Categories
Uncategorized

Applying the “protected witness” benefit to a defendant-informant ICCJ Decision no. 79/2021 on art. 19 of Law no. 682/2002 – English version

The article analyses ICCJ Decision no. 79/2021 on Article 19 of Law 682/2002, clarifying when a defendant can also qualify as a “protected witness” and what procedural and sentencing consequences follow. It offers guidance on framing cooperation, evidentiary value and proportional reductions, as well as on the risks of misusing the mechanism.

1. Introduction

Romanian criminal law offers a powerful incentive for people involved in crime to cooperate with the authorities: art. 19 of Law no. 682/2002 on witness protection.

Under this provision, a person who has the procedural status of witness but has also committed an offence of their own can benefit from a reduction by half of the special limits of the penalty for their own crime, if they denounce and help identify and prosecute other persons who committed serious offences (infracțiuni grave).(Portal Legislativ)

For several years, practice has raised a crucial question:

Is it enough that, after the denouncement, criminal investigation is started in rem (with respect to the act), or must the proceedings advance to in personam (against one or more identified persons) in the “denunciation case” for the benefit of art. 19 to apply?

On 18 November 2021, the High Court of Cassation and Justice (ÎCCJ) answered this through a preliminary ruling in Decision no. 79/2021, published in the Official Gazette on 31 January 2022. The Court held that the benefit under art. 19 is conditional on the continuation of the criminal investigation in personam in the case where the denouncer is a witness – this is a necessary but not sufficient condition.(Portal Legislativ)

This article explains, in a structured way:

  • the legal framework of witness protection and the “witness-denouncer” benefit;
  • the question put to the High Court and its answer in Decision 79/2021;
  • the practical consequences for the defendant-denouncer and their lawyer;
  • the main issues that remain open in practice.

2. Legal framework: Law no. 682/2002 and art. 19

2.1. Law no. 682/2002 in a nutshell

Law no. 682/2002 on witness protection regulates measures of protection and assistance for witnesses whose life, bodily integrity or freedom are seriously threatened because of the information they provide in criminal cases, especially in relation to serious crimes.(Sherloc)

The law combines two dimensions:

  1. Protective measures – such as physical protection, relocation, change of identity, inclusion in a formal protection programme managed by a specialized structure (O.N.P.M.).(Portal Legislativ)
  2. A penal benefit – under art. 19, allowing the reduction by half of the statutory penalty limits for a person who, while also being an offender, cooperates as a witness in solving serious offences.(Portal Legislativ)

Art. 19 therefore has a key role: it is both an incentive for cooperation and a specific rule of sentencing for those who help dismantle serious crime.

2.2. Who is a “witness” under the special law?

Art. 2 lit. a) of Law 682/2002 defines the “witness” (in a simplified translation) as: the person who has the status of witness under the Code of Criminal Procedure and who, through their statements, provides information and data with a decisive character (caracter determinant) for finding the truth regarding serious offences, preventing them, or recovering substantial damages caused by such offences.(Portal Legislativ)

Two elements are essential:

  • the person must have the procedural status of witness in a given criminal case (not suspect or defendant in that particular case);
  • their information must be determinant, not merely marginal or confirmatory.

In practice, the typical “art. 19 scenario” looks like this:

  • in Case A, the person is defendant (or suspect) for their own offence;
  • in Case B, they are witness-denouncer, providing information that leads to the identification and prosecution of other persons for serious crimes.

Art. 19 is precisely designed for this “double hat”: offender in one case, key cooperating witness in another.

2.3. “Serious offences” and the Constitutional Court’s Decision no. 67/2015

Art. 2 lit. h) of Law 682/2002 defines “serious offence” as including (among others): genocide and crimes against humanity, offences against national security, terrorism, murder, drug trafficking, human trafficking, money laundering, certain weapons and explosives offences, corruption offences, and any offence with a statutory maximum of at least 10 years’ imprisonment.(Sherloc)

Originally, art. 19 required that the witness-offender must have committed a serious offence themselves to access the benefit. This meant that someone who had committed a less serious offence could not benefit, even if they provided crucial information about extremely dangerous criminal networks.

The Constitutional Court, in Decision no. 67/2015, declared this limitation unconstitutional. The Court held that excluding witnesses who did not commit serious offences from the benefit was incompatible with the principle of equality and with the purpose of the law, which is to combat serious crime.(Portal Legislativ)

Following this decision, art. 19 must be interpreted as follows:

  • the offence committed by the witness can be any offence (not necessarily “serious”);
  • what matters is that the information provided concerns serious offences as defined by art. 2 lit. h).

In short: you don’t need to be a “serious offender” to get the benefit; it is enough that you seriously help combat serious crime.

2.4. Nature and moment of application of art. 19 – ICCJ Decision no. 3/2018

Another important clarification comes from ICCJ Decision no. 3/2018 (preliminary ruling). The High Court held that art. 19 of Law 682/2002 does not represent a “cause of reduction of the penalty” in the sense of art. 598 para. (1) lit. d) Code of Criminal Procedure, and therefore cannot be invoked through a contestation to execution.(Înalta Curte de Casație și Justiție)

In other words:

  • art. 19 is to be applied at the time of sentencing, by the trial court (or appeal court) when individualising the penalty;
  • once a final sentence has become definitive without applying art. 19, the benefit cannot normally be obtained later via the execution phase.

As a practical consequence, the defence must raise art. 19 during trial, not after the sentence becomes final.

3. The preliminary question decided by ICCJ Decision no. 79/2021

3.1. How did the issue arise?

Romanian courts had developed divergent approaches on how far the “denunciation case” must progress in order for art. 19 to be applicable in the “defendant’s own case”.

Some courts held that:

  • it is enough that, following the denunciation, criminal investigation is started in rem (with respect to the facts).

Other courts required that:

  • the authorities must go further and continue the investigation in personam (against specific persons indicated or identified).

Faced with these contradictory approaches, the Craiova Court of Appeal (Criminal Section) referred a preliminary question to the High Court’s panel for resolving questions of law in criminal matters.(Înalta Curte de Casație și Justiție)

3.2. The legal question

In essence, the question was (paraphrased):

When a defendant has also acted as a denouncer in a separate case, is the application of art. 19 of Law no. 682/2002 conditional on the criminal investigation in that separate case being continued in personam, or is it sufficient that investigation was started in rem, or even that the criminal action was brought (punerea în mișcare a acțiunii penale)?(Portal Legislativ)

In short: to get the benefit, is “in rem” enough, or do we need “in personam” – and possibly more?

4. The solution in ICCJ Decision no. 79/2021 and its reasoning

4.1. The operative part: “in personam” as a necessary condition

The High Court answered clearly:

The application of the benefit provided by art. 19 of Law no. 682/2002 to a defendant who has the status of denouncer in another criminal case is conditional upon the continuation of the criminal investigation in personam in that other case. This is a necessary, but not sufficient, condition; the court must still assess whether all the other requirements of art. 19 are cumulatively met.(Portal Legislativ)

Thus:

  • starting criminal investigation in rem is not enough;
  • bringing the criminal action (punerea în mișcare) is not strictly required by the decision – the threshold is the transition to in personam;
  • in personam investigation is a minimum procedural effect the denunciation must produce.

4.2. Why insist on in personam?

The High Court’s reasoning can be summarised in three key ideas:

  1. Real contribution to the discovery and prosecution of offenders
    The goal of art. 19 is not to reward people for merely providing information in the abstract, but for effectively helping to identify and prosecute other perpetrators of serious offences. The continuation in personam signals that the prosecutor considers there are sufficient indications against particular individuals, based (at least in part) on the denouncer’s information.(Portal Legislativ)
  2. “Determinant” character of the information
    Under art. 2, the witness must provide information and data with determinant character. Investigation in rem can start even on the basis of vague clues, general suspicions or anonymous letters, but continuing in personam usually implies that the authorities have reached a stage where the potential perpetrator is identified and there is a reasonable suspicion against them – showing that the information had real investigative weight.(Portal Legislativ)
  3. Preventing abusive or purely opportunistic denunciations
    If “in rem” were enough, almost any denunciation that triggered a formal case registration could generate a claim for a 50% penalty reduction, even if the case later stagnated and was closed at an early stage for lack of any concrete suspects. Requiring in personam acts as a filter, ensuring that only denunciations with real operational value are rewarded.

4.3. A necessary, but not automatic, benefit

Crucially, the High Court emphasises that reaching the “in personam” stage is not, by itself, sufficient for the benefit to be granted. The court sentencing the defendant must still verify that all conditions of art. 19 are fulfilled, including:(Sintact)

  • the person had the status of witness in the “denunciation case”;
  • they committed an offence of their own (any offence after CCR Decision 67/2015);
  • before or during the criminal investigation or trial, they denounced other persons and
  • facilitated the identification and bringing to criminal liability of persons who committed serious offences (as per art. 2 lit. h).

Moreover, the sentencing court must assess:

  • the timing of the cooperation (early vs. late denunciation);
  • the credibility and completeness of the information;
  • the actual impact of the denunciation on the progress of the serious-crime case.

Decision 79/2021 therefore does not transform art. 19 into an automatic reward; it simply fixes a minimum procedural threshold (in personam) and leaves substantial discretion to the trial court regarding the overall assessment.

4.4. Binding effect of the preliminary ruling

Preliminary rulings issued by the High Court under arts. 475–477 of the Code of Criminal Procedure are binding on all courts from the date of their publication in the Official Gazette. Decision no. 79/2021 was published in the Official Gazette no. 96 of 31 January 2022.(Portal Legislativ)

From that date:

  • courts may no longer interpret art. 19 as if “in rem” were sufficient;
  • any application of art. 19 must start by checking whether the denunciation case has progressed to in personam.

5. The “in rem” vs. “in personam” distinction in criminal procedure

5.1. The two stages of investigation

Under the Romanian Code of Criminal Procedure, criminal investigation passes through two main phases:

  1. Investigation in rem (in rem)
    • investigation is opened with respect to a fact that may constitute an offence;
    • no specific person is yet formally investigated;
    • the prosecutor gathers initial data and evidence to clarify the existence of the offence and any potential suspects.
  2. Investigation in personam (in personam)
    • when evidence suggests a reasonable suspicion that a particular person committed the offence, the prosecutor orders “continuation of criminal investigation against that person”;
    • this person becomes a suspect;
    • later, if conditions are met, the criminal action may be brought (punerea în mișcare) and the suspect becomes a defendant (inculpat).

The transition from in rem to in personam is marked by a formal prosecutorial order (ordonanță), which is a clear procedural act.

5.2. Why “in rem” is not sufficient for art. 19

Given this structure, the High Court considered that “in rem” is too early and too uncertain a stage to justify the heavy benefit of art. 19:

  • a file can be opened in rem on the basis of minimal information, sometimes even from non-verified or anonymous sources;
  • many “in rem” files are closed without ever identifying a suspect;
  • in such a scenario, it would be difficult to say that the denouncer has “facilitated identification and prosecution” of persons who committed serious offences.

By contrast, continuing in personam shows that:

  • the authorities have identified at least one potential offender;
  • there are sufficient indications to justify their procedural implication;
  • the denunciation has gone beyond mere “information about a possible offence” and has contributed to real procedural steps against concrete individuals.(Portal Legislativ)

Thus, the “in personam” criterion aligns art. 19 with its purpose: rewarding those whose cooperation leads to real progress in prosecuting serious crime, not just to the opening of a case file.

6. Practical consequences for the defendant-denouncer and their lawyer

6.1. Checklist: when can art. 19 realistically be invoked?

After Decision 79/2021, any strategy to rely on art. 19 should be built around a concrete checklist.

In the defendant’s own case (Case A):

  1. Has the defendant committed an offence (obvious, since they are on trial)?
  2. Has the defendant cooperated as a witness in another case (Case B), giving information about serious offences and their perpetrators?

In the denunciation case (Case B):

  1. Is there a clear denunciation or equivalent statements, dated and identifiable in the file?
  2. Has criminal investigation been opened in rem following (inter alia) this denunciation?
  3. Has the investigation continued in personam against one or more specific individuals?
  4. Are the investigated acts serious offences within the meaning of art. 2 lit. h)?(Sherloc)

If the answer to point 5 is no (the case remained in rem and was closed at that stage), then, under Decision 79/2021, art. 19 cannot be validly invoked, regardless of how detailed the denunciation may have been.

If the answer is yes, the defence can move to the next step: demonstrating that the denunciation had a determinant character and truly facilitated the identification and bringing to justice of those persons.

6.2. Timing and procedural channel for invoking art. 19

In view of Decision no. 3/2018, art. 19 must be invoked during the trial, not in a later execution procedure.(Înalta Curte de Casație și Justiție)

Typically, the lawyer will:

  • file a written motion (cerere) requesting the application of art. 19 in the sentencing phase;
  • expressly refer to ICCJ Decisions 3/2018 and 79/2021, indicating their binding character;
  • ask the court to obtain and attach relevant acts from Case B (the denunciation case) – or submit authenticated copies where possible.

The motion should structure the argument as follows:

  1. Legal framework – short reference to art. 19 and to the Constitutional Court’s Decision 67/2015;
  2. Factual background – how and when the client denounced the others;
  3. Procedural progress in Case B – proof of in rem opening and in personam continuation;
  4. Serious nature of the offences in Case B;
  5. Determinant character of the client’s information;
  6. Conclusion: request to reduce by half the special limits of the penalty for the offence(s) in Case A.

Even if the court is not convinced that art. 19 strictly applies, the same conduct can be used as a mitigating factor under art. 74 Criminal Code (conduct during proceedings), supporting a lower penalty within the ordinary range.(Portal Legislativ)

6.3. Evidence the defence should secure

Key documents to prove the conditions of art. 19 include:

  • the denunciation itself or the statement in which the denunciation was recorded;
  • the order opening criminal investigation in rem in Case B;
  • the order continuing investigation in personam against specific individuals;
  • where possible, the indictment (rechizitoriu), plea agreement, or other acts showing that the case advanced;
  • any prosecutor documents or court decisions referencing the decisive role of the denouncer’s statements.

Of course, there may be secrecy or confidentiality constraints (for example, if Case B is still under investigation), but the court seized with Case A can formally request the necessary parts of the file or relevant information, within legal limits.

6.4. Hypothetical scenarios

To see how Decision 79/2021 plays out, consider three simplified scenarios.

(a) Drug trafficking network

X is on trial for drug trafficking of risk drugs (moderate quantities). Before indictment, X files a detailed denunciation naming Y and Z as organizers of a large-scale network dealing in high-risk drugs.

On the basis of this denunciation and follow-up surveillance:

  • prosecutors open a new case in rem for high-risk drug trafficking;
  • later, they continue the investigation in personam against Y and Z;
  • eventually, Y and Z are indicted.

In X’s trial, the defence can request art. 19, arguing that:

  • X is defendant in Case A and witness-denouncer in Case B;
  • Case B reached in personam stage;
  • high-risk drug trafficking is a serious offence;
  • X’s denunciation was determinant in launching and advancing Case B.

If the court agrees that all conditions are satisfied, the penalty limits in X’s case may be reduced by half.

(b) Vague denunciation – case closed in rem

Y, prosecuted for IT fraud, denounces that “some hackers from city Z” are attacking certain systems, without names, time-frames or usable details.

A case is opened in rem, but after basic inquiries, the prosecutor closes it for lack of any identifiable suspects.

In this situation, after Decision 79/2021, Y cannot rely on art. 19:

  • Case B never progressed to in personam;
  • the denunciation obviously did not “facilitate identification and prosecution” of other offenders.

The court may still consider the attempt to cooperate as a modest mitigating element, but the specific 50% reduction mechanism of art. 19 is unavailable.

(c) Partial confirmation of the denunciation

Z, investigated for tax evasion, denounces several corruption schemes involving three civil servants (A, B, and C).

Following the denunciation:

  • a case is opened in rem for bribery and influence peddling;
  • investigation continues in personam and eventually only A is indicted, while proceedings regarding B and C are closed (for lack of evidence or other reasons).

Even in this situation, Z may still benefit from art. 19, because:

  • the law does not require that all persons denounced be prosecuted;
  • it is enough that the denunciation had a determinant role in identifying at least one person (A) investigated in personam for serious offences.

The court will weigh the extent and accuracy of the denunciation when assessing whether the benefit should be fully applied.

7. Issues left open after Decision 79/2021

7.1. Is indictment or bringing the criminal action required?

Decision 79/2021 explicitly requires only the continuation of criminal investigation in personam. It does not say that the case must reach indictment (rechizitoriu) or that the criminal action must necessarily be brought (punerea în mișcare a acțiunii penale).(Portal Legislativ)

Therefore, strictly as a matter of doctrine:

  • indictment is not a legal condition for art. 19;
  • in principle, the benefit could be applied even if the case remains in personam and is later closed for reasons independent of the denouncer’s honesty (for example, prescription).

However, in practice, courts might view indictment as a strong indication that:

  • the denunciation was serious and well-founded;
  • the prosecutorial authorities considered the case robust enough to go to trial.

At this point, I cannot confirm that a fully uniform practice has developed on whether the absence of an indictment (but presence of in personam acts) suffices; existing commentaries suggest that evaluation remains case-by-case, with some courts more demanding than others.(Universul Juridic)

7.2. How to measure the “determinant” nature of the information?

Neither Law 682/2002 nor Decision 79/2021 define in detail what “determinant character” means. This is largely left to judicial assessment.

As a general orientation:

  • if authorities had already built a solid case through other sources of evidence before the denunciation, the denouncer’s information may be seen as merely confirmatory;
  • if the denunciation was the starting point that revealed the existence of a criminal group or new serious offences, it is more likely to be considered determinant.

Current doctrine and case-law commentaries emphasise that “determinant” does not require the denunciation to be the only piece of evidence, but it should have had a substantial influence on the investigative direction and on identifying suspects.(Portal Legislativ)

Given the absence of a statutory test, some diversity of interpretation between courts is practically inevitable.

7.3. Overlap with other “cooperation” mechanisms

Art. 19 co-exists with other mechanisms that reward cooperation, such as:

  • special provisions in the Criminal Code for particular offences (e.g., some corruption or organised crime offences include explicit reductions for denouncing co-offenders);
  • plea agreements (acord de recunoaștere a vinovăției);
  • general mitigation based on behaviour during proceedings (art. 74 Criminal Code).

The exact relationship between art. 19 and these mechanisms is not exhaustively regulated: for instance, whether combining art. 19 with a special reduction for a particular offence is always allowed, or whether courts should avoid “double counting” the same behaviour.

Scholarly articles and the existing case-law point out the risk of excessive cumulation of benefits but do not show a single, fully codified rule. I cannot confirm that there is, as of now, a comprehensive, unified High Court decision solving all overlaps; practice relies on systematic interpretation and the general principle of proportionality in sentencing.(Portal Legislativ)

8. Final conclusions and practical pointers

8.1. Key takeaways from Decision 79/2021

Putting it all together, the main messages are:

  1. Art. 19 of Law 682/2002 grants a major benefit – reduction by half of the statutory penalty range – to a person who, having the status of witness, denounces and helps identify and prosecute other persons for serious offences.(Sintact)
  2. After Constitutional Court Decision no. 67/2015, this benefit is no longer restricted to witnesses who committed serious offences themselves; it is sufficient that their cooperation concerns serious offences committed by others.(Portal Legislativ)
  3. ICCJ Decision no. 3/2018 clarified that art. 19 is a rule to be applied at sentencing, not a ground for later reduction in execution proceedings.(Înalta Curte de Casație și Justiție)
  4. ICCJ Decision no. 79/2021 established that:
    • It is not enough that, after the denunciation, a case is opened in rem;
    • The benefit is conditional on the continuation of investigation in personam against one or more persons in the denunciation case;
    • This is a necessary but not sufficient condition – the court must still verify all other requirements of art. 19.(Portal Legislativ)

8.2. What a potential denouncer-defendant should understand

For someone who is under investigation and considering cooperation:

  • A vague, uncheckable denunciation will not be enough;
  • To realistically hope for art. 19, the denunciation should be specific, verifiable, and targeted at serious offences;
  • The authorities must be able to use the information to identify concrete persons, such that their case progresses to in personam;
  • Even then, the benefit is not automatic – the court will weigh the timing, honesty, and the actual impact of the cooperation.

In short: the law rewards effective, not symbolic cooperation.

8.3. Strategic advice for practitioners

For defence lawyers and legal advisers, several practical tips emerge:

  1. Assess early whether the client holds real information about serious crime.
    If so, consider a strategy of cooperation, carefully balancing risks and potential benefits.
  2. Structure and document the denunciation.
    Encourage the client to provide concrete details (names, roles, times, methods). A sloppy denunciation is unlikely to lead to in personam investigation.
  3. Monitor the evolution of the denunciation case.
    Verify whether the prosecutor has:
    • opened the case in rem;
    • continued it in personam;
    • possibly brought the criminal action or issued an indictment.
  4. Build a robust motion under art. 19.
    When the client is tried in their own case, present a well-documented request referencing:
    • art. 19;
    • Constitutional Court Decision 67/2015;
    • ICCJ Decisions 3/2018 and 79/2021;
    • and attach or request the crucial documents from the denunciation file.
  5. Manage expectations.
    Explain clearly that even if all formal conditions appear to be met, the court retains discretion in assessing whether the information was truly determinant and whether the drastic reduction of penalty is justified in the specific context.

Properly used, art. 19 of Law no. 682/2002 remains a high-impact tool in fighting serious crime, while also offering defendants a meaningful incentive to cooperate. ICCJ Decision 79/2021 narrows the gate just enough so that only genuine, effective denunciations pass through – but, for those who do, the reward can be decisive for their future.