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.
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
Dongoroz, Curs, op. quoted, p. 343).
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.
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
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
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