New procedural rules regarding the enforcement of criminal judgments

Author:Andrei Zarafiu
Position:Lecturer, PhD, Faculty of Law, University of Bucharest (e-mail: andrei.zarafiu@mnpartners.ro).
Pages:175-191
SUMMARY

Whether it is perceived in the doctrine as a distinct stage of the criminal trial or as a sub-division of other stages, the enforcement of final criminal judgments represents an important procedural stage in the actual execution of the criminal justice.Unlike in civil trials, the official and mandatory character of the criminal procedural juridical relations is expressed in the enforcement stage... (see full summary)

 
FREE EXCERPT
LESIJ NO. XXII, VOL. 1/2015
NEW PROCEDURAL RULES REGARDING THE
ENFORCEMENT OF CRIMINAL JUDGMENTS1
Andrei ZARAFIU
Abstract
Whether it is perceived in the doctrine as a distinct stage of the criminal trial or as a sub-division
of other stages, the enforcement of final criminal judgments represents an important procedural stage
in the actual execution of the criminal justice.Unlike in civil trials, the official and mandatory character
of the criminal procedural juridical relations is expressed in the enforcement stage as well, when the
specific judiciary activity is launched automatically and it is carried out by official bodies according
to their own rules.This study focuses on the analysis of the current normative framework regarding the
activity of enforcement of final criminal judgments.The analysis refers exclusively to the criminal
procedural norms applicable in this matter without taking into consideration the substantive law
(included in the Criminal Code, the Law no. 253/2013, the Law no. 254/2014 and other laws as well)
regulating the extra-procedural activity, the actual enforcement.Hence, the topics approached herein
will refer to issued raised as a result of res judicata in criminal matters. Th e enforceability of the
judgements and th e moments when the judgements remain final, the judiciary bodies involved in the
activity of enforcement as well as some common and specific provisions regarding the enforcement.
Keywords: enforcement, criminal judgment, authority, procedure.
Introduction
1
In the enforcement of the final criminal
judgements a disti nct judiciary function is
undoubtedly being used, which, unfortu-
nately, was not distinctively regulated in the
article 3 of the Code of Criminal Pr ocedure
on the principle of separation of the judiciary
functions
2
.
In this stage of the criminal trial the
specific activity refers to the post judicum
Lecturer, PhD, Faculty of Law, University of Bucharest (e-mail: andrei.zarafiu@mnpartners.ro).
1
This paper was financed through the contract POSDRU/159/1.5/S/133255, strategic project ID 133255 (2014),
co-financed from the European Social Fund, through the Sectoral Operational Programme on the Development of
Human Resources 2007 2013.
2
The implicit existence of this judiciary function is recognised in the doctrine, to this end see I.Neagu,
M.Damaschin, Tratat de procedură penală, Partea Generală (Treaty of Criminal Procedure, General Part), Hamangiu
Publishing House, p.19 and p.62; B.Micu, A.Păun, R.Slăvoiu, Procedură penală (Criminal Procedure), Hamangiu
Publishing House 2014, p.15.
activity, after the case was settled and thus
the judiciary actions are brought to an end.
The enforcement may only be
considered as a procedural stage if we
consider the criminal trial notion in its
broader sense, as suggested in the Art. 1 of
the Code of Criminal P rocedure and which
includes not only the activity carried out in a
criminal matter (when the judiciary actions
are carried out as well), but also the activity
carried out in relation to a criminal matter
(when the substance is not solved).
176 Lex ET Scientia International Journal
LESIJ NO. XXII, VOL. 1/2015
The judiciary activity carried out in the
procedural stage of enforcement of final
criminal decisions is governed by its own
rules following the pattern of some specific
principles: mandatory, enforceable,
jurisdiction and continuity.
3
But same as any other procedural
activity, the enforcement shall comply with
the general principles and limitations in the
application of the criminal procedural law
and is included in the purpose of the criminal
trial indicated in the Art. 1 para. 2 of the
Code of Criminal Procedure.
1. General remarks regarding the
res judicata in criminal matters, the
enforceable character and the time when
the criminal jugements become final
The res judicata represents, generally
speaking, the legal situation arising from the
final and irrevocable solution pronounced in
a conflict presented in court.
In criminal matters, as an expression
of the fundamental principle of officiality,
used in the enforcement stage according to
the rule of obligativity, the judgement
becomes automatically a res j udicata at the
time when it remains final, according to one
of the ways indicated in the Art. 51-552 Of
the Code of Criminal Procedure.
Consequently, the final criminal
judgement becomes res judicata as an ef fect
of the law.
The res judicata in the criminal law
represents the final judgme nts issued by the
judges, in fact and in la w, on the charge
making the object of the criminal trial
4
(V.
Dongoroz, Curs, op. quoted, p. 343).
3
N.Volonciu, Tratat de procedură penală, Partea specială (Treaty of Criminal Procedure, Special Part) vol. II,
3rd edition, Paideia Publishing House, 1997, p.379-380; I.Neagu, M.Damaschin, Tratat de procedură penală, Partea
Specială specială (Treaty of Criminal Procedure, Special Part), Universul Juridic Publishing House, 2015, p.584;
D.Lupaşcu, Punerea în executare a pedepselor principale (Eforcement of Main Punishments), Rosetti Publishing
House, 2003, p.13.
4
V. Dongorz, Curs de procedură penală (Course of Criminal Procedure), 2nd edition, 1942, p.343 apud I.Neagu,
M.Damaschin, Tratat de procedură penală Partea Specială (Treaty of Criminal Procedure, Special Part), Universul
Juridic Publishing House, 2015, p.585.
In criminal matters, the res judicata
generates two effects, one positive and one
negative.
The positive effect of res judicata
consists in giving rise to the subjective law
(potestas agendi) on which the competent
bodies rely in order to enforce the
judgments.
The negative effect of res judicata
consists in preventing a new criminal trial
and a new criminal action against the same
person and the same identity.
Unlike the civil procedure, the
prevention is conditioned upon the existence
of a double identity:
- of facts (material grounds);
- of persons.
In criminal matters, the cause identity
(the legal ground) is prevented by effect of
the law, according to the Art. 6 of the Cod e
of Criminal Procedure: the prevention
generates effects even if the fact for w hich a
final judg ment was issued received a
different juridical classification.
This prevention is absolute and may be
invoked as an exception (the res judicata
exception) or using the main way (as
grounds for appeal), even after the
judgement that ignored it becomes final [art.
426 letter i) Of the Code of Criminal
Procedure as a distinct reason to challenge
the judgement requiring its cancellation].
In the current Romanian criminal
procedural system, the prevention arising
from the negative effect of the res judicata is
regulated both as a fundamental principle of
enforcement of the procedural law (art.6
the ne bis in idem rule) and as a distinct
cause of prevention of the initiation or

To continue reading

REQUEST YOUR TRIAL