High Court of Cassation and Justice. Complaint against technical surveillance measures and authorisation to obtain financial transaction data. Admissibility
The Preliminary Chamber Judge of the High Court of Cassation and Justice - Criminal Division admitted the complaint based on the provisions of Article 1451 of the Criminal Procedure Code concerning the technical surveillance measures ordered in respect of our client in a case in which a decision to close the case was ordered, finding that they were unlawful. The measures concerned the interception of communications and any type of remote communication, location and tracking by GPS or other means of remote surveillance and audio-video or photographic surveillance. The judge also upheld the complaint concerning the authorisation to obtain data on financial transactions, based on the provisions of Article 1461(2) of the EC Treaty. (8) rap. to Article 1451 of the Criminal Procedure Code. In doing so, the destruction of the data and records resulting from the decisions authorising those measures was ordered. It is recalled that the provisions of Articles 1451 and 1461 para. (8) were introduced into the Code of Criminal Procedure by Law No 201/2023 (M.Of. No 618
Insolvency proceedings under Law No 85/2006. Recovery of real estate subject to protective measures. Removal of distraints from the land register
Our company has obtained, following the steps taken at the Land Registry and Real Estate Publicity Office, the cancellation of seizures established in two criminal cases in 2008. The company whose assets were subject to the attachment measures was in insolvency proceedings, opened under Law no. 64/1995 and continued under Law no. 85/2006, which were sold at public auction in 2015. However, the successful bidder's efforts to have the distraints removed have not led to a positive result for almost 9 years. Taking over the file, through efficient correspondence with the Land Registry and Real Estate Publicity Office and based on a large number of documents from the criminal and insolvency file, the requests for cancellation of the distraint measures were admitted.
House search. Exception of unconstitutionality. Lack of judicial review of the act by which the search was ordered and of the manner in which the search was carried out.
At our request, the preliminary chamber judge of the High Court of Cassation and Justice - Criminal Division has referred the matter to the Constitutional Court for constitutional review, with the exception of unconstitutionality of Article 158 para. (9) and art. 159 of the Code of Criminal Procedure. As in the case of computer searches, the exception concerns the situation of the person subject to this evidentiary procedure who, during the criminal proceedings or after the closure of the case, is not able to submit to the legality control either the conclusion by which the search was authorised or the manner in which it was carried out. In support of the exception, I have raised the constitutional standard on interference with the right to privacy, as highlighted in particular by Decision No 244/2017, as well as the case law of the European Court of Human Rights and the Court of Justice of the European Union.
High Court of Cassation and Justice. Computer search. Lack of appeal, following the decision to close the case, for the person subject to the search, who had no standing in the criminal proceedings. Referral to the Constitutional Court of the exception of unconstitutionality of the provisions of Article 168 of the Criminal Procedure Code.
The High Court of Cassation and Justice - Criminal Section has admitted the request for referral to the Constitutional Court with the exception of unconstitutionality of the provisions of Article 168 of the Criminal Code. In essence, the objection was based on the fact that the legal provisions in question do not allow a person who has been subjected to a computer search and who did not have a status in the case, to submit to a posteriori legality control the decision authorising the computer search and the manner in which it was carried out. In support of the exception, the constitutional standard on interference with the right to privacy, highlighted in particular by Decision No 244/2017, and the case-law of the European Court of Human Rights and of the Court of Justice of the European Union, were raised.
High Court of Cassation and Justice. Appeal concerning the duration of a criminal trial begun in 2013, based on the provisions of the European Convention on Human Rights. Admissibility
In a criminal trial started in 2013, the case is still before the first court, our firm has filed a challenge on behalf of the client we represent - a credit institution that has joined the criminal proceedings as a civil party - regarding the duration of this criminal trial. The appeal was based on the provisions of the European Convention on Human Rights, since the remedy provided for by the Code of Criminal Procedure applies, according to the Law implementing the Code, only to proceedings commenced after 1 February 2014. The High Court of Cassation and Justice declared the appeal thus lodged admissible and, on the merits, it was upheld, the Supreme Court setting a time-limit of one year within which the case must be completed by the first instance.
The entry in the land register of circumstances relating to the immovable property alleged to be the material object of the offence, without any securing measures. Contestation. High Court of Cassation and Justice. Admitted
In a case at the preliminary chamber stage, a judgment ordered the land register to record the fact that several buildings belonging to injured parties formed the material object of one of the offences at issue in the proceedings. The properties were not seized under Article 249 of the Criminal Procedure Code. Our appeal against the decision thus handed down - lodged together with the appeal against the decision under Article 346 of the Criminal Procedure Code, as provided for by the preliminary chamber judge - was upheld by the High Court of Cassation and Justice and the noting measure was thus abolished.
Referral to the Constitutional Court. Lack of a ground of appeal in cassation consisting in the wrongful conviction of the defendant, even though the statute of limitations had expired and that fact had been raised during the appeal.
On 25 October 2023, the High Court of Cassation and Justice referred to the Constitutional Court, at our request, the exception of unconstitutionality of Article 438 para. (1) C.pr.pen., as the legal provisions in question do not allow for an appeal in cassation in the event that the criminal proceedings were not wrongly terminated, even though the grounds for termination were examined by the court of appeal.
Complaint closed. Admissibility. Abuse of service and failure to report
On 13 October 2023, our company obtained the cancellation of the decision to close the case and the referral of the case to the Public Prosecutor's Office for the completion of the criminal proceedings, in a case concerning alleged inhuman and degrading treatment. The victim is a severely disabled person who has spent her entire life in the state protection system and has suffered several injuries in circumstances that were not clarified in the investigation that was initially closed. Representation in this case was provided by Ms Av. Mihaela Ghirca-Bogdan.
Classification. Lifting of protective measures in civil court. Lack of passive procedural status of the credit institution
According to Article 315 para. (2) letter a) C.pr.pen., the measures cease to be effective if the injured party does not bring an action before the civil court within 30 days of the communication of the decision. In such an action brought before the civil court, on 6 September 2023, the Bucharest Court admitted the exception of the passive procedural status of the credit institution, which I invoked, finding that the defendant is not identical to the person claimed to be bound by the legal relationship at issue (passive procedural status). The court's decision is final.
Mihaela Ghirca-Bogdan joins Kuglay & Trandafir team of lawyers
As of 1 September 2023, Mrs Mihaela Ghirca-Bogdan joins our team of lawyers. Ms. Ghirca-Bogdan is a member of the Bucharest Bar Association and works in her own form of practice (Individual Practice), having more than 15 years of professional experience in the field of law, especially in the coordination and management of commercial, administrative and criminal litigation. During the last 9 years, she has regularly collaborated with Mrs. Andra Trandafir on numerous criminal law issues related to the banking field, and the path thus started has been continued in this form.We welcome Mrs. Trandafir to our team and we are convinced that we will have a nice collaboration!