Aspects regarding the place of perpetration of the offense, a criterion for the establishment of territorial competence in criminal matters

AuthorBogdan Florin Micu
PositionNicolae Titulescu University – Faculty of Law
Pages171-183

Bogdan Florin Micu. Lecturer Ph.D., Law Faculty, “Nicolae Titulescu” University, Bucharest (e-mail: bogdan.micu@univnt.ro).

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Chapter I Territorial competence - Ratione loci – In criminal matters

Section 1

Notion and importance of territorial competence

The territorial competence of a judicial body is the objective capacity of that body to solve the interrelated criminal cases, with social-judicial relevance, with regard to the territorial radius in which that particular body exerts its attributions1.

The definition of the concept shows the double limitation of territorial competence, on one hand we are talking about the territorial radius in which the judicial body exerts its attributions conferred by law and on the other hand the relation with social-judicial relevance between the territorial radius and the criminal case that is going to be tried2.

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Territorial competence is therefore the criterion used do determine which of the bodies of the same level is competent to solve a certain case3.

Among the fundamental forms of competence, territorial competence is imperative by its extreme importance, being immutable, namely the judicial bodies can only build a case or try a criminal case if they are competent from the territorial point of view. Unlike material competence, the ratione loci competence splits cases between different judicial bodies horizontally and is determined, as its name suggests, by territorial criteria.

Thus, territorial competence is not substantiated on something artificial, but on a natural criterion, on a fact4.

This form of competence represents the distribution in the territory of material competence, determines the territorial scope of the competence of different bodies with the same material competence.

Material consequence therefore appears as an essential condition for territorial competence so that a judicial body cannot be competent from the territorial point of view if it is not first competent from material point of view. We must point out at the same time that we cannot conceive the distribution of material competence among several judicial bodies without ensuring the order and discipline through territorial competence, the distribution of criminal cases according to this criterion not being done randomly5.

Territorial competence can be labeled as an extremely important condition for the activity of the judicial bodies, without which they could not reach the desired objective. On the other hand, the territorial competence criteria are also a guarantee provided to the citizen in the sense that he/she knows the competent territorial body, being eliminated this way he possibility of appearance of an abuse of power committed by the people that have the right to solve that particular case.

Naturally and objectively, under the current circumstances of the phenomenon of criminality, we could not speak about the existence of a single court that within the limits of its material competence has the ability to investigate and try all criminal actions perpetrated on the territory of a state. Very suggestively, V. Manzini shows that ‘if the Italian state had had the surface of the San Marino state or the Vatican only one judge would have been enough for any category of material competence’6.

Such a situation would inevitably lead to problems and difficulties for both the judicial bodies – from the organizational point of view -, and for the citizens – material and time-related difficulties – in the resolution of the criminal cases they are involved in.

That’s why the existence of a plurality of bodies equal in level, with the same material competence and their distribution along the whole territory of a state appears as an objective necessity. This distribution can only be made based on a territorial criterion.

According to this criterion, courts at the same level exert their competence in their turn on a limited surface of the territory of a state, namely within a territorial circumscription.

These territorial circumscriptions are more numerous and less extended if those bodies are lower in the scale of hierarchy of judicial bodies and the more they are more extended and less numerous, the more they occupy a higher position in this hierarchy.

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The legal dispositions on territorial competence make possible the distribution of criminal cases from the territorial point of view – horizontally – between judicial bodies of the same degree, each body having a certain territorial radius, with regard to the administrative-territorial organization of the country.

Section 2

Modalities of establishment of territorial competence. Competence for offenses perpetrated in the country

In the light of the Romanian code of criminal procedure, the establishment of the territorial competence of the judicial bodies is done based on two main coordinates; art. 30 Code of criminal procedure – Competence for offenses perpetrated in the country and art. 31 Code of criminal procedure – Competence for offenses perpetrated abroad.

This study approaches only the particularities of the establishment of territorial competence in case of offenses perpetrated in the country.

In the light of the previous regulations, to be more precise the Romanian Law, territorial competence was determined based on a single criterion, namely the place of perpetration of the offence - foram delicti comissi -, the importance of this criterion being justified by the fact that essential evidence could be found at the place of perpetration of the offence7.

In the old French law, the feudal regime had established the general rule of competence of the judge of domicile, but in time, the French Code of criminal procedure made the preference established by the old legislation disappear, being replaced by the principle of concurrence, according to which equally competent were the judicial bodies of the place of the offence, domicile and capture.

This tendency towards the multiplication of the bodies competent from the territorial point of view could be seen early and has become a constant of modern and contemporary legislation8.

In the Romanian criminal procedure law, the previous Code of criminal procedure stipulated for the offenses perpetrated in a country a three-party territorial competence. Thus, art. 21 Code of criminal procedure stipulated for the establishment of territorial competence three criteria, namely: the place of perpetration of the offense, the place of domicile or residence of the author and the place in which the author was caught.

At present, to the three known, traditional criteria that give competence9, another one was added: the place in which the victim lives.

The appearance of the fourth determining competence criterion is an innovation of the Code in force, an innovation whose explanations mainly resides in the legislator’s intention to facilitate the effective participation of the victim in the criminal trial10.

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We must at the same time point out the fact that with regard to the previous regulation, at present there are modifications regarding the order in which these criteria are enumerated. Thus, the criterion of the place of perpetration of the offense is still on the first position, and the order of the last two criteria has been switched, the place of capture of the author passing to the position occupied by the criterion of the author’s residence or domicile – as it had been regulated previously.

The need for a multiple competence from the territorial point of view is given by the importance of the discovery of the offenses and capture of the criminals in order to hold them responsible according to the law and perform this way a prompt investigation and trial meant to ensure the preventive and educative role of criminal justice11.

The criteria of establishment of the bodies competent from the territorial point of view, although differentiated to a certain extent in the different legislations, have however some general constant elements.

In the regulations existing in other states, territorial competence can also be established depending on the place of arresting of the author12 or depending on the domicile of the author or witnesses13.

The French criminal procedure legislation contains a series of differences with regard to the regulations existing in our legislation with regard to the criteria for the establishment of territorial competence.

Thus, in order to determine the competence of the judicial bodies, the French criminal procedure law does not take into account only the person that perpetrated the offense, but also certain circumstances of place, such as the place the offense was committed in, the place of residence or place of detention14. This way, in case of law violations it is mainly competence of the Court of the place of perpetration of the law violation or that of the place of residence of the alleged author. In case of offences and offenses, it is mainly competence of the Court of the place of perpetration, place of residence of the author, place of arresting or place of detention15.

In the French procedural system there is a difference between the competence of the examining judge on one hand and the courts on the other. The examining judge, competent from the material point of view to build a criminal case, offence or even – but only at the request of the General Prosecutor – law violation, is competent from the territorial point of view to investigate all law violations perpetrated outside the territorial radius of the Court he/she belongs to if one of the persons that allegedly participated in the perpetration of the action lives in the territorial radius of the Court...

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