Descriere
The waiver of criminal prosecution and the waiver of punishment are significant legal institutions for the conduct of the Romanian criminal process, in accordance with the legislation in force at this
time. However, they did not exist in the old criminal and criminal procedural regulations, given that social danger was a basic element specific to the definition of the crime itself and, thus, the finding of its absence led to the need to complete the criminal process.
Given that the crime in the current regulation no longer depends in its existence on the existence of a social danger, the legislator chose to create the two legal institutions mentioned above. This choice was based on the principles of humanism and individualization of sanctions, specific to criminal law, given that the reality of minor criminal acts, committed by persons without increased dangerousness, continued to exist, requiring the regulation of legal mechanisms tailored to situations of this kind.
The waiver of criminal prosecution is a solution taken at the level of the Public Ministry, which must be subsequently confirmed by the preliminary chamber judge, ordered mainly due to the lack of
a real public interest in continuing a criminal trial, by reference to the reduced gravity of the act and the lack of danger of its perpetrator, if known. On the contrary, the waiver of the application of the penalty involves the trial of a defendant in a criminal trial by a court of law, taking into account the very favorable circumstances related to the act committed and the person of the perpetrator, being from a procedural point of view a means of resolving the criminal action itself.
In this article, we will compare these two fundamental institutions for resolving criminal cases today, referring to their nature, purpose and beneficiary, but also the conditions under which they can
be ordered and the related procedure, together with the possibility of subsequent abolition. Of course, on the occasion of this analysis, we will also specify some proposals for improving the existing
legislation.
