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International Conference KNOWLEDGE-BASED ORGANIZATION
Vol. XXV No 2 2019
INITIATION/COMMENCEMENT OF CRIMINAL PROSECUTION IN THE NEW
CRIMINAL PROCEDURE CODE
Fănică CERCEL
University of Bucharest, Bucharest, Romania
fanicacercel@yahoo.com
Abstract: The initiation of criminal prosecution is always preceded by the notification of criminal
investigation bodies (or the disclosure) about the commission of a crime, since it is not possible to
start the criminal trial in the absence of such notification. Another (negative) condition is the non-
existence of any of the cases provided by art. 16 of the Criminal Procedure Code, otherwise they are
closed prior to the commencement of criminal prosecution.The procedural act by which the
prosecution is initiated, according to Article 305, paragraph 2, of the Criminal Procedure Code is the
ordinance. The commencement of criminal prosecution is always ordered in respect of the offense,
even if the person who committed the offense is indicated in the notice.
Keywords: criminal prosecution, referral, criminal trial, ordinance, criminal
prosecution body
1. Introduction
The commencement of criminal prosecution
is an important criminal procedural
institution, which marks the initial moment
of criminal prosecution, the moment when
the criminal proceedings start, representing
the establisment of the legal framework for
the exercise of procedural rights and
obligations.
The criminal trial has four stages: criminal
prosecution (which takes place in terms of
the offence immediately after the referral,
and then on the person), the preliminary
hearing, the trial (at the first instance and ,
afterwards, possibly on appeal) and the
execution of the final court decision.
Criminal prosecution is the first stage of
criminal trial and is designed to prepare and
ensure the proper conduct of the criminal
trial at the trial stage, through the detection
of crimes, identification and capture of the
offenders to be tried, gathering evidence on
the offense and the perpetrator, so that the
offense committed and the person to be
tried, as well as the other persons who may
have a procedural capacity in question, are
known at the time of the court's referral.
According to the current regulation,
criminal prosecution is a judicial function
(art. 3), which is exercised ex officio, unless
otherwise stipulated by law, and in its
exercise the prosecutor and the criminal
investigation bodies collect the necessary
evidence to it so to establish whether or not
there are grounds for referral.
2.Conditions
In view of the significance of this
procedural act, which produces important
consequences, the conditions and the form
in which the initiation of the criminal
investigation materialize are regulated in
detail.
DOI: 10.2478/kbo-2019-0066
© 2015. This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License.
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From the interpretation of the provisions of
art. 305 of the Criminal Procedure Code,
there are cumulative conditions necessary for
the commencement of criminal prosecution, a
positive one and a negative one:
- the existence of a criminal investigation
body referral/notice, which may be external
(complaint, denunciation, etc.), internal (ex
officio referral) or made by special means
(prior complaint, notification to the
competent body), containing a minimum of
data or information on which to initiate the
prosecution;
- it is found that there is none of the cases
that prevent the criminal action provided by
art. 16, paragraph 1, of the Criminal
Procedure Code.
The conditions are cumulative and, once
fulfilled, the competent criminal
investigation body is compelled to initiate
prosecution, as the new Criminal Procedure
Code no longer regulates the stage of the
preliminary acts, so that when the referral
meets the formal and substantive conditions
and does not exist one of the cases that
prevent the criminal proceedings, it will be
ordered to start criminal prosecution.
Each of these conditions requires careful
consideration because, if they are not met, in
the absence of the precursor acts provided for
in the old regulation, criminal prosecution can
not be initiated, being ordered the closing of
the case (Article 315).
As a practical matter, with the entry into
force on February 1, 2014 of the new
Criminal Procedure Code, in all criminal
files registered in the prosecutor's offices,
which were at the stage of preliminary acts
and in which the conditions for starting the
criminal prosecution were met, the criminal
prosecution of the offence committed was
commenced, thus creating the criminal
procedural framework required by the new
regulation.
2.1. Referral modes
The commencement of criminal prosecution
is always preceded by the notification of the
criminal investigation bodies (or the
disclosure) of the commission of a crime.
The legal way by which the judicial body is
informed about the commission of a crime
is the act of referral, having the effect of
investituring the criminal prosecution body
and creating the legal framework for
carrying out this procedural activity.
Referral to the judicial bodies is the starting
point of the criminal prosecution, without
which it can not begin, and contains both
the information element and the legal basis
for starting the legal research activity.
Although there are no express provisions in
the Criminal Procedure Code, the doctrine
has divided the referral modes into several
categories:
a) External referral (complaint,
denunciation, prior complaint, etc.) and
internal (legal self-enforcement or ex
officio referral);
b) Primary referral (represents an absolute
novelty, which first comes to the attention
of a criminal prosecution body) and
complementary (with secondary character,
being subsequent to the primary referral););
c) General ways of referral (ordinary means
of referral, equal in importance, with the
consequence that they can be
supplemented) and special means of referral
(exclusive character, criminal prosecution
can not be carried out without them).
In the previous Criminal Procedure Code,
special referrals were absolute conditions
for initiation of criminal prosecution, but in
the current regulation, their absence hinders
the conduct of criminal proceedings, not the
initiation of prosecution [1].
Regarding the ways of referral, art. 288 of
the Law no. 135/2010 kept the ones
enshrined in the previous regulation:
1. The criminal investigative body is
notified by complaint or denunciation, by
the acts concluded by other law
enforcement bodies or by ex officio.
2. When, according to the law, the
criminal prosecution can be initiated only
upon preliminary complaint of the injured
person, at the request made by the person
stipulated by the law or with the
authorization of the body stipulated by the
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law, the criminal action can not be carried
out in the absence thereof.
Paragraph 3 was added, which stipulates that
in the case of crimes committed by soldiers,
the commander's referral is only necessary in
respect of the offenses referred to in Articles
413 - 417 of the Criminal Code.
It can noy be found in the new C.P.C. the
provisions regarding the expression of the
will of a foreign state and the situation of
the offenses whereby a damage occurred to
a unit out of those provided by art.145
existing in the old regulation (previous
Criminal Procedure Code).
2.2. Complaint
According to art. 289, paragraph 1 of
Criminal Procedure Code, the complaint is
the notification made by an individual or a
legal person regarding a prejudice caused
by a crime.
The complaint, as a means of referral to the
criminal prosecution bodies, should not be
confused with the prior complaint, which is
also a condition of punishment and
procrastination. The absence of a prior
complaint can not be remedied by other
means of referral, whereas an ordinary
criminal complaint may be replaced by a
notice or an ex officio referral.
The complaint must include the name,
surname, personal numeric code, the quality
and domicile of the petitioner, the
description of the deed which is the subject
of the complaint, as well as the indication
of the perpetrator and the means of
evidence, if known.
The complaint may be made in writing
(including electronically) or orally
(including by calling SNUAU 112), in
which case it is recorded in a minutes, and
is optional, remaining at the discretion of
the injured party if he or she formulates it
or not.
As an element of novelty, art. Article 289
(para. 2) provides that for legal persons the
complaint must include the name, the
registered office, the unique registration
code, the fiscal identification code, the
registration number in the trade register or
the registration of the legal entities and the
bank account, the indication of the legal or
conventional representative .
New items are also provided in paragraphs
4 and 5 regarding the obligation to sign the
complaint by the injured party or the trustee
and the conditions of the complaint in
electronic form:
"(4) If it is made in writing, the
complaint must be signed by the injured
person or by the trustee.
(5) Complaint in electronic form fulfills
the form conditions only if it is certified by
electronic signature in accordance with the
legal provisions. "
The complaint may be made personally, by
trustee with a special mandate (the proxy
remains attached to the complaint) or by a
procedural substitute (the spouse for the
other spouse or the major child for his
parents), but the injured person may declare
that he does not accept the complaint, and,
when done orally, it shall be recorded in a
minutes by the receiving body.
For persons without legal capacity, the
complaint is made by the legal
representative, and in the case of persons
with limited legal capacity, the referrals are
formulated by them, with the consent of the
persons provided by the civil law, except
when the perpetrator is a legal
representative or is responsible for the acts
of the injured person, or when the
notification of the criminal investigation
bodies is done ex officio.
A special situation concerns criminal
offenses committed outside the territory of
Romania when the complaint filed with the
Romanian judicial body by the injured
party, resident in Romania, is transmitted
directly or, in the case of non-member
states of the European Union, through the
central judicial authorities, to the competent
foreign authorities of the State in whose
territory the crime was committed [2].
2.3. Denounced
According to art. 290 of the Criminal
Procedure Code, the denunciation is the
notification made by a natural person or by
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a legal person about the commission of a
crime and, as well as the complaint,
presents the same legal characters – being
an external, general, primary and principal
external referral.
Denunciation is an optional way of
reporting a crime to criminal investigation
bodies, and people have no legal obligation
to do so.
However, if the law provides for the legal
obligation to denounce certain offenses, in
this case the denunciation is mandatory, the
non-referral representing an offense (Article
266 of the Criminal Code). Otherwise, the
law provides that some persons with
management positions should refer the
judicial bodies about the commission of a
crime, in which case this is a special way of
referral.
According to the provisions of art. 291 of
the Criminal Procedure Code, the
notification of the criminal investigation
bodies is mandatory for any person with a
leading position within a public
administration offive or other public
authorities, as well as for any persons with
control tasks who, in the exercise of their
duties, have become aware of the
commission of an offense.
Similarly, the same obligation applies to
any person exercising a service of public
interest for which he has been entrusted by
the public authorities or is under their
control or supervision, who, in the exercise
of his duties, has become aware of the
commission of an act provided for by the
criminal law, an obligation concerning only
the offenses for which the criminal action is
initiated ex officio.
In some cases, the law provides that the
denunciation can be done by the person
who committed the offense (self-
denunciation), and such denunciations lead
either to the removal of criminal liability or
to the alleviation of this liability. For
example, according to Article 290, para. 3,
of the Penal Code, the briber is not
punished if he denounces the crime to the
authority before the criminal prosecution
body is notified of the offense of bribery.
Unlike the previous regulation, art. 290,
paragraph 2, provides that the denunciation
may be made only personally, the
provisions of art. 289 par. 2, 4 - 6 and 8 –
10, applying accordingly (novelty in
paragraphs 4 and 8) [3].
As well as the complaint, in view of the
consequences it may cause (including the
attribution of the criminal responsibility to
the offender when it does not correspond to
reality), the denunciation must be assumed
by signing it, when made in writing, or by
certifying the identity of the denouncer in
the minutes in which is recorded, when
formulated orally [4].
2.4. Modes of special referral
The special ways of referral can not be
supplemented by other means, general or
special, and the ex officio referral being
excluded as well and must be made in
writing and signed by the competent body,
including the content items provided for the
complaint.
In this category can be classified as
example, the referral made by the
commander of the military unit (for the
offenses referred to in art.413-417 of the
Penal Code, committed by the soldiers), the
commander’s referral, the complaint of the
owner or the operator of the ship in the case
of some offenses stipulated in the Law no.
191/2003, or the notification of the
Chamber of Commerce and Industry or of
persons authorized by the Competition
Council in the case of unfair competition
offenses, according to art. 8 of the Law
no.11 / 1991.
These special ways of referral should not be
confused with the authorization of the body
provided by the law (authorization of the
General Prosecutor of the Prosecutor's
Office attached to the Court of Appeal or
the High Court of Cassation and Justice for
the offenses committed under the
conditions of Articles 8 and 9 of the Penal
Code, authorization of the Senate, the
Chamber of Deputies or the President of
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Romania to start criminal prosecution
against the members of the government),
which is a prerequisite for starting and
conducting criminal prosecution.
Also, while the absence of the special
referral prevents the prosecution, certain
pre-requisites, necessary for carrying
actually out some criminal procedural acts
(the authorization for arrest, arrest or search
by the Chamber of which they belong to the
MPs, or by the appropriate section of the
SCM in the case of judges and prosecutors)
does not prevent criminal prosecution [5].
In the current Criminal Procedure Code, the
ambiguous phrase in the old regulation (the
unit referred to in Article 145 of the
Criminal Code) has been replaced and the
obligation to refer to offenses for which the
criminal action is initiated ex officio has
been reduced [6].
The concept of civil servant has been
defined and the obligation to refer to
offenses for which the criminal prosecution
is automatically initiated is reduced, being
eliminated the condition that the offense
must be related to the service.
Among the special referrals, the preliminary
complaint has a distinct regulation, the
procedure of which is provided by art. 295-
298 of the Criminal Procedure Code, but
does not trigger a special procedure of
prosecution and trial in the cases in which it
is formulated.
The significance of this type of referral
results not only from the impossibility of
initiating criminal prosecution, but also
from the effects it produces in the course of
the criminal proceedings, which can be
stopped by reconciling the parties,
withdrawing the preliminary complaint or
concluding a mediation agreement.
The institution of the preliminary complaint
has a dual legal nature, being as a special
means of referral from procedural
perspective, a mandatory condition for
initiating and conducting criminal
prosecution and, from a substantive point of
view, it is a necessary condition for the
criminal indictment of the investigated
persons, the lack of this being a cause that
removes criminal liability.
The right to make a preliminary complaint
lies with the injured person, namely the
individual or legal person who has suffered
physical, material or moral damage by the
commission of the criminal offense, which
has therefore a personal, indivisible and
non-transferable character.
It may be formulated in person or by a
trustee (with a special mandate attached to
the complaint), and in the case of minors
and incapacitated persons (lack of legal
capacity) by the legal representative, but as
second option, in this case, the criminal
prosecution may be initiated ex officio (art.
154, paragraph 4 of Criminal Procedure
Code).
Also, if the injured person is deprived of his
or her legal capacity or has limitedlegal
ability, or a legal person, represented by the
perpetrator himself, the criminal
prosecution is also set in motion ex officio.
The personal nature of prior complaint
relates not only to the claimant, but also to
the person against whom it is formulated,
which must be known by the injured person
and indicated, with the express wording that
he wishes to be prosecuted.
As regards form and content, the provisions
of Article 289 para. 2 of the Penal Code are
applicable, the major difference to the
complaint being the time limit within which
the preliminary complaint must be made,
namely three months from the day the
injured person learned about committing
the deed, whether or no he knew who the
perpetrator was at that time.
The current regulation is deficient in this
respect; in cases where the perpetrator of
the deed is discovered after the passing of
the three months, he can not be held
criminally liable, and we appreciate, de lege
ferenda, that it would be necessary to
amend Article 296 paragraph 1 of the
Criminal Procedure Code, by adding the
phrase "or when the injured person knew
who the perpetrator is," as provided by art.
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284 para. 1 of the previous Criminal
Procedure Code.
Like other procedural acts, the prior
complaint wrongfully directed to the
criminal investigative body or the court is
sent, by administrative means, to the
competent body, being considered valid if it
was filed within the time limit with the
incompetent body.
The period within which a prior complaint
must be filed shall not be interrupted or
suspended, even if the injured person was
objectively unable to formulate it, the only
exception being the duration of the
mediation.
However, if the objective impossibility of
formulating the prior complaint was
determined by the commission of the
offense, the commencement of the criminal
prosecution and the pursuit of the
prosecution during the three-month period
may also be ordered ex officio [7].
Special issues concerning the prior
complaint procedure:
- upon receipt of the preliminary/prior
complaint, the criminal investigation body
verifies whether it fulfills the formal
conditions and whether it has been filed
within the time limit prescribed by law
(Article 297 (1) of the Criminal Procedure
Code);
- in the case of a flagrant offense, the
criminal investigation body is obliged to
state its execution, after which the injured
party is summoned to declare whether he or
she intends to make a preliminary
complaint or not, proceeding accordingly
(Article 298 of the Criminal Procedure
Code.)
- when a criminal prosecution has been
carried out in one case and the preliminary
complaint is found to be necessary, the
criminal investigation body proceeds as in
the previous case (Article 297 of the
Criminal Procedure Code);
- if the court changes the legal framing of
the offense for which the prosecution has
been ordered in an offense for which the
prior complaint is required, the injured
person will be summoned and asked if he or
she understands to make such a complaint
(Article 386, paragraph 2 of the Criminal
Procedure Code).
2.5. Referralex officio
It is an ex officio referral of the criminal
prosecution bodies when they find out by
any means necessary (other than the ones
previously analyzed) about the commission
of a crime, and it is done either by direct
observation of the commission of criminal
acts or by the means of mass information.
An ex officio referral may also have a
subsidiary character in situations where
another way of referral does not have its
effects (anonymous denunciation,
complaint without the data of the injured
person, where the perpetrator is the legal
representative of the person lacking legal
ability, etc.), in which case it employs the
legal form and the information contained in
an inappropriate way of reporting is used
legally , so that it materializes in a criminal
record concluded by the criminal
investigative body which is therefore
legally invested with the settlement of the
case.
It has a distinct regulation, compared to the
previous Criminal Procedure Code, in Art.
292:
"The criminal investigative body refers ex
officio if it finds out that a crime has been
committed in any way other than those
provided under art. 289-291 and conclude
a report to that effect".
Even if the criminal investigative body
directly finds out about the commission of
an offense, it can not refer ex officio
whether a prior complaintis necessary for
that offense. In these situations, the
criminal investigation body calls the injured
person and asks if he or she make a
complaint.
The report concluded after the ex officio
referral are not an act of commencement of
criminal prosecution (which must be
ordered separately, by means of ordinance),
but only the way in which the criminal
prosecution bodies are notified.
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The simple referral of these organs is not
sufficient to order the commencement of
the criminal prosecution, those being
compelled, upon the receipt of the
complaint, to verify its competence, and if
it finds that it is not competent to resolve
the case, it shall submit it to the prosecutor,
with the proposal to refer it to the
competent body.
If the referral is addressed directly to the
prosecutor, when ascertaining that he is not
competent, either materially, territorially or
by the quality of the person, to solve it, he
shall send it to the competent prosecutor. It
is not a matter of declining jurisdiction (the
prosecuting authority is not legally
notified), but sent by an administrative
reference, a way considered in the doctrine
as legally questionable (as an administrative
measure) and objectionable from the point
of view of regulation, since it overlaps with
the ways of regulating competence,
provided by art.58 of the Criminal
Procedure Code [8].
In cases where the complaint or
denunciation does not meet the
requirements of form and substance
stipulated by the law or the description of
the act is unclear or incomplete, it shall be
returned administratively to the petitioner,
specifying the elements to be filled in.
However, if the referral fulfills the legal
conditions, but from its contens results any
of the cases preventing the criminal
prosecution, stipulated in Article 16,
paragraph 1 of the Criminal Procedure
Code, it shall be forwarded to the
prosecutor with a proposal for closing,
otherwise the initiation of criminal
prosecution will be ordered, and in both
cases the referrals shall be recorded in the
criminal records, and the prosecutor’s office
will assign a unique number to the file.
Art.294 of the Criminal Procedure Code
stipulates that whenever a prior
authorization or other precondition is
required for the purpose of initiating
criminal prosecution, the criminal
investigative body is required to carry out
prior verifications, which are not criminal
prosecution acts, having extra-judicial
character (being conducted prior to the
commencement of the criminal
proceedings), but are carried out for trial
purposes, and no evidence can be given at
this stage becausethe procedural safeguards
guaranteeing the right to a fair trial would
be avoided.
2.6. Procedural act ordering the
commencementof criminal prosecution
According to art. 286, the prosecutor
decides upon the procedural acts or
measures and solves the case by ordinance,
unless the law stipulates otherwise.
Article 305, paragraph 2, expressly
provides that the commencement of the
prosecution is ordered by an ordinance
comprising (Article 286. paragraph 2.
letters a-c and g):
- name of the prosecutor's office and date of
issue;
- the name, surname and the quality of the
person submitting it;
- the offence which is the object of the
criminal investigation, its legal
classification and, where appropriate, the
data concerning the person of the suspect or
defendant;
- the signature of the person who drew it.
The ordinance for the initiation of criminal
prosecution may be issued either by the
prosecutor or by the criminal investigation
body (not subject to a reasoned
confirmation by the prosecutor as in the
previous regulation) and may be appealed
with a complaint to the prosecutor
supervising the prosecution or the
hierarchically superior prosecutor, under
the conditionsof Art.336-339 of the
Criminal Procedure Code.
A special situation regarding the
commencement of criminal prosecution is
the offense of audience when it comes to
the way in which this procedural act is
ordered.
As a general rule, the prosecution will be
ordered by ordinance, following the refferal
of the criminal prosecution body, by the
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conclusion of a hearing in which the
offence provided by the criminal law was
established and the perpetrator was
identified.
In exceptional circumstances, when
considering the manner of committing the
offense or the person of the perpetrator,
urgent action (including detention of the
suspect or defendant) must be taken, the
prosecution is initiated (in rem) by the oral
statement of the prosecutor, which is
recorded at the close of the meeting (art.360
paragraph 2 of the Criminal Procedure
Code).
3. Conclusions
The procedural act of initiating the criminal
prosecution "in rem" produces important
legal consequences, triggering the criminal
prosecution (and, implicitly, the criminal
trial), the legal framework in which the
investigations will be carried out,with
evidence being given (such as picking up
objects and documents, hearing people,
conducting searches, supervising technical
measures, etc.) etc.) or procedural acts or
measures (order of sequester, retention of
correspondence, seizure of accounts, etc.)
being ordered.
References
[1] ZARAFIU, Andrei - Procedură penală. Partea generală. Partea specială. Edițiaa II-a, Ed.
C.H.Beck, Bucureşti, 2015, p.335.
[2] Art.127dinLegea nr. 302 / 2004, publicată în Monitorul Oficial al României, Partea I, nr.
377 din 31.05.2011
[3] Art. 289 alin. 4 şi 8 C.pr.pen. ,,(4) If done in writing, the complaint must be signed by the
injured person or the trustee.
[4] ZARAFIU, Andrei - Procedură penală. Partea generală. Partea specială. Edițiaa II-a,
Editura C.H. Beck, Bucureşti, 2015, p.337.
[5] ZARAFIU, Andrei - Procedură penală. Partea generală. Partea specială. Edițiaa II-a,
Ed. C.H.Beck, Bucureşti, 2015, p. 340.
[6] Art. 291, para. 2 of Criminal Procedure Code: „Any person performing a service of public
interest for which he has been entrusted by the public authorities or who controls or
oversees those persons on the performance of that public interest service, who, during the
performance of his duties, has become aware of an offense for which the criminal
prosecution is initiated ex officio, is obliged to immediately notify the criminal
investigative body”.
[7] UDROIU, Mihai - Procedură penală. Partea specială, ed. a-II-a, Ed.C.H.Beck, Bucureşti,
2015, p.25.
[8] ZARAFIU, Andrei - Procedură penală. Partea generală. Partea specială. Edițiaa II-a,
Ed. C.H.Beck, Bucureşti, 2015, p.344.
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