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.
Participation in the National Conference "In memoriam prof. Viorel Mihai CIOBANU"
In order to pay homage to the memory of Professor Viorel Mihai CIOBANU, from whom more than 40 classes of students learned civil procedure, and on the occasion of the 10th anniversary of the entry into force of the new Code of Civil Procedure, whose father was Professor CIOBANU, the Civil Procedure Centre of the Faculty of Law of the University of Bucharest organized the national conference "Civil Procedure at the Beginning of the Third Millennium". At the invitation of the organizers, lawyers Andra Trandafir and Irina Kuglay gave a presentation entitled "Civil action in criminal proceedings: the significance of correctly identifying the passive subject of the offence".
Participation in the [Inter]national Conference of Civil Law. Family. Fifth edition
On November 12, 2022, Mrs. Associate Professor Andra-Roxana Trandafir, PhD participated in the [Inter]national Conference of Civil Law. Family. The Vth edition, an event organized by the Family Law Journal in partnership with the Faculty of Law of the University of Bucharest and the Universul Juridic Publishing House. The theme presented was "Abandonment of the family - problems in judicial practice" and involved the analysis of the main problematic aspects in the judicial practice related to this crime, such as the plurality of passive subjects, the character of the continuous offense and the moment from which the deadline for making the prior complaint flows.
High Court of Cassation and Justice. Referral to the Constitutional Court. Persons who can appeal in cassation. The case of appeal in cassation provided by art. 438 para. (1) point 12 C.pr.pen.
On 18 October 2022, the High Court of Cassation and Justice - Criminal Section admitted the application for referral to the Constitutional Court with the exception of unconstitutionality of the provisions of art. 435, 436 para. (1) and 438 para. (1) point 12 C.pr.pen., exception invoked in relation to the provisions of Article 16 para. (1), Articles 21 and 44 of the Constitution, respectively Articles 6 and 13 of the European Convention on Human Rights, as well as Article 1 of Protocol No 1. 1 to the Convention. In essence, the exception took into account the fact that the legal provisions criticised do not allow other criminal sanctions to be challenged – in this case, extended confiscation – by means of an appeal in cassation and thus do not allow the rectification of errors of law which led to the ordering of that security measure, while limiting the access of other interested persons (the owners of the seized assets extended) to that remedy, although, to be able to
Participation as a Legal Expert in an ICSID Arbitration Case
Between 11-14 October 2022, Mrs. Andra-Roxana Trandafir, lawyer, participated as a legal expert from the Romanian State in an arbitration case that took place in London, within ICSID (International Centre for Settlement of Investment Disputes). The participation in the hearings has crowned the work done in drafting legal opinions over the last almost 20 months in relation to this file.
Participation in the Conference "Difficult problems of criminal law (ed. 7). Precautionary measures in criminal proceedings. Tax perspective on precautionary measures"
On September 22, 2022, Mrs. Andra-Roxana Trandafir, lawyer, participated in the Conference "Difficult Issues of Criminal Law (ed. 7). Precautionary measures in criminal proceedings. The fiscal perspective on precautionary measures", organized by the Society of Legal Sciences, supporting a communication entitled "The notion of damage in the case of precautionary measures". The presentation addressed aspects regarding the possibility of instituting precautionary measures for the compensation of non-material damage, as well as the relationship between art. 249 C.pr.pen. and Law nr. 241/2005 for preventing and combating tax evasion.
Article on the appeal in the case of preventive measures applicable to the legal person
In the Scientific Annals of the "Alexandru Ioan Cuza" University of Iași - Seria Ştiinţa Juridice nr. II/2022 was published the article entitled "Appeal in the case of preventive measures applicable to the legal person", written by lawyer and Associate Professor Andra-Roxana Trandafir, PhD and Assistant Professor George-Alexandru Lazăr, PhD. The material envisages the analysis of the provisions of art. 493 para. (7) C.pr.pen. governing the objection to the decision ordering the preventive measures applicable to the legal person. There will be addressed the issues related to the holders of the appeal, the reasons that can be invoked in support of this remedy, the competent court, the solutions that can be pronounced, as well as the possibility to challenge the conclusion by which the court of appeal orders or maintains preventive measures, taking into account the practice of the national courts in the field, as well as the relevant doctrine. Also, a parallel will be drawn with the revocation of preventive measures, in order to highlight the main differences between the two regulations.