Admission of guilt in the Romanian Criminal Procedure Code. A comparative law perspective

• Author: Sorin - Alexandru Vernea - Versavia Brutaru
• Position: Judge, Slobozia Court of First Instance - PhD, scientific researcher, Institute of Legal Studies 'Acad. Andrei Radulescu', Romanian Academy, Associate Professor at Hyperion University, Law School, Criminal Law Department
• Pages: 89-116

LESIJ NO. XXI, VOL. 1/2014

ADMISSION OF GUILT IN THE ROMANIAN CRIMINAL

PROCEDURE CODE. A COMPARATIVE LAW PERSPECTIVE

Sorin - Alexandru VERNEA*

Versavia BRUTARU**

Abstract

Entry into force of the Law no. 202/2010 regar ding some measures to accelerate the settlement of the

process, a lready raises a number of problems of interpreta tion. According to the Explana tory

Memorandum of Law 202/2010 states that: "Unlike the other laws, the Law no. 202/2010 comes into

Romanian legislative with the aim of sp eeding cr iminal proceedings as well as to prepa re the

implementation of the new codes, some of the regula tions contained in future coding being found in

this law." In this respect, in the explanator y memorandum to the bill it was noted that "from the major

failures of justice in Romania, the har shest criticism was the lack of celerity in solving cases." As often

judicial pr ocedures prove to be heavy, formal, expensive and lengthy it was recognized that judicial

effectiveness of justice consists, lar gely, in the speed with which the rights a nd obligations enshrined

in judgments are part of the juridical circuit, thus ensuring the stability of legal relations to be decided.

Keywords: simplified procedure, explanatory memorandum, a rticle 3201 Criminal pr ocedure

Code, admission of guilt

I. Introduction***

Entry into force of the Law no.

202/2010 regarding some measures to

accelerate the settle ment of the process,

already raises a number of problems of

interpretation. According to the Explanatory

Memorandum

1

of Law 202/2010 states that:

"Unlike the other laws, the Law no.

202/2010 comes into Romanian legislative

with the aim of speeding criminal

proceedings as well as to prepare the

implementation of the ne w c odes, some of

the regulations contained in future coding

being found in this law."

* Judge – Slobozia Court of First Instance

** PhD,ăscientificăresearcher,ăInstituteăofăLegalăStudiesă“Acad.ăAndreiăRdulescu”,ăRomanianăAcademy,ăAssociateă

Professor at Hyperion University, Law School, Criminal Law Department.

1

Law 202/2010 regarding some measures to accelerate the settlement of the process, OG. No.. 714/26.10.2012

2

M. Udroiu Preliminar y Explanations of Law. 202/2010 rega rding some measures to acceler ate the settlement of

the process in criminal tria l, www.inm-lex.ro

In this respect, in the explanato ry

memorandum to the bill it was noted that

"from the major failures of justice in

Romania, the harshest criticism was the lack

of celerity in solving cases." As often

judicial procedures prove to be heavy,

formal, expensive and lengthy it was

recognized that judicial effectiveness of

justice consists, lar gely, in the speed with

which the rights and obligations enshrined in

judgments are p art of the juridical circuit,

thus ensuring the stability of legal relations

to be decided

2

.

The introduction of simplified

procedure o f admission of guilt was

justified in the explanatory memorandum,

90 Lex ET Scientia International Journal

LESIJ NO. XXI, VOL. 1/2014

among others, by article 6 paragraphs 3 letter

d) of the European Convention which

guarantees the d efendant the right to

examine or have examined witnesses against

him and to obtain the attendance and

examination of witnesses under the same

conditions as witnesses against him. This

right has a relative character; the defendant

may give up his pursuit before an

independent and impartial tribunal, and elect

to be tried based on the evidence

administrated in criminal prosecution. In this

respect, the Strasbourg Court stipulated that

the defendant has the opportunity to waive

the right guaranteed by article 6 paragraph 3

letters d) of the European Convention and,

consequently, he cannot claim that this right

was violated , if the sentencing court based

its decision on the statement made d uring

prosecution of a witness (anonymously) in

whose defendant waived hearing

3

.

II. The Procedure A dmitting Guilt.

Romania

It is becoming increasingly clear that

the current legislation is no able to face the

criminal phenomenon in booming right now.

Lately it has increased the number of events

seen as crimes, the number of offenders and

offenses to be investigated and dealt with too

few resources.

Administration of criminal justice

requires not only protection against

insecurity determined by increasing crime,

requiring solutions that result usually in

authoritarian policies.

Applying the principle of active r ole

enshrined in article 4 of Criminal Proced ure

Code, Judicial bodies have an obligation to

intervene in criminal pr oceedings whenever

necessary for legal and thorough settlement

3

ECHR, judgment of 28 August 1991, in Case Brandstetter v. Austria, para. 49 www.echr.eu

4

Gheorghe Mateut, Treaty of Criminal P rocedure. General Part, Vol I, C. H. Beck Publishing House, Bucharest,

2007, p. 174

5

Diana Ionescu, Warning procedure. Implications for the validity, C.D.P. No. 2/2006, p. 40-41.

of the case, b oth by clarifications and

explanations provided by the parties and by

filling their inactivity. The active role

4

is

also manifested regarding the administration

of evidence, the judiciary bodies are

required to have, by default, the

administration of evidence necessary for a

fair determination of the case. The

exigencies of t his principle during trial

requirements are usuall y completed b y

immediacy rule, so that the first instance

court is req uired to conduct research

according to article 321 of Cri minal

Procedure Code, by hearing again the

witnesses that were interrogated during the

criminal prosecution.

Inflexible application of these

principles whose violation was constantly

punished by the courts for judicial review,

led inevitably to the extent of the resolution

of criminal cases and thus increasing state

spendingăadvanced.ăDefendant’să attitudeăbyă

recognition facts found in documents

instituting the proceedings was not likely to

contribute significantly to remedy these

shortcomings, since the case law did not

recognize a special significance of the

statement attributed in relation to other

evidence.

The need a retrial regulation applicable

to pleading guilty was invoked in the

doctrine, both as a form of recognition of a

relationship of equality between the accused

and the state (first offering statement

recognition the second offering a procedural

transaction, a second trial) a nd as a solution

for certainty and clarity in the process of

conflict resolution

5

.

Accepting that the later court

proceedings may prove cumberso me,

expensive and therefore lack of the req uired

efficiency, the legislator was aware of the