Withdrawal of previous complaint. A comparison of the old and the new criminal code. problems of comparative law

• Author: Alin Sorin Nicolescu
• Position: Judge, Chairman of the Criminal Section of Gorj Court; PhD Candidate, Faculty of Law, 'Nicolae Titulescu' University of Bucharest (e-mail: alin.nicolescu@just.ro).
• Pages: 165-185

LESIJ NO. XXII, VOL. 2/2015

WITHDRAWAL OF PREVIOUS COMPLAINT.

A COMPARISON OF THE OLD

AND THE NEW CRIMINAL CODE.

PROBLEMS OF COMPARATIVE LAW

Alin Sorin NICOLESCU*

Abstract:

In criminal law previous complaint has a double legal valence, material and procedural in

nature, constituting a condition for criminal liability, but also a functional condition in cases expressly

and limitatively provided by law, a consequence of criminal sanction condition. For certain offenses

criminal law determines the initiation of the criminal complaint by the in troduction o f previous

complaint by the injured party, without its absence being a question of removing criminal liability.

From the perspective of criminal material law conditioning of the existence of previous complaint,its

lack a nd withdrawal, are regulated by art. 157 and 158 of the New Penal Code, with significant

changes in relation to the old regulation of the institution . In terms of procedural aspect, previous

complaint is regulated in art. 295-298 of the New Code of Criminal Procedure. Regarding the

withdrawal of the previuos complaint, in the case of offenses for which the initiation of criminal

proceedings is subject to the existence of such a complaint, we note that in the current Criminal Code

this legal institution is regulated separately, representing both a cause for removal of criminal liability

and a cause that preclude criminal action. This unilateral act of the will of the injured party - the

withdrawal of the previous complaint, may be exercised only under certain conditions, namely: it can

only be promoted in the case of the offenses for which the initiation of criminal proceedings is subject

to the introduction of a previous complaint; it is made exclusively by the rightholder, by legal

representatives or with the consent of the persons required by law for persons lacking legal capacity

or having limited legal capacity;it must intervene until giving final judgment and it must represent

an express and explicit manifestation. A novelty isrepresented by the possibility of withdrawing

previous complaint if the prosecution was driven ex officio, although for that offense the law requires

a previous complaint in the sense that the withdrawal ta kes effect only if it is appropriated by the

prosecutor.

Keywords: crime, previous complaint, criminal action, withdrawal of previous complaint.

1. Introduction. Previous

complaint. General considerations.*

Legal order and civic discipline in a

state of law are established and maintained

by means of rules of law. These rules

prescribe rules of co nduct, which must be

* Judge, Chairman of the Criminal Section of Gorj Court; PhD Candidate, Faculty of Law, “Nicolae Titulescu”

University of Bucharest (e-mail: alin.nicolescu@just.ro).

1

I. Gorgăneanu - Criminal proceedings, Scientific and Encyclopedic Publishing House Bucharest, 1977, p. 13.

obeyed by the community members as well

as sanctions to be applied in case of their

violation.

The rules of conduct – most of them -

are expressed in a particular form: the law

1

in a wider sense (including any normative

act).

166 Lex ET Scientia International Journal

The great philosopher, lawyer and

orator Cicero (106 BC-43 BC) said more

than two millennia before that ”we are

slaves to law in order to be free”.

The establishment by law of the facts

constituting crime, as well as of the

criminal sanctions framework, has a dual

role: first to show the members of society

which are the deeds prohibited by crimin al

law and also to warn them about the

consequences of committing suc h deeds,

thus fulfilling the function of general

prevention and secondly to ensure the

correct framing of the facts that infringed

the penal law, and a fair sanction for those

who committed such acts, with a special

preventive function.

In Article 1 of the Criminal Cod e, the

law provides the acts constituting o ffense,

the penalties that are applied to offenders

and the measures that can be taken when

committing such acts.

Commiting an offense, even when it is

discovered and proved by the

administration of evidence, adduced against

infringers, do es not require the automatic

application of punishment. In order to reach

punishing the offender criminal justice is

required, meaning his conviction by the

competent court on a trial.

The necessity of restoring the rule of

law infringed by committing crimes led to

the establishment of the rule that initiation

and development of criminal proceedings

are made ex officio (principle of

officialdom of criminal trial). In the case of

minor offenses or those involving

relationships between people or their

personal life, the Criminal Code and o ther

laws with criminal pro visions stipulate that

criminal action can be initiated or exercised

only if the injured per son expressed his/her

will of prosecuting the perpetrator by

2

Milea T. Pop ovici, Pr ior compla int in regulating the pre sent Code of Cri minal Proc edure, RR D No.9 /

1969, p.23.

3

C.Bulai, Criminal Law, General Part, University of Bucharest, 1987, p.469.

introducing a previous complaint to the

courts.

Previous complaint is a criminal

institution, its absence representi ng a cause

of removing criminal liability (art. 157 New

Criminal Code).

The institution has a procedural aspect

which has a direct impact on the possibility

of exercising criminal action a nd implicitly

on criminal responsibility.

From the point of vie w of criminal

law, previous co mplaint is a condition of

punishability and in ter ms of procedural

criminal law a condition of

procedurability

2

.

As outlined, in the case of the offenses

for which the law provides the necessity of

previous complaint of the injured person,

criminal action can not be exercised in the

absence of such complaints, art. 295 Code

of Criminal Procedure.

Criminal law determines the cases

when for the exercise of cr iminal action,

previous complaint is r equired, starting

from the circumstance that these o ffenses

are among those which by their nature

concern social relations limited especially

to the personal interests of the parties.

In such cases, it is considered that the

injured are able to determine whether to

start a criminal trial, criminal action being

conditioned by the manifestation of a n

exclusive right of the injured person

3

.

Against the will of the injured criminal trial

it can not take place.

Justification of t he exception

consisted either in a lower degree of abstract

social danger of these facts or in the

circumstance that their bringing to court,

with the advertising involved by the trial,

could be a source of discomfort or distress

to the injured person or would give rise to

various conflicts between people belonging