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Improper sample collection by the competent authorities. Application of the criminal law fundamental principle in dubio pro reo

For criminal acts sanctioned by various special laws, for whose probation is necessary the laboratory analysis of samples, it is imperative that the authorities competent in collecting samples fully abide the legislation in this particular field.

Otherwise, and in the absence of other evidence to prove the guilt of the person suspected of committing the offense, criminal investigation authorities are bound to apply with priority the fundamental principle of criminal law in dubio pro reo, according to which any doubt about the guilt of a person shall be interpreted in its favor.

I. IMPROPER SAMPLE COLLECTION BY THE COMPETENT AUTHORITIES

There is a wide range of offenses stipulated and sanctioned by special laws, other than the new Criminal Code that represents the general law concerning the criminalization of offenses on Romanian territory.

In this article we will lean attention to the offense referred by and punishable under art. 2961 par. 1 letter n) of Law no. 571/2003 regarding the Fiscal Code.

The text of the law impleads the act of release for consumption, holding outside a tax warehouse, transportation including duty suspension arrangement, using, offering for sale or selling, on Romanian territory, of energy products mentioned in art. 20616 par. (3) letter g) or assimilated in terms of excise duties, unmarked and unstained or improperly marked and stained.

Art. 20616 par. (3) letter g) refers to fuel oil-type energy products or those assimilated to fuel oil that can be offered for sale or sold on Romanian territory, only if marked and stained according to Art. 20669 par. (16) – (19) of Law 571/2003 on the Fiscal Code.

To prove this act, specifically to determine if the amount of label or solvent provided by art. 20669 par. (16) – (19) of Law 571/2003 have been complied, it is necessary that the samples taken from the transport container of the fuel oil-type energy product or equivalent of fuel oil to be analyzed by an accredited laboratory, conclusions of the analysis being in fact the only conclusive evidence that can be brought against the person suspected of committing the offense.

However, for test results to be true and correct, it is imperative that the authorities competent in inspecting and collecting samples fully respect the relevant legislation.

These are ANAF President Order no. 9250/2006 for approving the Norms regarding the functioning of the Central Customs Laboratory and how to perform the analyzes, as amended by ANAF President Order no. 615/2012, the Sampling manual for customs and excise control and the Romanian Standard SR EN ISO 3170/2004 regarding the manual sampling of petroleum products.

If these rules are not fully respected, it can occur serious doubts about the accuracy of the analyzes of collected samples, doubts which ultimately will lead to a solution to dismiss the case (during prosecution) or of acquittal (during trial).

II. APPLICATION OF THE CRIMINAL LAW FUNDAMENTAL PRINCIPLE IN DUBIO PRO REO

This principle is regulated by the legislator in the new Criminal Procedure Code, General Part, Title I – Principles and limits of criminal procedural law, which in art. 4 par. (2) states that “After administration of the entire proof, any doubt in the formation of belief of the judicial authorities shall be construed in favor of the suspect or defendant”.

Par. (1) of the same article provides the other foundation of the presumption of innocence principle, respectively that “Everyone is presumed innocent until proven guilty by a final criminal judgment”.

The two norms of criminal procedure create the necessary premises for compliance with art. 6 par. 2 of the European Convention on Human Rights concerning the right of every person to benefit from the presumption of innocence.

In a recent case which concerned the offense sanctioned by art. 2961 par. 1 letter n of Law 571/2003 on the Fiscal Code, which I detailed above, the case prosecutor has determined that it can not allege that the administrator of a company, that sells fuel oil-type products, committed the offense provided by art. 2961 of Law 571/2003 on the Fiscal Code, in relation to the following issues:

  • The method for determining the marker Solvent Yellow 124, used by the Central Customs Laboratory is accredited by RENAR only for kerosene and diesel energy products;
  • The Central Customs Laboratory method used to determine the amount of dye solvent Blue 35 is not accredited by RENAR;
  • The sampling was done without the company’s legal representative, contrary to Art. 3 par. 1 of the Norms regarding the functioning of the Central Customs Laboratory and how to perform the analyzes;
  • There were not taken equal amounts of lower, middle and upper samples, thus being violated the provisions of Art. 1.1. from chapter IX of the Norms regarding the functioning of the Central Customs Laboratory and how to perform the analyzes;
  • Incorrect sampling mode, in conjunction with the expert’s findings in a similar case, casts doubt on the accuracy of the laboratory analysis, which, according to Article 4 par. 2 of the Criminal Procedure Code must be interpreted in favor of the suspect.

The same conclusion was embraced by the High Court of Cassation and Justice, which concluded that “This principle (in dubio pro reo) is explained by the fact that, since the evidence given to support the guilt of the accused contained a questionable information precisely regarding the defendant’s guilt in relation to the impugned act, the judicial criminal authorities can not form a belief that it is a certainty and, therefore, they must conclude in finding the innocence of the accused and acquit him because the administration of criminal justice require that judges should not be based, in the decisions they pronounce, on probability, but certainty gained on the bases of decisive, complete, reliable evidence, able to reflect the objective reality (facts submitted). This alone forms the belief, springing from the evidence provided in the case, that objective reality (facts submitted) is unequivocally the one that depicts reality ideologically reconstituted using samples.”[1]

Therefore, both the criminal investigation authorities and the Supreme Court have concluded, rightly in our view, that, in order to respect the presumption of innocence of which benefits the suspect/defendant during trial, it is essential that evidence administered during the trial by the one who accuses leaves no trace of doubt about his guilt, in such a situation being absolutely necessary to rule a solution favorable to the accused.


[1] HCCJ, Criminal Division, decision no. 903 / 15.03.2013 issued in case no. 8189/30/2011

Flavius Oancea
Avocat colaborator al S.C.A. Sioufas & Colaboratorii

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