The International Conference – CKS 2012 – Challenges of the Knowledge Society Bucharest, May 11–12, 2012, 6th Edition ISSN 2068-7796 ISSN-L 2068-7796 CKS – eBook is indexed BDI by EBSCO Database Andrei Zarafiu 3 THE PROCEDURE RE GARDING THE ADMI SSION OF GUILT ANDREI ZARAFIU∗ Abstract Considering the present norma tive framework, even if in criminal matters the transactions between the judicial organs, which exercise the procedural function of indict ment, and the defendant are not permitted, the admission of guilt appears as an incipient form of negotiation of penalty. In anticipation of a future special procedure regarding the accord of admission of guilt, the present institution has generated a great amount of controversy which has, inevitably, caused a matchlessly practice to appear. The purpose of this study is to identify the primary consequen ces of the norms which now regulate the judgm ent regarding the admi ssion of guilt and to offer concrete and punctual solutions to the grave prob lems generated by a defective normative framework. The article has as basic study a documentary material which is comprised not only of normative guidelines, but also of a judicial practice generated by the application of th ese norms for almost a year. Last, but not least, the actual dimension of the admission of guilt procedure is also underlined by the dealing of the legal issues introduced by the Constitutional Court’s recen tly handed down decisions in these matters. Keywords: admission of guilt, special procedure, guilt acknowledgment, penalty, judgment. Introduction The Constitutional Court in its attempt to eliminate the contradictions generated by the appearance of a deficiently regulated institution, has pronounced two important decisions in the matter of admission of guilt. Being only a supervisory organism with jurisdictional attributions, the Constitutional Court, through the two decisions mentioned above, has determined a legislative intervention which would transpose, on a normative level, the findings of the constitutional litigation court. By adopting the Government’s Emergency Ordinance no. 121/2011, the content of the institution of judgment in case of admission of guilt has gained new dimensions, whose judicial consequences will manifest in the cases of trials started before the coming into force of this procedural institution. The goal of the present article is to identify the procedural impediments generated by the introduction in Romanian Criminal Procedure of the judgment in case of admission of guilt. The study also proposes appropriate solutions for the problems which appeared as a consequence of the intervention of the Constitutional Court. The purpose of Law No. 202/2010, at both declarative and institutional levels, was the simplification and acceleration of the j udicial activity criminal in nature. With respect to the settlement of criminal causes in the first court of law, the lawmaker’s intervention materialized into the introduction (regulation) of a new special procedure for judging the causes in case guilt is acknowledged. Anticipating the new similar institutions regulated by the future Criminal Procedure Code, i.e. judgment in case guilt is acknowledged (the new Criminal Procedure Code, Art. 374) and the settlement of causes under the acknowledgement ag reement (the new Criminal Procedure Code, Arts. 478-488), the current institution generated, as a result of a deficient regulation, a non-unitary judicial practice and doctr ine-related controversies. Although institutions with a similar content are recognized in normative terms also in the legislation of other European states (Germany, Fr ance, Greece, Belgium), the settlement of criminal ∗ Assistant Lecturer, Ph. D., Faculty of Law, University of Bucharest (email: andr ei.zarafiu@mnpartners.ro). 4 Challenges of the Knowledge Society. Legal sciences causes in the first court of law through a simpli fied procedure, even based on guilt acknowledgement, should present serious guarantees for the person who is to be convicted. It is precisely the absence of sufficient guarant ees, complying with both the exigencies related to the protection of the trial-related rights of th e accused, and with the pur pose of the criminal lawsuit, as foreshadowed in Art. 1 of the current Criminal Procedure Code, the fact that led to the dispute of this institution. The juridical consequences of introducing this new institution claimed the intervention of specialized organisms meant to r ectify the emerging deficiencies. Therefore, before establishing the current juridica l nature and the finality of judgment in case of guilt acknowledgement, the interv entions of the Constitutional Court and of the Government foreshadowing the current content of this institution need to be analyzed. In this way, the Constitutional Court was notified of the exception referring to the unconstitutionality of the provisions of Art. 3201 of the Criminal Procedure Code, which exception was raised in files regarding criminal causes which are in different times of the lawsuit (judgment on the merits, appeal, second appeal and challenge to enforcement). To motivate this exception, authors stated that the provisions of Art. 3201 of the Criminal Procedure Code breach the constituti onal provisions of Art. 15 regardi ng the Universality of law, of Art. 16 regarding Equality in rights and of Art. 21 regarding the free Access to justice, of Art. 23 para. (11) regarding the presumption of innocence, of Art. 24 para. (1) regardi ng the right to defense, of Art. 53 regarding the Restriction of the exercise of certain rights or freedoms, and of Art. 124, para. (2) regarding the uniqueness, im partiality and equality of justice, and of Art. 6, paragraph 1 of the Convention for the protection of human rights and fundamental freedoms regarding the Right to a fair trial. The authors of the exception also stat ed that the provisions of Art. 320
1 para. (1) of the Criminal Procedure Code breach the application of the most favorable law principle, equality in front of the law and public authorities and the right to a fair trial, since it creates the possibility that, in the event that two co-perpetrators are referred to judgment in different files, the judicial inquiry starting for one of them and not for the other one, only the latter should benefit, in case of guilt acknowledgment, from a reduction of the pe nalty limits provided under the law. Examining the exception raised in the files which are in the merits, in the appeal and second appeal stages, for which no final rulings were issued, the Court ascertained that the disputed provisions do not order in terminis with regard to a different penali zation of those persons who are in the same juridical situation. Being a newly introduced institution, its implementation into the criminal lawsuit system may generate, due to differing interpreta tions, consequences related to th e annihilation of the retroactive application of the more favorable criminal law, for discriminating considerations which do not pertain to a certain attitude assumed by the de fendants or to any other objective and reasonable reasons. The Court also emphasized that such drawbacks could have been removed by introducing transitory norms in the body of Law No. 202/2010. In this sense, the Court referred to the jurisp rudence of ECHR (Ruling of September 17, 2009, issued in the Scoppola versus Italy cause), specifying that although the lawmaker did not provide in terminis the way to be followed in case of guilt acknowledgement by the defendants who were referred to judgment under the former law, but who, overrunning the trial-related time for the beginning of judicial inquiry and until the final settlement of the cause, are to be judged according to the new law, the Court established that the more favorable law application principle is applicable in such a case. In this way, in the case of such transitory situations, consideration should be given to the mixed nature of the provisions of Art. 320
1 of the Criminal Procedure Code, which consecrate a kinder character by reducing penalty limits.
