ISSUES CONCERNING THE NATURE OF CIVIL LIABILITY OF THE INSURER IN THE CRIMINAL TRIAL IN THE EVENT OF COMPULSORY INSURANCE AGAINST CIVIL LIABILITY AND THEIR LIABILITY FOR DAMAGES CAUSED BY VEHICLE ACCIDENTS. (English version)

In recent years, controversies have arisen in judicial practice related to the procedural position of insurance companies in criminal trials in terms of the repair of damages caused by insured defendants who have committed ofenses while driving on the public roads. Thus, initially, insurance companies had a position of civilly liable parties stipulated by art. 16 of the Code of Criminal Procedure, while later on they affirmed the position of civilly liability insurer or guarantor of payment of damage compensation (in this sense, see Decree no. 3154/2000, Supreme Court of Justice, Criminal Department, in the Bulletin of Jurisprudence 2000, p. 342). These controversies have been established by an appeal in the interest of law, by decision no. 1 / 2005, being decided that "the insurance company participates in the criminal proceedings as civilly liable insurer”. The High Court of Cassation and Justice states, in the reasoning of this decision, that "from the analysis of the legal provisions and of the principles of law, to which reference has been made, it results that in the event of a crash which caused a certain demage, for which a compulsory insurance against civil liability was contracted, the liability in tort, based on art. 998 of the Civil Code, of the person who, by his/her action has caused the damage, coexists with the contractual liability of the insurer, based on the insurance contract concluded under the conditions regulated by Law no. 136/1995." While this solution solved the issue of the insurance company position in criminal trials, it still failed to answer the issues relating to the nature and the way in which the insurer becomes liable given the latest amendments to Law 136/1995 by Government Emergency Ordinance. 61/2005, approved with amendments by Law no. 283/2005. Thus, the establishment of the nature of this liability, the possibility of co-responsibility of the insured and the insurer or of the direct liability of the insurer under the insurance contract still remain open.