Within the criminal law practice, the Costaș, Negru & Asociații team managed to convince the High Court of Cassation and Justice to lift, almost a decade after its establishment, the protective measures.
In the main criminal file, several people were sent to court, in 2017, for the alleged commission of tax evasion and money laundering crimes (between 2009 and 2012). After the expiration of the statute of limitations, the defendant represented by the Costaș, Negru & Asociații team requested the continuation of the criminal trial. Currently, the file is pending, in the procedural appeal stage, before the Bucharest Court of Appeal.
Also in this file, during the criminal investigation, by the order of 20.05.2015 of the Prosecutor’s Office attached to the Bucharest Court, protective measures were instituted on all the movable and immovable assets of the defendant, up to the sum of 30,473,188 lei representing the chosen damage, pursuant to art. 11 of Law no. 241/2005 and respectively art. 32 of Law no. 656/2002, republished. With small differences, these insurance measures were also maintained in 2024.
By the conclusion of 28.02.2024, the Bucharest Court of Appeal decided to maintain the protective measures on the movable and immovable assets of the defendant, as described above. The defendant contested the decision to maintain the precautionary measures.
On the contrary, by Criminal Decision no. 251/26.03.2024, the High Court of Cassation and Justice admitted the appeal and decided to lift all precautionary measures.
In order to order in this way, the supreme court first emphasized the fact that, regardless of their mandatory or optional nature, the protective measures are temporary, provisional. In this context, the periodic verification of security measures according to the provisions of art. 2502 of the Criminal Procedure Code aims at the existence of the grounds that determined the taking or maintenance of the measures, taking into account the elements and circumstances that reconfigured these grounds, in the dynamics of the criminal process. The supreme court referred, along this line of argument, to both Decision no. 19/2017 of the High Court of Cassation and Justice (appeal in the interest of the law), as well as the attached conventional jurisprudence (for example: Forminster Enterprises Limited v. Czech Republic, 2008; Avrora Maloetazhnoe Stroitelstvo v. Russia, 2000; Credit Europe Leasing IFN c . Romania, 2020; Lachikhina v. Russia, 2017).
The High Court held that one of the”crit’ria that must be taken into account when verifying preventive measures is that of proportionality between the purpose pursued by the institution of preventive measures and the restriction of the property rights of the accused person, taking into account the effect of preventive measures, that of making movable assets unavailable and immovable property belonging to the accused, affecting the attribute of legal and material disposition, as long as the owner loses the right to alienate them or strike them with charges.
Analyzing in concrete the elements of the case, in disagreement with the appeal panel of the Bucharest Court of Appeal, the High Court of Cassation and Justice assessed that there are no longer grounds for maintaining the precautionary measures.
It was thus held that the defendant paid the total amount of 7,498,242 lei, representing the main debt claimed by the civil side, as a preventive measure, in the damage account. It was also noted that, during the trial of the merits of the case, by the conclusion of 23.06.2022, the Bucharest Court annulled, pursuant to GEO no. 69/2020, additional fiscal obligations in the amount of 8,893,812 lei, also claimed by the civil side. Therefore, says the supreme court, even if the civil party contests the applicability of GEO no. 69/2020, it is obvious that the grounds considered for taking and maintaining the precautionary measures are no longer the same. Decision no. 23/2017 of the High Court of Cassation and Justice – The panel for resolving some legal issues in criminal matters, by which it was established that in the case of concurrent crimes between the crime of tax evasion and the crime of money laundering, the security measure is not required of the special confiscation of the sums of money that were the object of the money laundering crime and that come from the commission of the crime of tax evasion, simultaneously with the obligation of the defendants to pay the sums representing fiscal obligations owed to the state as a result of the commission of the crime of tax evasion.
Equally, the supreme court sanctioned the Bucharest Court of Appeal’s claim that it would be necessary to maintain the precautionary measures in view of a possible extended confiscation. It was thus shown that the grounds for extended confiscation were not advanced when the defendant’s assets were made unavailable and that, anyway, by referring to the alleged crimes committed prior to the entry into force of Law no. 63/2012, the extended confiscation measure could not even be applied.
Last but not least, the High Court of Cassation and Justice held that from the conclusion of the Bucharest Court of Appeal, there are no concrete arguments that plead, after 9 years in which the assets were unavailable, in favor of maintaining the seizures, as the danger of concealment, destruction was not revealed , alienation or evasion of these assets.
In the opinion of the Costaș, Negru & Asociații team that participated in writing and supporting the arguments submitted to the analysis of the High Court of Cassation and Justice – av. Dr. Cosmin Flavius Costaș, av. Dr. Lia Pricope, av. Maria Tușa and av. Diana Jehaliuc – this motivation of the supreme court, together with the solution, constitutes a gesture of judicial normality.
The issue of precautionary measures continues to remain controversial as long as, as a rule, the establishment and especially the maintenance of precautionary measures are done automatically, without a concrete analysis of the situation in the file. This leads to aberrant situations in which insurance measures are maintained over the years even in situations where the damage has been fully recovered. Against the background of much too lax procedural rules and a judicial disinterest in the patrimonial situation of the defendants, abuse seems to be the rule and not the exception in terms of the unavailability, for long periods of time, of movable and immovable assets. For this reason, the Costaș, Negru & Asociații team has intensified its efforts to sanction such cases of judicial immobility with negative patrimonial consequences.
Costaș, Negru & Asociații is a civil society of lawyers with offices in Cluj-Napoca, Bucharest and Arad, which offers assistance, legal representation and consultancy in several areas of practice through a team composed of 20 lawyers and consultants. Details regarding legal services and team composition 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 being permitted only for informational purposes and with correct and complete citation of the source.
