The criminal charge

• Author: George Octavian Nicolae - Sebastian Bogdan Gavril?
• Position: PhD Candidate, Faculty of Law, 'Nicolae Titulescu' University of Bucharest; Judge (e-mail: nicolae.georgeoctavian@yahoo.com). - Judge at First Instance Court Bucharest.
• Pages: 105-111

LESIJ NO. XXIV, VOL. 1/2017

THE CRIMINAL CHARGE

George Octavian NICOLAE

Sebastian Bogdan GAVRILĂ

Abstract

The process of criminal prosecution against a particular individual is ordered by the prosecutor or law

enforcement investigator by ordinance. After the decision to carry on with the criminal investigation,

the suspected person, the perpetrator acquires a legal standing which a llows a full spectrum of rights

and obligations stipulated by law. This project is focused on the link between our national criminal law

regulation regarding the criminal investigation and the deman ds of the European Convention for

human rights.

Keywords: criminal prosecution; European Convention on Human Rights, criminal law,

reasonable suspicion, criminal charge.

1. Introduction

The start of the criminal investiga tion

proceedings has undergone significant

changes under the provisions of the new

Criminal Procedural Code over the old

regulations of 1968.

Thus, according to art. 305 of the

Criminal Procedural Code, "when the

preliminary criminal complaint fulfils the

conditions stipulated by law, the investigator

begins criminal proceedings regarding the

committed or prepared illicit act, even if the

author is indicated or known”.

Compared with the provisions of the

Criminal Procedural Code of 1968, which in

art. 228 stated that " the investigator notified

by resolution, begins criminal proceedings

when from the content of the complaint or

from the preliminary investigatory acts does

not result any legal impediment stipulated

in art. 10” we may ascertain the occurrence

 PhD Candidate, Faculty of Law, “Nicolae Titulescu” University of Bucharest; Judge (e-mail:

nicolae.georgeoctavian@yahoo.com).

 Judge at First Instance Court Bucharest.

of two major changes in the national

criminal policy.

2. Content

Firstly, according to the Former

Criminal Procedural Code, after notification

the prosecution could commence

proceedings regarding both the offense (in

rem), and on one particular person (in

personam). Nowadays, authorities are

required to begin with the in rem phase, even

if in the complaint the offender is indicated

or enough information exists to allow his

identification in order to concentrate the

investigation on a particular individual

prosecution (initiation of the in personam

phase).

The ne w Pro cedural Code thus

establishes the obligation of the prosecution

to be initiated only regarding an offense, so

initially it ca n capitalize only on the in rem

part of the process.