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Recourse in the interests of law admitted. Illegal exercise of the profession of lawyer

In the Official Gazette of Romania, Part I, no. 816 of 3 November 2015 the 15/2015 Decision was published regarding the examination of the appeal on points of law filed by the general prosecutor attached to the High Court of Cassation and Justice regarding the interpretation and application of the provisions of Art. 348 of the Criminal Code (correspondent of Art. 281 of the old Criminal Code), assuming the exercise of the profession of lawyer by persons who are not part of recognized professional organization forms as set by Law no. 51/1995 on the organization and the profession of lawyer, republished, as amended.

1. Appeal on points of law

In its appeal on the points of law filed by the general prosecutor attached to the High Court of Cassation and Justice noted that within national practice there is no single point of view regarding the interpretation and application of Art. 348 of the Criminal Code (correspondent of Art. 281 of the Criminal Code before), assuming the exercise of the profession of lawyer by persons who are not part of recognized professional organization forms as set out by Law no. 51/1995, republished, as amended.

2. Jurisprudence view

The General Prosecutor attached to the High Court of Cassation and Justice claims that, after checking national case law on the implementation of the provisions of Art. 348 of the Criminal Code (correspondent of Art. 281 of the old Criminal Code), assuming the exercise of the profession of lawyer activity by persons who are not part of recognized professional organization forms as stated by Law no. 51/1995, republished, as amended, found two orientations, thus shaping an inconsistent nature of legal practice in this respect.

2.1. In a first orientation, the courts found that people who are not part of the forms of professional organization established by Law no. 51/1995, republished, as amended, and operate within the structures set up under certain judgments commit the offense provided by Art. 348 of the Penal Code (Art. 281 of the Criminal Code before).

In this respect it was shown that the actions of those persons practicing law, constitutes the crime of exercise without the right to a profession or activity is the condition, the objective side of it, and the subjective side is represented though a committed form of guilt imposed by law.

2.2. In a second orientation practice, other courts have held that people who work within the structures set up under certain judgments can not be held criminally liable for the offense of exercise without the right to a profession or activity motivated through the lack of form of guilt as provided by law, the intent.

This conclusion was based on the fact that “the Bar” that includes these people were formed via associations whose legal personality has been recognized by court decisions which were among the objects of activity and “the establishment of the bars”.

3. Attorney General’s opinion POHCCJ

The solution proposed by the General Prosecutor of the High Court of Cassation and Justice is jurisprudential orientation meaning that people who are not part of the forms of professional organization as established by Law no. 51/1995, republished, as amended, but operated within established structures on the basis of judgment commit offenses under Art. 348 of the Penal Code (Art. 281 of the old Criminal Code), the conditions of its objective side being met, and the subjective as being committed to the level of guilt as required by law.

In support of this view, it was argued by Law no. 255/2004 which amended Law no. 51/1995, republished, as amended, that the structures of operation in question were requested to cease operation [Art. 113 para. (1)] and their constitutional documents and their registration were considered null and void [Art. 1 para. (3)].

Therefore, after this legislative change those working in structures other than those sanctioned by Law no. 51/1995, republished, as amended, and exercise specific legal profession as the profession of lawyer without having satisfied its legal requirements, now has the representation of such acts and must accept the possibility of such consequences.

This conclusion was considered to meet the requirements of accessibility and foreseeability of law imposed by Art. 7, paragraph 1 of the European Convention on Human Rights, which is insured and guaranteed.

4. The High Court of Cassation and Justice Option

The High Court considered it necessary to uphold the appeal, by way of the following solution:

“The court admits the appeal on points of law.

The interpretation and application of Art. 348 of the Criminal Code provides: “The act of a person performing specific activities within the legal profession to entities that are not part of the forms of professional organization recognized by Law no. 51/1995 on the organization and the profession of lawyer, republished, as amended and supplemented, constitute the crime of illegal exercising of a profession or activity as required by Art. 348 of the Criminal Code”.

:: The Source: JURIDICE.ro

Dan Alexandru Negru

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