WAIVING THE CRIMINAL PROSECUTION ACCORDING TO
THE DECISION OF THE CONSTITUTIONAL COURT NO. 23/2016
Professor Ion RUSU1
In the present paper we have examined the institution of waiving the criminal prosecution, as provided in the
current law, a text which was modified after the publication of the Decision of the Constitutional Court no. 23/2016. We
also considered the formulation of critical opinions regarding the possible existence of other elements of
unconstitutionality in the text in force. A very important aspect is the notification of the absence in the text, of some
provisions that condition the application of the institution on the need to repair the prejudice caused to the victim. The
paper can be useful to students and master students of the country's faculties, as well as practitioners in the field. Also,
the work can b e useful to the legislator for operating some changes in the current content of the text tha t regulates this
Keywords: crime; critical opinions; de lege ferenda proposals; criteria.
JEL Classification: K14
Introduced in Romanian law with the entry into force of the new Criminal Procedure Code, the
institution of waiving the criminal prosecution is, in its essence, a concrete way of applying the principle of
If we refer to the laws of some European states, we find that this institution is provided and works
for a long time in the laws of states such as: Germany, Italy, France, Spain, Serbia, Slovenia and Bulgaria.
The reason for introducing this new institution in the Romanian law is presented even in the
Explanatory Memorandum of the Criminal Procedure Code, where it is argued the necessity of avoiding
criminal proceedings in minor cases in which there is no public interest.
On the other hand, this institution leads to the speedy execution of criminal cases in which this
solution of criminal non-prosecution is established.
After the entry into force of the new Criminal Procedure Code, the institution was substantially
modified once the G.E.O. no. 18/20162, modification imposed practically by the Decision of the
Constitutional Court no. 23/2016 regarding the exception of unconstitutionality of the provisions of art. 318
of the Code of Criminal Procedure.3
In the present study we will insist on the examination of this new institution from the point of view
of the initial regulations and of the subsequent ones, based on the existence of provisions found to be
unconstitutional or criticized on the ground of their unconstitutionality.
Also, we will insist on presenting the steps that are being carried out in the procedure of waiving the
criminal prosecution (in accordance with the provisions of the law in force), as well as formulating critical
opinions regarding other provisions of the text that appear to be unconstitutional.
2. Some general considerations regarding the unconstitutionality of the text. The
considerations held by the Court
After the entry into force, against the background of critical opinions in the judicial practice,
promoted especially by defense and less accusation, the text of art. 318 which regulated this institution was
declared unconstitutional (in its initial formulation) by Decision no. 23/2016 regarding the exception of
unconstitutionality of the provisions of art. 318 of the Code of Criminal Procedure.
As it is of major importance for the science of law in general, we will continue to present some of the
views expressed by the Court in its considerations, which it has repeatedly stated, that are part of the Court's
1 Ion Rusu - Danubius University of Galati; Lawyer at Vrancea Bar, Romania, email@example.com.
2 Government Emergency Ordin ance no. 18/2016 for amending and supplementing Law no. 286/2009 regarding the Criminal Code,
of Law no. 135/2010 regarding the Code of criminal procedure, as well as for the completion of art. 31 paragraph (1) of Law n o.
304/2004 regarding the judicial organization, published in the Official Monitor of Romania, Part I, no. 389 of May 23, 2016.
3 Published in the Official Monitor of Romania, Part I, no. 240 of March 31, 2016.