Criminal Law Writings (Caiete de Drept Penal)

Challenges, limitations and legal controversies in the application of confiscation following case dismissal

Andrei Zarafiu, Giulia Şologon — Fri, 01 Aug 2025 00:00:00 +0000

This article provides a critical and applied analysis of the special procedure regulated by article 549¹ of the Criminal Procedure Code, emphasizing the legal challenges arising when it is applied in the context of a case dismissal. The study examines the strict procedural framework that binds the preliminary chamber judge, especially the impossibility of modifying the limits set by the Public Ministry. It insists on the need for individualized confiscation measures with respect to each procedural subject and asset involved, rejecting the idea of “solidary” confiscation as incompatible with the principle of legality in criminal sanctions. Moreover, it offers a detailed review of evidentiary issues, drawing attention to the risks of reassessing the merits of a criminal accusation without a functional procedural basis. The reader will find a systemic and well-argued interpretation of a procedure insufficiently defined by law, yet with a significant impact on the balance between public interest and the right to defense. The article invites a reconsideration of how confiscation is handled outside the trial stage, while highlighting the constitutional and conventional boundaries of such judicial intervention.

The offence of illegal access to an IT system in the case of interrogating a database by exceeding the limits of authorization. Case-law and comments

Clement Mihai Resmeriţă — Fri, 01 Aug 2025 00:00:00 +0000

Although the provision regulating the offense of illegal access to an IT system is not new in Romanian legislation, recently, an inconsistent practice has been developed in relation to these provisions, regarding the conduct of an official who, due to their profession, has the right to access databases containing confidential information or personal data and accesses these data for purposes other than those prescribed by the rules governing their use.

This paper attempts to provide some answers related to the regulation of the crime of illegal access to an IT system by referring to recent case-law and elements of comparative law.

The paper contains an analysis of recent case-law on the issue and references to foreign case-law, as well as international trends in this field.

Annulment of marriage and domestic violence

Vlad Crăciun — Fri, 01 Aug 2025 00:00:00 +0000

Family members are at the center of liability for acts of domestic violence. Among them, the easiest to identify and define is the spouse, the person connected to the perpetrator through marriage. However, legal doctrine has not thoroughly examined the effects that the invalidity of marriage might have on the defining elements set out in article 199 of the Criminal Code. Therefore, this paper will analyze, from the perspective of criminal liability for the offense of domestic violence, the cases of marriage annulment, and finally, will indicate how these can be invoked in criminal proceedings.

The offense of using non-genuine documents in front of the customs authority. The necessity of criminalizing an extended application of the intellectual theory of forgery

Vlad Nicolas Ulici — Fri, 01 Aug 2025 00:00:00 +0000

This study analyses the offense provided in article 272 of the 2006 Customs Code (Law no. 86/2006), with particular attention to the legal implications of the fraudulent use of a document. The paper explores the boundaries of the concept of “forged documents” and its relevance within the context of customs regulations, proposing a reassessment of the current legislative framework and a new interpretation of the application of the intellectual theory of forgery.

The study also aims to deepen the analysis from the perspective of legal doctrine as well as case-law, highlighting potential gaps in the current legislation and offering suggestions for its improvement.

Ne bis in idem. Obligations imposed on national courts arising from the Court of Justice of the European Union case-law

Cristina Laura Brici — Fri, 01 Aug 2025 00:00:00 +0000

The ne bis in idem principle occupies a special place in the European legal landscape, essential to the proper functioning of the freedom, security and justice common space. Firstly, this paper contains a structured analysis of the elements bis and idem and the difficulties that may be encountered in their interpretation, in the way they were established in the Convention implementing the Schengen Agreement. Secondly, this paper aims to point out the main problems that may be faced by the Romanian judicial authorities during the practical application of this principle, in particular in the field of the European Arrest Warrant and transfer of proceedings in criminal matters. The central element of the analysis consists in presenting and, sometimes, criticizing the binding guidelines offered to the national courts by the Court of Justice of the European Union through its case-law, as well as identifying the solutions offered by the present judicial cooperation instruments.

The recognition and enforcement of a Romanian criminal decision by a member state of the European Union

Bianca Mihaela Neacşu — Fri, 01 Aug 2025 00:00:00 +0000

The purpose of this article is to analyse the main mechanism of international cooperation among the Member States of the European Union, specifically the recognition and execution of judicial decisions in situations where Romania is the issuing state of a final conviction decision, and another member state of the European Union is where the decision will be executed.

With the creation of the European Common Space, which established among other things the freedom of movement of persons between states, legal issues have also arisen regarding the possibility of defendants leaving the country in which they are judged and making the execution of a warrant by the issuing state of the conviction decision much more difficult. Defendants chose to go to other countries with the aim of being harder to find and not serving their sentences in prison, eventually leading to the statute of limitations on the execution of the sentence.

Consequently, to combat such behaviours, Union-level mechanisms of effective cooperation between states have been developed to lead to the capture of those convicted for the execution of sentences even in the states where they are located. Thus, over time, the conditions in which these mechanisms can function most efficiently have been outlined, and through Framework Decisions, a series of minimum rules that states must regulate at the national level have been established. Through these instruments, efforts are made to ensure the respect of all fundamental rights of individuals and their ability to serve their sentence in the Member State of which they are citizens, creating a more favourable environment for rehabilitation and social reintegration due to them belonging to that place.

In this article, we will examine the exact manner in which the Romanian legislator has transposed the Framework Decision 2008/909/JHA on the application of the principle of mutual recognition in the case of judicial decisions in criminal matters imposing sentences or measures involving deprivation of liberty for their execution in the European Union, and what are the differences between what has been imposed at the European level and what we have regulated, as well as the necessary conditions for the recognition and execution of a Romanian criminal decision by other states. Finally, we will outline in detail the effects of such a procedure and also the possibility of incidental recognition, in the situation of the refusal by the state where the convicted person is located to execute the European arrest warrant issued for that person by the Romanian authorities.

Art. 10 of Law no. 241/2005 for the prevention and combating of tax evasion. Consequences of failing to prepare the forensic expert report

Oana Bugnar-Coldea — Fri, 01 Aug 2025 00:00:00 +0000

Article 10 of Law no. 241/2005 has undergone a series of amendments over time, the most recent being introduced by Law no. 126/2024. This legislative act also introduced a procedural rule: pursuant to article 10(2), it is mandatory that the prejudice attributed to the defendant be established by means of a forensic expert report. In this context, the question arises: what are the consequences of failing to draft such an expert report? Can this omission affect the lawfulness of the indictment? This very issue has been referred to the High Court of Cassation and Justice – Panel for Preliminary Ruling on Questions of Law in Criminal Matters, and it is precisely this question that constitutes the subject of the present analysis.

(I) The judicial individualization of punishments, in terms of their duration (II) Unlawful deprivation of liberty committed by endangering the victim’s life

Cristian Valentin Ştefan — Fri, 01 Aug 2025 00:00:00 +0000

I. The process of the judicial individualization of the punishment is not arbitrary. It is guided by clearly pre-established and well-defined rules. These rules refer to the finality of the punishment and its functions, on the one hand, as well as to the landmarks and criteria of judicial individualization, on the other hand. When it comes to landmarks, the seriousness of the offence is first taken into account and only then the dangerousness of the offender is taken into account. When it comes to criteria, they are all used, in a mandatory manner. All these rules guarantee that the established punishment has, by its nature and by its duration or amount, a just character.

II. Within the aggravating circumstantial element regarding the commission of the offence of illegal deprivation of liberty by endangering the victim’s life, the mental position of the active subject is that of the exceeded intention (preterintention), namely: intention in relation to the deprivation of liberty and fault in relation to the endangerment of the victim’s life. If the mental position of the active subject is characterized by intention both in relation to the deprivation of liberty and in relation to the endangerment of the victim’s life, there is a concurrence between the offence of illegal deprivation of liberty in the simple version (or possibly in the aggravated version, but with the retention of possible other aggravating circumstantial elements, apart from the one regarding the endangerment of the victim’s life) and the offence of attempted murder.

(High Court of Cassation and Justice, Criminal Section, Decision no. 309/A/18.11.2024)