IMPOSIBILITATEA ÎMPĂCĂRII DUPĂ SCHIMBAREA ÎNCADRĂRII JURIDICE A FAPTEI. INECHITATE ŞI POSIBILĂ NECONSTITUŢIONALITATE
IMPOSSIBILITY TO CONCILIATE AFTER THE CHANGE OF THE LEGAL CLASSIFICATION OF THE ACT. UNFAIRNESS AND POSSIBLE UNCONSTITUTIONALITY

Summary/Abstract: The study regards the situations when, at the end of a criminal lawsuit, the judge, ex officio or upon parties’ request, finds that the classification of the act in the law wording given by the prosecutor is not correct, but the legal classification needs to be changed. The criminal law authors showed that „the legal classification contains all the texts combination of which fully leads to the legal description of the act”. The case law of the Romanian courts is that the change occurs with the ruling on the merits of the criminal accusation, and not by distinct intermediary decision. We consider it as restricting several procedural rights of the parties. On the one hand, the individual is not entitled to a fair lawsuit and to equality of means in case he or she only finds out the act classification on the moment the judgment is ruled. The fact that a possible change is brought up is an insufficient attenuation of the infringement of rights. The situation gets complicated and ruling an intermediary decision is compulsory when such change is made, from a more serious act in an act which needs the previous complaint brought by the victim, or even in to acts, out of which one can be erased upon the parties’ conciliation. The parties cannot conciliate, as another legal disposition (art. 159 from the Criminal Code) limits the conciliation when reading the indictment, or, by hypothesis, it already occurred. The proposal we make is to award the parties the possibility to conciliate as well after the change of legal classification into a lighter act (usually theft) preceded by the communication of the decision for the change, in order to award the parties such right, contrary, several procedural rights being infringed.

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