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  • Author: Fănică Cercel x
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Initiation/Commencement of Criminal Prosecution in the New Criminal Procedure Code

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 nonexistence 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.

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Referral to the Court After the Completion of Criminal Prosecution

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.

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