Search

The present study represents an adapted and revised form of a material written by the author at the request of the Romanian Ministry of Justice. The original version of the study can be found open source on the Ministry's website. The analysis focuses on the enforcement of the criminal law once the new Romanian Criminal Code will enter into force -- most probably on February the 1st, 2014. The study is divided in three large sections. The first one deals with the fundamental modification brought by the new Code in the field of the temporal application of the law, with a particular focus on the decriminalization law and the more lenient law. The next section is analyzing particular applications of the more lenient law in the case where from, perpetration of the offence to the final judgment of the cause one or more criminal laws have emerged. Special attention is given to institutions like: plurality of offences, unity of offences, misdemeanors, mitigating and aggravating circumstances, and execution of penalties, crimes committed by juvenile delinquents, safety measures, statute of limitations, and reconciliation of parties, rehabilitation and criminal responsibility of legal entities. The last part deals with almost the same institution only that this time the more lenient law comes into force after a final conviction has been pronounced in a given case. [ABSTRACT FROM AUTHOR]

Through Law no. 63/2012 a recent amendment to the Criminal Code was brought forth into Romanian law, namely, a new safety measure -- the extended confiscation. By this regulation, the legislator transposed into national law completely Council Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property. The new safety measure is not to be confused with the existing special confiscation. This is because on one side, goods produced or acquired thorough the commission of the offence, as the court established in its conviction sentence, will be subject of the special confiscation. On the other side, assets which the court reasonably believes to arise from the activities of the same nature, activities that are not subject of the sentence will fall within the scope of extended confiscation. The main hinder to the implementation of extended confiscation in the Romanian law was represented by the compatibility of this new institution and the legal presumption established by Article 44, section 8 of the Constitution, concerning the legality of acquirement. In fact, between the two there is no de plano incompatibility. This is because a relative legal presumption can be rebutted not only by evidence but by simple assumptions. In relation to extended confiscation, the legal norm provides the judge the parameters within he can build a rebuttable presumption. Basically, in this scenario, the first step is the finding that the defendant has committed an offence likely to procure him a material benefit; the next step is establishing that the defendant's assets and incomes are clearly higher than any legal ones identified; and third, by taking into account other elements already proved in the case, the judge -- through a simple assumption -- can conclude that at least a part of the defendant's assets derives from criminal activities of the same nature as the one or ones for which he was convicted. This simple assumption may by itself rebuttal the legal simple presumption enshrined by Article 44, section 8 of the Constitution. Regarding the conditions which need to be fulfilled in order to apply this measure, it must be underlined that it part of the safety measures. Therefore, all the general conditions of the safety measures must be fulfilled, as well as the special ones, provided by Article 118² from the Criminal Code. In this case, it will not suffice for the defendant to commit only an act that corresponds to an offence description and which is unlawful. In addition, the act must be fulfilling all the cumulative conditions of an offence, as a court already established when pronouncing a conviction judgment for that act. This means, among others, that the measure may be ordered only by the court and not by the prosecutor during the prosecution stage. As for the existence of a state of danger (one of the general conditions required for safety measures), we consider it to be presumed. Even more, the presumption is an absolute one and therefore, not evidence to the contrary is admissible. Regarding the scope of the measure, the legislator has used a combined technique: it provided a list of offences and it established certain general conditions which need to be fulfilled in order for one of these offences to permit the application of the confiscation (reference is made to the punishment and the potential profit). Thus, it is necessary that the offense is one listed in Article 118² paragraph 1 from the Criminal Code. Still, not all listed offences can permit the extended confiscation -- the offence must be punishable by law with imprisonment at least five years and to be likely to procure a material benefit to the convicted. In addition, in order for the extended confiscation to be applied the following conditions are required: the assets acquired by the convicted person in the last five years to clearly exceed his legal revenues; and the court must be satisfied that these goods derived from criminal activities such as those provided by the aforementioned list. [ABSTRACT FROM AUTHOR]