High Court of Cassation and Justice. Absence of the case for appeal in cassation consisting in the wrongful conviction of the defendant, although the statute of limitations for criminal liability had expired and the fact had been analyzed by the decision of the appellate court. The Constitutional Court was petitioned with the exception of unconstitutionality of art. 438 para. (1) C.pr.pen.
On February 4, 2025, the High Court of Cassation and Justice referred to the Constitutional Court, at our request, the constitutionality of the provisions of Article 438 para. (1) C.pr.pen. In support of the application we pointed out that the legal provisions in question do not allow the lodging of an appeal in cassation in the event that the criminal proceedings were wrongly not terminated, although the cause of termination (not submitted to the parties) was examined by the appellate court. This infringes several provisions of the Basic Law.
Waiver of precautionary measures before the civil court, following closure
Lawyers Andra Trandafir and Mihaela Ghirca-Bogdan successfully argued for the lifting of a precautionary measure amounting to more than 40 million EUR maintained on our client's accounts for 9 years, including after the criminal case was closed. The case raised several legal issues, including: - The lack of clear rules in civil procedure applicable after the criminal case has been dismissed; - the scope of the precautionary measure ordered in the course of criminal proceedings on the civil claims of a party both from the perspective of the civil party's civil action in the criminal proceedings and the separate action brought before the civil court; - the legality and proportionality of maintaining the precautionary measure in the light of ECHR case-law. This case law marks an important development in clarifying the limits and conditions for the maintenance of precautionary measures ordered in criminal proceedings and continued in civil proceedings after the conclusion of the criminal proceedings.
Participation as a Legal Expert in an ICSID Arbitration Case
Between November 7-9, 2024, Ms. Andra-Roxana Trandafir participated, for the second time in the last two years, as a legal expert in an arbitration that took place in London, within the ICSID (International Centre for Settlement of Investment Disputes). The participation in the hearings crowned the work done in drafting the legal opinion over the last months.
Complaint dismissed. Admitted. Fraud
On July 4, 2024, our company obtained on July 4, 2024, the dismissal of the case and the referral of the case to the prosecutor's office for further prosecution in a case concerning the commission of the crime of construction fraud. This is the second time that the case has been dismissed by the court. A challenge concerning the length of the criminal proceedings was also upheld in the same case.
Rape. Institutionalized disabled victim. Lack of effective investigation. Reopening of criminal proceedings on the complaint of a non-governmental organization
The Chief Prosecutor of the Prosecutor's Office of the Galati Tribunal admitted the complaint lodged by our client (a non-governmental organization working in the field of human rights), dismissed a decision to dismiss the case (on the grounds that the act did not exist) by the Prosecutor's Office of the Galati Court and reopened the criminal prosecution in a case in which investigations were conducted into a rape committed against a disabled institutionalized person. The complaint formulated for our client - the organization that exercised its right to challenge the dismissal under art. 4 lit. i) sentence II of Law no. 8/2016 - mainly took into account the incompleteness of the criminal prosecution, the lack of conclusive evidence taking into account the special situation of the victim of the alleged crime of rape - a person with mental disabilities, institutionalized, vulnerable, materially and emotionally dependent on the staff of the centre where she is interned and in
Medical malpractice. Acquittal on appeal on the ground that the act is not provided for by criminal law
The High Court of Cassation and Justice ruled, in a judgment handed down in the appeal for our client, that the professional obligations incumbent on the medical professional have the significance of the predicate situation of the offence of manslaughter which had been held against him in the decision handed down on appeal. According to the same judgment, the determination by the Court of Appeal in cassation of those obligations, by reference to the factual situation found by the Court of Appeal, constitutes an assessment of the case in law. In carrying out that analysis, the Supreme Court acquitted on the ground that the act was not provided for by criminal law - Article 16(1)(b) of the Criminal Code - and that the offence was not covered by the criminal law. (1) letter b) first sentence C.pr.pen.
High Court of Cassation and Justice. Lack of appeal, following the decision to close the case, in the case of obtaining traffic and location data processed by providers of public electronic communications networks or providers of electronic communications services to the public. Referral to the Constitutional Court of the exception of unconstitutionality of the provisions of Article 152 of the Criminal Procedure Code.
At our request, the preliminary chamber judge of the High Court of Cassation and Justice - Criminal Division referred the matter to the Constitutional Court for constitutional review on the grounds of unconstitutionality of the provisions of Article 152 of the Criminal Procedure Code, as they do not regulate an appeal, following the decision to close the case, in the case of obtaining traffic and location data processed by providers of public electronic communications networks or providers of electronic communications services to the public. In support of the exception, we have raised the constitutional standard on interference with the right to privacy, highlighted in particular by Decisions No 244/2017 and 421/2020, 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. Complaint against the authorisation of the collection of traffic and location data processed by providers of public electronic communications networks or providers of electronic communications services to the public, based on the provisions of the European Convention on Human Rights. Admission
The preliminary chamber judge of the High Court of Cassation and Justice - Criminal Division upheld the complaint based on Articles 8 and 13 of the European Convention on Human Rights concerning the authorisation of the obtaining of traffic and location data processed by providers of public electronic communications networks or providers of electronic communications services to the public. The complaint was lodged for our client after the decision to close the case was taken, noting that the legislation in force does not regulate an appeal in this situation, as the provisions of Article 1451 of the Criminal Procedure Code do not cover such a method of investigation.
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.