Actual issues regarding the enforcement of legal standards of the deed of intimation lodged with the court of law in the romanian court proceedings

Author:Andrei Zarafiu
Position:Associate Professor, PhD, University of Bucharest (email: andrei.zarafiu@drept.unibuc.ro).
Pages:112-129
SUMMARY

The dynamic evolution of the new fundamental law in criminal matters triggered serious challenges in the adaptation process to the new legal realities of the Romanian legal system, as a whole. Within the seeming conclusion of the transition period given by the profound change of the criminal substantial and procedural regulations, the new dimensions of the functional relation between the two... (see full summary)

 
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LESIJ NO. XXIV, VOL. 1/2017
ACTUAL ISSUES REGARDING THE ENFORCEMENT OF LEGAL STANDAR DS
OF THE DEED OF INTIMATION LODGED WITH THE COURT OF LAW IN
THE ROMANIAN COURT PROCEEDINGS
Andrei ZARAFIU
Abstract
The dynamic evolution of the new fundamental law in criminal matters triggered serious challenges in
the adaptation process to the new legal realities of the Romanian legal system, as a whole.
Within the seeming conclusion of the transition period given by the profound change of the criminal
substantial and procedural regulations, the new dimensions of the functional relation between the two
classes of authorities who perform main judicial functions have been clarified: prosecutors and courts
of law. Th e action that refers to the way functional competency is transferred from the investigating
authorities to decisional authorities and through which the progressive route of the criminal trial
passes from the preliminary stage, the investigation stage, to the trial stage and that of the actual
dispute settlement is an essential element of this relation.
The study aims to identify and analyse some of th e most important court trial matters or issues that
might occur in the recent practice with regards to observing the legal standards of form and contents
of the deed of intimation lodged with the court of law.
Equally, the theoretical analysis and the jurisprudence tackles to identify certain actual resources in
order to render efficient mechanisms submitted to assessment.
Keywords: deed of intimation, form, effects, limits, legality
1. Introduction
The exercise o f any function with
judicial nature is subject to a prior formal
authorisation, materialized in a legal
document whose form and content are
confined to a strict regulatory regime.
Especially in the case of the
jurisdiction on the merits, the principle of ne
procedat iudex ex officio prevents the self-
authorisation and forces the subject
performing that function to manifest only
within the limits of his investiture, even if
the judicial context is of criminal nature. As
jurisdiction implies both the authority to
resolve and decide on the conflict submitted
to settlement (cognitio) as well as the power
to have the decision taken being executed
Associate Professor, PhD, University of Bucharest (email: andrei.zarafiu@drept.unibuc.ro).
1
G.Theodoru, Treaty of criminal procedure, 3rd edition, Hamangiu Publishing House, Bucharest, 2013, p. 195.
(imperium)
1
, the modality in which the
apparent excess power may be tempered is
to draw a predetermined frame for its
manifestation.
In the criminal trial, the act that
initiates the exercise of the judgment
function and co ntributes mainly to set the
procedural framework in which the scope of
the judgment shall be accomplished is the
indictment drafted by the prosecutor who
conducted the prosecution. It has the nature
of an act character ized not only through the
provision it contains and in which the
prosecution function is focused - the
arraignment, but also in terms of its content,
regulated in an imprecise manner through
the provisions of article 327 of t he Criminal
Procedure Code.
Andrei ZARAFIU 113
LESIJ NO. XXIV, VOL. 1/2017
2. General considerations
concerning the form and functionality of
the indictment
Regardless of the way how the current
structure of the type of Romanian criminal
trial
2
is perce ived and addressed, it is
undisputed that within the major
subdivisions of the trial an essential place is
occupied by the prosecution. Even
abandoning the autonomous co ncept of
procedural stage and rallying to the current
trend developed in continental systems that
were the main inspiration of the present
Code, the importance of the investigative
stage of the trail is obvious. Thus, in the
French system, there are two main phases of
the criminal trial. A preparatory phase that
includes the monitoring, the investigation
and the instruction, and a decisional phase,
which includes the court’s proceed ings
3
. In
the Italian system, a distinct system amongst
continental mixed systems due to the
preponderance of adversarial elements, the
jurisdictional phase ( the actual trial) is
preceded by an investigative phase (no n-
procedural - indagini preliminari) and the
decisional power is characteristic only to the
jurisdictional phase
4
.
Having the role to mark the beginning
of the criminal trial, in the opinion of the
2
In the specialized literature, once with the entry into force of the new Criminal Procedure Code, the majority opinion
was expressed that the actual criminal trial is composed of 4 stages: the prosecution, the preliminary chamber, the judgment
and the enforcement of criminal judgments (B. Micu, A. Păun, R. Slăvoiu, Criminal Proceedure, 2nd edition, Hamangiu
Publishing House, 2015, p. 248; M. Udroiu, Criminal Procedure, special part, 2nd edition, CHBeck Publishing House, 2015
, p.120-121; C. Voicu in The New Code for Criminal Procedure, commented, group of authors, coordinator N.Volonciu,
2nd edition, Hamangiu Publishing House, 2015, p.945, etc.). In favour of this opinion the Constitutional Court ruled in the
recitals of the Decision no. 641 / 2014 from November 11, 2014 (Official Gazette no. 887 of December 5, 2014). In a
different opinion, appreciating that the proceedings in the preliminary chamber do not have the nature of a procedural stage,
it is considered that the current Romanian criminal trial knows only three stages (I.Neagu, M. Damaschin, Treaty of
Criminal Procedure, Special Part, Universul Juridic Publishing House, 2015, p.196-203.
3
J. Pradel, Criminal proceedings, 16th edition, Cujas Publishing House, Paris 2011, p.298, p.339-723, p.739-839; J.C. Soyer,
Criminal law and Criminal Procedure, 21st edition, Lextenso Publishing House, L.G.D.J., Paris 2012, p.282, p.359-427.
4
M. Mercone, Criminal procedure, 11th edition, Edizioni giuidiche Simone, 2003, p.66-67, p.298-306, p.505-512; F. Izzo,
Manuale de Diritto procesuale penale, XXI edizione, Edizioni giuidiche Simone, 2013, p.12, p.175-228, p.427-433.
5
The Emergency Ordinance no. 18/2016 (Official Gazette no. 389 from May 23, 2016) simplified this
mechanism, so that currently the only necessary condition required for the initiation of the criminal proceedings is
a positive one the existence of a deed of intimation complaint from the perspective of the conditions regarding the
form and content, per article 305 paragraph (1) Code for Criminal Procedure.
6
See for details I.Neagu, Treaty of criminal procedure, Special Part, Global Lex Publishing House, 2008, p. 32-33.
current Criminal Procedure Code, the
prosecution represents the procedural phase
suitable for the gathering of the evidence
material required to solve the criminal cases.
Moreover, considering the recent changes in
the procedural manner through which the
initiation of the prosecution is ordered
5
, this
phase is the only context allowed by the law
in which evidence able to lead to the
establishment of a person 's guilt or
innocence can b e administered. Although it
knows exceptions [the statements taken
from the person that formulated the criminal
complaint is considered evidence even if it
was administered before the initiation of the
prosecution, under article 111 paragraph
(10) CPP, the objects collected by the extra-
judicial bodies in case of new o ffenses
ascertained under article 61 and 62 CPP may
be used as evidence even if they were won
for the case prior to the initiation of the
prosecution, etc.] this rule is able to
highlight the object of the prosecution.
Expressly prefigured through the provisions
of article 285 CPP in a form taken from the
former regulatio n
6
, the object of the
prosecution captures the essence of the
activity corresponding to the scope of this
phase, which constitutes as well the main or
qualified activity of the p rosecution “the

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