The Code of criminal procedure does not use, and consequently does not define the notion of offence victim, but it uses the notion of injured person by an offence, person who acquires the quality of injured party or civil party in the criminal trial.
Pursuant to art. 24 par. 1 of the Code of criminal procedure, the injured party is defined as the person who suffered by the offence a physical, moral or material prejudice.
In par. 1 under art. 24 of the Code of Criminal procedure, the civil party is defined as the injured party who brings the civil action in the criminl trial. The possibility of the injured party to become a civil party is also mentioned under art. 15 par. 1 of the Code of criminal procedure,[1] and in par. 3 of the same article it is specified that when the person who suffered a prejudice by an offence becomes a civil party this situation does not eliminate the right of that person to participate in the same case as an injured party.
The Code of criminal procedure awards to the injured person who is a party in the criminal trial, that is the injured party, as well as to the injured person who becomes a civil party in the criminal trial, numerous rights and obligations in accordance with the status he has in the criminal trial, but the person prejudiced by an offence who does not participate in the criminal trial does not benefit from too many rights. In this respect, pursuant to art. 76 of the Code of criminal procedure, the prosecuting bodies have the obligation to call for a hearing the person who was prejudiced by an offence and inform him that he has the right to take part in the criminal trial as an injured party or civil party and in case the injured party is not willing to take part in the criminal trial, he has the right to be heard as a witness, as stipulated under art. 82 of the Code of criminal procedure.[2]
The need for special measures in order to ensure the protection of the offence victims led to the adoption, on 27 May 2004, of Law 211 on some measures meant to ensure the protection of offence victims, law which came into force on 1 January 2005[3] and which regulates measures of informing the offence victims with regard to the rights they have, as well as measures of psychological counselling, free legal assistance and financial compensation from the state.
The task of fulfilling the dispositions of this law falls upon the prosecutor, the specialized police officers and agents who, pursuant to art. 4 under Law 211/2004 have the obligation to inform the victims of the offences, either in written or oral form, in a language they understand, on the following aspects:
- the services or organizations ensuring psychological counselling or any other forms of victim assistance, according to his needs;
- the criminal prosecution body they can lodge a complaint to;
- the right to legal assistance and the institution where they can address so as to exercise this right;
- the terms and procedure for getting free legal assistance;
- the procedural rights of the injured person, of the injured party and the civil party;
- the terms and procedure to follow so as to benefit from the dispositions of art. 86[1], 86[2], 86[4] and 86[5] of the Code of criminal procedure, as well as the dispositions of Law. 682/2002 on the protection of witnesses;
- the terms and conditions for getting financial compensation from the state.
The protection measure consisting of the psychological counselling of the offence victims is regulated under art. 7-10 of Law 211/2004 pursuant to which the prosecuting bodies have the obligation to inform the victims on the services and organizations ensuring psychological counselling or any other form of assistance for the victim according to his needs; such a service is the Service of Protection of Victims and Social Reintegration of Offenders, which functions within tribunals, a service whose organization and functioning is regulated by Government Ordinance no. 92/2000, approved by Law 129/2002.[4]
Law 211/2004 establishes a condition for the right of the victim to benefit from the protection measures, namely the notification of the prosecuting bodies on the commission of the offence. The prosecutor, the police officer or agent to whom the victim addresses has the obligation either to receive the complaint, if he has competence in the prosecution, or to send the victim to the competent prosecuting body in accordance with the matter, quality of the person or territory.[5]
The prosecuting bodies have the obligation to inform the offence victim on the right to benefit from legal assistance, namely the right to be assisted by a defender of his choice throughout the criminal trial,
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specifying the cases, conditions and procedure of getting free legal assistance.
Pursuant to art. 14 under Law 211/2004 the protection measure consisting of free legal assistance is awarded to the offence victim who is part of the following categories:
a) he is a person upon whom homicide, qualified homicide and first degree murder[6] has been attempted, an offence of serious bodily harm,[7] an intentional offence with the consequence of serious bodily harm, an offence of rape, sexual intercourse with a minor and sexual perversity[8] has been committed;
b) he is the spouse, child or the person maintained by the person deceased upon commission of the offences of homicide, qualified homicide and first degree murder, stipulated under art. 174-176 of the Penal Code, as well as the intentional offences which resulted in the death of the person.
The terms under which free legal assistance is offered are set out under art. 14-16 of Law 211/2004. Thus, a first condition is that the offence should have been committed on the territory of Romania or, in case the offence has been committed outside the territory of Romania, the victim must be a Romanian or foreign citizen legally living in Romania and the criminal trial must take place in Romania. Another condition, set out under art. 15 of Law 211/2004 is that the monthly income per family member of the victim should be no more than the national minimal gross salary established for the year during which the victim has made a request for free legal assistance. Along the same line, pursuant to art. 16 under Law 211/2004, another condition that must be met is that the victim should have notified the prosecuting bodies within 60 days from the date of the commission of the offence; in the case of the spouse, child or person maintained by the person deceased under commission of the offences of homicide, qualified homicide and first degree murder, as well as the intentional offences which resulted in the death of the person, the term of 60 days is calculated from the date when the victim knew about the commission of the offence; if the victim was in the physical or psychical impossibility to notify the prosecuting bodies, the term of 60 days is calculated from the date when the state of impossiblity terminated; for the victims who are under age and those under interdiction , their legal representatives can notify the prosecuting bodies with regard to the commission of the offence.
Art. 17-20 under Law 211/2004 regulate the procedure for offering free legal assistance. Thus, par. 2 of art. 17 explicitly sets out the mentions that the application for free legal assistance must comprise, namely: name, surname, citizenship, date and place of birth, domicile or residence of the victim; date, place and circumstances of the commission of the offence; date of the notification and the notified prosecuting body; the status of spouse, child or person maintained by the deceased person; the monthly income per family member of the victim; name, surname and the form of performing the profession of lawyer by the chosen defender or the mention that the victim has no lawyer of his choice. The documents justifying the written data as well as other documents in the possession of the victim and necessary for the solution of the case are annexed in a copy. The application is submitted to the tribunal within whose territory the victim lives and is analyzed by two judges of the Commission for the granting of financial compensation to the victims of offences, by concluding, within 15 from the date of the submission. The conclusion by which the application for free legal assistance is approved is communicated to the victim and the conclusion by which the application is denied is subject to reexamination by the tribunal where the Commission functions, at the request of the victim, within 15 days from the notification, the reexamination being performed by two judges.
Pursuant to art. 20 under Law 211/2004, the application for free legal assistance can be formulated by the legal representatives of the minor or the person under interdiction, as well as the NGOs, if signed by the victim and if it comprises the mentions stipulated in par. 2 under art. 17 of the above-mentioned law. The application for free legal assistance is exempted from stamp duty.
As for the protection measure consisting of informing the offence victims on their procedural rights, this measure is materialized in the obligation that the prosecuting body has to inform the offence victim about the rights he has in the criminal trial according to the status ha has in the criminal trial. Thus, in accordance with the provisions of art. 76 of the Code of criminal procedure the prosecuting body has the obligation to inform the offence victim that he has the right to take part in the criminal trial as an injured party, status which grants him the right to make requests, to claim, to conclude, to appeal, to be represented etc. The offence victim must also be informed on his right stipulated under art. 15 of the Code of criminal procedure, to exercise the civil action during the criminal trial if he was materially or morally prejudiced; during the trial the civil party has the right to indicate the evidence and means of evidence which he considers necessary for the establishment of the offence and prejudice, he can enter applications, petitions, complaints, present exceptions and take part in procedural acts under the circumstances stipulated by the law.
The protection measure consisiting of the award by the state of the financial compensations to the of-
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fence victims aims[9] at certain categories of victims to whom free legal assistance is granted if the offence has been committed on the territory of Romania and the victim is a Romanian or foreign citizen legally living in Romania.
Law 211/2004 under art. 23 and 24 specifies in detail the terms of granting financial compensation to the victims, the main condition being that of the victim's notifying the prosecuting bodies or court within 60 days from the date of the commission of the offence, term calculated just as in the case of free legal assistance.
Art. 27 also establishes the categories of prejudices suffered upon commission of the offence for which the victim is granted financial compensation, namely:
- hospitalization expenses and other categories of medical expenses paid by the victim;
- material prejudices resulted from destroying, degrading, or rendering useless the goods of the victims or from depriving the victim of his possession by committing the offence;
- the gains the victim is deprived of upon commission of the offence;
- funeral expenses;
- maintenance the victim is deprived of upon commission of the offence.
For the material prejudices resulting from destroying, degrading, or rendering useless the goods of the victim or from depriving the victim of his possession by committing the offence, the financial compensation is granted within the limit of an amount of money equivalent with 10 national minimal gross salaries established for the year during which the victim made an application for financial compensation. The limitation by the law of the sum of money which can be awarded to the offence victim refers only to the above-mentioned categories of expenses, and for the other expenses the financial compensation that can be awarded to the victim is unlimited, that is they can be awarded until the prejudices are totally covered.[10]
The juridical literature[11] has expressed the opinion, to which we subscribe, that financial compensation is not awarded for moral damages, but for material damages only, but if the victim has received amounts of money from the offender as civil compensation for the material and moral damages, they shall be subtracted from the financial compensation awarded by the state.
The application for financial compensation is submitted to the tribunal within whose territory the victim lives and is analyzed by two judges of the Commission for the granting of financial compensation to the victims of offences, constituted in every tribunal. The application is analyzed in the council room, by two judges, with the obligatory participation of the prosecutor and the summons of the victims.
In case the application is approved, the Commission establishes the amount of the compensation; the decision of denial is communicated to the victim, who can make an appeal in the Court of Appeal, within 15 days from the notification; the Commission has the obligation to inform the prosecuting body or the court competent with judging the offence or the court competent with solving the civil action, on the the application for financial compensation.
Law 211/2004 on some measures for the protection of the offence victims aiming at the remedy of the material prejudices suffered by the offence victims meets the the need for perfecting the legislation in the field and integrates in the legislative programmes of the state , complying with the community acquis. ■
NOTES
[1] In accordance with which "the injured party can become a civil party against the accused or defendant and the person subject to civil liability".
[2] In accordance with which the injured person can be heard as a witness if he is not a civil party or does not take part in the trial as an injured party.
[3] Published in Monitorul Oficial al Romäniei (Official Record of Romania), Part I, no. 505 of 4 June 2004
[4] Published in Monitorul Oficial al Romäniei (Official Record of Romania), Part I, no. 190 of 20 March 2002.
[5] E. Cazan, Atributiile organelor de urmarire penala in cazul aplicarii masurilor pentru asigurarea protectiei victimelor infractiunilor, "Dreptul" Journal, no. 11/2006, p. 214.
[6] Stipulated under art. 174-176 of the Criminal Code.
[7] Stipulated under art. 182 of the Criminal Code.
[8] Stipulated under art. 197, 198 and 201 par. 2-5 of theCriminal Code.
[9] Pursuant to art. 21 under Law 211/2004.
[10] In this sense see N. Sändulescu, Aspecte esentiale ale legii privind unele masuri pentru asigurarea protectiei victimelor infractiunilor, "Dreptul" Journal, no. 9/2005, p. 18.
[11] Ghe. Voinea, Protectia victimelor infractiunilor, "Dreptul" Journal, no. 8/2005, p. 150.
Lábjegyzetek:
[1] The Author is a Prof. PhD, The Faculty of Law and Administrative Sciences The University of Craiova
Visszaugrás
