Criminal Law Writings (Caiete de Drept Penal)

Fraud committed by means of information and communications technology

George Zlati — 2026-01-16

The offence of fraud committed by means of information and communications technology represents one of the most prevalent forms of cyber-enabled crime worldwide. Unlike cyber-dependent offences, where information systems or data are the direct target, this form of fraud involves the use of technology as an instrument to facilitate deceit.
The article highlights the exponential growth of online investment fraud and other technology-enabled scams, such as Business Email Compromise (BEC), deepfake-enabled impersonation, and identity theft. Special attention is given to the role of crypto-assets as either the object or the proceeds of fraudulent conduct. In this regard, particular emphasis is placed on fraudulent schemes such as investment frauds, pump-and-dump operations, wash trading, and the use of counterfeit tokens or test tokens (faucets).
The article argues that the current legal framework under Romanian law is largely sufficient to address fraud committed through information technology, primarily by applying the aggravated form of fraud under Article 244 par. (2) of the Criminal Code. However, it suggests that de lege ferenda discussions should focus on harmonising sanctioning regimes, particularly with respect to the overlap between fraud and computer-related fraud, and on addressing legislative gaps concerning market abuse in the crypto-asset market. Ultimately, the article underscores the importance of a nuanced doctrinal and jurisprudential approach, as the technological sophistication of perpetrators continues to evolve at a rapid pace.

Unpaid community service. Legal and jurisprudential barriers regarding the possibilities of execution

Ana Maria Cara Drăgănescu — 2026-01-16

This paper aims to examine the issue of unpaid community service, with a focus on highlighting cases identified both in legal doctrine and in jurisprudence that may pose obstacles to its enforcement. In this regard, the objective is to analyze potential legal challenges and impediments from the dual perspective of current legislative provisions and recent case law, with an emphasis on identifying possible legislative gaps, inconsistencies among normative acts, and formulating proposals de lege ferenda.
Accordingly, the primary legal institutions subject to analysis will be the postponement of the application of the sentence and the suspension of sentence execution under supervision, particularly in light of the issue of the offender’s consent to perform unpaid community service. Furthermore, the paper will address unpaid community service as a means of individualizing the criminal fine when imposed as a sole penalty.

The compatibility of the presumptions of guilt with the protection of the right to a fair trial. Evidentiary consequences

Mihai Popa — 2026-01-16

The core rationale this essay advocates is that the presumption of guilt is an intricate concept bearing challenging semantics, being all but a finding of fact in criminal adjudication. Furthermore, we argue that, in a legal order compliant with the standards concerning the European protection of human rights – the right to a fair trial –, presumption(s) of guilt could exist only in the pattern of a substantive criminal law norm entailing legal consequences attached to certain unproved qualified evidentiary fact, in respects with any essential features (elements) of the offence charged, either actus reus, mens rea, culpability, or undue conduct, as the case may be. The lines of argument provided by the approach hereunder – which compound elements of jurisprudence, human rights, evidence law and criminal procedure –, instead of the classic one rooted in the civil procedure scholarship, underpin an innovative internal taxonomy, which distinguish between (legal) “presumptions of fact” and (legal) “presumptions of law”, while casting some light regarding the meaning of such expressions under the influential case-law of the European Court of Human Rights.
Otherwise, should one embrace the classic blurry terminological label of the so called “judiciary presumptions”, the pitfall to fall into is unavoidable, hence, instead of building up a comprehensible theory of presumptions in the criminal trial, the concept will fall apart, being rather difficult to understand the reasons to consider, as species of the same category, an inductive inference of the trial jurisdiction based on circumstantial evidence – “judiciary presumptions” – along with a legal norm.
Last but not least, in terms of evidentiary consequences, although the accusation is discharged of the evidential burden in respect of the qualified evidentiary fact, under the legal norm to set forth the presumption, we consider that presumption(s) of guilt never shift the persuasive burden of proof (substantive burden of proof) during the whole course of the trial, as, in the criminal adjudication, the latter is always allocated to the accusation and it operates only at the end of the trial. Notwithstanding the foregoing, in the absence of compelling contrary evidence, the unrebutted presumption of guilt enables the trial jurisdiction to apply that legal consequence by virtue of the statutory provision which establishes it.

Incongruences between the bail applicable to a legal entity and the bail applicable to an individual – a national, European, North American perspective

Adrian Florin Coșa — 2026-01-16

In this study, we analysed the main differences that exist between the bail applicable to an individual and the bail applicable to a legal entity. Thus, the differences identified are as follows: the object of the guarantee, the amount of the bail, the criteria for determining the amount of the bail, the moment of paying the bail, the consequence of not paying the bail. This study also presents the consequences of the the legislator’s omissions, i.e. the absence of a sanction for the legal entity in the event that it does not pay the bail, and the absence of criteria for determining the amount of the security applicable to the legal entity. To adress these omissions, we identified solutions in the jurisprudence of the European Court of Human Rights, as well as from the jurisprudence of the US Supreme Court. In addition, we also analysed how national courts have tried to remedy the omissions of the legislator.

Nulla poena sine lege – the influence of EU “contraventional law” on the principle of legality of criminal sanctions

Gabriela Ola — 2026-01-16

This article aims to examine how the principle of legality of criminal sanctions is being influenced by European Union “contraventional law”, the latter referring to both regulations that establish administrative sanctions under the jurisdiction of EU institutions and national laws that implement Union law by means of contraventional law.
A significant part of the Court of Justice of the European Union case law on nulla poena sine lege concerns cases involving administrative sanctions imposed by EU institutions. Therefore, in the first section, we shall try to outline the distinction between contraventional and criminal law to determine whether nulla poena sine lege carries the same legal authority in contraventional matters as it does in criminal law. We shall then analyze the Court’s case-law mentioned before to assess the extent to which its conclusions align with the guarantees typically associated with the principle of legality of criminal sanctions.
The second part of this study explores the implications that the overlap between administrative and criminal law may have on the principle of nulla poena sine lege. We will first investigate why and how the recognition of the ne bis in idem principle may influence the clarity of criminal sanctions. Finally, through an analysis of the relevant case law from both the Court of Justice of the European Union and the European Court of Human Rights, we will consider the potential impact that limitations on the ne bis in idem principle may have on the principle of legality.

Interpretation and (re)definition of the crime of actions against the constitutional order. Towards a French model?

Ionuț Daniel Vîlceanu — 2026-01-16

The analysis of the crime of actions against the constitutional order reveals a legislative redefinition through the merging of old incriminations. This paper aims to interpret and (re)define the concepts of “constitutional order” and “state power”, drawing on the French regulatory model. It also addresses the issue of the absence of a tangible material object of the offense and analyzes the active subject, seeking to highlight the necessity, or lack thereof, of the act being committed by a certain number of persons. At the same time, a central point of the article is the definition of the notion of “armed action”, which constitutes the material element of the offense in its basic form. The approach emphasizes the lack of predictability in Romanian criminal law in contrast with the French model of regulation. Finally, the article examines the immediate consequence of the offense, clarifying whether we are dealing with a result-based offense, one of concrete danger, or one of abstract danger. It also discusses issues related to the culpability required by law and the criminalization of attempts and preparatory acts.

Money laundering. Lack of objective elements of the offence. Critical note on final judgment no. 35/F/2025 of the Bucharest Court of Appeal, Second Criminal Division

Radu Slăvoiu — 2026-01-16

In the present study, the authors argue that, in cases involving corruption offences, the payment of an undue benefit does not simultaneously fulfill the constituent elements of the offence of money laundering. This is because the money, even if transferred in a concealed manner, does not represent the proceeds of crime, but rather constitutes the specific price associated with the act of corruption.

Qualified murder. The aggravating circumstantial elements related to the commission of the crime with premeditation (I) and cruelty (II)

Cristian Valentin Ştefan — 2026-01-16

I. There are indications of premeditation when the defendant purchases a knife two weeks before and places it in the trunk of his car, uses a false pretext to convince the victim to meet him and, in particular, to get into the car, takes precautions not to be followed, and stops the car in an isolated place.
II. There are indications of cruelty when the defendant inflicts eight stab wounds on the victim, transports her for 2-3 hours while she is in that condition, thus preventing her from receiving medical care, and makes, during the transport, statements and interrogations such as: “Are you really never going to die?”, “Can you swim?”, “I have to get rid of you at all costs!”, “I will cut you into pieces and throw you in the dumpster!”, “I will throw you under the train!”.