Aspects on Compared Law in the Area of Criminal Procedural Time Limits
| Author | Ion Ristea |
| Position | Lecturer PhD, University of Pitesti. |
| Pages | 1-6 |
1
ASPECTS ON COMPARED LAW IN THE AREA OF CRIMINAL
PROCEDURAL TIME LIMITS
Ion Ristea
*)
Abstract
The establishment of different time limits during the criminal trial both in the
Romanian legislation, as well as in the other European legislations, is based on
efficiency, a fundamental principle of the judicial activity. The purpose is time
limitation of the procedural measures, because without these limitations, the
deprivation or restriction measures would become arbitrary, and on the other
hand, avoiding the delaying of the criminal procedures.
Keywords: procedural documents; procedural time limits; time limits
calculation; nullity of the document; decay; the principle of operability
Disciplining the criminal procedure documents through some time limits and
conditions has taken place in all modern Romanian criminal legislation. Thus, in
the Criminal Codes of 1865
1)
, 1937
2)
, 1948 are found several provisions where the
chronological element of duration and time has been precisely regulated.
The actual Code of Criminal Procedure
3)
states the institution of the
procedural time limitations in its Title V “Common procedural documents”,
Chapter 3 “Time limits”, Art 185-188. Therefore, there are regulations of the
consequences of non-compliance with the time limits (Art 185), the calculation of
procedural time limits (Art 186), documents considered as accomplished within
the time limit (Art 187) and the calculation of time limits for preventive measures
(Art 188).
The new Code of Criminal Procedure states the “Time limits” in its Title VI,
Chapter 2, Art 268-271, based on the same rules of calculation as the actual Code
of Criminal Procedure. A new aspect occurs in Art 270 Para 2, where if a
document which must be filled within a certain time limit was communicated or
sent, by ignorance or an intended mistake of the sender, before the term expired,
to a judicial organ without competence is considered to be done in the established
*)
Lecturer PhD, University of Piteşti.
1
)
Code of Criminal Procedure of 2 December 1864, published in the Official Gazette No
230/2 December 1864, entered into force in 1865.
2
)
Code of Criminal Procedure of 17 March 1936, published in the Official Gazette No 66/19
March 1936, entered into force on 1 January 1937.
3
)
Code of Criminal Procedure of 12 November 1968, published in the Official Bulletin No
145/12 November 1968, entered into force on 1 January 19 69, with its subsequent modifications
and amendments.
2
time limit, even if the document reaches the competent judicial organ after the
expiration of the established time limit.
The institution of the procedural time limits is regulated, similar or different
in the legislation of other European countries. Thus, we shall present the German,
Spanish, Italian and French regulations.
1. German Code of Criminal Procedure (Strafprozessordnung
4)
) establishes
a method of calculation of the procedural time limits comprising similar rules to
those existing in the Romanian legislation. Thus, the calculation of the time limits
is made per days, weeks and months.
According to Section 42 of the German Code of Criminal Procedure, “in
calculating a time limit determined in days, the day on which the moment in time
or the event determining the beginning of the time limit falls shall not be
counted”.
The calculation per weeks and months is made according to Section 43, as it
follows:
a) Time limit determined in weeks or months shall expire at the end of the
day of the last week or the last month, whose name or number corresponds to the
day on which the time limit began. Where the last month lacks such day, the time
limit shall expire at the end of the last day of that month.
b) If the end of a time limit falls on a Sunday, a public holiday or a Saturday,
the time limit shall expire at the end of the next working day.
Section 45 of the German Code of Criminal Procedure states the time limit of
a week for the restoration of the status quo ante, by the person who could not
comply independently with the procedural time limit. The limitation is calculated
starting from the date of the reason or event determining the non-compliance.
Also, an appeal on fact and law can be filed within one week after the
pronouncement of the judgment, as stated by Section 314.
Within two weeks following service of the penal order the defendant may
lodge an objection against the penal order at the court which issued it, either in
writing or orally to be recorded by the registry, as stated by Section 410. Where
the objections on the penal order were are not lodged in time the order shall be
equivalent to a judgment that has entered into force.
2. Spanish Code of Criminal Procedure (Ley de Enjuiciamiento Criminal
5)
)
states the time limits in Title 9, Art 197-215.
Thus, Art 197 states that the court judgment and judicial procedures shall be
applied according to the time limits established for each of them, and if it is not
4
)
StrafprozeBordnung (StPO), www.gesetze-im-internet.de accessed o n 19 February 2010.
5
)
Ley de Enjuiciamiento Criminal, http://noticias.juridicas.com/base_dato s/Penal/lecr.html
3
established a certain time limit, shall be applied immediately and without any
delay.
Persons who consider themselves as being prejudiced by unjustified delays of
the time limits have the possibility to file a complaint at the Ministry of Justice,
which, if it is justified, shall transfer it to the competent prosecuting official who
will proceed with the legal compensations (Art 200).
According to Art 201, cases will be brought to court every day of the year
(except legal holidays), without any special regulation.
Legal time limits shall not be extended unless the law expressly states this and
can be suspended or interrupted (Art 202).
Judgments shall be pronounced and drawn up within three days since the
hearing or the final hearing, except the cases prosecuted in absence, where the
judgment takes place in the same day or maximum in the following day (Art 203).
Communications, summons and warrants are sent by the trial courts or courts
of justice at the farthest in the following day after the issuance of the
communication resolution (Art 207), and if the procedure must be fulfilled outside
the capital, must be considered the “time limit for distance”, namely a day for
every 20 km.
According to Art 212, the appeal is lodged within five days since the
communication of the decision, and according to Art 211, the appeals requesting
the modification of the decision are lodged within three days since the
communication.
For non-compliance with the procedural time limits are disciplinary liable the
registrars, as well as other persons who shall be sanctioned by judicial fine of 25-
250 pesetas.
Thus, it is found that the judicial proceedings are carried out promptly in the
indicated date and time, without delay, and the calculation system of the
procedural time limits is partly similar to that used by the Romanian Code of
Criminal Procedure, in the meaning that the limits are calculated per hours, days
and distance, aspect not found in the Romanian legislation.
3. Italian Code of Criminal Procedure (Codici di procedura penale
6)
) states
in Title VI “Time limits” general rules on the calculation of the procedural time
limits, some legal provisions being similar to those existing in our legislation.
Thus, Art 172 Para 1 states that “the procedural time limits are established per
hours, days, months and years”, regulation also found in the Romanian Code of
Criminal Procedure (Art 186).
Regarding the calculation system, it is easy to notice the similarity between
these two codes on the beginning of the time limit per hours and days, “it is not
6)
Codici penale e di procedura penale e leggi complementari, coordonati e annotati a cura d i
N. Cipriani, Maggioli Publishing-house, Rimmini, 1991.
4
calculated the hour or the day when the time limit begins” (Art 172 Para 4 Italian
Code of Criminal Procedure, regulation also found in the Romanian Code of
Criminal Procedure – Art 186 Para 2). But, unlike the Romanian legislation,
which states that it is not considered the hour or day when the time limit is
fulfilled, according to the Italian Code of Criminal Procedure for the calculation
of the procedural time limits “is considered the last hour or the last day”.
Also, in the case of time limits calculated per days, “if are fulfilled in a
holiday, are considered to be fulfilled the next working day”, according to Art 172
Para 3 of the same code. This provision is also found in the Romanian Code of
Criminal Procedure, stated in Art 184 Para 4 “if the final day of a time limit is a
non-working day, the time limit will expire at the end of the first next working
day”.
Different aspects found in the Italian legislation:
a) Revocation of the time limits only in the conditions stated by the law (Art
21, Art 79, Art 80, Art 85, Art 86, Art 95, Art 175
3
, Art 182, Art 309, Art 458, Art
461
4
, Art 468, Art 585 and Art 646 of the Italian Code of Criminal Procedure)
b) Prolongation of the time limits, as stated by Art 174 Italian Code, if the
residence of the defendant (as resulted from his documents or the domicile
declared or chosen, in accordance with Art 161 of the same code) is located
outside the city where the judicial authority has competence.
The time limit is prolonged in order to include the number of days necessary
for the travel. The time limit is prolonged with a day for every 500 km of distance,
when it is possible the use of public transportation means and with a day for every
100 km in all other cases. The same rule is applied both for the imprisoned
defendants or who are confined outside the town where is located the competent
authority. In all situations, the prolongation is made for no longer than three days.
For the defendant resident abroad, the prolongation is established by the court
considering both the distance and the usable means of communication.
The same legal statement is applicable also in the case of the time limit
established for the presence of any person for whom the competent authority has
issued a warrant or an invitation.
c) Reopening the files. According to Art 175 Italian Code of Criminal
Procedure, the public Ministry, the parties and the defenders are restated in the
established time limit under the sanction of decay is they could not meet the time
limit due to a fortuitous event or a major force. The request for reopening the file
is lodged, under the sanction of decay, within 10 days since the fortuitous event or
the major force has stopped.
If it was given a decision for conviction, the defendant is restated, at his
request, in the legal time limit to lodge an application for a legal remedy, except
the cases in which the same person has had a real knowledge of the procedure or
the measure and has willingly denied to be present or to request a legal remedy.
5
The court must proceed with all necessary investigations. In this case, the request
for restating the time limit is lodged, under the sanction of decay, within 30 days
since the defendant has had a real knowledge of the situations causing the
fortuitous case or the major force.
4. The French Code of Criminal Procedure (Code de procédure pénale
7)
)
states the procedural time limits for filling complaints, procedural documents and
requesting remedies. For instance, Art 7, 8 and 9 states that the public prosecution
is time-barred by the passing of ten years for crimes (robbery, assault, fraud,
scam), of three complete years for misdemeanors and one year for petty offences
calculated from the day of the commission of the crime. The mentioned time
limits are doubled for some offenses committed against a minor and start to run
only from the victim’s coming of age (18 years old).
According to Art 380-9 of the French Code of Criminal Procedure (inserted
by Art 84 of the Law No 2000-516 of 15 June 2000 in force on 1 January 2000)
“an appeal is lodged within ten days of the judgment being pronounced”. The time
limit runs from the notification of the judgment to any party who was not present
or represented at the hearing when the judgment was delivered, but this being
limited to cases where the party or his representative were not informed of the
date when the ruling would be made.
Art 552 of the French Code states that “the time between the date when the
summon is served and the date fixed for the appearance before the correctional
court or police court is at least ten days if the party cited resides in a département
of continental France or if, when he is a resident in an overseas département, he is
cited before a court of that département”. This period is extended to one month if
the party cited resides abroad and is forced to remain on the territory of a
European Union’s Member State, and to two months in all other cases.
References
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th
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Basarab, M. (1973). Drept procesual penal, „Babeş-Bolyai” University of
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Neagu, I. (2006). Drept procesual penal, Tratat, Partea generală, 1
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Pavel, D., Constatarea nulităŃii actelor efectuate cu încălcarea dispoziŃiilor
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7)
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6
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