At a glance
Client: a minor injured party, legally represented
Area: criminal law, family abandonment, fraudulent breach of trust against creditors
The problem: the criminal complaint dismissed as out of time, although the debtor's assets had vanished
Result: dismissal set aside by the Timisoara Court of Appeal, investigation resumed
The facts
The father was ordered by final judgment to pay maintenance and did not comply. Enforcement proceedings then showed he held no assets that could be seized.
The bailiff's checks indicated the assets had previously been transferred away, which pointed to conduct designed to defeat payment. The minor injured party filed a criminal complaint for family abandonment and fraudulent breach of trust against creditors, but the case was dismissed, on the grounds that the complaint was out of time and that there was insufficient evidence for the second offence.
What we did
We moved the argument to when time starts running
We argued that the deadline for the preliminary complaint does not run from the mere failure to pay, but from the moment the injured party became aware of the bad faith behind it. That moment was when enforcement revealed the debtor no longer held any assets, having transferred them away.
We set out what the prosecutor was required to do
Where there are indications that assets have been transferred, the prosecutor must carry out actual checks. At that stage, the assets need not be individually identified, a requirement that would make complaints of this kind practically impossible.
The outcome
The Timisoara Court of Appeal allowed the complaint and held that the prosecutor's analysis was incomplete. The court established that the deadline runs from actual knowledge of the facts, including the element of bad faith, and that there was enough material to continue the investigation.
What the file shows
A dismissal is not final. It is challenged before the senior prosecutor and then before the preliminary chamber judge, and incomplete analysis is one of the most common grounds for setting it aside.
In family abandonment files coupled with the disposal of assets, the starting point of the deadline is the real procedural battleground.
Frequently asked questions
What can I do if a parent does not pay maintenance?
Enforcement is started on the basis of the judgment and, in parallel, a criminal complaint for family abandonment can be filed where the non-payment meets the conditions in the Criminal Code.
What is the deadline for a preliminary complaint?
Three months from the day the injured party learned of the offence. In fraud against creditors, that moment can be when the transfer of assets is discovered.
What if the case has been dismissed?
A complaint is filed with the senior prosecutor and, if rejected, with the preliminary chamber judge. The deadlines are short, 20 days from service.
What is fraudulent breach of trust against creditors?
Conduct by a debtor who transfers, conceals or damages assets in order to prevent a creditor's claim from being satisfied, punishable under article 239 of the Romanian Criminal Code.
Do I have to identify the transferred assets myself?
No. Indications are enough, and the actual checks fall to the criminal investigation authorities. That was the argument the court accepted in this file.
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