Legal opinion addressed to the High Court of Cassation and Justice regarding the effects of decriminalization of the deed in respect of which the employer filed a criminal complaint, intervening the suspension of the employee's employment contract by law

By the request addressed to the High Court of Cassation and Justice, on May 26, 2022, the holder of the complaint – the Management Board of the Galați Court of Appeal – notified the supreme court – the panel competent to judge the appeal in the interest of the law with the following issue of law: "art. 52 para. (2) of the Labour Code, reported to the Decision of the Constitutional Court of Romania no. 405/2016, finds its application also in the hypothesis of decriminalization of the deed that was the basis for the formulation of the criminal complaint by the employer, during the criminal proceedings (in the criminal investigation phase or in the trial phase), taking into account the exonerating character of the employer's contractual civil liability of the act of decriminalization of the authority, according to art. 1352 of the Civil Code? The situation envisaged is the one in which, after the criminal proceedings are settled by closing the case or, as the case may be, by acquittal, on the grounds that it is not provided for by the criminal law, the employee requests that the employer be ordered to compensate for the entire period of suspension of the employment contract."

On July 18, 2022, on behalf of the Department of Criminal Law within the Faculty of Law of the University of Bucharest, Mrs. Associate Professor Andra-Roxana Trandafir, PhD and Mr. Univeritary Assistant George-Alexandru Lazar, PhD sent a legal opinion by which they showed, in essence, that innocence within the meaning of art. 52 para. (2) of the Labour Code envisages the closure of the case or the acquittal of the defendant on the basis of art. 16 para. (1) points (a) to (d) C.pr.pen.; Art. 1352 C.civ. is not an incident in the situation in which the decriminalization or the finding of an incrimination text as unconstitutional occurs; where a solution is rendered pursuant to Article 16 para. (1) points (a) to (d) C.pr.pen. (so even if the decriminalization of the deed occurred during the criminal proceedings), the employee will resume his activity according to art. 52 para. (2) Labour Code; the award of compensation for the period of suspension of the employment contract is subject to the fulfilment of the conditions of contractual civil liability, which the civil court verifies in the process between the employee and the employer based on Article 52 para. (2) of the Labour Code.