PROCEDURA SPECIALĂ DE REPARARE A PAGUBEI PREVĂZUTĂ ÎN ART. 538 DIN CODUL DE PROCEDURĂ PENALĂ – CAZUL DE EROARE JUDICIARĂ

The present paper aims to examine the „positive” conditions of the procedure of the
right to damage repair in case of miscarriage of justice, i.e. those provided only in paragraph (1)
of Article 538 of the Criminal Procedure Code. The paper begins with the delimitation of the
area of analysis, after which it examines the conceptual reason of the analyzed procedure.
Then, the conditions and subconditions found in paragraph (1) of Article 538 of the Criminal
Procedure Code are treated by turns. Finally, after analyzing the concept of miscarriage
of justice, we take a look at countries with similar legislation: the Republic of Moldova and
Switzerland.
At the same time, through this material, I am trying to demonstrate, by identifying the
problems of interpretation of this paragraph, the fact that the action for damage repair provided
in Chapter VI of the Criminal Procedure Code must comply, at least in the light of paragraph (1)
of Article 538 far too restrictive conditions. The conditions which this paragraph involves turn
the procedure of repair of the material damage or of the moral damage in case of miscarriage of
justice into a non-feasible procedure with conditions which presuppose an insignificant stake,
as compared to the reparation of the damage in case of the principal’s liability for the deed of his
agent, a liability much easier to prove by the damaged person.