How does the Court of Appeal of Bucharest justify its decision in the case of Nelu Iordache, who had half of his sentence erased and released from prison

Magistrates from the Bucharest Court of Appeal (CAB) state, in the justification for the admission of the annulment appeal filed by the businessman Nelu Iordache, that the previous court of appeal did not analyze the incidence of the statute of limitations for criminal liability for two crimes for which he had been sentenced to prison.

The Bucharest Court of Appeal notes in the reasoning of its decision from Friday that it must be assessed whether the statute of limitations had expired on the date of the contested decision, writes News.ro.

“From the interpretation of the legal texts and the decisions of the Constitutional Court and of the High Court of Cassation and Justice presented, the Court appreciates that it must be analyzed, in the case of the appellant, if the general term of prescription for criminal liability had expired on the date of the contested decision and if the court of appeal analyzed the incidence of the prescription for the following: the crime of embezzlement, with particularly serious consequences and in a continuous form (…); the crime against the financial interests of the Community European, by misappropriation of community funds, with particularly serious consequences and in a continuous form (…)”, it is stated in the motivation.

The Magistrates of the Bucharest Court of Appeal specify that the crime of embezzlement is punishable by imprisonment from 2 to 7 years.

“According to art. 154 para. 1 letter c of the Criminal Code, the statute of limitations for criminal liability for crimes whose punishment is between 5 and 10 years is 8 years and began to run on November 1, 2012 and expired on October 31, 2020, i.e. before September 8, 2021, when it was the disputed decision was pronounced”, the quoted source said.

The magistrates showed that the crime of embezzlement of community funds, with particularly serious consequences and in a continuous form, is punishable by imprisonment between 1 year and 6 months and 7 years and 6 months.

“According to art. 154 para. 1 letter c of the Criminal Code, the statute of limitations for criminal liability for offenses whose punishment is between 5 and 10 years is 8 years and began to run on 29.08.2011 and expired on 28.11.2019, i.e. before 08.09.2021, when it was the contested decision was pronounced”, it is also stated in the motivation.

“A procedural error”

CAB notes that the previous court of appeal did not analyze the incidence of the prescription of criminal liability for the two crimes.

“Examining the considerations of the criminal decision no. 936/A of 09/08/2021 issued by the Bucharest Court of Appeal – Criminal Section I, (…), the Court finds that the court of appeal did not analyze the incidence of the prescription of criminal liability for the two crimes described above, so we are in the presence of an omission by the court to rule on the incidence of a cause of termination of the criminal process, omission which represents a procedural error, in this case the court not analyzing the aspects that could have determined a solution to the termination of the criminal process”, the magistrates of the Bucharest Court of Appeal also affirmed.

They also explained the reason why they rejected the hearing prosecutor's argument that, by admitting the annulment appeal, would create a lex tertia (a “third law”, a situation that occurs when more favorable provisions from successive criminal laws are combined – no).

“Regarding the support of the representative of the Public Ministry, according to which, by admitting the appeal for annulment, a lex tertia would be created, the Court considers that it is unfounded, given that, as can be seen from the contested decision, the favorable criminal law was assessed as being the Criminal Code in force and not the old criminal code. Also, as stated in the previous paragraphs, the court that resolves the appeal for annulment, based on the effects of the decisions of the Constitutional Court no. 297 of April 26, 2018 and no. 358 of May 26, 2022, if the appellate court did not discuss and analyze the incidence of the criminal process before this decision, as it happened in the present case, the existence of res judicata cannot be raised either analyzed at the time of admission in principle of the annulment appeal”, the motivation also states.

Penalty halved by CAB

The businessman Nelu Iordache, nicknamed “the asphalt king”, administrator of SC Romstrade SRL, was convicted in this case on September 8, 2021, for several crimes, to which was added another 6-year sentence received in the Transalpina case.

He received, in total, a sentence of 11 years and 9 months in prison.

He filed an appeal for annulment, admitted on Friday by the Bucharest Court of Appeal, a court that determined that the statute of limitations has expired for some of the crimes, namely embezzlement and embezzlement, reports Agerpres.

The judges held that the statute of limitations did not apply in the case of two other crimes: forgery in documents under private signature (4 years and 6 months in prison) and fraud with particularly serious consequences (2 years in prison), as well as in the case of a 2-year sentence imposed by the Giurgiu Court.

The merger resulted in a final sentence of 5 years and 10 months, from which the time spent in prison will be deducted, namely from September 8, 2021 to the present.

He also escaped a sentence of 12 years in prison also by prescribing the facts

It should be mentioned that Nelu Iordache escaped a sentence of 12 years and 6 months in prison received at the trial court in the case of the embezzlement of the air transport company Blue Air, also by prescribing the facts, as well as another case of tax evasion, which referred to fictitious purchases of construction materials on behalf of the Romstrade company.

Nelu Iordache was sent to court by the DNA in April 2013, being accused of having changed, without complying with the legal provisions, the destination of over 31.5 million lei, representing part of the advance received from CNADNR for the design and execution of works on the first section of the Nădlac-Arad highway (22.3 km), the work being financed in proportion to 85% of the EU cohesion fund.

Romstrade SRL was the leader of the Association Romstrade SRL – Monteadriano Engenharia E Construcao SA – SC Donrep Construct SRL, which concluded the contract with CNADNR. The amount of 31,519,960 lei collected from CNADNR SA was actually used to pay outstanding debts of Romstrade SRL, to support the companies in the group of companies that Nelu Iordache controlled directly or through intermediaries, as well as for personal purposes, after withdrawing some cash amounts.

Concretely, the money was used to pay debts worth over 9.7 million lei of companies in which Iordache was directly interested, including an air transport company, payments made on the basis of contracts unrelated to the performance of the highway contract. In this sense, he led some employees of Romstrade to falsify several invoices issued by suppliers, so that it appeared that the payments were related to the works on the Nădlac-Arad highway.

Also, the cash withdrawal of almost 9.9 million lei was found with the declared purpose of land acquisition, based on fictitious pre-sale-purchase contracts in the name of Romstrade.