In case of pronouncing a solution that does not rely on the evidence, are we talking about culpa in agendo (fault by action) or culpa in omittendo (fault by omission)?

AUTHORESS: Criminal law solicitor, Poroșnicu Gianina Vera (National Union of Law Bars in Romania – Law Bar in Iași)

It is well-known that a judge pronounces a certain solution only after being convinced by the evidence presented in that case, obviously with the view of finding out the truth.
Thus, based on the definition of Art. 98, Criminal Procedure Code of the object of evidence, we see that the evidence is presented precisely to establish the existence of the criminal offence, of the certainty that the offender committed the offence, the facts and circumstances on which depends the enforcement of the law, respectively any circumstance that would lead to the proper solution of the case. In this context, can the judge be exempted from the incumbent obligations, respectively to pronounce a solution according to the evidence presented in that case?


While taking a look at the national legislation, we find in Law no. 303/2004 on the statute of judges and prosecutors with the subsequent modifications and additions, Chapter I, Art. 96, par. (1), the fact that the state is responsible from a patrimonial point of view for the prejudices caused by the judiciary errors. According to par. (3) letter b) of the above mentioned article, it is (also) a judiciary error if was pronounced a final court order obviously contrary to the law or to the factual situation which results from the evidence presented in that case, by which were seriously affected the person’s rights, liberties and legitimate interests  that could not be solved by an ordinary or extraordinary legal remedy.

By a minimum logic exercise we will conclude that the solution pronounced by ignoring the evidence presented in that case will result in a non legal decision, respectively it will bring along the responsibility of the magistrate, before the concerned party in the judiciary phase, and before the state.

We would like to mention the fact that Romania joined the European Council on 7 October 1993 and ratified the European Convention of the Human Rights on 20 June 1994. Practically, from that moment on, Romania as the signatory state of the Convention has had the obligation to offer its citizens the compliance with the rights, respectively with the fundamental liberties at the standard imposed by this Convention.

Pursuant to Art. 35, par. (2) of Law no. 303/2004 on the statute of judges and prosecutors with the subsequent amendments and additions, the magistrates have the obligation to be in continuous professional training, which involves knowing and learning better the case law of trial courts, respectively from the Court of Justice of the European Union.

By Protocol no. 7 within the European Convention of the Human Rights, it was established that the national courts have the  obligation to solve the case by complying with the principles of directness, orality, respectively contradictoriality, including from the viewpoint of the evidence.

In the case of Cutean vs. Romania, published in the newspaper “Monitorul Oficial” no. 261 of 20 April 2014, we will note the violation of Art. 6 of the Convention, having in view that the statements of the plaintiff and of the witnesses, which were the main pillars for the conviction solution issued by the first trial court, were not presented again before the superior court, so the latter noted only the depositions in written.

We practically see that the amendment of the Court refers precisely to the fact that those magistrates in that case did not go through a personal indirect filter for the evidence presented in that case. We reckon that the magistrate’s attitude of noting and even offering proof force to the statements made in a context without any possibility of having access to them directly, could practically mean eluding this evidence.

In the case of Moinescu vs Romania, in the Decision published in the newspaper “Monitorul Oficial” on 7 April 2016, it was pointed out that the admissibility of the evidence comes under the jurisdiction of the national courts, the Court has the competence of verifying whether their presentation way had an equitable character.

It would be interesting to develop the equitable character of administrating evidence during the criminal trial by reference to the activity of the chosen defender in that case. Would the latter’s interest be to propose evidence that would lead to conclusions which could incriminate his/her client? In such a situation, could we talk about providing an effective defence in the trial? Obviously not, which leads to the following question: could the judge rule in a case by eluding almost the entire evidence presented in that case, by considering that the lawyer did not propose evidence that could have come against the client’s interests?

Should  the context in the above paragraph be materialized in a lawsuit in Romania, would we have any action by which the magistrate of that case could be sanctioned? Certainly the first step would be to address to the Superior Magistrate Council, a competent body to solve any claim that refers to the judges’ inadequate activity or conduct, respectively their violation of the professional obligations by reference to the parties involved in the lawsuit.

The second step would be to send a notification to the European Court of the Human Rights, if all the admissibility conditions are viable (we refer here to the use of all the remedies at law available on the national level, respectively to the period of 4 months since the notification date of the latest decision pronounced in the case).

The most adequate article from this point of view of respecting the fundamental rights and liberties, in this case, is Art. 6 – The right to a fair trial in the Convention. Pursuant to paragraph (1) of this article, any person has the right to have a fair trial in public and in a reasonable period, by an independent and impartial (…).

In conclusion, we consider that such a claim could be admitted before the Court of Strasbourg, under the reserve of the proofs (and) of a prejudice for the parties in this case.

Translation is carried out by authorized translator Nicoleta Popa