Law articles

Roman Bradu

Legal

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Roman Bradu & Cornel Preda

Legal

Ne bis in idem, double jeopardy or the right not to be punished twice for the same act

Consideration should be given to the possibility of applying ne bis in idem in cases of proceedings qualified under national law as having an administrative, disciplinary or other nature, in any case, non-criminal. In other words, if a person is twice sanctioned (bis) for the same act (idem) in proceedings not qualified as criminal by national law, he will be able to invoke before the competent authorities Article 4 of Protocol 7, cancelling the last sanction or, where appropriate, preventing the last procedure. It should be noted, on this occasion, that the mere enunciation in certain legal texts of the phrase “if it is not a crime” cannot justify the application of two sanctions. It is precisely the “if” that prevents one of the procedures. Thus, the authorities are opened an lecta una via. More specifically, it is up to them to decide who is going to continue the procedure and the penalty.

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Officialy publications

Roman Bradu & Cornel Preda

Legal

The causes of non-punishment in cases of tax evasion offenses.

Tax evasion is a complex and multifaceted issue that requires thorough examination. While it is acknowledged that a comprehensive treatment of this subject is not feasible within the confines of a single article, it remains imperative to shed light on recent developments and intricacies within this domain. The dissemination of information regarding impunity aligns with the foundational principles underlying legislative intent. Therefore, we find it important to elucidate certain aspects of these mechanisms aimed at addressing criminal disputes.

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Roman Bradu & Cornel Preda

Legal

Verification of precautionary measures - inefficient normative framework.

Throughout the criminal proceedings, the prosecutor, the preliminary chamber judge, or, as appropriate, the trial court periodically verify, but no later than 6 months during the criminal investigation and one year during the trial, whether the grounds that led to the imposition or maintenance of precautionary measures still exist, ordering, as appropriate, the maintenance, restriction, or extension of the measures imposed, or the lifting of the measures imposed, with the provisions of Articles 250 and 2501 being applied accordingly.

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Roman Bradu & Noemi Cădariu

Legal

Windfall tax on excess profits in the energy sector - friend, foe or accomplice?

Our partner, Roman Bradu, alongside Associate Noemi Cadariu, analyze the recent windfall tax, imposed by the EU through Regulation 1854/2022, concerning the excess profits generated by the current energy crisis. Both national and EU markets showed resistance against this new contribution, on fair grounds.

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Cornel Preda

Legal

Liability of the State for damages resulting from criminal proceedings

In some cases, systematic non-compliance with procedural rights is by its extent transformed into a violation of a subjective right, which is why the right to action for compensation for material or non-material damage is born in favor of the litigant. In other words, even more specifically, if the activity of the judicial bodies violates the reasonable length of proceedings, the presumption of innocence, the right to privacy, the right to property or other rights guaranteed by the European Convention on Human Rights, the litigant may claim moral and/or material damages from the civil court.

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Roman Bradu & Cornel Preda

Legal

Tax fraud and transfer pricing

The setting of boundaries between conduct that constitutes tax evasion and behavior that is outside the crime is a matter of utmost interest both for persons called to apply the law and, above all, for the litigants. In this article, the authors aim to analyze the relationship between tax evasion and transfer prices. Around it, a patchy practice was formed at the level of the judicial bodies, capable of generating confusion. The authors consider that transfer pricing issues are placed in the field of tax litigation, not under the authority of the criminal law. In support of this opinion, arguments are presented regarding the requirement of the typical character of the act, both on the subjective and the objective side, as well as the need to apply the criminal law as the last ultima ratio.

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Cornel Preda

Legal

The crime of money laundering. Bounds of concurrence of crimes

We believe that the concurrence of crime between the crime of money laundering, regardless of the variant in which it was committed, and the prerequisite crime should not be automatically accepted. In short, we do not consider that the arguments debated between decisions 16/2016 and 418/2018 should be strictly limited to the variant in point (c) – acquisition, possession or use, but also to the first two variants of incrimination.

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Cornel Preda & Victor Hrisman

Legal

Official recognition of an acquittal decision in Turkey

Atypical causes require atypical solutions. Usually, and perhaps inappropriately, certain legitimate actions are misclassified by the general public. “Legal improvisations” or “loopholes” represent, not infrequently, situations that arise without our will, situations on which litigants demand solutions, both from magistrates and lawyers. Clearly where there is no solid precedent, solutions will be identified as such. If judges cannot refuse to judge on the grounds that the law does not provide or is unclear, neither will lawyers refuse to defend their clients in such situations by finding appropriate solutions, interpreting cases and similar normative acts

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Roman Bradu & Cornel Preda

Legal world

Draft law on the amendment of the Criminal Code

On 31.05.2022 and 02.06.2022, two draft laws on amending the Criminal Code were published, according to the provisions of Article 7 of Law no. 52/2003 on decisional transparency in public administration. We cannot fail to notice that during this period the Government Emergency Ordinance (O.U.G.) no. 71/2022 was published for the amendment of Article 155 paragraph (1) of Law no. 286/2009 on the Criminal Code.

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Roman Bradu & Cornel Preda

Legal world

The European Commission's report on the rule of law

The European Commission has produced its third report on the rigors of the rule of law, on July 13 this latest report, unlike the other two, contains individual recommendations addressed to States with justice and press freedom issues. The recommendations, although optional (as opposed to the Cooperation and verification Mechanism), nevertheless draw attention to important shortcomings in the judiciary.

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Roman Bradu

Legal

Seizure measures

Firstly, from the perspective of constitutionality, the new Article 250 index 2 comes into the criminal procedure code without … a procedure. Although it tells us quite clearly what needs to be done, it does not tell us how to do it, referring only to the appeal, but omitting to present the first stage, the verification itself. The mention is not irrelevant given that it is not predictable for the litigant if the proceedings during the criminal investigation are contradictory in the sense that the defendant or suspect is called by the prosecutor to maintain the measure, similar to the situation of prolongation of the judicial review, or simply the measure is maintained and the order is communicated to defendant.

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Roman Bradu & Cornel Preda

Legal

Entrapment defense

The authors propose in this Article a comprehensive approach to the principle of loyalty in procedural matters. The focus will be primarily on relevant considerations in the key cases of the European Court of Human Rights (“ECtHR”) by reference to the right to a fair trial, as found in the European Convention on Human Rights (“EDO Convention”). In the alternative, where it is necessary for a better individualization of the institutions of procedural law, we will review the decisions of the national courts. After all, the letter of the law comes to the voice through judges, and the analysis must be conducted in the proximity of the solutions offered by national judges. The criteria that the ECtHR brings to the support of national judges are proteiform. Lastly, the criteria are adapted by the national court.

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Roman Bradu & Cornel Preda

Legal

Tax fraud - another perspective on the privilege against self-incrimination

The case-law of the European Court of Human Rights has held that the right of an accused to remain silent about the facts for which he is accused and not to contribute to his own incrimination is a guarantee of fair procedure in criminal proceedings. It was also noted that, although Article 6 of the Convention does not expressly mention these rights, they represent generally recognized norms, parts of “fair trial”. It has also been pointed out that the right not to contribute to its own incrimination is closely linked to the presumption of innocence. This presumption tends to protect a person accused of committing a criminal offense against a verdict of culpability that has not been legally established and concerns the whole of the criminal proceedings at issue.

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Noemi Cădariu

Legal

Judicial error and unlawful deprivation of liberty: There is a pretium doloris

The Code of Criminal Procedure set forth the right conferred on the person to claim compensation for the damage caused by a judicial error or unlawful deprivation of liberty. But how exactly do we define this damage? How do we qualify it? How do we value in money something irrecoverable and more precious than any good: Freedom, time? It was rightly said that it is better to have 100 free guilty persons, rather than one convicted innocent. It is not for nothing that the court should carefully weigh the principle in dubio pro reo in its own moral instance.

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Cristina Savulescu

Legal

The patrimonial and non-patrimonial rights of the unborn child.

Cristina Savulescu's article delves into the intricate details of both patrimonial and non-patrimonial rights of the unborn child, emphasizing the crucial need for legal protection from the moment of conception. Through her analysis, the author underscores the right to life and the physical and mental integrity of the embryo, highlighting the necessity of recognizing these rights even before birth. The article provides a profound perspective on the legal and ethical dimensions of this issue, bringing attention to the social and succession implications associated with the unborn child.

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Conferences

Tax evasion conference

The Faculty of Law of the University of Bucharest, the Faculty of European studies and the Faculty of Economic Sciences and Business Management of Babeş-Bolyai University in Cluj-Napoca organized, together with the editorial group Universul Juridic, the series of Smart Law Conferences-Tax fraud. During this conference, attended by prominent figures in the legal field, Dr. Roman Bradu approached extensively the main impediments in detaining the tax evasion offense in the event of non-compliance with transfer pricing, an aspect that raised problems in the solutions offered by the Courts.

Conference for seizure measures

With the occasion of the conference dedicated to the difficult problems of criminal law in the field of seizure measures, attended by experts of criminal law, Dr. Roman Bradu highlighted the essential aspects that violate the Constitution and the European Convention.

Conference Entry into the legal profession

During the debate on access to the bar, organized by Juridice.ro and Societatea de Științe Juridice, counsel Cornel Preda pointed out the main elements needed for entry into the profession and, as well, the initial impressions of a lawyer at the beginning of their career.

Conference corporate crimes, compliance and investigations

Dr. Roman Bradu addressed the main issues related to criminal compliance, investigations, emerging issues, compliance program best practices and global investigations, how to avoid risks associated with cross-border investigations and future trends. At the conference, niche experts presented their point of view in an exhaustive compliance analysis within medium and large corporations and enterprises.

The Money Laundering Conference

Noemi Cădariu has taken part at the National Conference “Prevention and Combating Money Laundering. The impact of the law on liberal professions”, in which she referred to the main problems of interpretation of the Money Laundering Act. The key point she addressed concerns the regulatory difference between the variants of money laundering offenses, an aspect that has been debated over time in the case-law of national courts.

What trainee lawyers and their tutors want and what they can do

In a recent debate for legal professionals, our colleague, Noemi Cadariu, shared her insights on the wants and needs of junior lawyers in today's business environment. Drawing from her experience, Noemi highlighted key issues that are relevant to young lawyers starting out in their careers. Her interventions covered a range of topics, underlining work-life balance and emphasizing the importance of law firms to create supportive environments that enable junior lawyers to thrive and grow professionally. One of the key takeaways from Noemi's interventions was the need for more opportunities for junior lawyers to gain practical experience and exposure to different areas of the law. She also stressed the importance of having mentors who can provide guidance and support throughout the early stages of one's legal career.

Use of undercover investigators and collaborators. The principle of loyalty to the administration of evidence.

The use of undercover investigators is still an important concern of European courts. In the conference organized by Societate de Stiinte Juridice, attended by important representatives of the legal professions - lawyers, judges and prosecutors - were presented the main issues with respect to the incitement to commit crimes by the criminal prosecution bodies and the exclusion of the evidence thus obtained.

Tax evasion and the influence of the Law on Whistleblowers concerning Criminal Law.

At the tax evasion conference, our colleague, Alexandru Vasilache, brought forward a highly relevant topic. His presentation focused on the anticipated influences of the implementation of the Whistleblower Law on combating tax evasion. With a thoroughly documented approach and a deep understanding of tax legislation, Alexandru provided a clear perspective on how this law can enhance transparency and accountability in the fiscal domain.

Debates on the crime of inciting hatred and discrimination | Its compatibility with freedom of expression.

In a conference on freedom of expression and the history of incitement to hatred and discrimination, Alexandru Vasilache emphasized the importance of striking a balance between freedom of expression and preventing harmful speech. He highlighted the evolution of legislation and jurisprudence in this field, advocating for an approach that protects society without sacrificing fundamental freedoms. Vasilache discussed the need for a clear interpretation of limits on freedom of expression to prevent abuses and ensure protection against discriminatory speech.