Search

The legislator provided for several preventive measures that can be taken, leaving the judge to opt for the one who is best responsible for the need for prevention, but taking into account the fact that the measure of pre-trial detention can only be taken when no other easier preventive measure meets the requirements of adequate prevention. With the entry into force of the Code of Criminal Procedure in 2014 in Romania, the preventive measure of house arrest, similar to preventive arrest, was regulated, both in terms of their inclusion in the category of preventive measures and in terms of their custodial nature, the identity of the causes and conditions under which the two measures may be ordered and of the similar manner of their arrangement and extension. However, national case law denotes a great reluctance of magistrates to apply this lighter deprivation of liberty, or to replace it even after months of pre-trial detention, considering her too gentle when it comes to serious accusations. However, the reluctance to apply alternative measures to pre-trial detention is largely due to distrust of the actual possibilities of the police to verify the fulfillment of the obligation not to leave the home by the person arrested at home. Precisely to avoid these inconveniences, the Romanian legislator, inspired by the laws of other states, adopted the law on the use of electronic monitoring systems for persons under house arrest or judicial control. The possibility of continuous effective monitoring of the person arrested at home through the electronic monitoring system makes this preventive measure an effective alternative, the measure of pre-trial detention should only be taken in extreme cases, when no such monitoring would be sufficient. [ABSTRACT FROM AUTHOR]

The law to combat tax evasion provides a compulsoriness of establishing the precautionary measures. Therefore, Article 11 of Law no. 241/2005 for the prevention and combating of tax evasion, sets down that, in the event that a crime provided for by this law has been committed, taking precautionary measures is mandatory. As a principle, the provisions of a special law are supplemented by the provisions of the general law, tot the extent that they do not conflict. Therefore, it is obvious that in relation to the competence to dispose of them, the act by which it is disposed of, the remedy, the general provisions of the Code of Criminal Procedure are applicable. From the analysis of art. 11 of Law 241 of 2005, however, it would result that the precautionary measures are taken in all cases, without any exception, without the courts being able to make an evidence-based analysis of the necessity and proportionality of these measures. The article analyzes to what extent this interpretation does not contradict the constitutional requirements regarding free access to justice, the right to defense, the protection of private property equally. [ABSTRACT FROM AUTHOR]

Between the various branches of law, criminal law and criminal procedural law were among the last to be influenced by supranational law of European origin. However, almost all criminal regulations today seek to be in line with the European perspective. A thorough knowledge of the rights and guarantees underlying European criminal law is therefore essential for the national judge who is called upon daily to apply the rules of his own code of criminal procedure in a manner consistent with European principles, as interpreted by the case law of the European Court of Human Rights and the Court of Justice. [ABSTRACT FROM AUTHOR]

The establishment of a state of emergency at national level can lead to legislative measures leading to a limitation of people's fundamental rights, as they are known and protected in a democratic society. Interception, GPS tracking or restricting the right to free speech are measures that, in exceptional situations, such as a state of emergency, could be considered justified. However, the applicability of the principle of proportionality must not be forgotten in this situation as well, as less invasive privacy solutions are preferable. At the same time, the principle of legality requires the express regulation of the methods by which they may be carried out, of the conditions that must be met in order to have recourse, even in exceptional cases, to such measures by the bodies competent to implement the measures. Starting from the current regulations and the decisions of the relevant Constitutional Court, analyzing some of the measures taken at national level or in other states during the state of emergency, the article presents a vision of the "acceptable" limits of interference with the private life brought by state of emergency, for the common social interest. [ABSTRACT FROM AUTHOR]

L'article présente une nouvelle vision, en phase avec l'évolution de la société et des nouvelles technologies sur un aspect du droit pénal - la classification des fichiers informatiques comme susceptibles d'être un objet matériel de crimes contre la propriété. L'idée découle d'un arrêt relativement récent de la Cour de cassation italienne et examine la possibilité d'une telle interprétation des règles juridiques de la criminalisation des infractions contre les biens sans préjudice du principe de légalité de la criminalité, de l'exigence de prévisibilité et de clarté du droit. [ABSTRACT FROM AUTHOR]

This paper deals with the problem of the celerity of the criminal trial, from the perspective of the institution of preliminary chamber, seen by the legislator as a solution for delaying the resolution of cases. Although this was the initial purpose for introducing this filter-stage, the judicial practice shows that, for the most part, the preliminary chamber does not solve, and even hinders, this problem of celerity. The paper deals with the problem of the impossibility of eliminating this stage, of the deadline in which the case is resolved in the preliminary chamber, as well as the possibility of sending the case back to the prosecutor's office even after the trial begins. [ABSTRACT FROM AUTHOR]

Technological development has seen a lot of progress, which has led to a considerable increase in efficiency in the most diverse domains of activity (economics, medicine, law, etc.); it has allowed transactions to be carried out very fast, the processing speed having increased considerably, thus enabling fast data storage and processing. The wider use of information technology and the Internet has radically transformed the world of economics, labor, education, research and administration. However, the accessibility and the widespread penetration of information and communication technologies, on the one hand, allow for a type of crime that would not be possible without computer systems, and on the other hand, it offers increased possibilities for committing "traditional" crimes. The legislator had to regulate new offenses or adapt the applicability of existing crimes to the virtual environment. [ABSTRACT FROM AUTHOR]

The Criminal Procedure Code expressly regulates the situations deemed to display a judicial error, opening the way to the person who suffered from it, to proceed against the State for compensation. But what happens in cases where a person, facing criminal charges, has suffered moral and material damage, but does not fit in the situations expressly provided by the law? Will it be possible for that person to appeal to the common procedure from the civil law? The article presents some cases of such "unregulated judicial errors" and the national courts case law in such situations, concurrently proposing possible solutions so that the access to justice would not be restricted. [ABSTRACT FROM AUTHOR]

In cases where criminal proceedings do not concern a crime punishable by life imprisonment, the presiding judge intimates the defendant that he can request the judgment to be based only on evidence taken during prosecution and based on the documents submitted by the parties, if he fully acknowledges the facts incriminating him. If the court is notified with the commission of a crime for which the law provides life imprisonment, the issue of simplified procedure will no longer occur. If we speak of an attempt to such a crime, the question of the simplified procedure does not exist. But, whatever the defendant should acknowledge is not the legal classification of the crime but the facts in their substantiality. Basically, the possibility of exercising a legal right, like that of applying for the simplified procedure, is influenced by the decision of the prosecutor which may be wrong. The disadvantage of the defendant consists of the fact that even after the legal classification of the crime is changed, he will not be able to benefit from mitigated penalty limits. [ABSTRACT FROM AUTHOR]

This paper deals with two aspects referring to the procedure of the preliminary chamber, which could raise questions about the right to a fair trial guaranteed by Article 6 of the European Convention on Human Rights: is the judge of the preliminary chamber compatible to judge the case on the merits, does the exclusively written and non-contradictory procedure respect the guarantee of the fair trial? The analysis of the two issues was made by comparing it with the Italian system, where our legislator inspired from. [ABSTRACT FROM AUTHOR]

Article 5 of the European Convention on Human Rights guarantees the right to liberty, which requires among other things that, when ordering the custody on remand of a person, all the conditions stipulated by the national legislation must be met. The decisions ruling the taking, maintenance, extension of this measure must include specific reasons for imposing such a measure, and the reasoning should not be abstract nor general, but related to the actual case. The article analyzes some aspects which could be taken from the ECHR decisions relating to the reasons for which the custody on remand may be ordered. [ABSTRACT FROM AUTHOR]