Legislative changes on precautionary measures
Law No. 70/2025 was published in the Official Gazette No. 452 of May 15, 2025 (in force since May 18, 2025), amending three articles on the subject of precautionary measures in criminal proceedings .
I've read a few summaries of the amendments, including in the press (in the "shock and awe" category and with references to confiscation) and pretty much all of them present the Act as something that fundamentally changes the philosophy of the precautionary measures.
In reality, what has really changed is that all precautionary measures (so including those ordered by the pre-trial judge or the court) are taken ๐๐ฬ๐ซ๐ฬ ๐๐ข๐ญ๐๐ซ๐ - new para. (6ยณ) of art. 249 C.pr.pen. I have written several times about the incongruity between taking precautionary measures without citation in civil vs. criminal proceedings (where it was concluded that citation is necessary, as this is the rule for proceedings before the court), how citation (or postponing the decision for weeks on taking precautionary measures) leads to perversion (or impossibility to ensure) the purpose of taking measures, and how access to justice would NOT be affected if a procedure without citation was provided for, given that there is the possibility of challenge (and judgment?It remains to be seen, however, how this legislative change will be seen by the CCR, which seems to have imposed the double degree of jurisdiction (and not only the need to ensure access to justice) in the area of interference with property rights.
Less visible, but relevant, would also be the terminological change in Art. 250 and 250ยน C.pr.pen. It thus becomes clearer (as a result of discussions with consequences in judicial practice, especially in the case of an appeal against the decision to lift the measures in the periodic review procedure) that an objection ๐๐ญ๐๐ฬ๐ญ ๐ขฬ๐ฆ๐ฉ๐จ๐ญ๐ซ๐ข๐ฏ๐ ๐ฅ๐ฎ๐ฬ๐ซ๐ข๐ข ๐ฆ๐ฬ๐ฌ๐ฎ๐ซ๐ข๐ฅ๐จ๐ซ ๐๐ฌ๐ข๐ ๐ฎ๐ซ๐ฬ๐ญ๐จ๐ซ๐ข๐ข, ๐๐ฬ๐ญ ๐ฌ๐ฌฬฆ๐ข ๐ขฬ๐ฆ๐ฉ๐จ๐ญ๐ซ๐ข๐ฏ๐ ๐จ๐ซ๐๐จ๐ง๐๐ง๐ญฬฆ๐๐ข ๐ฌ๐๐ฎ ๐ขฬ๐ง๐๐ก๐๐ข๐๐ซ๐ข๐ข ๐ฉ๐ซ๐ข๐ง ๐๐๐ซ๐ ๐ฌ๐ ๐ซ๐๐ฌ๐ฉ๐ข๐ง๐ ๐ ๐ฅ๐ฎ๐๐ซ๐๐ ๐ฆ๐ฬ๐ฌ๐ฎ๐ซ๐ข๐ข. Somewhat naturally, the previous text did not also refer to the civil party, since it spoke of the appeal against the ๐๐ข๐ฬ๐๐๐๐ of the measure; however, there were also solutions in practice where such an appeal was considered admissible. The amendment is therefore welcome in terms of strengthening the rights of the civil party (an aspect which was also sought by the initiators of the law, as stated in the Explanatory Memorandum, although I have serious doubts as to whether Article 13 ECHR was invoked to justify this need).
Annoyingly, however, while amending para. (1) of Art. 250ยน, the legislator forgets para. (2) of the same Article, which continues to refer to the appeal against the decision ๐๐ ๐๐ a precautionary measure. Obviously, the text must be interpreted together with para. (1), in order to allow also the appeal against the decision by which the pre-trial judge of the Criminal Division of the High Court of Cassation and Justice or the Criminal Division of the Supreme Court, in first instance or on appeal, rejected the taking of precautionary measures (or lifted them, in the procedure of periodic review).
In fact, the only article that really should have been amended (for more than 4 years now), but remains standing, despite the dozens (I think hundreds already) of exceptions of unconstitutionality invoked, is Article 250ยฒ on the verification of precautionary measures. So, (especially) in this area, the Code of Criminal Procedure is once again being patched up, without resolving the most important problems. Not for nothing, in a recent article written together with Gherghe Vicentiu-Razvan, we drew attention to the need for a coherent approach... We are still waiting.
For the avoidance of doubt: in the procedure of periodic verification before the pre-trial chamber judge or the court, a summons is required.
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On citation and access to justice vs. the double degree of jurisdiction, here: https://www.juridice.ro/.../octombrie-canta-din-vant..., as well as in the analysis I made on the matter of precautionary measures in CPP Comentat (Ed. C.H. Beck)
On the need for coherent changes, here: https://drept.unibuc.ro/.../1,%202024,%2020.%20Andra...