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!
Computer search. Lack of access to suspect. Referral to the Constitutional Court of the exception of unconstitutionality of the provisions of Article 168 of the Criminal Procedure Code.
On 31 August 2023, the Buzău Court - Criminal Section admitted the request for referral to the Constitutional Court with the exception of unconstitutionality of the provisions of Article 168 C.pr.pen. In essence, the exception was based on the fact that the legal provisions in question do not allow the person who is a suspect to submit to a posteriori legality control the decision to carry out a computer search. 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 the Court of Justice of the European Union, were raised.
Procedural safeguards for people with disabilities. Application of Article 4(i) of Law 8/2016 in criminal proceedings
Our society represented the Centre for Legal Resources (CRJ), an NGO that carries out programmes to defend the rights of people with disabilities and which monitored a residential centre where such people are housed, showing that it also has legal standing in the criminal proceedings investigating the findings of the monitoring. Thus, in those cases where one or more persons with disabilities in the monitored institution are the main subject of the proceedings, the organisation has in principle access to the same procedural means as the protected person. Therefore, in the case known as the Ilfov shelters case, the prosecution body found that the JRC has such a procedural status and can exercise the procedural rights of the injured persons falling into the category mentioned.
Court of Appeal Oradea. Lifting of the measure of seizure of assets worth over RON 2,000,000
In a case pending before the Bihor Court, tried in 2022, lawyer Andra Trandafir obtained the lifting of the measure of attachment of assets worth more than RON 2,000,000 for the heirs of the person against whom the case was ordered to be closed, a solution which occurred following the death of the defendant. Despite the closure of the case against the defendant, the indictment included, in addition to the referral of other persons, the proposal to maintain the precautionary measures without an express reference to the 30-day deadline within which the civil party had to bring a civil action to maintain them. The criminal court, seised of a challenge by the heirs in the procedure for review of the protective measures, held that the court seised of the indictment did not have the functional competence to rule on the protective measures and order their maintenance. In that context, an action was brought before the civil court against the civil party and other authorities
PhD thesis defense - av. Dorel Herinean
On 23.03.2023, our colleague lawyer Dorel Herinean, external collaborator of the company, publicly defended his PhD thesis entitled "Plurality of perpetrators in the case of crimes committed by legal persons" at the Faculty of Law, University of Bucharest. Following the public presentation, the committee proposed the awarding of the doctoral degree, with the qualification Excellent. The doctoral thesis outlined the rules of a distinct form of plurality of perpetrators, called corporate plurality of perpetrators, which occurs when a legal person commits a crime. The form of plurality thus proposed consists of the legal person and the natural persons who were involved in the commission of the crime from an objective or subjective point of view.