate can be
found in everyday legal reality.
The relative recent
past of jurisprudence has provided numerous examples of whether or not to
retain the presumption of innocence in the case of arrested accused persons
present in court in prison uniforms or the exposure of the accused persons in
handcuffs or keeping the accused persons in a “box” during the debates etc. The
penitentiary uniform is no longer a topical issue, but it did not take too long
since ECHR judgment of 04.03.2008[11]
that stated the violation of the presumption of innocence, referring to the
fact that a prisoner in pre-trial detention had to wear a penitentiary uniform,
during the hearing for the examination of the application for release, where we
can ask ourselves how long it will pass (hopefully that there is no need for
ECHR decisions in advance) to give up the so-called “boxes” for the defendants
arrested in the meeting rooms. The more it is necessary to dismantle those enclosed
places, the more their use not only affects the presumption of innocence, but
also impedes seriously the right to defense.
The existence of the defendant’s criminal record among
the papers of the file raised the issue of respecting the presumption. There is
no text in the Code of Criminal Procedure governing the express obligation to submit
the suspect or defendant's criminal record by the criminal prosecution bodies,
but always the criminal record is attached and sometimes if the length of the
trial is long, coming close to the end of the debates the court ex officio or
upon request orders updating[12].
Although there is no express rule in the Code of Criminal Procedure implicitly,
it results from disparate rules the obligation of submiting the criminal record[13].
Fear that the existence of the criminal record in the case file could affect
the presumption of innocence, the judicial practice gave a negative answer
argueing that the representatives of the judiciary bodies, in particular
magistrates, are law professionals, specialized persons that it is difficult to
admit that they could be influenced in their decisions in a concrete case by a
criminal record that reflects the existence of a criminal history. The
impartiality of judges is indeed a requirement that must be accepted ab initio,
but it may be possible that during the procedures to receive diffusely or even
explicitly solutions that the contents of the criminal record may play a role.
As long as the criminal record has no repercussions on the merits of the
criminal case deducted from the trial, the presumption of innocence is not
affected.
The connection between the presumption and the
impartiality is otherwise seen in the context in which it affects the merits. Thus
in a case[14] the
court rejected the request for an expert examination to determine whether or
not the knife corpus delicti had or did not have blood traces and, if so, to
determine whether it belonged to the defendant, the injured party or none
(provided that they accused each other of using the knife) with the inherent motivation
of the sentence: “considering that there is evidence that the defendant is the
owner of the knife and that by using this instrument, he/she applied to the injured
party XY two knife strokes” and “finding the cause in the state of proceedings
it has granted the floor on the merits to the parties”. This violation of the
presumption of innocence was sanstioned by the Court of Appeal[15]
because it can no longer hold impartiality and correlatively that the
presumption of innocence would have worked since before the closing of the
debates the judge had told who was guilty and what were the facts.
In concrete cases, when exposing reasons why some
evidence is rejected, we may encounter inappropriate formulations that may “shade”
the presumption of innocence. Is it likely that this particularity to cause a
lack of concrete reasoning often encountered in the case of rejection of the
evidence, almost standardized rejection by reducing to “the evidence is not
pertinent, conclusive and useful”?
The approach of the presumption of innocence is
sometimes made in a wider context, in connection with the incidence of other
principles, in particular with freedom of speech. This is because it is true
that the obligation to respect the presumption rests primarily with the state
authorities and especially with the courts but there are cases (e.g. ECHR Rupa c.
of Romania) in which transcripts of audio recordings have come into the hands
of the press representatives. Often, press representatives have “firm” beliefs for
or against an accused person based on “sources” or external arguments in the
course of judicial proceedings and such as to undermine the presumption of
innocence. The objective of attracting the audience leaves out the presumption
even though it is acclaimed on screen simultaneously with “analyzes” that leave
room for a different belief than that of the speaker itself. Harmonization may
have as a starting point a better civic education of the receptors that may
diminish the audience of media campaigns in which the presumption is pronounced
declaratively, followed by a series of reasons why the “criminal” that has not
yet been judged “is going to answer for all deeds and research will continue to
discover all the facts he/she has committed”.
This rhetoric is also
found in the conduct or vocabulary of some representatives of the authorities
usually in the early stages of inquiries. In the later phases of the criminal
trial, it is worth mentioning the coincidence of the appearance in the press of
articles in which usually fragments of the indictment are displayed about the
time when the cause is ruled on the merits.
The need for information, the right to information,
the obligation to inform are imperativ”, the satisfaction of which can be
achieved without transforming the defendant into the “outlaw”, without the
presumption of innocence losing its content at least in public space.
Although art. 4 par. 1 Code of Criminal Procedure circumscribes
the beneficiary of the presumption as being “any person” as opposed to art. 6
of the Convention, which states in paragraph 1 “criminal charges and in
paragraph II, the person accused of an offense” which denotes a broader scope
of the presumption in the internal norm, however contrary to the ECHR
jurisprudence which extended the scope of the application of the presumption in
other areas (eg the Anghel case cited above) domestic law is reluctant to make
this extension.
One of the issues around which the discussions do not
seem to be exhausted is whether or not the presumption of innocence is affected
in the context of its invocation in another litigation of an extra-criminal
nature but which arose as a result of the existence of a criminal case.
Specifically, X a civil servant is being investigated for committing an offense
“during his/her service or in connection with the duties of the civil service[16]”.
If the civil servant is put on trial mandatorily, “it will be ordered the civil
servant to be suspended”. The act of suspension (administrative act) that the “person
that is entitled to appoint in the public office” is obliged to issue may be
appealed against at the administrative contentious court. Constantly the
Constitutional Court, through numerous decisions (decision 48/2003, decision
482/2006, decision 748/2007 and others) rejected the unconstitutionality
exception of art. 86 par. 2 stating that this text does not violate art. 23
par. 11 on the presumption of innocence because the constitutional text “establishes
the presumption of innocence exclusively for criminal liability” and “the
ground for the suspension of the civil servant is not of a criminal nature”. It
should be noted that the legal basis for the suspension is putting on trial. It
results that during the prosecution, regardles of the nature or the gravity of
the accusation[17] and
regardless of the lenght of the prosecution phase, the civil servant exercises
his duties unhindered. Putting on trial is marked by the issue of the
indictment followed by the registration of the case at the competent court. The
Judge of Rights and Freedoms, the Judge of Pre-trial Chamber or the Criminal
Court have no prerogative to verify the suspension which is the direct effect
of putting on trial. Putting on trial is legally left to the prosecutor's
sovereign. The contentious court invested with the settlement of the
application for annulment of the suspension administrative act, issued ope
legis at the time when it was ordered to be put on trial, is obliged to analyze
the administrative act and cannot ignore the decisions of the Constitutional
Courts, so that the rejection solutions prefigures from itself.
A “settlement” solution of the problem in question
could be the following: Suspension from office may be ordered by the prosecutor
by ordinance, provided the criminal action has been initiated. This argument is
explained in reality by the fact that from the moment when the criminal action
is initiated and until the court is notified, the exercise of the service
duties by a person who becomes the defendant for one of the offenses listed in
art. 54 lit. h of L. 188/1999 would call into question the legitimacy of the
acts and measures taken and could even affect even the duties of the officials
adjacently organized (hierarchically superior or inferior or horizontal
hierarchical).
The order may be appealed at the judge of rights and
freedoms and at the time the court starts the trial to verify, on request or ex
officio, whether the grounds for the suspension subsist.
Suspension of service
relationships may be given the legal nature of a procedural measure that can be
taken or revoked starting with the initiation of criminal proceedings until the
final judgment on the merits when in case of acquittal, the suspension ceases
to be lawful and in case of conviction the court will also decide on complementary
punishments among which the discussed situation provided in art. 66 par. 1 lit.
g C.p.[18].
However, it cannot be
denied the direct link between the criminal case and the cause of the appeal
against the suspension ordered as a result of prosecution.
Finally, it should be noticed the obvious contradiction between art. 86
par. 2 and the full content of art. 54 lit. h of L. 188/1999[19].
Any comment is
superfluous when you find that according to art. 86 par. 2 when putting on
trial the public servant is suspended and according to art. 54 a public office
may be occupied by a person who “has not been convicted” for committing the
same offenses for which the officer sued has been suspended.
The presumption of innocence is not applicable in the
enforcement stage of the punishment or in the case of exhaustion of the
criminal proceeding with the pronunciation of a solution for the termination of
the criminal trial (in which it has not been established whether the defendant
is guilty or not, for example, the prescription has intervened). In this
example, the official cannot request in a subsequent trial to retake its office
by invoking the presumption[20]
(Chiriță, 2008: 292).
“The subsistence” of
the presumption of innocence can be addressed in other varied situations, among
which illustrative is the case of prosecuting 2 (three, four or more)
co-authors. “A” recognizes the facts and asks for a simplified procedure, “B”
does not recognize, disputes the evidence from the prosecution, asks for new
evidence. The agreed solution in practice is often the disjunction. “A” is
tried in a simplified procedure and convicted. The judge giving this solution
refrains from hearing the case in which the defendant is “B”, but the judge's
decision on A's case corroborates (how much?) significantly the presumption of
innocence that “B” should benefit. It is undoubtedly more equitable a common
judgment not only to preserve “appearances” in respecting the principles
(although in the procedure in a beneficial sense, appearances have their
weight) but to ensure a unitary judgment, a just balance.
The European Court has
held that the existence of so-called presumptions of guilt in national law is
not necessarily contrary to the European Convention. However, these must be
provided within reasonable limits, in order not to deprive the presumption of
innocence of its susbtance. In the doctrine, it was shown that according to
ECHR jurisprudence, they are compatible with the observance of the right
provided by art. 6 parag. II: recording of telephone conversations, biological
sampling, body or home search, fingerprinting, alcohol tests, blood tests, etc.
Like the presumption of innocence, the presumption of guilt is not comclusive,
it must be possible to look for the evidence to the contrary.
References:
Chiriţă,
R. (2008). Dreptul la un proces echitabil
(The right to a fair trial), Bucharest: Universul Juridic, 2008
Code of Criminal Procedure (1968)
Ghigheci,
C. (2014). The principles of the criminal
proceedings in the new Code of criminal procedure, Bucharest: Universul
Juridic.
Lefterache,
L. V. (2015). Probe și prezumții în
procesul penal (Evidence and presumptions in criminal trial), Bucharest:
Universul juridic., 2015
Pavel, D. (1978). Considerations on the presumption of
innocence, R.R.D. no. 10/1978.
Theodoru,
G. (2008). Tratat de drept procesual
penal (Criminal procedure Law Treaty), Bucharest: Hamagiu, 2008.
Volonciu,
N. et al. (2015). Noul Cod de Procedură
Penală comentat (The new Code of Criminal Procedure), Bucharest: Hamagiu
[1] For example. The Universal Declaration of Human
Rights adopted by the United Nations General Assembly on 10.12.1948 provides in
art. 11: “any person accused of having committed an offense is presumed
innocent as long as the guilt has not been established in a public trial with
the necessary guarantees for defense.
[2] Code of Criminal Procedure 1968 art. 66 par. 1 ‚The
accused or defendant enjoys the presumption of innocence and is not obliged to
prove his innocence”.
[3] By L. 281/2003 it was introduced art. 52: “Every
person is considered innocent until the determination of its guilt by a final
criminal judgment”
[4] Maybe art. 374
par. 1 and 2 should be reworded.
[5] Didu c. of
Romania, published in the Official Journal 740 of 30.10.2009 paragraphs 38-42
[6] Constitutional Court Decision 586/2016 parag. 30: “The
Court therefore finds that the choice of the person injured by committing an
offense for the recovery of his claims through the civil action promoted in the
criminal proceedings is justified by the speedy resolution of the criminal
cases and the various procedural incidents occurring during this procedure,
independently of the will of the injured party and which it can not anticipate
at the time of the choice between the criminal and the civil courts must not
affect the fairness of the settlement of its action by extending it beyond a
reasonable tim”.
[7] Anghel c. of Romania, Decision of 31.03.2008; par.
67-68: “Although States have the possibility to exclude from the criminal law
some offenses and penalize them rather by means of a contravention rather than
a criminal offense, the perpetrators of the offenses must not be in an
unfavorable situation simply because the applicable legal regime is different
from the applicable law in criminal matters ... In short, the Court thinks
that removing the contravention outside criminal law does not raise problems in
itself, breach of fundamental safeguards - including presumption of guilt -
that protects citizens against possible abuses by the authorities, is an issue
to be examined under Art. 6 of the Convention ... The Court considers that in
the present case the plaintiff has not been fairly tried, as provided by art. 6
of the Convention”.
[8] Decision of CC:
73/200, Decision 38/2007, Decision 76/2005, Decision 245/2006
[9] Art. 218, art. 223 Code of Criminal Procedure.
[10] For example,
decision 3465/2007 of ICCJ, Criminal Section
[11] The Samoilă and
Cionca case c. of Romania – In ECHR Bulletin no. 5/2008, pag. 75 et seq.
[12] Notifications to county police inspectorates
or inquiries from criminal enforcement offices, or ordering judgments
concerning the defendant, etc.
[13] In the early stage
of the criminal trial - art. 107 Code of Criminal Procedure regulates under the
marginal name “questions
about the suspect or defendant” the need that at
the hearing to be asked questions about “criminal
history or other criminal proceedings”. Texts that lead
to the same obligation are those governing the content of the indictment or
reference to the “criminal history”
that makes art. 223 par. 2 Code of Criminal Procedure, etc.
[14] Judgement
in criminal case 58 of 27.03.2013 unpublished, pronunced by the Court of Vânju
Mare in the file no. 1110/332/2012
[16] Art. 86 of L.
188/1999 (1) The liability of a civil servant for offenses committed during his
service or in connection with the duties of the public office he/she occupies
shall be accounted according to the criminal law.
(2) If the civil servant is sued for committing
an offense of the nature provided in art. 54 lit. h, the person having the
legal capacity to appoint in the public office will order the suspension of the
civil servant from the public position he/she holds.
[17] The
condition that the crime be part of the enumeration contained in art. 54 lit. h
of L. 188/1999: “... crimes
against humanity against the state or against authority, corruption and service
offenses, crimes that prevent the execution of justice, forgery crimes or
intentional crime that would make it incompatible with the exercise of public
office”.
[18] Art. 66 par. 1
lit. g) Code of Procedure: “The complementary
punishment of prohibiting to exercise certain rights consists in the right to
occupy the post, to exercise the profession or job or to carry out the activity
which was used for committing the offense”.
[19] Art.
54 lit. h of L. 188/1999; A person who fulfills the following conditions may
hold public office: ... h) has not been convicted of committing an offense
against humanity, against the state or against the authority, corruption and
service offenses, crimes which prevents the execution of justice, forgery
crimes or intentional crime which would make it incompatible with the exercise
of public office”.
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