Waiving The Criminal Prosecution According To The Decision Of The Constitutional Court No. 23/2016

• Author: Ion Rusu
• Position: Danubius University of Galati; Lawyer at Vrancea Bar, Romania
• Pages: 305-310

WAIVING THE CRIMINAL PROSECUTION ACCORDING TO

THE DECISION OF THE CONSTITUTIONAL COURT NO. 23/2016

Professor Ion RUSU1

Abstract

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

institution.

Keywords: crime; critical opinions; de lege ferenda proposals; criteria.

JEL Classification: K14

1. Introduction

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

criminal prosecution.

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, av.ionrusu@yahoo.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.