Introduction

This article aims to analyze the situation of the expenses incurred by the person against whom a criminal complaint was filed (more precisely, of the lawyer’s fee) in the situation where it was classified by the criminal investigation bodies. Thus, we bring to the readers’ attention the situation in which the civil court is called upon to decide whether and to what extent the person who filed a criminal complaint can be obliged to pay the expenses incurred during the criminal prosecution of the persons against whom it was directed, as long as the classification order mentions absolutely nothing about these expenses, as neither C.Proc.Pen. do not do it.

Thus, the following question arises: To what extent is the person who filed the criminal complaint obliged to reimburse the expenses and what conditions must be met? The interest in approaching this subject was born from a situation encountered in practice. Thus, the legal issue arises from the fact that, although C. Proc. Pen. regulates the situation of legal expenses incurred by the parties in the case of all other solutions of the criminal prosecution/judgment, it does not precisely clarify the situation of expenses in the case of a settlement solution. What does the legal text tell us – art. 276 para. 6 C. Proc. Pen.?: “In other cases (than those regulated) the court establishes the obligation of restitution according to the civil law.” Therefore, the analyzed situation is circumscribed exactly to this text.

Therefore, the legal issue debated in the case to be detailed was the possibility of restitution to the alleged perpetrator of the legal expenses committed, consisting of legal fees, based on art. 1357 et seq. C.Civ., regarding tortious civil liability.

A. Payment of court costs based on art. 1357 et seq. C.Civ., regarding tortious civil liability.

A.1. The solution of the first instance pronounced by sen. civil no. 8047/14.12.2021 – Cluj-Napoca Court.

Referring to the conditions that must be met regarding tortious civil liability, the first court ruled in the sense that, since the content of the classification ordinance expressly notes the lack of typicality of the deed complained of, the classification solution validates the illegal nature of the act of to file the complaint. In essence, the first court simplistically held that the wrongful act consists in the formulation of an unfounded criminal complaint, thus invalidating our claims according to which, although filed, the criminal complaint had an objective foundation.

A.2. The solution of the court of appeal issued by Civil Decision no. 1261/A/2022 – Cluj Court

However, the Cluj Court totally invalidated the decision of the first court regarding the condition of the existence of an illegal act, ruling in the sense that, as long as the formulation of a criminal complaint represents a right of any person who has knowledge of committing acts of a criminal nature, the exercise of this right can materialize in an illegal action that justifies the engagement of tortious civil liability only in the situation in which it is exercised abusively, respectively when the purpose pursued by the owner of this right is to cause an injury or damage.

Thus, after analyzing all the evidentiary material, the court gave effect to our claims according to which although the classification order in question states the lack of typicality of the complained of fact, the appellant presented a concrete state of facts and provided a minimum of elements that were the basis of the notification criminal investigation bodies, even if these elements were only partially confirmed by testimonial evidence. Considering these, the appeals court found good faith on the part of the appellant, who did nothing but leave the opportunity to the competent persons (criminal prosecution bodies) to make their own assessment of the facts presented by him.

Therefore, in the absence of conduct on the part of the person who formulates the criminal complaint aimed at denigrating those against whom it is directed, the exercise of the right to refer the judicial bodies cannot be qualified as abusive, which is why the cause of exoneration from liability becomes incidental of the execution of the right, provided by art. 1353 C.Civ.

It was definitively ruled that, although the persons against whom the criminal complaint was subsequently filed suffered a loss by paying the attorney’s fee in the criminal prosecution file, the act of the person who notified the judicial bodies regarding a concrete state of facts, without the use of licentious language “is not likely to be included in the definition of the illegal act and does not constitute an abuse of law.”

This decision of the appeal court was upheld in full by the appeal court, through Civil Decision no. 84/R/2023 of the Cluj Court of Appeal, which confirmed the fact that “the manner in which the criminal investigation is carried out and completed can not be imputed to the injured person and does not make his act of filing a complaint illegal, since the conduct of the criminal investigation is the exclusive attribute of the State.”

B. CONCLUSIONS

The fact that the criminal regulations, respectively art. 276 para. 6 C.Proc.Pen., regarding the payment of legal expenses incurred by the parties establish the fact that in the case of a settlement solution the court establishes the restitution obligation according to the civil law does not mean that, automatically, they must be granted by the civil court on the basis of tortious civil liability, but only the fact that the civil court is called upon to analyze, specifically, whether and to what extent they can be imputed to the person who filed the complaint, reporting both to its entire procedural conduct, but not least, to the basis of the classification order, which plays a decisive role in assessing the possible fault of the whistleblower.

Av. Eftimiu Ana