Editura Universul Juridic Treaty of criminal procedure. The special part. 3rd edition, revised and added - Ion Neagu, Mircea Damaschin

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Publisher: Universul Juridic

Author: Ion Neagu, Mircea Damaschin

Edition: a 3-a, revizuita si adaugita

Pages: 744

Publisher year: 2021

ISBN: 978-606-39-0601-5

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Criminal Procedure Treaty. The special part is intended for law students in order to prepare the exams for promotion and completion of undergraduate studies, law students, doctoral students, candidates for admission to the National Institute of Magistracy, candidates for admission to the profession of lawyer, and those who intend to apply for admission to other legal professions. Also, the paper is addressed to legal practitioners, with concrete reference to criminal judicial bodies (courts, prosecutors, criminal investigation bodies of the judicial police, other criminal investigation bodies) and lawyers.

The result of a laborious documentary, this is the third edition of the Treaty on Criminal Procedure. The special part was elaborated by consulting the relevant legislation in the analyzed field, of the specialized doctrine and of the jurisprudence in the matter of the criminal procedural law. In this sense, laws, normative acts issued by the Romanian Government, European Union legislation, international regulations on the protection of human rights, etc. were invoked in the pages of the treaty.

The provisions contained in the Code of Criminal Procedure and in the Criminal Code were taken into account, which entered into force on February 1, 2014, analyzed, where appropriate, in parallel with the regulations of previous codes or criminal laws. especially whose legal norms have been taken over in the new codes. Also, the jurisprudence of the national courts was presented and analyzed (special attention being paid to the jurisprudence of the supreme court, especially in the matter of ensuring a unitary judicial practice, by resolving the appeal in the interest of law and resolving legal issues), of the Constitutional Court. of Romania, of the European Court of Human Rights, respectively of the Court of Justice of the European Union.

The legislative, jurisprudential and documentary material existing on May 25, 2021 was used in the elaboration of the paper.
  • Treaty of criminal procedure. The special part. 3rd edition, revised and added - Ion Neagu, Mircea Damaschin

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Ion Neagu

Education and training: doctoral studies, Faculty of Law, University of Bucharest (1972-1977); International Faculty for the Study of Comparative Law, Strasbourg, France (1974 - first cycle; 1980 - second cycle); Faculty of Law, University of Bucharest (1960-1965).

Professional experience: president of the Board of Directors of the “Nicolae Titulescu” University of Bucharest (2012-present); rector of the "Nicolae Titulescu" University of Bucharest (2002-2012); head of the Department of Criminal Law, Faculty of Law, University of Bucharest (1996-2007); Bucharest Bar lawyer (1990-present); doctoral supervisor Criminal procedure law (1990-present); member of the commission for the elaboration of the Code of Criminal Procedure (1978 1979); legal higher education teacher (1966-present); judge (1965-1966).

Scientific research activity: author and co-author of numerous treatises, studies and articles, among which we mention: Treaty of criminal procedural law. The general part, Universul Juridic Publishing House, Bucharest, 2014, ed. 2nd, 2015, ed. 3rd, 2020; Criminal Procedural Law. The special part. Seminar map, Universul Juridic Publishing House, Bucharest, 2016, ed. 2nd, 2019; Annotated criminal procedure code, Universul Juridic Publishing House, Bucharest, 2018; Criminal Procedural Law. The general part. Seminar map, Universul Juridic Publishing House, Bucharest, 2016, ed. 2nd, 2018; Treaty of criminal procedural law. The special part, Universul Juridic Publishing House, Bucharest, 2015, ed. 2nd, 2018; The Code of Criminal Procedure, annotated with legislation and jurisprudence, ed. 2nd, Ed. Universul Juridic, Bucharest, 2010; Criminal judicial practice, vol. IV, co-author (together with G. Antoniu, N. Volonciu, V. Stoica, D. Popescu, V. Papadopol), Ed. Academiei Romane, Bucharest, 1993; Criminal Procedural Law. Treaty, Romanian Academy Publishing House, Bucharest, 1988 s.a.

Mircea Damaschin

Publishing activity

Some of the university courses, monographs


- Standardization of judicial practice and harmonization with ECHR jurisprudence, imperative of the administration of justice: legislative proposals on ensuring a unitary judicial practice (volume I, The role of jurisprudence in the judiciary), co-author (with Prof. Dr. Mihai Adrian Hotca, associate professor) Dan Lupascu, PhD, Beatrice Onica-Jarka, PhD, Universul Juridic Publishing House, Bucharest, 2010, ISBN 978‐973‐127‐466‐9, 147 pages;
- Standardization of judicial practice and harmonization with ECHR jurisprudence, imperative of the administration of justice: legislative proposals on ensuring a unitary judicial practice (Volume II, Causes of non-unitary jurisprudence), co-author (with Prof. Dr. Mihai Adrian Hotca, associate professor) Dan Lupascu, PhD, Beatrice Onica ‐ Jarka, PhD, Universul Juridic Publishing House, Bucharest, 2010, ISBN 978‐973‐127‐467‐6, 743 pages;
- Criminal procedural law, sole author, Wolters Kluwer Publishing House, Bucharest, 2010, ISBN 973‐191‐190‐1, 624 pages;
- Code of Criminal Procedure - Annotated with legislation and jurisprudence, co-author (together with Prof. Dr. Ion Neagu), 2nd edition revised and added, Universul Juridic Publishing House, Bucharest, 2010, ISBN 978‐973‐127‐ 246‐7, 818 pages;
- Criminal investigation guide, co-author (together with Prof. Dr. Vasile Berchesan et al.), Universul Juridic Publishing House, Bucharest, 2010, ISBN 978‐973‐127‐237‐5, 367 pages;
- Grid tests for competitions and exams, co-author (together with prof. Dr. Mihai Adrian Hotca et al.), Hamangiu Publishing House, Bucharest, 2010, ISBN 978‐606‐522‐307‐3, 232 pages;
- Criminal Procedural Law. Seminar map, sole author, Universul Juridic Publishing House, Bucharest, 2010, ISBN 978‐973‐127‐315‐0, 467 pages;

Content

ABBREVIATIONS / 25

CHAPTER I
CRIMINAL PROSECUTION / 31

Section I. General considerations regarding the criminal investigation / 31
Criminal investigation - distinct phase of the criminal process / 31
The object of the criminal investigation / 32
The limits of the criminal investigation / 35
Characteristic features of the criminal investigation / 37
Introductory notions / 37
Hierarchical subordination in performing criminal prosecution acts / 38
Lack of publicity of the criminal investigation / 40
The non - contradictory character of the criminal investigation / 43
The preponderance of the written form / 44
General provisions regarding the criminal investigation / 45
Section II. Competence of the criminal investigation bodies / 49
Preliminary considerations / 49
Competence of the prosecutor / 50
Introductory notions / 50
Supervision of the criminal investigation / 50
Preliminary aspects / 50
The object of the supervision of the criminal investigation / 53
Referral of the case to the competent body / 54
Transfer of the case from one criminal investigation body to another / 54
Direct participation of the prosecutor in conducting the criminal investigation / 55
Verification of the criminal investigation file by the prosecutor / 55
Authorization, confirmation, approval and refutation of documents and procedural measures by the prosecutor / 56
Carrying out the criminal investigation / 58
Competence of the criminal investigation bodies of the judicial police / 62
Competence of special criminal investigation bodies / 63
Other provisions regarding the competence of the criminal investigation bodies / 65
Verification of competence / 65
Extension of territorial competence / 66
Urgent cases / 67
Section III. Notification of criminal investigation bodies / 67
Preliminary considerations / 67
General ways of notifying the criminal investigation bodies / 69
Complaint / 69
The denunciation / 72
Ex officio notification / 74
Preliminary aspects / 74
Ex officio notification as a result of the documents concluded by the ascertaining bodies / 76
Documents concluded by the ascertaining bodies / 76
Documents concluded by the masters of ships and aircraft / 79
Ex officio notification as a result of the finding of the flagrant crime / 80
Special ways of notifying the criminal investigation bodies / 81
Preliminary complaint / 81
The notion of “prior complaint” / 81
Bodies to which the prior complaint may be lodged / 84
Holders of the preliminary complaint / 85
Content of the preliminary complaint / 89
Deadline for lodging a preliminary complaint / 90
Special issues regarding the prior complaint procedure / 91
Procedure in case of flagrant crimes / 91
Aspects related to the preliminary complaint procedure in case of change of the legal classification of the deed / 92
Other special notification methods / 92
Section IV. Carrying out the criminal investigation / 94
The beginning of the criminal investigation / 94
Carrying out criminal investigation acts / 98
Introductory notions / 98
Continuing the criminal investigation against the suspect / 99
Initiation of criminal proceedings / 101
Extending the criminal investigation and changing the legal framework / 103
Early hearing procedure / 105
Suspension of the criminal investigation / 107
Introductory notions / 107
Suspension of the criminal investigation in case of serious illness of the suspect or defendant / 108
Suspension of the criminal investigation in case of the existence of a temporary impediment for the initiation of the criminal action / 109
Suspension of the criminal investigation during the mediation procedure / 110
Procedure for suspending the criminal investigation / 110
Termination of the criminal investigation / 111
Solving criminal cases / 113
Introductory notions / 113
Ranking / 114
Preliminary aspects / 114
Classification procedure / 117
Classification ordinance / 118
Waiver of criminal prosecution / 119
Preliminary aspects. Conditions for giving up the criminal investigation / 119
Public interest / 120
Obligations correlative to waiving the criminal investigation / 122
Ordinance to waive the criminal investigation / 122
Confirmation of the order to waive the criminal investigation / 124
Revocation of the order to waive the criminal investigation / 126
Continuation of the criminal investigation / 126
Sending / 128
Preliminary aspects / 128
The indictment / 129
Section V. Resumption of the criminal investigation / 132
Preliminary considerations / 132
Resumption of the criminal investigation after suspension / 133
Resumption of the criminal investigation in case of restitution / 134
Resumption of the criminal investigation in case of reopening of the criminal investigation / 137
Resumption in case of reopening of the criminal investigation as a result of the invalidation of the classification solution / 138
Resumption in case of reopening of the criminal investigation as a result of the revocation of the waiver of the criminal investigation / 140
Resumption in case of reopening of the criminal investigation as a result of the admission of the complaint against the solution of not sending to trial by the judge of the preliminary chamber / 141
Section VI. Complaint against measures, acts and solutions of criminal investigation / 141
Preliminary considerations / 141
Complaint against the measures taken and the acts performed by the criminal investigation bodies / 143
Complaint against the measures taken, the acts performed and the solutions ordered by the prosecutor / 144
Complaint against measuresand the prosecutor's documents / 144
Complaint against the prosecutor's solutions of non-prosecution or non-prosecution / 145
Preliminary aspects / 145
Object of the complaint / 145
Content of the complaint / 146
Holders of the complaint / 146
Introduction of the complaint to the hierarchically superior prosecutor / 148
Introduction of the complaint to the judge of the preliminary chamber / 148
Procedure for judging the complaint by the judge of the preliminary chamber / 151
Settlement of the complaint / 153
The settlement of the complaint in cases in which no criminal investigation or criminal investigation was initiated took place without the criminal action having been initiated / 154
Settlement of the complaint in the cases in which the criminal action was initiated / 157
Remedies / 160

CHAPTER II
GENERAL PROVISIONS REGARDING THE TRIAL PHASE / 162

Section I. General considerations regarding the trial and the principles specific to the trial phase / 162
Judgment - the important phase of the criminal trial / 162
Degrees of jurisdiction / 164
The limits of the trial phase / 167
Principles specific to the trial phase / 168
Introductory notions / 168
Advertising / 169
Directness / 177
Contradictory / 181
Orality / 184
Section II. General regulations regarding the trial phase / 186
The place where the trial takes place / 186
Judgment participants / 187
Preliminary considerations / 187
The court / 188
The role of the court / 188
Composition of the court / 189
The participation of the prosecutor in the trial phase / 192
Summoning the injured person, the parties and other persons at the trial phase / 196
Participation of the parties, of the injured person and of other procedural subjects at the trial / 200
Participation of the defendant in the trial / 200
Participation in the trial of the injured person, of the civil party, of the civilly responsible party and of other procedural subjects / 202
Defense insurance / 203
Ensuring the order and solemnity of the court hearing / 205
Finding the offenses of hearing / 206
Suspension of trial / 209
Preliminary considerations / 209
Suspension of trial in case of serious illness of the defendant / 211
Suspension of the trial in the case of the mediation procedure / 213
Suspension of trial in case of active extradition request / 214
General provisions regarding court decisions / 215
The notion of “court decision” / 215
Deliberation, drafting and pronouncing of the court decision / 217
Preliminary aspects / 217
Deliberation / 217
Drafting the decision / 222
Pronouncing the decision / 223
Types of court decisions / 224
Sentences / 224
Decisions / 226
Conclusions / 226

CHAPTER III
PRELIMINARY ROOM / 230

Section I. Preliminary Chamber - procedural stage of the trial phase / 230
Section II. Procedure in the preliminary chamber stage / 233
Preliminary considerations / 233
The effects of the jurisprudence of the Constitutional Court on the procedure of the preliminary chamber / 235
Preliminary measures / 241
Judgment procedure / 244
Solutions in the preliminary chamber / 246
The beginning of the trial / 246
Restitution of the case to the prosecutor's office / 247
Decline of competence. Existence of a conflict of competence / 249
The appeal of the appeal / 250

CHAPTER IV
JUDGMENT IN THE FIRST INSTANCE / 252

Section I. General considerations regarding the trial in the first instance / 252
Preliminary considerations / 252
The object of the trial in the first instance / 252 Section II. The procedural stages of the trial in the first instance / 255
Measures preceding the court hearing / 255
Random distribution / 255
Setting the trial term / 256
Summoning the parties and the injured person / 257
Providing defense / 257
Preparation and display of the list of cases / 258
Court hearing in the first instance / 258
Preliminary considerations / 258
The beginning of the court hearing / 258
Opening of the hearing / 259
The shout of the case and the appeal of those cited / 259
Checks regarding the defendant / 260
Measures on witnesses, experts and interpreters / 260
Reading the act of notification of the court / 261
Notification of accusations, clarifications, exceptions and requests / 261
Judicial research / 265
Preliminary considerations / 265
Ordinary procedure of judicial investigation / 265
Order of judicial investigation / 265
Hearing of the defendant / 266
Hearing of co-defendants / 268
Hearing of the injured person, of the civil party and of the civilly responsible party / 269
Administration of new samples. Re-administration of evidence administered in the criminal investigation phase and which has been challenged / 270
Hearing of the witness and the expert / 272
Changing the legal framework / 274
Completion of the judicial investigation / 279
Simplified procedure of judicial investigation in case of recognition of the accusation / 279
Debates / 285
Deliberation and resolution of the case in the first instance / 288
Deliberation / 288
Notion / 288
Object of deliberation / 288
Deliberation procedure / 289
Resumption of judicial investigation or debates / 290
Solving the criminal case / 290
Solving the actJune criminal / 290
Solving the civil action / 297
Drafting, pronouncing and communicating the decision / 298
Introductory notions / 298
Drafting the decision / 298
Preliminary aspects / 298
Introductory part / 299
Exposure / 300
Device / 301
Pronouncing the decision / 306
Communication of the decision / 307

CHAPTER V
JUDGMENT IN ORDINARY WAYS OF ATTACK / 308

Section I. General considerations on remedies / 308
Preliminary considerations / 308
Classification of remedies / 310
Section II. Judgment on appeal / 312
Preliminary considerations / 312
Decisions subject to appeal / 314
Sentences / 314
Conclusions / 315
Call holders / 317
Introductory notions / 317
The prosecutor as the holder of the appeal / 318
Defendant as holder of the appeal / 320
The civil party as the holder of the appeal / 322
The civilly liable party as the holder of the appeal / 323
Injured person as holder of the call / 324
Witness, expert, interpreter and lawyer as holders of the appeal / 325
The right to appeal to any natural or legal person whose legitimate rights have been directly harmed by a measure or by an act of the court / 327
Call term. Reinstatement / 328
Call term / 328
Preliminary aspects / 328
The time from which the appeal period (dies a quo) / 329
The moment from which the term of appeal for the prosecutor, the injured person and the parties runs / 330
The moment from which the term of appeal for witness, expert, interpreter or lawyer flows / 331
The moment from which the term of appeal for any natural or legal person whose legitimate rights have been directly harmed by a measure or by an act of the court / 332
The moment when the term of appeal is fulfilled (dies ad quem) / 332
Reinstatement / 334
Declaration of appeal. Dropping the call. Withdrawal of the call / 336
Declaration of appeal / 336
Disclaimer / 339
Call withdrawal / 340
The effects of the call / 342
Introductory notions / 342
Suspensive effect of the call / 343
The devolutive effect of the call / 343
Notion / 343
Limits of the devolutive effect of the call / 343
Non-aggravation of the situation in one's own appeal (non-aggravating effect) / 347
Extensive call effect / 352
Judgment of the appeal / 353
Introductory notions / 353
Measures preceding the court hearing on appeal / 354
Court hearing on appeal / 355
Participants in the judgment of the appeal / 355
Judgment on appeal / 356
Call resolution / 358
Preliminary aspects / 358
Rejection of the appeal / 359
Admission of the appeal / 361
Admission of the appeal, annulment of the appealed sentence and settlement of the case by the appellate court / 362
Admission of the appeal, annulment of the appealed sentence and retrial of the case by the court whose decision was annulled or by another court / 363
Complementary issues
The content of the decision of the court of appeal / 366
The retrial procedure and the limits of the retrial / 367
Section III. Contestation / 368
Preliminary considerations / 368
Object of the appeal / 369
Introductory notions / 369
Appeal against the conclusions / 369
Appeal against certain categories of sentences / 371
Other cases in which the appeal can be exercised / 371
Holders of the appeal / 372
The term in which the appeal can be exercised / 374
Declaration of appeal / 376
The effects of the appeal / 376
Appeal trial procedure / 378
Settlement of the appeal / 379

CHAPTER VI
EXTRAORDINARY WAYS OF ATTACK / 382

Section I. General considerations regarding extraordinary remedies / 382
The need for extraordinary remedies / 382
The parallel between the extraordinary means of attack and the ordinary means of attack / 383
Section II. The contestation in annulment / 385
Preliminary considerations / 385
Cases of contestation in annulment / 387
Introductory notions / 387
The judgment on appeal took place without the legal summons of a party or, although legally summoned, the party was unable to appear and to notify the court about this impossibility [art. 426 lit. a)] / 389
The trial on appeal took place without the legal summons of a party (or of the injured person) / 390
The judgment on appeal took place in the conditions in which the injured party or person, although legally summoned, was unable to appear and to notify the court about this impossibility / 393
The defendant was convicted, although there was evidence of a cause for termination of criminal proceedings [art. 426 lit. b)] / 395
The decision in the appeal was pronounced by another panel other than the one that took part in the substantive debate of the process [art. 426
LIT c)] / 398
The appellate court was not composed according to the law or there was a case of incompatibility [art. 426 lit. d)] / 399
The trial on appeal took place without the participation of the prosecutor or the defendant, when it was mandatory, according to the law [art. 426 lit. e)] / 401
The trial on appeal took place in the absence of the lawyer, when the legal assistance of the defendant was mandatory,according to the law [art. 426 lit. f)] / 401
The court hearing on appeal was not public, except for the cases when the law provides otherwise [art. 426 lit. g)] / 402
The appellate court did not proceed to the hearing of the present defendant, if the hearing was legally possible [art. 426 lit. h)] / 403
Against a person, two final decisions were pronounced for the same deed [art. 426 lit. i)] / 404
Declaration of the contestation in annulment / 404
Holders of the annulment appeal / 404
The term for introducing the annulment appeal / 406
Application for annulment / 407
Procedure for judging the contestation in annulment / 408
Competent court / 408
Suspension of execution / 409
Admission in principle / 409
Judgment of the contestation in annulment / 410
Section III. Appeal in cassation / 411
Preliminary considerations / 411
Decisions subject to appeal in cassation / 413
Declaration of appeal in cassation / 418
Holders of the appeal in cassation / 418
Introductory notions / 418
The prosecutor, holder of the appeal in cassation / 418
The defendant, holder of the appeal in cassation / 419
The civil party, holder of the appeal in cassation / 419
The civilly responsible party, holder of the appeal in cassation / 420
Injured person, holder of the cassation appeal / 420
The term for filing the appeal in cassation / 422
Form of appeal in cassation / 423
Withdrawal of the appeal in cassation / 423
The effects of the cassation appeal / 425
The suspensive effect of the cassation appeal / 425
The devolutive effect of the appeal in cassation / 425
The extensive effect of the cassation appeal / 426
The effect of not aggravating the situation in its own appeal in cassation / 427
Cases in which an appeal can be made in cassation / 428
Introductory notions / 428
During the trial, the provisions regarding the competence by matter or by the quality of the person were not observed, when the trial was performed by a court inferior to the one with legal competence [art. 438 para. (1) § 1] / 430
The defendant was convicted for an act that is not provided by the criminal law [art. 438 para. (1) § 7] / 431
The termination of the criminal trial was wrongly ordered [art. 438 para. (1) § 8] / 432
No pardon was found or it was wrongly found that the punishment applied to the defendant was pardoned [art. 438 para. (1) § 11] / 433
Punishments were applied in other limits than those provided by law [art. 438 para. (1) § 12] / 434
Procedure for judging the appeal in cassation / 436
Introductory notions / 436
Competent court / 437
Communication procedure / 437
Preliminary activity carried out
by the assistant magistrate from the court of judicial control / 439
Admission in principle / 439
Suspension of the enforcement of the judgment under appeal / 441
The actual judgment of the appeal in cassation / 442
Settlement of the appeal in cassation / 442
Dismissal of the appeal in cassation / 442
Admission of the appeal in cassation / 443
Decision of the court of appeal in cassation / 445
The retrial procedure after the quashing of the contested decision / 446
Section IV. Revision / 447
Preliminary considerations / 447
Decisions subject to review / 448
Characteristics of decisions that may be subject to review / 448
Limits within which the revision can be exercised / 450
Review cases / 451
Introductory notions / 451
The case of review regarding the discovery of facts or circumstances that were not known when solving the case [art. 453 para. (1) lit. a)] / 452
The case of revision regarding the false testimony [art. 453 para. (1) lit. b)] / 458
The case of revision regarding the false documents [art. 453 para. (1) lit. c)] / 461
The case of review regarding some illicit deeds committed by the persons who carry out their activity within the judicial bodies [art. 453 para. (1) lit. d)] / 463
The case of review regarding the irreconcilability of the criminal decisions [art. 453 para. (1) lit. e)] / 465
The case of revision regarding the unconstitutionality of a legal provision based on which the final decision was pronounced [art. 453 para. (1) lit. f)] / 465
Statement of revision / 468
Review holders / 468
Deadline for submitting the request for review / 469
Request for review in favor of the convict / 469
Request for review against the convicted person, the acquitted person or the person against whom the termination of the criminal proceedings was ordered / 469
Request for revision / 471
Review judgment procedure / 471
Competent court / 471
Admission in principle / 473
Suspension of the execution of the decision subject to revision / 476
Judgment after admission in principle / 476
Review procedure in case of decisions of the European Court of Human Rights / 480
Section V. Reopening the criminal trial in case of trial in the absence of the convicted person or against whom it was ordered to waive the application of the sentence or postpone the application
pedepsei / 487
Introductory notions / 487
Decisions subject to reopening of criminal proceedings / 489
Declaration of extraordinary appeal / 490
Holders of the reopening of the criminal trial / 490The term for introducing the request for reopening the criminal process / 493
Request for reopening the criminal proceedings / 494
Procedure for judging the reopening of criminal proceedings / 494
Competent court / 494
Measures preceding the court hearing / 494
Judging the request for reopening the criminal trial / 495
Solutions / 495
Admission of the request for reopening the criminal trial / 495
Rejection of the request for reopening the criminal proceedings / 498

CHAPTER VII
ENSURING A UNITARY JUDICIAL PRACTICE / 499

Section I. General considerations regarding the unification of judicial practice / 499
Section II. The appeal in the interest of the law / 502
Preliminary considerations / 502
Holders of the appeal in the interest of the law / 502
Appeal in the interest of the law / 503
Competent court / 504
Report on the appeal in the interest of the law / 505
Judicial proceedings / 505
Settlement of the appeal in the interest of the law / 506
Section III. Referral to the High Court of Cassation and Justice in order to issue a preliminary decision for resolving legal issues / 508

CHAPTER VIII
SPECIAL PROCEDURES / 518

Section I. General considerations regarding special procedures / 518
Preliminary considerations / 518
Brief history regarding the special procedures in the criminal procedural regulation in Romania and comparative law / 519
Special procedures in the regulation of the criminal procedural legislation in force in Romania / 522
Section II. Guilt Agreement / 522
Preliminary considerations / 522
Holders of the guilty plea agreement / 525
The plea agreement in the criminal investigation phase / 527
Initiation of the guilty plea agreement / 527
Object of the plea agreement / 527
Conditions for concluding the plea agreement in the criminal investigation phase / 528
Notification of the court / 535
The plea agreement in the trial phase / 536
Judgment procedure of the plea agreement / 536
Preliminary checks / 536
The actual settlement of the plea agreement / 538
The solutions that can be ordered by the court / 540
Admission of the plea agreement / 541
Rejection of the plea agreement / 544
Partial admission of the plea agreement / 546
Common aspects / 546
Remedies / 546
Differential aspects between the procedure of admitting the accusation and the procedure of the plea agreement / 548
Section III. The appeal regarding the duration of the criminal trial / 550
Preliminary considerations / 550
Declaration of the appeal regarding the duration of the criminal trial / 553
Holders of the appeal / 553
The term for introducing the appeal regarding the duration of the criminal trial / 553
The content of the appeal regarding the duration of the criminal trial / 556
The procedure for judging the appeal regarding the duration of the criminal trial / 556
Competent court / 556
Preliminary measures / 557
The solutions that can be pronounced in the appeal regarding the duration of the criminal trial / 558
Section IV. Procedure regarding the criminal prosecution of the legal person / 563
Preliminary considerations / 563
Derogatory procedural rules / 564
Representation of the legal person / 564
Place of summoning the legal person / 565
Preventive measures / 565
Enforcement of the fine / 569
Enforcement of additional penalties / 570
Introductory notions / 570
Execution of the complementary punishment of dissolution of the legal person / 570
Execution of the complementary punishment of suspension of the activity of the legal person / 571
Execution of the complementary punishment of closing some working points of the legal person / 572
Enforcement of the complementary punishment of the prohibition of the legal person to participate in public procurement procedures / 572
Execution of the complementary punishment of placement under judicial supervision / 573
Enforcement of the complementary punishment of posting or disseminating the decision condemning the legal person / 573
Section V. Procedure in cases with juvenile offenders / 575
Preliminary considerations / 575
Criminal prosecution in the case of juvenile offenders / 576
Introductory notions / 576
Persons summoned to perform certain acts of criminal investigation / 577
Information procedure regarding procedural rights and obligations / 580
Evaluation report / 581
Trial of juvenile offenders / 586
Introductory notions / 586
Composition of the court / 587
Persons summoned to trial the minor / 588
Conduct of the trial / 589
Evaluation report / 591
Implementation of educational measures applied to minors / 592
Introductory notions / 592
Implementation of non-custodial educational measures / 593
Implementation of educational measures depriving of liberty / 595
Section VI. Follow-up procedure / 599
consulpreliminary derations / 599
Cases. Holders of the request for prosecution / 600
Follow-up order / 600
Execution of the follow-up order / 601
Revocation of the pursuit / 604
Section VII. Rehabilitation procedure / 604
Preliminary considerations / 604
Legal rehabilitation / 605
Judicial rehabilitation / 606
Introductory notions / 606
Request for judicial rehabilitation / 606
Rehabilitation application holders / 606
Content of the rehabilitation application / 607
Judgment of the request for judicial rehabilitation / 608
Competent court / 608
Preliminary measures / 610
Rejection of the application for lack of formal and substantive conditions / 611
Substantive settlement of the request for judicial rehabilitation / 613
Contestation / 614
Renewal of the request for judicial rehabilitation / 614
Cancellation of judicial rehabilitation / 615 Section VIII. Procedure for reparation of material damage or non-pecuniary damage in case of judicial error or in case of illegal deprivation of liberty or in other cases / 615
Preliminary considerations / 615
Cases that give the right to repair / 617
The right to repair the damage in case of judicial error / 617
The right to reparation in case of illegal deprivation of liberty / 622
Action for damages / 626
Holders of the action and the term for promoting the action / 626
The court competent to resolve the action for damages / 626
Action in regress / 627
Section IX. Procedure in case of disappearance of judicial documents / 628
Preliminary considerations / 628
Object of the special procedure / 629
Performing the special procedure / 630
Finding the disappearance of the file or judicial document / 630
Performing the special procedure / 630
Competent bodies / 630
Replacement of the missing document / 631
Reconstitution of judicial documents / 631
Section X. International judicial cooperation in criminal matters / 632
Preliminary considerations / 632
Forms of international judicial cooperation in criminal matters / 634
Introductory notions / 634
Extradition and surrender on the basis of a European arrest warrant, forms of international judicial cooperation in criminal matters / 635
Preliminary aspects / 635
Extradition / 635
Legal framework. Forms of extradition / 635
Passive extradition procedure / 636
Active extradition procedure / 641
Surrender on the basis of a European arrest warrant / 642
Recognition and enforcement of judgments, criminal ordinances and judicial acts in relation to third countries / 643
Preliminary aspects / 643
Recognition and enforcement of foreign criminal judgments / 643
Recognition and enforcement of judgments and other procedural acts issued by the Romanian judicial authorities / 647
Section XI. Procedure for confiscation or revocation of a document in case of filing / 649
Preliminary considerations / 649
Rules of procedure / 651
Referral to the judge of the preliminary chamber / 651
Competent judicial body. Applicable procedure / 651
Contestation / 652

CHAPTER IX
EXECUTION OF CRIMINAL DECISIONS / 654

Section I. General considerations regarding the execution of criminal judgments / 654
Enforcement of criminal judgments - phase of criminal proceedings / 654
Judicial work authority of criminal judgments / 656
The moment at which the criminal court decisions remain final / 660
Introductory notions / 660
The finality of the decisions of the first instance / 661
The finality of the decisions of the court of appeal and of the decision pronounced in the appeal of the appeal / 661
The court competent to enforce the criminal court decisions / 662
Section II. Enforcement of the main punishments / 665
Enforcement of imprisonment or life imprisonment and accessory punishment / 665
Duties of the enforcement court / 665
Duties of the prosecutor in the execution of the prison sentence or life imprisonment / 667
Duties of other bodies cooperating in the execution of imprisonment or life imprisonment / 667
Agreement of the court to leave the country / 669
Postponement of the execution of the prison sentence or life imprisonment / 670
Preliminary aspects / 670
Cases in which the execution of imprisonment or life imprisonment may be postponed / 671
Legal framework / 671
Postponement of the execution of the prison sentence or of the life imprisonment in case of the convict's illness / 672
Postponement of execution of imprisonment or life imprisonment in case of pregnancy of the convicted woman or when the convicted person has a child under one year / 676
Procedure for postponing the execution of imprisonment or life imprisonment / 678
Holders of the request for postponement of the execution of the prison sentence or of life imprisonment / 678
Competent court / 679
Procedure for solving the request for postponement of the execution of the sentence / 679
Obligations that are ordered during the postponement of the execution of the sentence / 680
Enforcement of the provision dis postponement of the execution of the sentence / 681
The appeal of the appeal / 682
Interruption of the execution of the prison sentence or life imprisonment / 682
Preliminary aspects / 682
Cases in which the execution of the prison sentence or life imprisonment may be ordered / 683
Procedure for interrupting the execution of imprisonment or life imprisonment / 687
Holders of the request to interrupt the execution of the prison sentence or life imprisonment / 687
Competent court / 687
Procedure for resolving the request for interruption of the execution of the sentence / 688
The appeal of the appeal / 689
Enforcement of the disposition to interrupt the execution of the sentence / 689
Enforcement of the fine / 691 Section III. Enforcement of additional penalties / 692
Enforcement of the penalty of prohibition of the exercise of certain rights / 692
Enforcement of the punishment of military degradation / 695
Enforcement of the complementary sentence of publication of the final conviction decision / 695
Section IV. Implementation of security measures / 695
Enforcement of the obligation to medical treatment / 695
Execution of medical hospitalization / 698
Enforcement of the security measure of the prohibition to hold a position or to exercise a profession or
another activity / 700
Enforcement of special confiscation or extended confiscation / 701
Section V. Enforcement of the warning and of the measures and obligations imposed by the court in case of postponement of the application of the sentence, suspension of the execution of the sentence under supervision and conditional release / 703
Enforcement of the warning / 703
Enforcement of the measures and obligations imposed by the court in case of postponement of the application of the sentence, suspension of the execution of the sentence under supervision and conditional release / 704
Section VI. Enforcement of the judicial fine and of the judicial expenses advanced by the state / 705
Enforcement of the judicial fine / 705
Enforcement of state - advanced judicial expenses / 705
Section VII. Enforcement of civil provisions in the decision / 706
Preliminary considerations / 706
Restitution of things and capitalization of the uncollected / 706
The documents declared false / 707
Section VIII. Conviction in case of annulment or revocation of the waiver of the sentence or postponement
application of the punishment / 708
Conviction in case of annulment of the waiver of the sentence / 708
Conviction in case of revocation or annulment of the postponement of the application of the punishment / 709
Section IX. Changes in the execution of some decisions / 711
Revocation or annulment of the suspension of the execution of the sentence under supervision / 711
Other changes in penalties / 712
Replacement of life imprisonment / 714
Replacement of the fine / 716
Replacing the penalty of the fine with the performance of unpaid work for the benefit of the community / 716
Replacement of the fine with imprisonment / 717
Conditional release / 718
The intervention of a new criminal law / 727
Application of amnesty or pardon / 729 Section X. Common provisions on enforcement proceedings / 729
Section XI. Enforcement appeal / 731
Preliminary considerations / 731
Cases in which an enforcement appeal can be made / 732
Introductory notions / 732
The case of contestation at execution provided in art. 598 para. (1) lit. a) / 733
The case of contestation at execution provided in art. 598 para. (1) lit. b) / 734
The case of contestation at execution provided in art. 598 para. (1) lit. c) / 735
The case of contestation at execution provided in art. 598 para. (1) lit. d) / 736
The court competent to resolve the enforcement appeal / 737
Procedure for resolving the enforcement appeal / 739
Enforcement appeal regarding the civil provisions of the decision and judicial fines / 740

Criminal Procedure Treaty. The special part is intended for law students in order to prepare the exams for promotion and completion of undergraduate studies, law students, doctoral students, candidates for admission to the National Institute of Magistracy, candidates for admission to the profession of lawyer, and those who intend to apply for admission to other legal professions. Also, the paper is addressed to legal practitioners, with concrete reference to criminal judicial bodies (courts, prosecutors, criminal investigation bodies of the judicial police, other criminal investigation bodies) and lawyers.

The result of a laborious documentary, this is the third edition of the Treaty on Criminal Procedure. The special part was elaborated by consulting the relevant legislation in the analyzed field, of the specialized doctrine and of the jurisprudence in the matter of the criminal procedural law. In this sense, laws, normative acts issued by the Romanian Government, European Union legislation, international regulations on the protection of human rights, etc. were invoked in the pages of the treaty.

The provisions contained in the Code of Criminal Procedure and in the Criminal Code were taken into account, which entered into force on February 1, 2014, analyzed, where appropriate, in parallel with the regulations of previous codes or criminal laws. especially whose legal norms have been taken over in the new codes. Also, the jurisprudence of the national courts was presented and analyzed (special attention being paid to the jurisprudence of the supreme court, especially in the matter of ensuring a unitary judicial practice, by resolving the appeal in the interest of law and resolving legal issues), of the Constitutional Court. of Romania, of the European Court of Human Rights, respectively of the Court of Justice of the European Union.

The legislative, jurisprudential and documentary material existing on May 25, 2021 was used in the elaboration of the paper.

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