Mãsurile asigurãtorii luate în cursul urmãririi penale asupra bunurilor persoanelor juridice
The precautionary measures regarding the entity’s goods ordered during pre-trial investigations

Summary/Abstract: Acknowledging the necessity of introducing the criminal liability of entities, in 2006 the Romanian Criminal Code and the Criminal Procedure Code were modified. As we did not have a tradition in this respect and because this liability was inspired from other legislations, the Romanian legislator did not foresee the inconveniences that could arise in practice from choosing not to make distinct provisions (from the ones made for the individual) in some areas. The study focuses on the precautionary measures to which the entity can be subjected to during the pre-trial investigations, insisting on the seizure of the money that the entity has in its bank accounts, seizure ordered by the prosecutor to cover the eventual damage caused by the offense. The limits and the way this measure is being applied are two of the matters that we’ll stop upon, as the practice understands them wrongly. One of the biggest problem of the above-mentioned measure (and of all the precautionary measures taken by the prosecutor) is the lack of an effective remedy as there is no mean by which one could address a complaint against it in a court of law, in front of an impartial judge. This problem is partially solved by The New Criminal Procedure Code, whose provisions bring our legislation closer to the ones existing in other European countries. The consequence of blocking all the entity’s bank accounts is, in most cases, the bankruptcy. As this is the worst that can happen to an entity, we examine whether this measure is indeed a precautionary one and if it’s according to the provisions of the ECHR. We also try to see if the main purpose of the criminal trial – engaging liability of all the guilty offenders – and the secondary purpose of it – covering the damage suffered by the victim – couldn’t be better reached by other ways (e.g. the preventive measures). We go into a deeper analysis of what happens in case the entity goes bankrupt during the criminal trial or pre-trial time due to the precautionary measures. The conclusion is that once the bankruptcy procedure is opened, not only that all these measures will have no effect, but also the criminal liability of the entity could not be engaged anymore and it will be too late to order any other alternative measures (or at least will be useless). We believe that one of the solutions that could better serve the interests of the victim, of the Public Ministry and the rights of the entity (whose existence won’t be compromised before being subject to a fair trial and in disrespect of its presumption of innocence) is ordering preventive measures instead of precautionary measures.

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