Occasionally, formal compliance with separate procedural steps can produce an unfair situation for which the law provides no clear remedy. One example concerns waiver of prosecution in a case involving several defendants, where procedural delay can undermine the defence rights of a person already sent for trial. I encountered this issue in practice and examined it in an academic publication. This article explains the concern in accessible terms.
What is waiver of prosecution?
A waiver of prosecution, commonly abbreviated in Romanian as RUP, is a decision by which the prosecutor considers that there is no public interest in pursuing criminal liability even though the conduct may constitute an offence. It was introduced with the current Code of Criminal Procedure in 2014, replacing the former approach based on the lack of sufficient social danger. The decision requires confirmation by a preliminary chamber judge, and the prosecutor must submit it for confirmation within the statutory ten-day period.
Why the ten-day period matters
The time limit may appear formal, but failure to observe it can have serious consequences. In a case involving interdependent acts by several people, the prosecutor may waive prosecution for some and indict others. Difficulties arise if the two procedures become substantially out of step.
An example from practice
In a bribery case, the prosecutor waived prosecution of two people accused of giving a bribe and separately sent a third person for trial for taking a bribe. The allegations concerned connected conduct.
The waiver was submitted for judicial confirmation almost six months late. By then, the preliminary chamber proceedings for the person accused of taking the bribe had ended and the trial had been ordered to begin. Only afterwards did the judge consider and refuse to confirm the waivers relating to the other two people, requiring the prosecutor to resume the investigation.
The resulting procedural difficulty
The investigation was treated as complete for the person already indicted, while being resumed in relation to the connected allegations. A factually connected case was thus proceeding on two different tracks.
When the prosecutor resumed the investigation into giving a bribe, further investigative steps could be taken, including questioning and expert evidence. The person already on trial for taking the bribe had no corresponding party status in those resumed proceedings. This affected the ability to inspect that file, request evidence, raise objections and have counsel attend investigative acts, even though the resulting evidence could bear directly on the allegations at trial.
The risk of inconsistent assessments
If the resumed investigation ends in discontinuance or acquittal while the related trial ends in a conviction, the factual findings may require careful reconciliation. Such different outcomes are not automatically legally incompatible: the elements, evidence and grounds for each decision matter. In the situation examined, the concern was the risk that connected evidence would be assessed without effective participation by the person affected.
The central point
The right to a defence is not a formality. It requires an effective opportunity to engage with evidence capable of determining the outcome. A procedural sequence that prevents that participation can raise a fair-trial issue even if each isolated step appears regular.
These situations are uncommon, but identifying them promptly and raising the appropriate objections in the preliminary chamber can be important. Careful examination of the relationship between connected proceedings is part of preparing a defence in complex cases.
Academic publication
The detailed analysis, with legal and case-law references, appeared in the author’s study on rejection of confirmation of a waiver of prosecution and possible infringement of fair-trial and defence rights, published in Romanian Law, 30 Years After the Collapse of Communism, Hamangiu, 2020, ISBN 978-606-27-1595-3, ISSN 2668-0203.
This article provides general information, not legal advice. The procedural situation must be assessed in the particular case.