(Im)Possibility To Recover The Damage Caused By Embezzlement After The Conviction To A Supervised Suspended Sentence

Author:Sandra Gradinaru
Position:Alexandru Ioan Cuza' University of Iasi, Romania
Associate professor Sandra GRĂDINARU1
The present paper intends to analyze the real and effective possibility of a civil party in a criminal trial to
recover the damage created by the convicted person, under the conditions in which the criminal court orders the
sentence to imprisonmen t but chooses as the option of executing the sen tence, a supervised suspension. The basic idea
of the present study starts fr om the possibility of the civil party to request the revocation of the suspension under
supervision of the sentence applied to the convicted person, given that it has no other methods to recover his damage by
other means of coercion. Present study aims to analyze the jurisprudential optics of the Romanian courts, notified with
the solution of such a request, the a rgumentation being concentrated around the criteria in relation to which the
conduct of the convicted person is analyzed during the probation period. The institution of the revocation of the
suspended sentence under supervision established by the Roma nian legislator is not adapted to the socio-economic
conditions in Romania, in the sense that the provisions of the positive law do not establish the criteria in relation to
which the criminal court can settle such a request. The academic and practical interest of the present a pproach is
mainly g iven by the comparative presentation of the solutions pronounced in this field, starting from a specific case
analyzed critically. The scope of addressability of the work is relatively extended, being useful not only to the legal
practitioners: lawyers, ex ecutors, probation counselors, prosecutors, judges, etc., but also to the civil parties - natural
or leg al persons (public institutions or commercial companies), being in the impossibility of recovering the damage
definitively found by a criminal decision convicting the defendant who committed mainly an economic offense, or
subsidiary any offense against the patrimony.
Keywords: economic crimes, embezzlement, damage, suspended sentence .
JEL Classification: K14, K22, K40
1. Analysis of jurisprudence and doctrine on the request for revocation of suspended
sentence for failing to pay the damages
Romanian courts have been notified repeatedly in order to revoke the suspension under
supervision for non-fulfillment of the civil obligations stipulated by a criminal court.
The majority of the jurisprudence revealed that national courts2 order the revocation of the
suspension under supervision with the following motivation: The bad faith is presumed by law, so
the court has no obligation to establish it, giving the burden of proving that he has not been able to
fulfill his obligations to the convicted person, and the court, judging the merits of the evidence from
the file, will decide on the existence or non-existence of the bad faith.
Specialized literature3 emphasized that the convict has the obligation that until the
expiration of the term of trial to pay the civil obligations established by the sentence of conviction.
Failure to fulfill this obligation in bad faith leads to the compulsory revocation of the conditional
suspension. The burden of proof rests with the convicted person who claims such an impossibility.
After having benefited from the legal provisions that allow a convict to be free treatment and also
benefited from the court's forgiveness, considering that the purpose of the punishment can be
achieved without its execution, the convicted person must confirm that this purpose can be
achieved, and one of the confirmation modalities is also the fulfillment of the civil obligations
established by the sentence of conviction.
Regarding the capacity of the convicted person to work, the Romanian courts4 held that:
The court thus holds that the convicted respondent is a young person, capable of work, but
1 Sandra Grădinaru – „Alexandru Ioan Cuza” University of Iaşi, Romania, sandra.gradinaru@yahoo.com
2 Decision no. 642 of 10.09.2015 pronounced by the Botosani Tribunal.
3 Matei Basarab, Viorel Pasca, Gheorghita Mateut, Constantin Butiuc, The Criminal code - commented. The general part, Hamangiu
Publishing House, Bucharest, 2007, pp. 458-459.
4 Focsani Court, Criminal Sentence no. 382/28.03.2018.

To continue reading

Request your trial