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Scientific Bulletin
Vol. XXIV, No 1 (47), 2019
REFERRAL TO THE COURT
AFTER THE COMPLETION
OF CRIMINAL PROSECUTION
Fănică CERCEL
fanicacercel@yahoo.com
UNIVERSITY OF BUCHAREST, ROMANIA
ABSTRACT
After the criminal prosecution is completed, the indictment is
the act of referring the court (not the inculpation, as in the previous
regulation, the prosecutor's ordinance being the only procedural act
in this respect), and when it also includes, in its contents, solutions for
closing or waiving the prosecution, the court is not also referred for
the judgment of those, even if they were described in the presentation
of the case and are related to the deed brought before the court for
judgment. This act of indictment is issued by the prosecutor only if he
is convinced that three conditions are met cumulatively – the deed
exists, it was committed by the defendant and he is criminally liable –
otherwise, he has a solution of non-adjudication or can appreciate on
the opportunity to abandon criminal prosecution. As a novelty in the
current Code of Criminal Procedure, the Guilty Plea/Agreement on
the Recognition of Guilt is an exception to the principles of truth and
legality, being adopted in our judicial system for pragmatic reasons,
being similar as an institution to that of other criminal procedural
systems on the continent. The guilty party is the prosecutor and the
defendant, the latter being both a natural person and a legal person,
as procedural rules do not differ in this respect. The interpretation of
Article 478 par. 1 of the Criminal Procedure Code: “the defendant
and the prosecutor may conclude an agreement” implies that neither
of the two holders will be compelled to enter into an agreement
initiated by the other.
KEYWORDS:
Completion of criminal prosecution, indictment, agreement on
recognition of guilt/guilty plea, referral, court
1. Introduction
Completion (and purpose) of the
criminal prosecution involves solving the
case and bringing it before a court, at which
moment the prosecutors cease their activity,
following the prosecutor’s disposition papers.
Bringing criminal legal dispute before
the court, after the criminal investigation is
carried out, is done either by issuing the
accusation/indictment by the prosecutor, by
entering a guilty plea agreement.
However, the difference between the
two methods is essential, since the
prosecutor's indictment is the act of
referring the court, which is entrusted with
the trial of the criminal case, while the
DOI: 10.2478/bsaft-2019-0003
© 2019. This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License.
23
agreement on the recognition of guilt is a
special procedure, the judge being able to
admit or to reject it, being excluded the
judicial inquiry.
2. Arraignment
Once the criminal prosecution has
been exhausted, the criminal investigating
authorities, after drawing up the report with
the appropriate proposal, cease their
activity, only the prosecutor having at this
time duties in relation to the case file.
After performing, within the criminal
prosecution, the procedural acts of verifying
the referral, initiation of the criminal
prosecution, commencement of the criminal
action and administration of the evidence,
this stage is concluded by the issuance of a
solution.
If the prosecutor ascertains the
existence of any of the cases provided by
article 16 par. 1 in the Criminal Procedure
Code, he orders the dismissal of the case in
question, and, if the offense referred was
committed by the defendant, under the type
of the guilt provided by the law, he orders
the indictment of the case.
2.1. Indictment – act of referral
Unlike the previous regulation, the
indictment is only the act of referring the
court and not an inculpation, the
prosecutor’s ordinance being the only
procedural act in this regard.
The only exception is the situation of
the offense of audience, when the
prosecutor declares that he initiates the
criminal prosecution against the defendant,
the procedural act, which reflects the
procedural act ordered by the prosecutor,
being the closing of the hearing.
In this context, the order to initiate
criminal prosecution becomes a complex
act, establishing the extent and the limits of
criminal prosecution, as well as the limits
of the subsequent trial of the case.
When the indictment also includes, in
the presentation, solutions to close or waive
prosecution, the court is not hearing and
judging them, even if they were described
in the presentation and related to the deed
under judgment (Volonciu, 2014).
A special procedure is the Agreement
on the recognition of guilt/Guilty Plea
(art. 478-488 of the Criminal Procedure
Code), which is written and signed by the
prosecutor, the defendant and his attorney,
an agreement that constitutes the act of
referring the court.
2.2. Issuing the indictment
When the criminal prosecution is
completed and the evidence shows that the
deed exists, was committed by the
defendant and he is criminally liable, the
prosecutor issues the indictment by which
he orders the indictment.
This act of disposition is issued by the
prosecutor only if he is convinced that the
three conditions are fulfilled, otherwise he
has a solution of non-adjudication or can
appreciate on the opportunity to abandon
criminal prosecution.
The jurisdiction of the court belongs
exclusively to the prosecutor, since the
criminal investigation bodies never enter
into direct relations with the court, a
situation which is valid only in criminal
cases (Volonciu, 1994). Unlike the previous
regulation, when the criminal proceedings
may be ordered at the same time as the
prosecution, the indictment is merely an act
of referring the court, not an act of
inculpation, the prosecutor's ordinance
being the only procedural act in this respect.
The only exception is the situation of
the offense of audience, when the
prosecutor declares that he initiates the
criminal action against the defendant, the
procedural act, which reflects the
procedural act ordered by the prosecutor,
being the closing of the hearing.
In this context, the ordinance to
initiate criminal prosecution becomes a
complex act, establishing the extent and the
limits of the criminal prosecution, as well
as the limits of the subsequent trial of the
case.
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The referral to the court, as well as
the arraignment whose legal consequence it
is - a provision which has effect only if it is
included in the indictment, is the exclusive
competence of the prosecutor, except as
provided by art. 341, paragraph 7, point 2,
letter c of the Criminal Procedure Code.
The Preliminary Chamber Judge
hearing a complaint against non-adjudication
in a case in which the criminal prosecution
was initiated, by admitting the complaint,
may order the commencement of the trial.
In doctrinal theory, there are opinions
that this substitution of the prosecutor
(who does not notify the court) in issuing
this disposition constitutes an infringement
of the principle of separation of judicial
functions (Zarafiu, 2015).
The indictment, as a stage of the
criminal prosecution, is the link between
this phase, which it concludes, and the stage
of the trial, which precedes and initiates, in
which the criminal trial will be completed
(Volonciu, 2014).
After this stage, the prosecutor can no
longer take any action and can no longer
intervene in the conduct of subsequent
procedural activities, being dismissed as a
criminal investigative body.
Consequently, issuing the indictment
and bringing the case to trial
simultaneously produce two important legal
effects: a positive effect – the court’s
referral, and a negative one – the dismissal
of the criminal prosecution bodies, thus
operating a transfer of functional
competence, from the prosecution body to
the court of judgment (Zarafiu, 2015).
The indictment is a complex act, the
prosecutor being able to order, in respect of
other suspects or defendants or for other
offenses, the solution of closing or
dismissal of criminal prosecution, in which
case there is no longer an ordinance for
these solutions of non-arraignment.
Also, for other persons or other
offences, it may be ordered to divest the
case, resulting in the formation of a new
criminal file, or to divest and decline the
competence to solve the newly filed file in
favor of another prosecutor’s office, which
competent from material, territorial or by
the quality of the person perspective.
In the introductory part of the
indictment, we find the same terms, as well as
in ordinances – the name of the prosecutor’s
office and the date of issue, the case number,
the name, surname, the quality and the
signature of the person who made it.
By inserting these elements, it is
possible to verify the competence of the
prosecutor, his compatibility, observance of
the procedural deadlines for drafting or
sending the file to the court.
Of particular importance, in terms of
the lawfulness of the referral, are the
references to the data on the person and
identity of the defendant, which must be
certified by official documents, and it is not
possible for them to be reported by
witnesses or confirmed by close persons.
In this situation, the High Court of
Cassation and Justice has ruled that bringing
a person without a clearly identifiable identity
to court is illegal and the court, being
unlawfully invested, cannot solve this
problem as a prior matter (HCCJ, 2012).
Regarding its content, the elements of
which are provided by Article 328 of the
Penal Code, the indictment ordering the
arraignment of the defendant and the
referral to the court must relate only to the
offence and the defendant (the defendants)
for which the criminal prosecution was
carried out and the criminal action was
initiated, while a person who did not benefit
from the procedural rights and guarantees
of this stage of the criminal proceedings
cannot be sued.
The disposition of arraignment from
the indictment must be consistent with the
order to continue to prosecute the suspect
and the order to initiate the criminal action,
on the offence, its legal classification and
the identity of the defendant.
This aspect is particularly important
because the indictment, as an act of
referring the court, points out the object of
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the judgment, thus determining the issues to
be deduced from the judicial investigation,
so exceeding the limits set in the course of
the criminal prosecution implies the
unlawfulness of the referral act.
In this respect, the European Court of
Human Rights also ruled (ECHR, 1989,
2000, 2007).
The responsibility of clear
delimitation of the judgment’s subject lies
with the prosecutor, as the titular of the
criminal action, and the judge is not entitled
to do this delimitation because it is
incompatible with his jurisdiction.
The reference to the deed or offences
deducted from the judgment should not be
generic or abstract, but should refer to the
concrete circumstances in which they were
committed, the place and time, the means
used and the purpose or the motive for
which they were committed.
Presentation of the offense(s) must be
backed up by references to evidence, to the
explanations given by the defendant, when
he acknowledged the offense or, when he
did not admitted, to the objections and
defense invoked, as well as to the evidence
that overcomes these defenses.
If the prosecution has been carried out
in respect of several offences and several
persons, the prosecutor will draw up a
single indictment, even if he adopts
different solutions – for some deeds or
persons it is ordered arraignment and for
others is ordered the closing or dismissal of
criminal prosecution.
It may also be ordered to divest the case,
with respect to certain deeds and certain
perpetrators, or to decline the jurisdiction.
It is important, however, in this case
that each deed and each person are
described separately, clearly and
unequivocally distinguishing each person’s
contribution to the criminal activity.
Moreover, the NCPC (New Criminal
Procedure Code) expressly regulates the
possibility of including in the indictment
the proposal to take precautionary measures
or preventive measures.
A controversial problem in doctrine
and, until 2001, in the judicial practice was
the court’s referral with an act not
mentioned in the indictment, but described
in its initial presentation of the case, with
reference to the evidence on which the
allegation is based.
Initially, it was appreciated that as
long as the act was described in the
indictment and confirmed by the
administered evidence, the court must
consider itself legally bound to hear it, even
if it was not passed on to the indictment
(Supreme Court, 1996, 1999).
Such a broad interpretation of the
provisions on the judgment’s subject at first
instance, on the facts contained in the
indictment's initial presentation of the case,
although not mentioned either as deeds or
under some legal classification, is likely to
cause doubt regarding the prosecutor's
intention to refer the case to the court and
about these offences.
This doubt arises, on the one hand,
from the fact that for some of the deeds
described in the indictment, solutions of
non-arraignment may be adopted and, on
the other hand, the prosecutor’s procedural
act must be found in the procedural act of
ordering it.
A different situation is the detention in
the indictment of an incorrect legal
classification of the offense for which the
referral was ordered, in which case the referral
notice remains valid, legally drawn up.
Legal classification of the offense by
the prosecutor is provisional, subject to
judicial review, the court being able to
censor and to change it either when found
to be erroneous in relation to the offense
pursued, or when that change is necessary
because of modification in the actual state
of the facts, after the court has been notified
and the evidence has been handled.
If the offense incriminating the
defendant is described in the indictment in
detail, with all the elements that have
criminal implications, the object of
judgment being thus clearly outlined, the
26
wrongful legal classification is irrelevant,
whether due to using a legal text
inapplicable to the case, or referring to legal
provisions that does not regulate the
respective offence as crime.
According to Article 328 of the
Penal Code, the indictment must also
include evidence and samples of evidence.
The referral must not, however, be limited
to their enumeration or mere presentation,
but it is necessary to analyze and interpret
them so that the existence of the offence, its
author, as well as the concrete
circumstances in which it was committed to
become obvious.
The analysis should provide the
arguments for which certain evidence is
invoked, while others are removed and the
defense formulated by the defendant is
either retained, or shall be countered and
removed, with appropriate reasoning.
In addition to the arraignment, the
indictment (in the initial presentation)
includes references to court costs,
preventive or precautionary measures, or
possible security measures.
2.3. Verifying the legality and
validity of the indictment
In the practice of the courts, it was
found that there is no unitary point of view
regarding the verification of the lawfulness
and validity of the act of arraignment, if the
filing of the indictment of the competent
court is made by address, under the
signature of the first prosecutor, to the
general prosecutor of the prosecutor's office
within the Court of Appeal or the
hierarchically superior prosecutor, with
reference to Article 264, Para. 3, in the
Penal Code from 1968.
Following the admission of the appeal
in the interest of the law declared by the
Prosecutor General of the Prosecutor's
Office attached to the High Court of
Cassation and Justice, the supreme court
held that the provisions of art. 264, para. (3)
of the Criminal Procedure Code is to be
interpreted as meaning that the indictment
must contain the words “verified in terms of
legality and validity” and the absence of
such a reference entails the irregularity of
the referral, applicable provisions and the
current rules of criminal procedure.
In this regulation, as well as in the
previous one, the indictment is verified and
confirmed by the hierarchically superior
prosecutor. The novelty that guarantees the
rights of defense concerns the communication
of the indictment to each defendant in the
case, and his translation when necessary, so
that any defendant can know the accusation
brought to him, unlike the previous regulation
when communicated only to the defendant
arrested or detained.
The indictment is verified by the First
Prosecutor of the Prosecutor's Office or by
the General Prosecutor of the Prosecutor’s
Office attached to the Court of Appeal, and
when it was drawn up by the Prosecutor’s
Office by the hierarchically superior
prosecutor.
At the Prosecutor’s Office attached to
the High Court of Cassation and Justice, the
indictment is verified by the Chief
Prosecutor of the Section, and when it was
drawn up by the latter, is verified by the
General Prosecutor.
According to Art. 222 of the
Government Emergency Ordinance
(G.E.O.) no. 43/2002, the indictments
drafted by the prosecutors within the
territorial services of the National
Anticorruption Directorate are checked by
the chief prosecutors of these services, the
ones prepared by the chief prosecutors of
the territorial services, as well as those
drawn up by the prosecutors within the
central structure of the National
Anticorruption Directorate are checked by
chief prosecutors of the sections. When the
indictments are drawn up by chief
prosecutors of the National Anticorruption
Directorates, the verification is done by the
chief prosecutor of that department.
In the The Directorate for the
Investigation of Organized Crime and
Terrorism (DIICOT) structures, the
27
indictments drawn up by the prosecutors
within the territorial offices and services of
the Directorate for the Investigation of
Organized Crime and Terrorism are
checked by the chief prosecutors of these
services or offices, while the indictments
drawn up by Chief Prosecutors of
Territorial Offices are checked by Chief
Prosecutors of Territorial Services.
The indictments drafted by Chief
Prosecutors of Territorial Services, as well
as prosecutors within the central structure
of the Directorate for the Investigation of
Organized Crime and Terrorism, are
verified according to the specialization of
the Chief Prosecutors of these Services.
When the indictments are drawn up by
chief prosecutors of the services within the
central structure of the Directorate for the
Investigation of Organized Crime and
Terrorism, the verification is done by the
Chief Prosecutor of this Department.
There is no time limit for verifying
the legality and validity of the indictment,
the only provision to this effect referring to
cases with detainees, where the verification
is made as a matter of urgency before the
expiry of the preventive arrest.
The absence of such a check
invalidates the court’s referral, a situation
which the preliminary chamber judge ends
by classifying the case, still the
hierarchically superior prosecutor may
request the restitution of the case and, after
verifying the indictment, he will appreciate
the legality and validity of the case.
After verifying the indictment, the
hierarchically superior prosecutor may
ascertain the legality and validity of the
indictment or issues that affect its legality
and/or validity, or may observe material
misstatements or errors.
In the first situation, after confirming
the indictment and signing the address, the
case file is sent to the court, to the
preliminary chamber judge.
In the second case, assessing the
criminal prosecution as incomplete or
unlawful, he refuses to justify the
indictment (art. 304) and returns it to the
prosecutor who has drawn up the file
together with the case file with a view to
reconsider or complete the criminal
prosecution.
In the third situation, noting that there
are no issues of illegality and groundlessness,
but only reformulations or correction of
typing errors, he returns it to the prosecutor to
make the necessary changes.
3. Agreement on the recognition of
guilt/guilty plea
The institution of Agreement on the
Recognition of Guilt is regulated in
Art. 478-488 in terms of the parties involved
and its scope, the procedure and the solutions
which the court may give, as well as the
means of appeal against the verdict.
It is a novelty in the current Criminal
Procedure Code, constituting an exception
to the principles of truth and legality, being
adopted in our judicial system for
pragmatic reasons, being similar, as an
institution, to that of other criminal
procedural systems on the continent.
The guilty plea holders are the
prosecutor and the defendant, the latter
being both a natural person and a legal
person, as procedural rules do not differ in
this respect.
The fact that only the defendant
(not the suspect) can conclude such an
agreement has as a consequence the
obligation to initiate the criminal action,
since the agreement/plea is subject to
confirmation by the court which verifies
both the validity of the consent and the state
of facts established during the criminal
investigations, thus it is necessary to have
minimum evidence proving an offense
committed by the investigated person.
Also, such agreements cannot be
concluded by defendants who committed
the act when they were minors, a ban
imposed by the legislator as a measure to
protect them.
Although one of the holders of the
agreement on the recognition of guilt, the
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prosecutor dealing with the case can not
establish its delimitations which are subject
to the prior and written approval of the
hierarchically superior prosecutor, a
condition which derives from the principle
of hierarchical control under which the
Public Ministry operates..
However, the hierarchically superior
prosecutor cannot determine the quantum of
the punishment and the way it is executed,
as it would be in contradiction with the
reasoning of the institution, no elements of
negotiation being at the reach of the
prosecutor who carried out the criminal
investigation or supervised the
investigations.
Article 478 para. 3 of Criminal
Procedure Code provides that the initiation
of the agreement on the recognition of guilt
can be made by both the prosecutor and the
defendant without any restriction or priority
in this respect.
Judicial doctrine still questions
whether the prosecutor is obliged to accept
to negotiate with the defendant any
agreement initiated by the latter, supporting
either the possibility of the prosecutor to
refuse, or, on the contrary, his obligation to
accept the initiation of the negotiation
procedure.
From the interpretation of the
provisions of art. 478 par. 1 of Criminal
Procedure Code – “the defendant and the
prosecutor can conclude an agreement” –
it follows that neither of the two holders
can be compelled to enter into an agreement
initiated by the other.
Furthermore, the meaning of the term
“agreement” implies that both holders of
the agreement are agreeing with it.
The agreement on the recognition of
guilt must necessarily refer to the
recognition of the commission of the
offense, the acceptance of its legal
classification, and the manner, quantum and
form of execution of the punishment.
However, the law limits the
applicability of this institution only to
offenses for which either the punishment of
the fine or the imprisonment of no more
than 15 years is prescribed and imposes
compulsory legal assistance upon the
conclusion of the agreement on the
recognition of guilt (Article 480 of the
Penal Code).
We consider that this condition, for
the purpose of concluding the agreement on
the recognition of guilt, as the punishment
stipulated by the law to be at most 15 years,
limits unjustifiably (and somewhat
discriminatory) the application of this
institution.
Removing this condition from the law
would not have any effect on the two
holders of the agreement because it is
subject to validation by the court anyway.
The written form and the content of
the agreement on the recognition of guilt
are provided by art. 481 and art. 482, and,
after its conclusion, it is submitted to the
hierarchically superior prosecutor’s opinion
(Article 478 paragraph 2 of the Penal
Code).
This subsequent opinion is practically
unnecessary because, on the one hand, it
complies with the limits previously
established by the hierarchical prosecutor
and, on the other hand, the legality of the
agreement is verified by the court.
The civil party (the injured party)
does not participate in the conclusion of
such an agreement and, where it is accepted
by the court, civil claims can be settled later
by an action of this nature, except where the
parties conclude a mediation transaction or
agreement, in which case the court takes
notice of them through a verdict.
When several people were
investigated, the agreement on recognition
of guilt is concluded with each one, the
result of which is recorded in a single
document.
If, however, not all defendants accept
the conclusion of such an agreement, the
case will be disunited with regard to the
others, who are still granted the
presumption of guilt until the final
conviction.
29
If the guilty plea agreement is
concluded first and the court is notified for
its admission, the prosecutor will order the
case to be disunited by ordinance with
respect to the other defendants, and if the
indictment is first drawn up before the
agreement on the recognition of guilty, the
separation of the case will be disposed of
by the act of referral.
Defendants with whom the agreement
has been concluded may be heard as
witnesses in the disputed case, but, in this
case, they are not admitted by the court and
their statements cannot be used against them.
In the case of plurality of offenses,
each punishment is individually negotiated,
as well as the amount of the resulting
punishment, as the law imposes also the
punishment’s form of execution as an
object of the agreement.
It should be noted that in the
situations where the criminal cases are
solved in this way, the criminal
investigation is not “finished”, according to
the provisions of art. 321 and seq. of the
Criminal Procedure Code since it is not
necessary to have evidence proving, beyond
reasonable doubt, the culpability of the
defendant, the existence of some solid
evidence that the criminal act was
committed by him, corroborated with his
recognition, being sufficient legally.
The file in which an agreement on the
recognition of guilt has been concluded is
sent directly to the court which has
jurisdiction to adjudicate the substance of
this case, without passing through the
preliminary chamber phase and the legality
of the evidence administered during the
prosecution is not called into question.
The court rules on the admission of
the agreement in a non-controversial
procedure, but with the hearing of the
prosecutor, the defendant, his lawyer and
the civil party, if present, without further
request or exception of evidence, except for
the possibility of submission of documents
in circumstantial terms.
After the agreement on the
recognition of guilty has been concluded
and until the admission procedure before
the court, the defendant can withdraw his/
her consent expressed during the criminal
prosecution phase.
The admission by the court of the
agreement does not amount to a simple
ratification of it but presupposes the
individualization and application of the
punishment, according to the general and
special criteria of individualization specific
to the judicial function.
4. Conclusions
Completion of criminal prosecution is
one of the most important moments of the
criminal trial, both for criminal
investigation bodies and prosecutors, and
(especially) for the defendant.
This moment does not mean the
depletion of the criminal prosecution, as a
stage of the criminal trial, but represents the
finalization of the criminal investigation
activity and of the administration of
evidence, after which the file is submitted
to the prosecutor in order for him to
pronounce on the proposal made by the
criminal investigation body.
If the prosecutor has carried out the
criminal investigation, the distinction is no
longer made between the moment when the
criminal investigations are terminated and
the pronouncement of the prosecutor is
made, the solution ordered by him
indicating the depletion of the criminal
prosecution as a phase of the criminal trial.
Referral to the court is particularly
important because only in this way the
person who committed an offense can be
held criminally liable, while the solutions to
non-arraignment in court represent a
negative solution to the criminal action.
30
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High Court of Cassation and Justice (HCCJ). (2012). Decision no. 2102/14.06.2012.
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Romanian Government (2002). The Government Emergency Ordinance (G.E.O.)
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