Limitation of criminal liability

The ICCJ has established that the rules on interrupting the limitation period are rules of substantive criminal law. Possibility of invoking the statute of limitations in cases pending before the courts or lodging an appeal for annulment in criminal cases that have been definitively resolved.

Yesterday, 25.10.2022, the High Court of Cassation and Justice, the Panel for the resolution of questions of law in criminal matters, admitted the applications submitted by the Bucharest Court of Appeal and the Brasov Court of Appeal, requesting a preliminary ruling on the following questions of law:​

“Whether the rules governing the interruptive effect of the statute of limitations of procedural acts are substantive rules of law which may be applied as a more favourable criminal law or rules of procedural law subject to the principle of tempus regit actum” and “Whether in application of the provisions of Article 426(b) of the Code of Criminal Procedure, as interpreted by Decision No 10/2017 of the High Court of Cassation and Justice – Criminal Matters Division, the court hearing the appeal for annulment, based on the effects of Constitutional Court Decisions No 297/26.04.2018 and No 358/26.05.2022, may review the limitation period for criminal liability, if the court of appeal has discussed and analysed the incidence of that ground for termination of the criminal proceedings in the course of the proceedings prior to the latter decision’.

Accordingly, by Decision No 67/25.10.2022, the High Court of Cassation and Justice established, on the one hand, that the rules relating to the interruption of the limitation period are rules of substantive criminal law subject, from the perspective of their application over time to the principle of the operation of the criminal law provided for in Article 3 of the Criminal Code, except for more favorable provisions, following the principle of mitior lex provided for in Article 15 para. (2) of the Constitution and Article 5 of the Criminal Code and, second, that the court deciding the appeal for annulment, based on the effects of the decisions of the Constitutional Court No 297/26.04.2018 and No 358/26.05.2022, may not review the prescription of criminal liability, if the appellate court has discussed and analyzed the incidence of this cause of termination of the criminal proceedings in the course of the proceedings before the latter decision.

At this point, it is well known that by Decision no. 297/26.04.2018, the Constitutional Court has admitted the exception of unconstitutionality with which it was referred for competent resolution and ruled that the legislative solution that provides for interrupting the limitation period of criminal liability by carrying out “any procedural act in question”, in Article 155 para. (1) of the Criminal Code is unconstitutional.

Following the Constitutional Court’s Decision No 297/26.04.2018, most of the jurisprudence considered the Constitutional Court’s decision an interpretative one. It analyzed the legal provisions regarding the grounds for interrupting the limitation period of criminal liability within the meaning of the 1969 Criminal Code. As such, it was held that the correct interpretation in this matter is that the limitation period is interrupted by the performance of any act which, according to the law, must be communicated to the suspect or defendant in the course of the criminal proceedings.

However, the problematic issues concerning the interpretation and application of Art. 155 para. (1) of the Criminal Code has not ceased to arise, which has led to a series of referrals to the Constitutional Court regarding the provisions of the text of the law indicated.

Thus, by Decision No 358/26.05.2022, the Constitutional Court admitted the exception of unconstitutionality and found the provisions of Article 155 para. (1) of the Criminal Code is unconstitutional in its entirety. As a result, in par. 73, it was held that: ,,(…) given the legal nature of Decision no. 297 of 26 April 2018 as a simple/extreme decision, in the absence of active intervention by the legislature, mandatory under Article 147 of the Constitution, during the period between the date of publication of that decision and the entry into force of a legislative act clarifying the rule, by expressly regulating the cases capable of interrupting the course of the criminal statute of limitations, the active substance of the legislation does not contain any case that would allow interrupting the course of the statute of limitations of criminal liability (s.n)”.

In other words, in the recitals of Decision No 358/26.05.2022, the Court of Constitutional Review has settled the interpretation of the first judgment concerning the unconstitutionality of Article 155 para. (1) of the Criminal Code of that date.

After the delivery of this judgment, the majority direction that the courts have given to the interpretation and application of the legal provisions, in relation to the chronology of the normative acts issued, regarding the provisions on the prescription of criminal liability and the causes of interruption of the prescription of criminal liability, has begun to crystallize. However, certain voices have taken the opposite view, namely that the institution of prescription of criminal liability does not entail the application of the more favorable criminal law, falling within the sphere of procedural law institutions. These circumstances have even led to an initial referral to the High Court of Cassation and Justice, the Panel for resolving questions in criminal matters.

It should also be mentioned that on 30 May 2022, the Romanian Government, in its characteristic style, issued GEO no. 71/2022, bringing into line the provisions of Article 155 para. (1) of the Penal Code with the constitutional imperatives.

Currently, as we stated at the outset, by Decision No 67/25.10.2022, the High Court of Cassation and Justice, the Panel for the resolution of questions of law in criminal matters, has established that the rules on the interruption of the limitation period are rules of substantive criminal law subject, from the perspective of their application over time, to the principle of the operation of criminal law provided for in Article 3 of the Criminal Code, except for more favorable provisions, according to the principle of mitior lex provided for in Article 15 para. (2) of the Constitution and Article 5 of the Criminal Code.

In such circumstances, at this point, there are several discussions regarding the fate of pending or definitively resolved criminal cases, concerning the succession of the above-mentioned normative acts, with emphasis on the moment of expiry of the general limitation period of criminal liability.

Thus:

Regarding pending criminal cases where the statute of limitations for criminal liability has expired, the solution is to terminate the criminal proceedings. It is necessary for the courts to correct the error produced in 2018 through the incorrect interpretation of the decision of the Constitutional Review Court and to decide following the minority judicial practice outlined after the publication of Decision No 297/26.04.2018, but confirmed by Decision No 358/26.05.2022 of the Constitutional Court and Decision No. 67/25.10.2022 of the High Court of Cassation and Justice, and therefore to find that after the publication of the judgment mentioned above until the date of publication of Emergency Ordinance No. 71/2022, there have been no cases of interruption of the limitation period for criminal liability.

With regard to cases finally disposed of after the delivery of Decision No 297/26.04.2018, in which the general limitation periods for criminal liability had expired, the possibility of appealing for annulment is open.

Concerning the criminal cases in which the exception of unconstitutionality of Article 155 para. (1) of the Criminal Code, the possibility of review is open.