UNIVERSITY OF BUCHAREST

FACULTY OF LAW
DOCTORAL SCHOOL OF LAW

Civil Action in Criminal Proceedings

- Ph.D. THESIS ABSTRACT -

Coordinator
Prof. Nicolae VOLONCIU, Ph.D.
Ph.D. candidate
Mihai-Aurelian MESAROŞ

Bucharest
2015
 Keywords: criminal proceedings, civil action, criminal trial, bringing a
civil action in the criminal proceedings, Criminal Procedure Code, Civil Code,
non-material damages, tort liability.

When an offence causing prejudice is committed, the prerogative of good

administration of justice is that a court of law should decide, fairly and within a
reasonable period, both whether the criminal charge is well founded and whether the
civil rights and obligations have been violated. In this context, the matter of obtaining
compensations for the person aggrieved by an offence, by bringing a civil action in the
criminal proceedings, is an subject of real importance.
Prepared in times of transition, the purpose of the Ph.D. thesis is to analyse the
matter of bringing a civil action in the criminal proceedings, in light of the recent
fundamental changes in our legislation, both in criminal and civil matters, by
comparison to prior regulations, namely the codes of 1864, 1936 and 1968,
respectively.
The scientific approach is based on the finding that the new Criminal Procedure
Code maintains its continental European character but, as a novelty, it introduces many
adversary-type elements properly matched to our own legal system. A particularity of
the adversary system consists in the fact that the role of the judge is mainly to ensure
that the proceedings taking place before him are fair, the principle of the active role
being applicable only to the prosecutor.
The attempt to shift the concept of our procedural system towards adversary
systems had an impact on the institution under analysis as well, which is highlighted,
among other things, by the fact that under the current regulation only the prosecutor, and
not the court, has the obligation to exercise the civil action ex officio, when the aggrieved
party is a person who lacks the capacity to act or has restricted capacity to act, as well as
to limit the possibility of settling the civil action in the criminal proceedings. The latter
is the consequence of the fact that in a much larger number of cases the court may
order severance of the civil action or leave the civil action exercised in criminal
proceedings unsettled.

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 In terms of structure, the Ph.D. thesis has six chapters divided into seventeen
sections, some of which are further divided into subsections and other subdivisions,
depending on the need to organise the presentation.

The first chapter of the thesis, “Criminal proceedings – main action in

criminal trials”, with its two sections, approaches the topic of legal action with
particular reference to criminal proceedings – the core of the entire criminal trial.
Section I comprises introductory theoretical aspects for the definition of the
legal action and of the factors or terms of action: ground, matter, subjects and
functional ability. The cause is mentioned among the factors of the action, stressing
the importance of this element especially in the civil action. Also, it emphasises the
difference between legal action and the right to action, on the one hand, and between
the right to action, the infringed right and the complaint, on the other hand. The
concurrence between trial and legal action is analysed in the subdivision on unity and
plurality of actions. In this context, the paper points out that the general rule, according
to which the unity of action is related to a single trial, has exceptions, namely a single
trial with a plurality of actions (when the same offence has consequences of different
nature by violation of legal norms belonging to distinct law divisions – criminal, civil,
etc. – and the actions are joined within the same trial), but also a plurality of trials with
a single action (when all offenders are not known from the start, the right to hold liable
maintains its singularity, consequently there is a single action, but this action can be
severed, when the offenders are identified).
Section II addresses criminal proceedings, the first subdivision analysing the
notion of criminal proceedings and their matter and subjects. Particular attention is
paid to the initiator of the criminal proceedings, the paper providing a detailed
presentation of the four prosecuting systems (private, popular, public and ex officio),
as well as a presentation of the prosecuting systems used in the Romanian legislation
over time. Public prosecution, as covered exclusively by the Criminal Procedure Code
of 2010, is closely related to the subject of the limits of assessment of the Public
Prosecutor in terms of instituting and exercising criminal proceedings. After
identifying the two principles known in the matter, i.e. the principle of legality and the

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principle of opportunity, there are some considerations on the principle of extended
opportunity as subsidiarily regulated by the new Criminal Procedure Code.
The characteristics of criminal proceedings are addressed in the second
subdivision of the section, the following ideas being discussed: criminal proceedings
belong to the society that exercises them by means of state bodies having specific
authority in this regard, they are mandatory, usually being exercised ex officio, they are
irrevocable and inalienable, indivisible, autonomous, namely independent of other
actions, and individual. This last characteristic of criminal proceedings arises from a
fundamental principle of criminal liability, i.e. the principle of personal liability.
The third subsection addresses the stages of criminal proceedings, from
initiation to exercise and, finally, closure. The presentation of the first stage of
criminal proceedings highlights one of the essential differences between the current
Criminal Procedure Code and the previous one. Thus, under the Code of 1968,
criminal prosecution could take place entirely without initiation of criminal
proceedings, which only started as the accused was sued, the indictment from the
prosecutor being both an act of prosecution and an act of referring the case to the court
of law. On the other hand, under the current regulation, initiation of criminal
proceedings during prosecution is mandatory for the prosecutor as soon as there is
evidence showing that a person has committed an offence, in the absence of legal
reasons preventing such. Therefore, in this case, the indictment represents only the act
of referring the case to the court, and not an act of prosecution. Regarding the exercise
of criminal proceedings, the Criminal Procedure Code of 2010 stresses the express
assignment of this task to the prosecutor, corroborated with reduced involvement of
the judge in this activity, the principle of the active role no longer being regulated as
such in the General Part of the aforementioned legislative text. The analysis of the last
stage of criminal proceedings reviews the cases when initiation or continuation of
criminal proceedings is prevented, with comparative presentation of solutions to be
adopted by legal authorities upon closure of the proceedings as regulated under the
Criminal Procedure Codes of 1968 and 2010.

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 Chapter II of the paper, entitled “Civil action in criminal proceedings.
General Aspects”, is divided into two sections and contains a number of introductory
considerations on civil action exercised in criminal proceedings.
The first section covers historical aspects of civil action in criminal
proceedings. It looks into the evolution over time and the relation between criminal
proceedings and civil action, when both have a common source, namely the committed
offence. Thus, it analyses various concepts or regimes that have been asserted over
time concerning the nature of the two actions and the connection between them, i.e.
mistaking one for the other, their absolute separation, interdependence and
concurrence. In parallel, it analyses procedural systems adopted over time and
included in the doctrine as accusatorial system, inquisitorial system and mixed or
French system. Specific references to Romanian criminal procedural regulations
highlight the adoption, from the very beginning, of the mixed or French system by our
legislation, which allows both for exercise of civil action before the civil court and for
joining it to criminal proceedings and settlement thereof in a single criminal trial.
Special attention is paid to the regulation of juries, courts responsible for trying
offences classified as crimes, according to the criminal law of that time, as well as
political and press crimes and offences. Juries were eliminated during Carol II’s
dictatorship, this measure being expressly provided under art. 77 paragraph (3) of the
Romanian Constitution of 1938. It was argued that the jury procedure included a
possibility for the civil party to claim damages before this court for the prejudice
caused by the offence under trial. The legislation of our country has identified an
exception from the consecrated mixed procedural system. Thus, according to the Code
of Military Justice, the military court had jurisdiction to settle only the criminal
proceedings. Should an offence under the jurisdiction of this court have caused a
prejudice as well, the aggrieved party could not seek remedy unless a separate claim
was filed with a civil court.
The particularities of civil action exercised in criminal proceedings are
identified in the second subsection, among which the fact that it arises from a
prejudice caused by an offence; it is exercised before criminal judicial authorities; in
certain cases expressly provided by the law, the civil action takes authoritative
characteristics from criminal proceedings; the initiator is a person prejudiced by the

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offence, who exercises the right to seek remedy by bringing a civil action in the
criminal proceedings; it is divisible and alienable; it is adjective to criminal
proceedings.
Finally, the last subdivision of the section lists, for illustration purposes, the
advantages and disadvantages of exercising civil action in criminal proceedings.
The second section addresses the subject of civil action exercised in criminal
proceedings. In this regard, it mentions that when the illegal deed causing prejudice is
an offence, apart from applying the penalty provided by the Criminal Code, the
offender must also indemnify the aggrieved. This illegal deed constituting an offence
is what the doctrine and judicial practice call “tort”, where the name of “tort liability”
comes from for the liability for such deed. Criminal liability does not exclude civil
liability, just like civil liability does not exclude criminal liability; the two forms of
legal liability may act simultaneously, in other words, they can be cumulated. These
arguments are also supported by the express provisions of the new Criminal Procedure
Code setting out that civil action exercised in criminal proceedings seeks to hold
accountable for tort liability the persons who, according to the civil law, are
responsible for the prejudice caused by committing the offense. However, whereas the
liability of the offender causing prejudice is, in civil terms of the case, always a tort
liability, in the case of a civil liability insurer taking part in a criminal trial, the liability
is contractual. Thus, in the case of a traffic accident resulting in a prejudice for which a
civil liability insurance agreement has been concluded, the tort liability of the person
who caused damaging effects by his/her deed is joined to the contractual liability of
the insurer, based on the insurance agreement concluded under the conditions
regulated by Law no. 136/1995.

Chapters III and IV analyse the extensive subject of the conditions in which
civil action is exercised in criminal proceedings. For organisation purposes, the
conditions to be met in order to exercise civil action in criminal proceedings are
grouped into distinct chapters, as these conditions concern the verification of objective
or subjective matters.

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 “Objective conditions for exercise of civil action in criminal proceedings” is
the title of Chapter III of the paper and it is divided into four sections whose topic
concerns the essential requirement of the prejudice.
The introductory section, entitled “The offence should have caused a
material or moral prejudice”, begins with several explanations of the concept of
prejudice and continues with an approach of the controversial subject of the possibility
to cause a prejudice by formal (danger) offences. This section is followed by a
presentation of the two major categories of prejudice, material and moral, with the
specification that material prejudice can take various forms and may consist either in
loss, a decrease in property (damnum emergens), or the lack of profit, a property
advantage of the aggrieved party should the illegal deed had not been committed
(lucrum cesans). The legal category of moral prejudice is analysed in detail, examining
the types, particularities and classifications as covered by the field-related literature on
this type of prejudice. Although moral prejudice is difficult to classify due to its
variety, it was however grouped in several categories, i.e. prejudice resulting from
bodily injury or health impairment; emotional prejudice; prejudice adversely affecting
the integrity, honour, dignity; prejudice adversely affecting the right to name, alias or
designation; prejudice adversely affecting non-property copyrights, inventor royalties
or other allied rights.
The subjects related to the existence of a causal link between the offence and
the alleged prejudice are researched in the second section of Chapter III. Firstly, it
outlines the specificity of the causal relationship in the matter of tort liability and
highlights several premises to be taken into consideration when determining this
relationship; for instance, it is important to establish the specific causal relationship
between the illegal action or inaction and the prejudice, without ignoring physical,
biological, medical, technical causes that may explain the occurrence of a damaging
effect; human action, as a manifestation of the individual in a real environment, is a
unitary activity expressing both objectivated exteriorisation and an attitude of
conscience, affectivity and will; both action and inaction can be illegal deeds, that,
when committed, bring about tort liability; all deeds take place in society, therefore
they are linked to the deeds of other persons and a number of external factors that may
influence the offender’s deed. Secondly, it presents the criteria proposed by foreign

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doctrine to determine the causal relationship, with examination of the theory of the
equivalence of conditions, the proximate cause theory, the adequate cause theory, but
also the criteria expressed in the Romanian legal literature, namely the necessary
causality theory and the theory of the indivisible unity between cause and conditions.
The third section addresses one of the requirements to be met by the
prejudice, namely it must be certain, i.e. sure, both in terms of existence and
possibility of assessment. In this context, it stresses that all controversies in the field-
related literature and earlier case law concerning the remedy of prejudice, given that
the illegal deed also causes the missing of an opportunity to obtain profit or to avoid a
loss, or of a future prejudice whose occurrence is certain, have been settled by the
lawmaker, who expressly regulated this possibility under the provisions of the new
Civil Code. Also, this section points out the direct and personal nature of the prejudice,
which has been addressed by certain authors in the field-related literature. Direct
prejudice requires it to be a direct consequence of the damaging deed. Nevertheless,
remedy of indirect prejudice (by ricochet) is also accepted, namely the direct prejudice
caused to another person than the target of the illegal deed, which is the consequence
of the same deed (it is the case of moral prejudice resulting from psychological distress
caused by the death of the victim of homicide to the parents of the deceased). The
personal nature of the prejudice indicates that the civil action to be brought before the
criminal or civil court belongs only to the one personally aggrieved, namely the person
who proves that the illegal deed adversely affects his/her physical integrity, property,
honour, affection.
Apart from its certainty, the prejudice should not have been remedied, a
condition that is analysed in the last section of chapter III. Bringing a civil action in
criminal proceedings seeks full coverage of the prejudice caused to the civil party as a
consequence of committing the offence, but it cannot constitute an opportunity to
obtain further benefits than the damage caused. In this regard, it has been shown that
remedy of the prejudice caused by the offence does not exclude, de plano, the
possibility to bring a civil action in the criminal proceedings, which is possible when
the prejudice is not fully remedied or when the person who pays the victim decides to
exclusively help the prejudiced person. Three such situations have been identified,
namely:

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 - if the victim receives a disability pension or a survivor’s pension from social
security, s/he may request the author of the illegal deed to pay the difference of
prejudice that is not covered by the allowance;
- if, as a result of the illegal deed, the victim receives an allowance from the
insurance company (in this case, there are two distinct situations, the insured as
accused or the insured as victim of the offence);
- if, after committing the illegal deed, the victim receives money from a third
party, the purpose of this benefit will be examined and it shall be established whether
the victim is entitled to claim damages from the author of the illegal deed.

The subjective conditions of bringing a civil action in criminal proceedings

are analysed in the chapter with the same name, the fourth chapter of the thesis, and
concern the existence of guilt and the bringing of civil action in the criminal
proceedings.
Section I addresses aspects of the subjective attitude of the author of the illegal
deed as to the deed and its consequences, namely the condition of guilt. Establishing
liability based on the guilt of the accused is one of the major bases of legal liability in
general, consequently of tort liability as well. After a short presentation of the factors
related to the establishment of guilt (intellectual factor and volitional factor), forms of
guilt (intent, fault, oblique intent) are analysed, with the methods and criteria
considered in establishing guilt.
In the field of concerns related to guilt, an important topic is tort capacity
(existence of judgement). Impaired judgement, i.e. lack of the author’s ability to
realise his/her deed and its consequences, is equal to lack of the intellectual factor,
therefore lack of guilt.
In terms of tort capacity, three situations are analysed:
a) situation of minors under 14 and of persons under a restraining order;
b) situation of minors who are 14 years old or over;
c) situation of persons with impaired judgement at the time the deed was
committed.
Although both civil and criminal liability are based on the guilt of the accused,
in terms of subjective attitude towards the committed deed, this is a specific subject

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with sometimes different answers from one branch to another. Therefore, we speak of
civil guilt and criminal guilt.
Section II of chapter IV addresses the bringing of civil action in the criminal
proceedings. It deals with the requirements imposed by law for bringing a civil action
in the criminal proceedings, as well as the time by which such civil action can be
instituted. In this regard, this section stresses the difference between the waiver of
compensation and the statement by which the aggrieved party states that it does not
bring civil action in the criminal proceedings. In the first case, waiver of compensation
is equal to waiver of right, and the aggrieved party can no longer sue the accused with
a separate claim filed with the civil court, nor have any other claims. As a matter of
fact, the Criminal Procedure Code expressly provides in art. 22 the civil party’s
possibility to waive, in whole or in part, its civil claims under the criminal
proceedings. In the second case, by stating not to bring civil action in the criminal
proceedings, the aggrieved party chooses irrevocably not to join the civil action to the
criminal proceedings, having the possibility to obtain remedy of the prejudice caused
by the offence by way of separate civil action in a civil court.

Chapter V analyses the elements of civil action and is divided into two
sections.
Section I is based on the text of art. 19 paragraph (1) of the Criminal Procedure
Code, which expressly indicates the object of civil action, namely holding
accountable for tort liability the person who, according to the civil law, is responsible
for the prejudice caused by committing the deed subject to criminal proceedings. The
obligation to provide remedy is applicable irrespective of the material or moral nature
of the prejudice caused by the illegal deed.
The remedying nature of civil action does not allow for mistaking it for other
criminal procedural law institutions that are similar in terms of consequences, but
having a different legal nature (special confiscation, extended confiscation).
Remedy of prejudice is governed by four major principles established in civil
law, namely: principle of the possibility to remedy the prejudice by compensation,
principle of full remedy of the prejudice, principle of remedying the prejudice in kind
and principle of solidary liability.

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 Unlike the previous regulation, the Criminal Procedure Code no longer
indicates the methods to remedy the prejudice and refers to the application of the
provisions of the civil law, i.e. remedy in kind, remedy by payment of compensation in
cash.
Remedy of prejudice in kind is the rule as it restores the situation to the state
prior to committing the deed, thus eliminating the prejudice. It can be obtained by: a)
return of goods; b) reinstatement of the situation prior to committing the offence; c)
total or partial annulment of a document; d) by any other means of remedy.
The remedy of damage in kind by total or partial annulment of a document
benefits from a more detailed analysis because, on the one hand, as novelty, the
current Criminal Procedure Code, with the provisions of art. 5491, regulates a special
procedure for annulment of a document when the prosecutor decides on a solution not
to indict. On the other hand, the case law contains extensive controversies concerning
the legitimacy of the prosecutor’s active procedural quality in promoting actions
before the civil court and concerning the application of the de jure principle of
annulment of the subsequent document as a consequence of annulment of the initial
document (resoluto iure dantis, resolvitur ius accipientis) and the exceptions to this
principle.
Remedy of damage by paying a compensation in cash (remedy by equivalent) is
presented as a subsidiary method of remedying a prejudice, i.e. when remedy in kind is
not possible. Remedy by equivalent is also applicable when non-property personal
rights are violated; such moral damages do not benefit of a remedy proper, the so-
called remedy intending to alleviate the suffering of prejudiced persons and to give
them some satisfaction.
Regarding this last aspect, it is shown that, for lack of legal methods to
determine the amount of compensation for violation of non-property personal rights, in
determining the value thereof, the judge must consider certain criteria set out by the
doctrine, such as: nature of the deed causing the moral prejudice, i.e. the protected
social value adversely affected (life, physical integrity, health, etc.); intensity of grief;
personality of the victim (a concrete case may include certain factors, strictly related to
the aggrieved person, which aggravate or reduce the moral prejudice caused and which

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must be considered in determining the extent of compensation, such as: age, gender,
family situation, social and professional standing of the victim).
This section also mentions exceptional provisions of the Civil Code that
expressly regulate the method of determination, the forms and extent of compensations
in case of illegal deeds that adversely affect the life or physical integrity of the person.
Section II covers the subjects of civil action, none other than the subjects of
the civil conflict arising from committing an offence causing a material or moral
prejudice. The subjects under analysis concern all the aspects related to the
participation of the parties in the criminal proceedings, taking into account that all
considerations presented refer to the positions of the civil party, of the accused and of
the party liable from a civil standpoint, with indication of the rights and obligations of
each party.

Chapter VI, entitled “Exercise and settlement of civil action”, the last
chapter of the paper, is divided into five sections covering the following topics: the
right of option in exercising civil action; exercising civil action ex officio; exercising
civil action in a civil court; settlement of civil action in a criminal trial; relation
between criminal proceedings and civil action.
Section I addresses the right of the aggrieved party to choose, in order to
recover the civil claims arising from an offence, the criminal trial – by bringing a civil
action in the criminal proceedings – or the lawsuit – by filing a civil claim with the
civil court. In order to ensure legal security, the right of option has some limitations
and is irrevocable, thus, when the aggrieved party chooses one of the two options, s/he
cannot change it. The entire section focuses on the legal regulation of this rule
governing the right of option, phrased in the adage “electa una via non datur recursus
ad alteram”.
Section II examines the situations where exercise of civil action ex officio is
mandatory. In this regard, it points out the fact that the new Criminal Procedure Code
of 2010 has limited the obligation to exercise civil action ex officio in the criminal trial
and has rethought the procedural position of legal authorities in exercising this action.
Thus, under the current regulation, the prosecutor alone, and not the court of law, has the
obligation to exercise civil action ex officio, when the aggrieved party is a person who

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lacks the exercise capacity or has restricted exercise capacity. On the other hand, the
code maintained two situations where the court of law adjudicates ex officio upon certain
aspects related to the civil nature of the case, even when a civil action is not brought in the
civil proceedings, namely recovering of the situation prior to the offence and total or
partial annulment of a document.
Section III covers the cases where the civil action for remedy of the prejudice
caused by the offence can be exercised only in a civil court. It considers the
situations where criminal proceedings are extinguished in the prosecution phase or,
despite the fact that they are fully exercised and a final decision is passed, the criminal
court leaves the civil action unsettled and fails to decide on the entire prejudice (when
civil action is exercised ex officio or when the uncovered prejudice took place or was
discovered after bringing the civil action in the criminal proceedings). As the
possibility to remedy the prejudice caused by the offence in a criminal trial is a benefit
of the aggrieved party alone, should the latter transfer its right to remedy the damage
by compensation to another person, before bringing the civil action in the criminal
proceedings, the transferee can no longer bring a civil action in the criminal
proceedings, it can only refer it to a civil court.
In this context, a particular case is specified in which, under the old Criminal
Procedure Code, civil action could be exercised only before the civil court. It is the
case of the civil action dealing with total or partial annulment of a forged document,
when criminal proceedings for forgery were extinguished in the prosecution stage by a
solution not to indict adopted by the prosecutor. Under the current regulation, the
power to order total or partial annulment of a document when the case is closed by the
prosecutor no longer belongs to the civil court but to the judge of the pre-trial
chamber, according to the special procedure regulated by art. 5491 of the Criminal
Procedure Code. Therefore, the case is referred to the criminal court, not to the civil
court, as it is not a civil case.
Section IV presents the way in which a civil action is settled in a criminal
trial, with the mention that this is the attribute of criminal courts alone. Following a
brief presentation of concrete situations when the civil party can use its right of
disposal concerning the future of the civil action, this section analyses the two ways in
which the court resolves the civil action, i.e. either it settles the case or leaves it

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unsettled. Thus, a proper systematisation is used to analyse the ways in which a civil
action is settled, namely the granting or dismissing thereof, with indication of concrete
cases in which each of the solutions can be adopted, as well as the situations when the
criminal court leaves the civil action unsettled.
In connection with the subject under examination, this section also mentions the
possibility of the court to order the severance of the civil action should settlement of
civil claims cause a delay in settling the criminal proceedings. In this regard, the
lawmaker’s option to allow the criminal court to order severance of the civil action,
irrespective of the circumstances, and to try the severed civil action is considered to be
objectionable.
Section V concludes the paper and addresses the subject of the relation
between criminal proceedings and civil action. A relation between the two actions
exists only when they are not exercised simultaneously in a criminal trial.
One aspect of the subject concerns the establishing of an order of preference in
settling the two actions, when they are not exercised simultaneously before different
courts. The rule applicable in this situation, as mentioned in art. 27 paragraph (7) of
the Criminal Procedure Code, is expressed by the phrase “le criminel tient le civil en
état” [civil proceedings must be suspended while criminal proceedings are pending].
Thus, as long as criminal proceedings are not initiated and the aggrieved party has
filed a civil claim with the civil court, the lawsuit is conducted according to the
regulations of the Civil Procedure Code. However, when the civil court is referred to,
the criminal proceedings are initiated in the criminal trial concerning the same deed,
and the judgement of the civil action by the civil court is suspended until the criminal
case is settled by the trial court, but no more than one year.
When the two actions are settled separately, a second subject that arises is the
force of res judicata of the judgements. In this respect, art. 28 paragraph (1) thesis I of
the Criminal Procedure Code provides that the final decision of the criminal court has
the force of res judicata before the civil court that judges the civil action, in terms of
existence of the deed and of the person who committed it. Therefore, according to the
Criminal Procedure Code of 2010, the force of res judicata of the criminal judgement
is limited by law in connection with two aspects alone: the existence of the deed
constituting an offence, but also illegal deed in terms of tort liability, and the person

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who committed the deed, unlike the previous regulation pursuant to which the force of
res judicata covered the guilt of the offender as well. By the provisions of art. 28
paragraph (1) thesis I, the Criminal Procedure Code of 2010 establishes the duality of
guilt, criminal and civil. According to this, the civil court may find the existence of a
civil guilt of the accused, even if the criminal court does not find the existence of a
criminal guilt of the same.

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