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Journal of Eastern-European Criminal JOURNAL OF EASTERN‐EUROPEAN CRIMINAL LAW NO. 1/2014 1 JOURNAL OF EASTERN­EUROPEAN CRIMINAL LAW No. 1/2014 Evolution of the Penal Legislation in Romania and Hungary, in the Post­Communist Era 2014 2 AUTOR JOURNAL OF EASTERN‐EUROPEAN CRIMINAL LAW NO. 1/2014 3 UNIVERSITY OF TIMISOARA UNIVERSITY OF PÉCS FACULTY OF LAW FACULTY OF LAW JOURNAL OF EASTERN­EUROPEAN CRIMINAL LAW P BOARD OF EDITORS P Editors­in­Chief Prof. dr. VIOREL PASCA Prof. dr. ISTVÁN GÁL West University of Timisoara University of Pécs Faculty of Law Faculty of Law Editors DR. ADRIAN FANU­MOCA Dr. LAURA MARIA STĂNILĂ Dr. ANDREEA VERTES­OLTEANU Dr. LIVIA SUMANARU Dr. CSABA FENYVESI DR. MIHÁLY TÓTH Dr. DOREL JULEAN Dr. MAGDALENA ROIBU DR. FLORENTINA MUŢIU Dr. PETRE DUNGAN Dr. FLAVIU CIOPEC Dr. TIBERIU MEDEANU Dr. IOANA­CELINA PAȘCA Dr. VOICU PUȘCAȘU ZOLTÁN ANDRÁS NAGY The board of editors shall not take responsibility for the authors' opinions therefore the authors are exclusively responsible for the former. Edited biannually by courtesy of the Criminal Law Departments within the Law Faculties of the West University of Timisoara and the University of Pécs 4 AUTOR Universul Juridic Publishing House Edited by Universul Juridic Publishing House Copyright © 2014, S.C. UNIVERSUL JURIDIC S.R.L. All rights on this edition are reserved to Universul Juridic Publishing House No part of this volume can’t be copied without the subscription of Universul Juridic Publishing House Editorial office: Phone/fax: 021.314.93.13 Phone: 0734.303.101 E­mail: [email protected] Distribution: Phone: 021.314.93.15 Phone/fax: 021.314.93.16 E­mail: [email protected] www.universuljuridic.ro ISSN 2360–4964 JOURNAL OF EASTERN‐EUROPEAN CRIMINAL LAW NO. 1/2014 5 CONTENTS Foreword ...................................................................................................................................................................... 7 Prof. dr. Viorel PAȘCA, West University of Timisoara, Faculty of Law: Romania’s New Penal Code and the Saga of its Adoption .................................................................... 9 Prof. dr. István László GÀL, University of Pécs, Faculty of Law: Economic Bribery as a Part of Economic Criminal Law and a Concomitant of Political Corruption ................................................................................................................................................................. 23 Dr. Flaviu CIOPEC, West University of Timisoara, Faculty of Law: The New Romanian Code of Criminal Procedure ...................................................................................................... 33 Dr. Csaba FENYVESI, University of Pécs, Faculty of Law: Confrontation in the Mirror of International Documents and the European Court of Human Rights .................... 53 Dr. Adrian FANU­MOCA, West University of Timisoara, Faculty of Law: Evolution of the Regulation of Corruption Offenses ............................................................................ 67 Dr. Mihály TÒTH, University of Pécs, Faculty of Law: A Few Remarks about Criminal Corruption in Hungary .................................................................................................................... 77 Dr. Andreea VERTEŞ­OLTEANU, West University of Timisoara, Faculty of Law: Evolution of the Criminal Legal Frameworks for Preventing and Combating Cybercrime ................................................................................................................................................................ 84 Dr. Zoltán András NAGY, University of Pécs, Faculty of Law: New Technologies ‐ New Challenges to Copyright Law .............................................................................................................. 97 Dr. Laura STĂNILĂ, West University of Timisoara, Faculty of Law: Criminal Liability of Legal Persons. History, Evolution and Trends in Romanian Criminal Law ............................................................................................................................................................................ 109 Dr. Florentina Olimpia MUŢIU, West University of Timisoara, Faculty of Law: Probation Services and Their Role in the Execution of Criminal Sanctions ......................... 122 Dr. Ioana­Celina PAŞCA, West University of Timisoara, Faculty of Law: Evolution of the Legislation on Preventing and Combating Organised crime ................... 128 Dr. Livia SUMĂNARU, West University of Timisoara, Faculty of Law: Prevention and Combatting of Trafficking in Persons ..................................................................... 135 Dr. Magdalena ROIBU, West University of Timisoara, Faculty of Law: The Liberty and Custody Judge in the Romanian New Code of Criminal Procedure ................ 153 Dr. Dorel JULEAN, West University of Timisoara, Faculty of Law: Evolution of the Law on the Execution of Criminal Penalties and Related Acts post 1989 ..................... 163 6 AUTOR JOURNAL OF EASTERN‐EUROPEAN CRIMINAL LAW NO. 1/2014 7 FOREWORD THERE IS ALWAYS A START Journal of Eastern­European Criminal Law could stand out as a unique publication, at least in this part of the world, as an outcome of the partnership between specialists in criminal law and criminal procedure law from the law faculties of the West University in Timisoara and the University in Pecs, who aimed at presenting, in a different language from their own, the serious amendments of criminal legislation that occurred in their countries in the post‐communist era, an essential requirement for the rule of law. We envisage this journal, published semesterly, to be open to all researchers in the academic environment from the former communist countries, to professors, PhD students, but also, to magistrates and other professionals interested in the evolution of criminal legislation and in the more and more firm response to be given to the criminal phenomenon, while observing the fundamental HUMAN rights. Crime is no longer a purely national issue, it is no longer a feature of one country, and the Penal Codes conceived by following the pattern of sovereign jurisdiction of national states are not, by themselves, the only available instruments for an effective opposition to the new forms of crime. The creation of a common area of freedom, security and justice, based on the principles of transparence and democratic control needs an open dialogue between doctrinaires and practitioners of law in general, and those of criminal law and criminal procedure, first and foremost. Knowledge of the inherent features of national legislations can facilitate the mutual recognition of court decisions, as well as the police and judicial cooperation in criminal matters at cross‐border level. Globalization of law is able to lead to a stability of relationships between humans, including of those between the magistrates belonging to different national judicial systems, the professional exchanges thus amounting to the establishment of a broad judicial network, at global level, animated by common spirit, culture and even projects. In this context, the comparative study of certain legal institutions, the quotation of some decisions passed by the courts of law abroad offers to judges a source of ideas in their quest for logical reasoning or solutions. Globalization is an argument in favor of “another way of learning law” in which the references to comparative law become a must which, if not confronted by universities, “there will emerge a real risk of provincialization of the law faculties within their own country”.1 That is why the current edition of the journal is mainly an invitation to join our team for all those interested in the evolution of criminal law and criminal procedure law and criminal sciences, in general. The board of editors 1 J. Allard, A. Garapon, Les juges dans la mondialisation. La nouvelle revolution du droit, 2005 8 AUTOR JOURNAL OF EASTERN‐EUROPEAN CRIMINAL LAW NO. 1/2014 9 Romania’s New Penal Code and the Saga of its Adoption Professor VIOREL PAŞCA, Ph.D.* West University of Timisoara, Law Faculty Abstract: The decision to proceed to the drafting of a new Penal Code was not a mere manifestation of the political will, but equally represented a corollary of the economic and social evolution ­ and also of the doctrine and case­law ­ and was based on a series of shortcomings in the regulation of the 1968 Penal Code. A very important role in the harmonization of the legislation with the constitutional provisions has been played by the Constitutional Court, both through its a priori and a posteriori judicial review, the latter taking the form of the settlement of the constitutional challenges raised before the courts. The harmonization of the provisions of the Penal Code with the new constitutional order was performed in this manner, followed, but not always, by appropriate legislative changes. Following the overturn of the communist regime, the 1968 Penal Code was amended or supplemented 54 times, out of which 23 times by means of Government Emergency Ordinances, in order to put in line with the new constitutional regulations and the requirements of Romania’s European integration process. Keywords: new Penal Code; enforcement of the Romanian criminal law in time; enforcement of the Romanian criminal law in space; plurality of offences; criminal liability of legal persons. Responding to the monitoring requirements of the European Commission, the new Penal Code has, as a starting point, the necessity to take over
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