Courts apply the CJEU decision the statute of limitations chaotically: the High…

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Courts apply the CJEU decision the statute of limitations chaotically: the High Court does NOT take into account the Luxembourg Court’s verdict / Constanta Court of Appeal took into account the European ruling in a brawl case / Other courts debate the CJEU decision

Romanian courts apply the decision of the Court of Justice of the European Union (CJEU) of 24 July 2023, which established that the Constitutional Court (CCR) decisions on the statute of limitations of 2018 and 2022 cannot retroactively apply the principle of the more favourable criminal law until the entry into force of the new Criminal Code on 1 February 2014.


The Constanța Court of Appeal applied the CJEU decision in the case of a member of a gang from the Ștefana clan in Tuzla.


Although, at the time of the CJEU decision, the majority opinion among magistrates consulted by G4Media.ro was that the European ruling applied strictly to cases of fraud with European funds, tax evasion and smuggling, as the CJEU had considered a referral from the Brasov Court of Appeal in a case concerning these offences. Now, however, a court of appeal in Constanța has applied the principles laid down by the CJEU in a brawl case.


This is an appeal for annulment in which a gang member from Tuzla asked to be released from prison on the grounds that the offence of assault for which he was convicted was time-barred as a result of the CCR’s statute of limitations decisions, according to the reasoning published on the rejust.ro portal.


On 21 January 2021, the Constanta Court of Appeal sentenced Mihai Ștefana, a member of a clan in Tuzla, to 4 months in prison for a brawl with other troublemakers at the City bar in Eforie Nord in 2016. The individual had a 3-year suspended sentence from 2013, so the court revoked the suspension, merged the sentences and sentenced him to 3 years and 4 months in prison. On 3 August 2023, the Constanța Court of Appeal rejected the appeal, citing the CJEU decision of 24 July 2023.


How the Court of Appeal of Constanta argued


„The confirmation that the decisions of the Constitutional Court of Romania produce effects only for the future (…) is made all the more evident by the judgment of the Court of Justice of the European Union delivered on 24 July 2023 in Case C-107/23, since the answer to the second question concerns a question of law, specific to national law, which cannot have differentiated approaches, depending on the nature of the offence which is the subject of a criminal case, for reasons linked to the need to ensure equal treatment of citizens before the law, provided for by (…)


In that decision, in which the principle of the supremacy of European Union law was analysed, it was decided, in answer to a second question referred by the referring court, that the courts of a Member State are obliged not to apply a national protective rule relating to the principle of the retroactive application of the more favourable criminal law (lex mitior), which allows for reconsideration, including in appeals against final judgments, of the interruption of the limitation period for criminal liability by procedural acts which took place before such invalidation.


For all these reasons, the Court, on the basis of Article 431 of the Code of Criminal Procedure, will reject as inadmissible the appeal for annulment lodged by the appellant (…)”, reads the reasoning of the decision of the Constanta Court of Appeal.


Other courts awaiting decisions have now resumed their cases to discuss the European judgment


This is the case of several Courts of Appeal in the country which, in cases of tax evasion, organised criminal group or fraud with European funds, have set dates to discuss the effects of the CJEU decision.


For example, on 28 July 2023, the Court of Appeal of Suceava has resumed a case involving livestock breeders who are being prosecuted by the National Anti-Corruption Directorate (DNA) for fraud with European funds of over 1 million lei. Details can be found here, under point 2.


Other examples can be found here, here, here, here and here.


Other courts, including the High Court, disregard the Luxembourg Court verdict


The decisions of these courts have been widely publicised and applauded by the publication „World of Justice”. See here and here. Interestingly, such a sovereignist attitude, in which the High Court does NOT take into account the decision of the CJEU, comes even from judges considered in good faith, such as Rodica Aida Popa or Francisca Vasile.


The General Prosecutor’s Office has asked the High Court to clarify how the CJEU decision should be applied


„In view of the multiple legal opinions expressed in the public space and in order to prevent the generation of a non-uniform practice in the application of the CJEU Decision of 24 July 2023, in case C-107/23, in the context of the grounds of the appeal in cassation, the High Court of Cassation and Justice was also requested to give a preliminary ruling in order to resolve questions of law”, explained the Public Prosecutor’s Office of the High Court of Cassation and Justice (PÎCCJ) in a press release of 31 July 2013.


Background. More than 5,000 cases – some of them involving famous defendants, some of them having received heavy sentences at first instance, cases with serious crimes and important damages – have been closed because the offences are allegedly time-barred following the application by national courts of the CCR and ICCJ decisions on limitation periods.


As a result of the sovereign decisions of the CCR and ICCJ, offences will become time-barred much faster between 2014 and 2022.


The Constitutional Court ruled last year that between June 2018 and May 2022, there is no special statute of limitations, a tool that allowed for the extension of the period in which criminal offences can be prosecuted after the suspect has been informed that he is under investigation.


Then, on 25 October 2022, the High Court ruled that the absence of this instrument (special prescription) in the period 2018-2022 constitutes a more favourable criminal law and applies retroactively until 1 February 2014, when the new Criminal Code enters into force. The High Court has therefore extended the period in which criminal offences are subject to a much earlier statute of limitations to 2014-2022.


On 24 July 2023, the CJEU ruled that CCR decisions on limitation periods cannot retroactively apply the principle of the more favorable criminal law until the date of entry into force of the new Criminal Code, 1 February 2014, as this would lead to a lack of predictability of the law and would violate the authority of res judicata, as several magistrates explained to G4media.ro.


The CJEU has therefore reduced the period in which offences become time-barred more quickly from 2014 – 2022 to 2018 – 2022. In short, cases are not as quickly time-barred as the CJEU has interpreted the CCR decisions to mean.



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