In the development of its criminal law practice, the team of Costaș, Negru & Asociații obtained an important acquittal in a case prosecuted by the Prosecutor’s Office of the High Court of Cassation and Justice – Directorate for the Investigation of Organized Crime and Terrorism – Cluj Territorial Service. The offences that were the subject of the indictment were the offences of constituting an organized criminal group, migrant smuggling and false identity, offences under Art. 367 para. (1), (3) and (6) of the Criminal Code, Art. 263 para. (1) Criminal Code, respectively Art. 327 para. (1) of the Criminal Code.
As a result of the specific activities carried out, the criminal prosecution authorities found that during 2011, together with other defendants, our client formed an organized criminal group for the purpose of committing the crime of smuggling of migrants, coordinated the criminal group thus formed, acting as its leader until the group was dismantled by the judicial authorities in August 2011. On the basis of the same criminal resolution, between May and August 2011, our client recruited migrants from the Republic of Moldova to be trafficked, procured visas allowing them to legally enter Romania, organized in cooperation with other defendants the transport of migrants and their pick-up by the Romanian segment of the criminal group in order to transport them illegally across the Romanian-Hungarian border, using the identity documents of Romanian citizens. At the same time, the competent authorities also found that, during the same period, he would have provided the migrants with identity cards containing data that do not correspond to reality, in order to use them to the Romanian-Hungarian authorities in order to cross the Romanian-Hungarian border fraudulently.
The case reached the Cluj Court in 2018. Although nine of the defendants who were indicted opted for the simplified procedure of plea of guilty, at the recommendation of the criminal law department of our firm, based on the analysis of the evidence administered during the criminal prosecution, our client opted for the trial of the case under the common law procedure, the case being disjoined from it.
Since the judgment sentencing the other nine defendants has no authority of judgment in the case, the Cluj Court, by judgment no. 349 of 10.11.2021, acquitted our client, considering that there is no evidence to support the charge. The Cluj Court held that it was not proven beyond reasonable doubt that, at the beginning of 2011, our client would have set up an organized criminal group for the commission of the crime of smuggling of migrants, would have coordinated the group, would have ordered the members of the group to recruit other members, would have established the way of committing the smuggling of migrants, would have established the way of sharing the money.
Furthermore, at the request of the defense counsel, during the judicial investigation, the steps taken clarified the confusion on which the accusation against our client was based, regarding the telephone station used by our client. Thus, it was established that the telephone station in question belonged to the defendant’s cousin.
In this context, the Cluj Court noted the unconvincing reliability of the evidence administered and gave value to the principle guaranteed by the provisions of Article 4 of the Code of Criminal Procedure, according to which any doubt in the formation of the conviction of the judicial authorities is interpreted in favor of the defendant.
All in all, the Cluj Cluj County Court ruled that the defendant’s refusal to appear at the trial and to testify in the case cannot draw any evidentiary conclusions, since the defendant benefits from the presumption of innocence, not being obliged to prove his innocence and has the right not to contribute to his own accusation, rights provided by art. 99 para. (2) of the Code of Criminal Procedure.
Since this judgment was considered unlawful and unreasonable, the Public Prosecutor’s Office appealed. The main grounds that were summarized in the appeal memorandum concerned the lack of substantiality of the sentence pronounced by the Cluj Court, in terms of the existence of evidence supporting the existence of the facts charged, the lack of confusion regarding the person who used the telephone station and the guilt of our client in committing the offenses held against him.
On reading the judgment under appeal, it was easy to see that the grounds of appeal put forward by the prosecution authorities were groundless. On the one hand, the Court of First Instance proceeded to adduce all the evidence necessary to establish the true state of facts. On the other hand, the Court of First Instance complied with its obligation to state the reasons for its decision by carrying out a concrete and judicious analysis of all the relevant issues and of the evidence adduced at the stage of the judicial inquiry. The court also responded to the defenses raised by the defendant through his chosen defense counsel.
Therefore, the judgment of the Cluj Court of Cluj was based on a logical process of scientific analysis of the evidence in the case in order to find the truth.
In front of the Cluj Court of Appeal, as we have maintained throughout the entire trial, we have shown that the evidence administered both during the criminal prosecution phase and before the first instance and the appeal court, does not prove that our client committed the acts alleged in the indictment against him.
As a consequence of the defenses, by decision no. 163 of 5.02.2025, the Cluj Court of Appeal rejected as unfounded the appeal filed by the High Court of Cassation and Justice – Directorate for Investigation of Organized Crime and Terrorism – Cluj Territorial Service and upheld as legal and well-founded the decision of the Cluj Court.
In so deciding, the Court held that: the statements in the file are equivocal and do not lead to the conviction that the defendant committed the acts of which he is accused. They cannot have conclusive probative value and cannot form the basis for a conviction. The in dubio pro reo principle is a fundamental pillar of the criminal process, derived from the presumption of innocence. It requires that any doubt as to a person’s guilt must be interpreted in that person’s favor. Thus, any doubt in forming the conviction of the judiciary benefits the defendant according to the in dubio pro reo principle, an argument which is also supported by the relevant case law, including ECHR judgments such as Berbera, Messegue and Jabardo v. Spain or Telfner v. Austria.
We note that the entire criminal trial lasted more than 14 years.
Court decisions are relevant, as they give due value to the fundamental principles of the criminal trial, while also capitalizing on the practice of the European Court of Human Rights in this area.
The team of Costaș, Negru & Asociații is satisfied with both the solution obtained and the reasoning of the Court of Appeal, as well as with its own performance, which proves the quality of the criminal law department.
The defense was provided by av. dr. Lia Pricope and av. Maria Monica Tușa.
Costaș, Negru & Asociații is a civil law firm with offices in Cluj-Napoca, Bucharest and Arad, which provides assistance, legal representation and consultancy in several areas of practice through a team of 18 lawyers and consultants. Details of the legal services and the composition of the team can be found on the website https://www.costas-negru.ro. All rights for the materials published on the company’s website and through social networks belong to Costaș, Negru & Asociații, their reproduction is allowed only for information purposes and with the correct and complete citation of the source.
