A Plaintiff's Prior Complaint Substantive and Formal Requirements

• Author: Angelica Chirila, PhD in progress
• Position: Senior Lecturer "Danubius" University of Galati
• Pages: 1-6

Page 1

1. The requirements related to the contend of a prior complaint consider, as case may be, the attribute of representing a requirement of punishment likelihood or of that of legal proceedings ¹

The text of article 283 Code of Criminal Procedure on the contends of prior complaint, states its elements which we intend to examine so that we may consider whether or not a prior complaint is properly filled in and what are the consequences of any irregularities in this sense.

The legal efficacy of any prior complaint is therefore determined by its contends², and this is why some of the elements specified below are provided under the penalty of being considered null and void, their deficiency thus attracting the legal inefficiency of the prior complaint, being considered a null document or, as some scholars may point out³, as inexistent.

2. With regard to the requirement as legal proceedings, the main prerequisite of contents of any prior complaint relates to its expressing in a clear and undoubtedly manner, both the will and the appeal of the plaintiff to file in a criminal complaint against the defendant.

By its nature and purpose, the prior complaints must contain, above all, unlike declaration or simple complaint, the plaintiff's declaration of will with regard to the implementation of the prior complaint, meaning that the declaration states the will of the plaintiff for the criminal proceedings. Yet, there is no prerequisite for any particular statement, it is enough to deduct, if possible, that will⁴, from the way the facts are being described or from the contents of the prior complaintPage 2itself.

One this prerequisite has been fulfilled; it is not important whether or not the plaintiff files in the complaint to the competent court as, according to art. 285 Code of Criminal Procedure., in case the complaint has been filed to the wrong court, it will be redirected ex officio to the competent body as is considered as valid if it was filed to the non-competent body in due time⁵.

The requirement that contends of the complaints should include the expression "prior complaint", is not a prerequisite to formal validity. This manifestation of will has a special character and must result from a declaration that is by all means unequivocal.

The declaration taken by the police officer from the injured party, at the end of which there is the statement that it constitutes itself as a claimant in the criminal lawsuit, cannot be considered as a prior complaint as the criminal prosecutors are not legally informed in writing, thus not being able to pursue criminal prosecution, motivated by the fact that while the prior complaint constitutes in itself a requirement to validate criminal prosecution, the claimant has, in any criminal case, the character of a accessory, being thus subordinated to the criminal proceeding. This manifestation of will has a special character and must result from a declaration that is by all means unequivocal, and not from a declaration as a claimant⁶.

As regards that the prior complaint must also include, among the elements provided by art. 283 Code of Criminal Procedure a declaration intended to condemn the defendant, this declaration differs from the application to indentify the culprit filed in to the criminal prosecutors. The request of the injured party to identify the culprit or the culprits is not equivalent to a prior complaint due to the fact the investigator does not undergo a criminal action but only investigates in order to identify the culprit.

Only after having been communicated to the injured party, the latter will decide, now knowing the identity of the culprit, whether or not will file in a prior complaint.

In judiciary practice, it has been correctly decided, that the prior complaint is missing due to the fact that the injured parties have not requested the culprit to be condemned, but only to demolish the works carried put on common spaces and this is something that may be achieved through a separated civil lawsuit⁷.

3. As regards the requirement of legal proceeding, the complaint must include the prerequisites provided by art. 283 Code of Criminal Procedure. (the description of the offense, the indication of the culprit, the means of evidence, indicating the address of the parties, the statement whether or not the injured party is a claimant; if case may be, the indication of the responsible party, from the point of view of a civil legal action).

The complaint filed in by the representative of a person without capacity of exercise, should include the age of the minor person, the situation of the person not having capacity of exercise as well as the quality of the representative on account of a document proving this quality.

From the contrastive analysis of contends of the complaint regulated by the provisions of art. 222 paragraph 2 Code of Criminal Procedure, with contends of the prior complaint, provided in art. 283 Code of Criminal Procedure, one may note that the law understood to also differentiate between the two institutions in point of their contends.

Thus, there are provided the special elements pertaining to prior complaint (the address of the parties and the witnesses,Page 3the statement the statement whether or not the injured party is a claimant; if case may be, the indication of the responsible party, from the point of view of a civil legal action), alongside with the common elements provided in art. 222 paragraph 2 Code of Criminal Procedure (the description of the offense, the indication of the culprit, and the means of evidence)⁸.

What is more, it has to include other mentions than the simple complaint: the surname and first name as well as the residence of the injured part. The quality of injured party is not necessarily mentioned in the contends of the prior complaint as any prior complaint would presuppose, by itself, the declaration of the plaintiff as a party in the criminal lawsuit. Yet, there is the need to mention if the prior complaint was made through an attorney and the power of attorney needs to be attached to the file (art. 222 paragraph 3 Code of Criminal Procedure.)

The elements regarding the legal procedures provided in the contents of art. 283 Code of Criminal Procedure are essential and imply the requirement of validity of the prior complaint not only with regard to those...