JOURNAL OF CRIMINAL INVESTIGATION

Transcription

1 ALEXANDRU IOAN CUZA POLICE ACADEMY JOURNAL OF CRIMINAL INVESTIGATION Volume V Issue 2/ The Journal is indexed in the EBSCO CEOL, SSRN, Index Copernicus international database - ~ 1 ~

2 JOURNAL OF CRIMINAL INVESTIGATIONS Director Prof. COSTICĂ VOICU Ph. D Scientific Board: MAURICE PETIT Prof. LIGIA NEGIER DORMONT Ph.D "Police College Bruxeles" Université Pantéon, Paris NORBERT LEITNER PETER LAMPLOT Rector of the Academy of Security Vienna Reader of the Academy of Security Vienna Prof. ION DOGARU Ph.D Prof. LAZĂR VLĂSCEANU Ph.D Member of the Romanian Academy Bucharest University Prof. OVIDIU PREDESCU Ph.D Prof. ROMIŢĂ IUCU Ph.D Faculty of Law "Simion Bărnuţiu" Pro-rector of Bucharest University Prof. TEODOR FRUNZETI Ph.D Prof. GHEORGHE TOMA Ph.D Rector of the National Defense Deputy Rector of the National Intelligence University "Carol I" Academy "Mihai Viteazul" Prof. GHEORGHE POPA Ph.D Prof. MARIAN PREDA Ph.D Rector of the "A.I.Cuza" Police Academy Bucharest University Lecturer MIHAELA FLORENTINA PRUNĂ Ph. D Prof. NICOLETA DIACONU Ph.D Dean of the Law Faculty, Romanian-American "A.I.Cuza" Police Academy University of Bucharest Prof. FLORIN SANDU Ph.D Lawyer of the Bucharest Bar Association Prof. VLAD BARBU Ph.D Prof. ALEXANDRU BOROI Ph.D Police Quaestor PETRE TOBĂ Ph.D Chief of Romanian Police Prof. IOAN DASCĂLU Ph.D Prof. MIHAI BĂDESCU Ph.D Editorial Committee: Chief Editors: Prof. ŞTEFAN EUGEN PRUNĂ Ph.D Deputy Editor: Lecturer LAURENŢIU CONSTANTIN GIUREA Ph.D Editorial Secretary General: Assist. Lecturer MARIUS CEZAR PANTEA Ph.D Assist. Lecturer Claudiu M. ŢUPULAN Ph.D Lecturer Nicolae GHINEA Ph.D. Assist. Lecturer Nicolae GROFU Ph.D Assist. Lecturer Nelu NIŢĂ Ph.D Assist. Mihail P. MARCOCI Ph.D Assist. Ioan-Cosmin MIHAI Ph.D. Assist. Amalia NIŢU student Ph.D Editors: Assist. Lecturer Gheorghe POPESCU Ph.D Dan BUCUR Ph.D Assit. Lecturer Ionuţ Andrei BARBU Ph.D Assist. Lecturer Laura MAIEREAN Ph.D Assist. Sergiu A. VASILE Ph.D Assist. Cristian Eduard ŞTEFAN Ph.D Assist. Ligia STANCU student Ph.D The Magazine is published with the support of the Police Department from A.I.Cuza Police Academy Semestrial publication under IPA Romania Address: Bucharest, Şos. Olteniţei, , Sector 4, Tel , ISSN ~ 2 ~

3 ALEXANDRU IOAN CUZA POLICE ACADEMY CONTENTS I. ANALYSIS, STUDIES, SYNTHESIS REFLECTIONS ON SOME PROVISIONS OF THE LAW NO. 187 FROM ON THE ENFORCEMENT OF THE ROMANIAN CRIMINAL CODE (Law no. 286/2009) Part I... 7 Professor Costică VOICU Ph.D Assist. Amalia NIŢU Ph.D student FORGERY AND PIRACY WITHIN SLOT-MACHINE GAMING FIELD Associate Professor Marius PANTEA Ph.D LA MONDIALISATION DE L INFORMATION Asist. univ. drd. Ligia Cristina Maria STANCU INTEGRATING CULTURE AND MANAGEMENT Emil STANIMIR Ph.D student II. EVOLUTION AND TRENDS OF CRIME LE PROFIT DE L ENTREPRISE CRIMINELLE Dan BUCUR Ph.D Lawyer Lia Andreea DAN EUROPEAN LEGAL SYSTEM OF POLICE COOPERATION IN THE FIGHT AGAINST TERRORISM AND ORGANIZED CRIME Assistant Cristian-Eduard ŞTEFAN Ph.D ZUSAMMENARBEIT UND INFORMATIONSAUSTAUSCH BEI DER BEKÄMPFUNG VON FINANZDELIKTEN Lect. Iuliana JIDOVU Ph.D REFLECTIONS ON THE ACTIVE SUBJECT AND THE ESSENTIAL CONDITIONS FOR THE OFFENSE OF BRIBE RECEIPT Lect. Ionuţ Andrei BARBU, Ph.D III. RESEARCH AND CRIME PREVENTION ASPECTS OF CRIMINALITY: INTELLECTUAL PROPERTY, FORGERY AND COUNTERFEITING Lect. Gabriela ŞERBĂNOIU Ph.D ~ 3 ~

4 JOURNAL OF CRIMINAL INVESTIGATIONS QUELQUES ASPECTS CONCERNANT L IDENTIFICATION DES CADAVRES D ORIGINE INCONNUE SOME CONSIDERATIONS ON THE IDENTIFICATION OF BIDIES WITH UNKNOWN IDENTITY Lecteur universitaire docteur Marin-Claudiu ŢUPULAN LE RÔLE DES INFORMATIONS DANS LE PROCÈS D`ADMINISTRATION DES ESAIS THE ROLE OF INTELLIGENCE IN THE PROCESS OF ADMINISTERING THE EVIDENCE Lecteur universitaire docteur Gheorghe POPESCU EUROPEAN UNION POLICY ON COMBATING ABUSE OF DOMINANT POSITION Lect. Laura MAIEREAN Ph.D THE FIELD OF ADMINISTRATIVE CONTRACTS IN THE ROMANIAN POSITIVE LAW RELATED TO THE PROVISIONS OF ART. 2 ITEM (1) LET. C) FROM LAW NR.554/2004 REGARDING THE ADMINISTRATIVE LEGAL DISPUTE Lect. Cristian Giuseppe ZAHARIE Ph.D student Niculae GAMENŢ-ANTONIU Ph.D student BRIEF ANALYSIS ON PROBLEMS THAT NEED TO BE CLARIFIED DURING THE INVESTIGATION OF THEFTS Lect. Marin RUIU Ph.D IV. MANAGEMENT OF CRIME INVESTIGATION ANALYSIS OF RISKS AND VULNERABILITIES IN DOCUMENT MANAGEMENT SYSTEMS Costel CIUCHI Ph.D Student Prof. Angelica BACIVAROV Ph.D Laura IANCU Ph.D Student E-LEARNING SECURITY MANAGEMENT Assist. Ioan-Cosmin MIHAI Ph.D CRISIS AND RISKS MANAGEMENT WITHIN THE MINISTRY OF INTERIOR Lect. Gheorghe POPESCU Ph.D Eugen NEAŢA Ph.D V. SCHENGHEN ISSUES CONSTABULARY COOPERATION THROUGH NATIONAL INFORMATICS SYSTEM FOR ALERTS Lect. Ligia Teodora ILIESCU Ph.D VI. REVIEWS ~ 4 ~

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7 ALEXANDRU IOAN CUZA POLICE ACADEMY REFLECTIONS ON SOME PROVISIONS OF THE LAW NO. 187 FROM ON THE ENFORCEMENT OF THE ROMANIAN CRIMINAL CODE (Law no. 286/2009) Part I Professor Costică VOICU Ph.D c.voicu@iparomania.ro Law Faculty, Spiru Haret University Assist. Amalia NIŢU Ph.D student amalianitu@yahoo.com Alexandru Ioan Cuza Police Academy Social reality, more complex and dynamic than ever, requires measures to amend and supplement the legal framework in criminal matters. At the same time, the new legal framework updated as a response to the new forms of crime requires the adoption and implementation of new methods and techniques related to crime investigation. The management of public property is a primary goal of any government. Public money or property is one of the fundamental resources of the state. Given the significant size (over 50 percent) of the public domain within the national economy as well as the funds and assets administered, we believe that it is necessary to impose a new strategy to prevent and combat crimes that are committed in this vital area of the economy. Key words: new criminal code, crimes, check related crimes, economic police officer, copyright Social reality more complex and dynamic than ever, requires measures to amend and supplement the legal framework in criminal matters. In turn, the new framework - updated in response to the new forms of crime - requires the adoption and implementation of new methods and techniques in crime investigation. The most representative part of Law no. 187/2012 is the amendment of certain provisions of normative acts including criminal provisions (Title II) and provisions to the Criminal Code (Title III). In the following we present some variations concerning normative acts that include criminal provisions: 1. Law no. 59/1934 regarding checks Article 84 is amended and shall provide the following: one of the following acts constitute an offence and shall be punished with imprisonment from six months to one year or with a fine, provided the act is not a serious crime : 1. issuing a check without authorization; 2. issuing a check without having enough available liquidities; 3. issuing a check with a false date or lacking one of the following essential elements: a) the title of check; b) the amount of money that must be paid; c) the name of the issuant ; d) date of issue; e) signature stipulated in art. 11; 4. issuance of a check in non compliance with art. 6, par. 3 Art. 85 from Law no. 59/1934 shall stipulate the following: the illegal issuance of circular check is an offence punishable with fine from to lei. The punishment shall be enforced by the police. These two amendments of the Law no. 59/1934 (which is 80 years old) reflect the intention of the law maker to sanction the acts related to the social relations which are created within the dynamics of the commercial activities specific to the current period. The law maker took into consideration the new aspects related to criminality and the multitude of illegal and fraudulent techniques and schemes as well as the detection rate. During the investigation proceedings there must be serious evidence to demonstrate the clearly stipulated conditions for the objective and subjective side of the crime and the material object, namely: the physical existence of a check, evidence for illegal issuance as well as insufficient bank liquidities available before the deadline for presentation. However, the investigation should be directed towards identifying and investigating the checks with falsified issuance date or those who lack one ~ 7 ~

8 of the essential elements that the law provides in art. 84, par. 3. The investigator should be aware that many economic agents use the system of payments by checks and other instruments regulated by law, a situation which forces him to proceed, in the first stage of the investigation, to the identification and preservation of these checks, to be, then investigated in terms of their legality. 2. Law no. 22/1969 regarding the employment of administrators, the guarantees and liability when it comes to administering the patrimony of the economic agents, authorities and public institutions is amended as follows: Art.1 Administrator, according to the law is the employee of a legal body referred to in art. 176 of the Penal Code whose main tasks are the receipt, storage and issue of the assets he is administering, use or possession, even temporarily, of these. A first clarification refers to the fact that this law is applicable only in the public area, as regulated by art. 176 of the Criminal Code, respectively the term public means all public authorities, public institutions and other legal entities administering or operating with public property assets. Consequently, Law no. 22/1969 does not apply to the private sector. And still why did the law maker amend this law, and the one which is over 40 years old? The answer is found in social reality, which envisages that the public sector in our society, as in all other types of society has a representative share of the national economy. From this derives the need for the law maker to update regulations on the management of public property, according to changes in the structure of the national economy. The management of public property is a primary goal of any government. Public money or property is one of the fundamental resources of the state, called by the law to responsibly manage national assets. As a result, the law maker permanently updates the conditions that must be met by people who have the quality of managers and sanction the illegal acts committed by them. The above mentioned amendments are found in the art. 4, 35 and 37 of this Law, as follows: Art.4 shall provide the following: A person cannot have the quality of a manager if he was convicted for one of the following crimes: a) crimes against the patrimony; b) corruption and abuse while exercising his tasks; JOURNAL OF CRIMINAL INVESTIGATIONS c) forgery; d) crimes stipulated by the Law no. 31/1990 regarding companies; e) crimes stipulated by the Law no 656/2002 for the prevention and sanctioning of money laundering as well for instituting prevention measures for financing acts of terrorism; f) crimes stipulated by the Law no 241/2005 for the prevention and combating tax evasion; g) crimes stipulated by this Law. The beginning of the criminal proceedings for one of the crimes stipulated in art. 1 imposes termination of the manager position. Art. 35 shall stipulate the following: The existence of pluses in the management by fraudulent means is an offense and shall be punished with imprisonment from 6 months to 2 years or a fine. If the fraudulent means represent themselves an offense, the regulations on related crime are applicable. Art. 37 shall stipulate the following: Alienation of movable assets is a guarantee for art. 10, without the prior consent of the legal body referred to in art.176 from the Criminal Code, is a crime punishable by imprisonment from one month to a year or a fine. The amendments described above represent the materialization of the law maker will to control how public property managed by legal bodies, public institutions and authorities (ministries, agencies, companies, inspectorates, departments and divisions) is administered Within these entities there are organized and function management of: fuel, spare parts, maintenance materials, technical equipment, office equipment, machinery and installations, raw materials, finished products and so on, which have a reception, storage, usage and delivery specific to each area. Within each management there are many ways to create pluses by fraudulent means, which are taken by those concerned (pluses fuel by forging waybills or daily activity sheets for machinery, fictitious papers for the repair of equipment and vehicles, fictitious disposal of equipment and assets, overestimation of fuel consumption, lubricants, gas or energy, fictive records (documents), overvaluation of products, services or activities. Given the significant size (over 50 percent) of the public domain within the national economy as well as funds and assets administered, we believe that it is necessary to impose a new strategy to prevent and combat crimes that are committed in this vital area of the economy. One must start with ~ 8 ~

9 a very clear thing: that the public sector is monitored and controlled only by the Court of Auditors, an institution too weak to cover this area, a singularity that gives courage and peace to those who misappropriate public funds. The solution is very simple: to reintroduce the concept of economic police in all institutions, public authorities and legal bodies. The state has the right to control how the public assets are managed and administered. The economic police officers can provide the state with legality in each such public place, in which the state holds shares in whole or in part. Through an effective informative and investigative system economic police is able to provide: prevention and detection of frauds related to administration of property; the correctness of inventory regarding the goods and values administered; the legality of contracts for supplies and delivery, preventing in this way corruption; investigation of illicit property gained by administrators, heads of services, public servants or managers; the correctness of the accounting documents which demonstrate how public money has been spent (contracts of sponsorship which do not relate with the activity of the public objective, fictive legal counseling contracts, unnecessary contracts for advertising, falsified accounting documents etc.); the correctness of the public-private partnerships signed in detriment of public objectives. Data and public information on criminal actions carried out by all (without exception) authorities, institutions and public legal entities are sufficiently strong to demonstrate the plunder that is practiced. In this context we must mention the illegalities committed in the Oltchim case and the Romanian Post, ministries, national agencies, companies and public companies as well as the privatization of some important objectives in the field of metallurgy, steel, oil, banks, wood and others as important for the national economy. The proposal of deployment of economic police officers for the supervision of public assets is based on two arguments, which confirm the effectiveness of it: the prior experience of the system in the 1996s in Romania; the existence if such a system and practice in the US, Great Britain, The Netherlands and other Member Sates. What is worth to be remembered is that each state seeks to implement modern and effective ALEXANDRU IOAN CUZA POLICE ACADEMY solutions to protect public property which generates wealth, trust and stability. 3. An important field amended by the Law no. 187/2012 refers to copyright and related rights, regulated by the Law no. 8/1996. Thus, art shall stipulate: (1) the following acts are considered crimes and punished with imprisonment from 6 months to three years or fine: a) manufacturing for delivery counterfeited goods; b) placing counterfeited goods under a certain customs regime for import and export or under a customs suspensive regime or in free areas; c) any other ways to introduce counterfeited goods on the domestic market. (2) There shall be punishable, according to par. (1) any act of giving, delivering, storage or transport of counterfeited goods. (3) If the crimes stipulated in par. (1) and (2) are committed with a commercial purpose they are punishable with imprisonment from 2 to 7 years. (4) The act of renting a space for storage of counterfeited goods is punishable with a sentence stipulated in par. (3). (5) promotion of counterfeited goods by advertising them, by presenting catalogues with them to the public is a crime and shall be punished with imprisonment from 3 months to 2 years or fine. (6) according to the law under the definition of counterfeited goods fall all copies, regardless of the support, including the cover, manufactured without the consent of the owner or the legal authorized person and which are produced, directly or indirectly, totally or partially, from a product with copyright or related rights or from its package or cover. (7) According to the law, commercial purpose represents the action of obtaining a material or economic advantage. (8) the commercial purpose is assumed if the counterfeited goods are identified at the company s headquarters or at the working points, in the premises or in the means of transportation used by the traders who work in the field of reproduction, distribution, renting, storage or transportation of products with copyright or related rights. ~ 9 ~

10 Art shall be amended and shall stipulate: It is regarded as an offence and it is punishable with imprisonment from 6 months to 3 years or with fine the act of making available to the public, through Internet or other IT networks the products with copyright and related rights or sui generis rights of the manufacturers of data bases or their copies, at any time or place individually chosen. Art shall be amended as follows: It constitutes an offense punishable by imprisonment from 6 months to 3 years or a fine piracy of computer programs in any of the following cases: downloading, storage, running or performance, display or transmission of the internal network. Article 140 shall be amended as follows: It constitutes an offence and is punishable by imprisonment from 1 month to 1 year or with fine the following acts committed without the authority or consent of the holder of the rights recognized by this law: a) reproduction of works of products with copyright or connected rights; b) distribution, renting, import on the internal market of works or products with copyright or related rights, other than counterfeited goods; c) broadcasting of works or products with copyright or related rights; d) broadcasting through cable TV works or products with copyright or related rights; e) producing of derived works; f) establishing, for commercial purposes, of TV or radio programs, artistic products or performances. Also, it was amended art.141 which stipulates that any act of an individual that illegally acquires partially or totally the work of another author and presents it as his own intellectual creation is a crime and it punishable with imprisonment from 6 months to 3 years or fine. Par. (2), stipulates that reconciliation removes criminal liability. In our opinion the amendments for the Law no. 8/1996 reflect the will of the law maker to ensure a more effective protection for copyright and related rights due to the complexity and spread of the phenomenon.. It is unanimously accepted that prevention and combating of any crime is linked to four essential elements: JOURNAL OF CRIMINAL INVESTIGATIONS a clearly defined and updated legislative framework, harmonized with international and European regulations; an institutional framework tailored to the realities in the field the crimes are committed, which shall include monitoring and surveillance agencies and authorities with investigative powers; a procedural-investigative framework which has to be flexible and professionalized in order to regulate the standard modalities of intervention and investigation of the crimes committed in the competence area of legally empowered structures; a framework for institutional cooperation materialized in programmes, protocols or strategies signed by the competent authorities. Intellectual property protection and enforcement of specific legislation cannot be done effectively unless at least the following conditions are met: keeping the national legislation updated and harmonized with international and European regulations; consolidation of structures that manage intellectual property; they must promote practices and modern techniques to identify criminal modus operandi in this area; setting up an authority with investigative and criminal investigation powers made of by economic police and prosecutors; appointing specialized judges to handle cases related to crimes committed in this area. We believe that the current system of preventing and combating intellectual property crime is poor, unprofessional and clearly marked by amateurism. An integrated concept set through a coherent strategy that can enable effective interventions on groups of offenders acting in this difficult area is missing. In this criminal area specific and sophisticated crimes related to cybercrime and new technology, business related to production, transport and sale of counterfeited products are being committed. This is an area professionalized and intelligent with its own combustion, generating huge profits. Such criminal acts, most of them unknown to law enforcement structures, have characteristics of pyramid and spider criminal activities. References: 1. Law no. 187 from 24 October 2012 to enforce the Law no. 286/ Law no. 286 from 17 July 2009 on the Criminal Code ~ 10 ~

11 ALEXANDRU IOAN CUZA POLICE ACADEMY FORGERY AND PIRACY WITHIN SLOT-MACHINE GAMING FIELD Associate Professor Marius PANTEA Ph.D Police Faculty Alexandru Ioan Cuza Police Academy Within this present article we refer to the modalities by which the intellectual property rights are flagrantly violated, leading to important injuries for the beneficial owners, the State, and the consumers of these rights too. Keywords: gambling, forgery, piracy, trade mark, industrial drawing, infringement Gamblings represent, within this crisis time, a way by which most of the affected people hopes to survive, more then that, to get reach over night. Wheter we talk about loto, bettings or slotmachines which may bring earnings, on the Romanian terrotory, gamblings are present at every corner. We do not exaggerate when we make this affirmation, considering that in every center of each city, you can easily find a drog store, a bank and a gambling club, and in every village or small town you may find an inn or watering hole), where beside the traditional drinks consumed by the locals, with great pleasure, they offer, more or less legal, the possibility to earn money to pacaneleslot machines) 1. Short summary about how did Slot machines appeared These gambling machines, known as slotmachines were invented more then a century ago, by August Fey 1, a german mechanic who emigrated in San Francisco. His invention, called Liberty Bell was a metallic device with spinning reels containing symbols like horseshoes, stars and bells and the money were earned when the three bells used to appear in the window of the machine. In colloquial language, this machine was named Bell machine, a name which resisted for a long time referring to other machines too 2. In 1907, Herbert Mills 2, a manufacturer from Chicago, copied Fey s machine and started the process manufacturing 3. Mills made some changes to the machine, such the external feature, the 1 Previous name Charles Fey, pls link to org/wiki/charles_fey G. R. Williamson, Frontier Gambling: The Games, the Gamblers & the Great Gambling Halls of the Old West, G.R. Williamson, 2011, p ~ 11 ~ number of symbols on each reel dubled ( reached to 20) an enlarged the window, thus, the gambler had the possibility to also see the symbols above and below the winner symbol About forgery and piracy within the gambling field The criminality withi the intellectual property rights field has become a global problem, having a strong transfrontier character, its negative effects leading to serious infringement of human rights, financial losses and economic damages of the States, becoming very dangerous for health and life of great human beings and representing a threat to the national security of States, with an enormous devasting effect upon the society. This is an important signal that activity of criminal transfrontier groups has become a challenge for the national authorities and international community, the implication of organized crime groups and the complexity of infractional networks at the transfrontier level leading to the neccesity to give an interpretation more ample to the global criminal phenomenon. From a certain point of view, it may be noticed that the organized crime acts, generally, in the same way, to any economic agent who is services supplier or producer of material goods, leading to the increase of own earnings and with the scope of reducing the expenses from the total of gross criminal revenue. This new forgery industry which deeply involved in the gambling field, brings, by its performed activity, tremendous prejudice to the beneficial owners of rights. Within this present article, we only intend to give an warning signal, regarding the danger 4 O. Teci, Prejudecată şi slot machines, articol publicat în Revista jocurilor de noroc, , disponibil la 3-C5%9Fi-slot-machines

12 represented by this new millenium s flaggelum, within the global crisis conditions, which affect the State, nations and Continents too. Forgery and piracy of slot-machines gamblings, is often considered to be an infringement without victims and, in general, its not a priority for Police Agencies. A briefing of Administrative Authorities regarding the relevant prejudices caused by slot-machine local producers and regarding the consequences upon the national economy, is a must. More important then that, we must bring into public attention the danger brought by these products to the gambling concept, considering how is is to change the characteristics of awarded prices 5. For Romania, the reality shows that the agresivity of groups which forger and pirate slotmachines, in parallel with activities of local producers, have become very concerning, considering that first of them are looking new forms and modalities to illegally cross border with components of the gaming machines and the second cathegory (producers), offer type of good prices games, which may lead to substantial earnings for the ones and the others,by non-paying the income taxes and taxes due to the State and by cheating the gamblers. The development of specialized networks in slot-machines ilegal business was influenced by the high potential of Romanian trade market but also by the oportunities subject to the transit through the Romanian theritory. The Groups acting on the Romanian theritory have connections abroad and within these connections, they may consequently supply, with significant quantities, Romanian trade market. The networks have created the infrastructure neccesary for taking over the transportation sector, the placement of the goods in different warehouses or en-gros and distribution centers across the country. In order to diminish the risk of being discovered they resort to corruption of law enforcement agents, with competence within the field. The networks are, usually, formed by foreign cetezens and are supported by local entites willing to obtain illicit earnings. Since the begining of 2007, in Romania, have been identified industrial drawings and trade marks forged by slot-machines gambling games but also by pirate computing programs used in gambling 5 M. Pantea, Managementul activităţilor de prevenire şi combatere a ilegalităţilor în domeniul jocurilor de noroc în Uniunea Europeană, Publishing House Pro Universitaria, Bucharest, ~ 12 ~ JOURNAL OF CRIMINAL INVESTIGATIONS industry. In order to be demanding, we shall present below some of the cases instrumented by National Police. In 2011 there were information regarding aprox of forged slot-machines available on the market 6, leading to prejudices to the State, many of them oficially still not-recorded, but a prejudice among the gamblers, considering the winning coeficient is very diminished but also, a prejudice for the trademark owner whi cannot distribute his own machines. In 2011, Police Department inspected aprox gaming clubs and discovered 299 crimes within this field, and 277 persons were investigated. On national level, Police Department discovered 438 forged machines. The differences between the originals and forged machines are very difficult to find. Romanian Police requested the gaming machines producers to create a database of all legal machines available on the market, permitting nonstop full access for National Authorities with competence within this field. More then that, Romanian Police requested that every machine legally imported to be accompanied by a technical passport of conformity in which to be presented characteristics and safety elements. Following a financial-economic inspection, the specialized policemen identified more forged slotmachines. Fraud Investigation Service s agents carried on an investigation together with the representatives of D.G.F.P. Prahova, A.I.F. and C.J.P.C. Prahova in order to inspect the compliance of legal standards in the organisation and operation of gamings machines, in more places situated in Prahova. With this occasion, 9 forged slot-machines were discovered. On this basis, the forged machines were confiscated in order to continue the investigation, under the commitment of a crime provided by the legislation in force 7. Other issues were also discovered in the places subject to the investigation mentioned above, leading to fines in the amount of lei. On , the polimen and inspectors from the Fraud Squad discovered, in a gaming club located in district 2 of Bucharest, 4 slot-machines having installed forged programs. The investigators were informed for some time about some companies that use forged programs for slot-machines. Three of these companies were discovered in Fundeni neighburhood. The administrators of thes 6

13 companies were subject to criminal investigations. A gaming club located behind Fundeni Hospital was the most affected. 4 from 5 slot machines were having forged programs and they were confiscated. The total value of goods being estimated to lei. Police gave a fine in the amount of lei and confiscated also the amount of lei. The owner is under penal investigation 7. In January, 2012, 4 criminal files were registered In Iasi following to which the authorities were notified ex officio. These companies had as business activity operation of gambling games and they were subject to an investigation of pirate goods promovation, unauthorized duplication of computing programs, in any of the followings methods: installation, DOS, running or execution, dispay or internal network operation and introducing on the market of products with similar or identical trade mark with a trademark. Police concluded that the representatives of these companies ilegally reproduced a program belonging to an international group operating within this field using a similar trade mark of this group without having any legal right. The soft of the machines was very similar or even identical from some points of view, with the program produced by the prejudiced company. Under search warrants issued by Law Court of Iasi, the officers within S.I.F., together with Police Department of Iasi and Criminal Service carried on 19 searches to the working points of 4 companies, located in Iasi city. 34 slot-machines were picked up in order to continue investigation, together with all the daily records of incomes and video recordings of the surveillance cameras from all 19 gaming clubs subject to search investigation 8. Another police investigation took place in Suceava were the specialized policemen searched, on March 15th, 2012, 5 locations, 24 slot-machines being sealed and confiscated. Under the search investigation, the officers descovered that the companies did not have license for the soft of the machines. In this regard, 16 motherboards with running programs were confiscated, within the value of Euros 9. 7 V. Cupă Păcănele cu programe contrafăcute, confiscate dintr-o sală de jocuri din Bucureşti, disponibil la e-cu-programe-contrafacute-confiscate-dintr-o-sala-dejocuri-din-bucuresti html 8 A. Hurbea, articol Poliţiştii bat la păcănele, 9 Nereguli grave înregistrate la sălile de jocuri de noroc din municipiul Suceava, disponibil la /v2/local/nereguli-grave- ~ 13 ~ ALEXANDRU IOAN CUZA POLICE ACADEMY Other illegal activities were discovered at S.C. P.W. S.R.L., trade company functioning in Botosani County, having more working points in Suceava county. Under the investigations carried on by the Police Department, it was proven that the slot-machines were having installed unauthorized programs, violating the legal provision in force, within the intellectual property rights. As a result of these investigations, 9 slot-machines and 9 motherboards with running programs were confiscated, in the value of Euros. The objects were subject to expertize and search proceed.the administators of the companies were criminally investigated for commiting the promotion of pirated goods crime and unauthorized duplication of computing programs by way of: installation, DOS, running or execution, dispay or internal network operation and introducing on the market of products with similar or identical trade mark with a trademark crime. In June 2012, in Sibiu county, 60 forged slotmachine were discovered, in 10 localities within the county. The prejudice of using illegal softs was of Euros. With this occasion, more locations within Sibiu, Medias and other localities were inspected 10. Starting with November 2012, The Fraud Investigation Department from IGPR carried on an investigation in order to prevent and fight against the illegalities within this field, such as illegal programs, forged slot-machines and gaming equipment and the operation of these machines. Following this investigation, 40 criminal files were registered under commiting of fiscal evasion, violation of intellectual property rights and the violation of operation of slot-machines. 147 slotmachines or equipment were confiscated and police department gave fines in the amount of lei 10. With this occasion, the Fraud Investigation Department within IPJ Constanta, together with Information and Internal Protection General Directorate, confiscated 156 video-electronic machines, which were having installed gaming programs likely to be forged. Within Intellectual property rights protection, police investigated the criminal activity of B.D. and C.I, bothe persons with domicile in Hârşova. These two, as representatives of some companies from Harsova, installed and traded,in the period within January 2007 and until the present, gaming nregistrate-la-salile-de-jocuri-de-noroc-din-municipiulsuceava/ 10

14 programs for the video-electronic machines, likely to be forged. Thus, following 18 financial-economic investigations and domicile searches at the headquarters of these companies and to their working points, policemen identified and picked up, subject to confiscation, 156 video-electronic machines, which were having installed gaming programes likely to be forged, the trademark owner being a company from Austria. Following the investigations, police concluded that the forged gaming programs were traded to some beneficiaries from the country, at the aprox. Price of 2500 Euro for device, resulting a value difference of 6500 Euros for each device The gaming machines were manufactured in a location situated in Hârşova, belonging to the above-mentioned company, the forged softs being implemented in these machines. The prejudice was estimated to Euros. The two persons mentioned above were criminally investigated under commitment of the crimes liable to punishment stupulated at paragraph 83, letter a and b from the Law no. 84/1998 regarding the trade marks and geographical indications, art 5, paragraph 1, letter a, b and g from the Law no. 11/1991 regarding the preventing of unloyal concurrence, art 139, ind 6, paragraph 2,5 and 6, art. 139, ind 9, both from the Law no. 8/1996 regarding the copyright and related rights and fiscal evasion provided by law 241/ The DIICOT Dolj District Attorney caused the investigation of 4 police officers from Slatina, under the commitment of organizing a criminal group of 24 accused people, a group specialized in commitment of the following crimes: blackmail, fiscal evasion, abuse while on duty, fraud and money laundering. Under supervision of police officers, the members of the criminal group obtaine finacial beneficies by ilegally introducing on the Romanian territory of slot-machines and by replacing the original motherboard with a forged one. The slot-machines were placed in bars or disco-clubs in Olt, Dolj, teleorman and Mehedinti 12 The Fraud Squad s inspectors carried on an inspection in Arges county. Subhect to this inspection was a gaming machines s transportation. The driver presented an international transportation letter from which resulted that the goods had as destination Mioveni, county Arges, being delivered JOURNAL OF CRIMINAL INVESTIGATIONS by a company from Milan, Italy. Attached to this letter was the invoice no. 1/ having as buyer of the 80 slot-machines a natural person from Mioveni and the supplier was the same written on the CMR. For the other machines, the driver presented invoice no. 2/ , having another supplier from Milan, Italy, but the same buyer from Mioveni. In accordance with the legislation in force, a gamblig games organizer must be a legal person authorized to organize and operate gambling games. 12. Considering that the Fraud Squad s imspectors did not find any authorization on the name of the buyer, they confiscated the 120 slot-machines and also gave an warning to this one. The above-mentioned aspects are not singular, the intellectual property right being very often violated, and the prejudices brought are very importnant and affect the interests of the beneficial owners, of the consumers and of the State. In Romania, there were discovered forged slot machines trade marks and industrial drawings but also pirated computing programs used in gaming industry. In order to be demanding, we shall present below, the legal regulations regarding the three crimes mentioned above. 3. Forged Trade mark As for legal industrial rights violation, respectively the trade mark and the industrial drawing, we hereby specify that they are protected within our country under provisions of Law 84/1998 regarding the geographical indications and trade marks and, respectively, the law no. 129/1992 regarding protection of models and drawings. In accordance with art 15 TRIPs, the trade mark is any sign or combination of signs capable to make distinction between the goods or services of one company from the ones of other company. In accordance with art 2 from the Law 84/ , a trade mark may be any sign likely to be a geographical representation, such as: words, including names of people, drawings, letters, numbers, figurative elements, tridimensional forms and, especially, the form of the products or of its package, colours, combination of colours, hologram, sound signals, or combination of all these, under condition to allow the recognition and distinction of products or services of an enterprice from those of other enterprises ~ 14 ~ 12

15 The registration and protection of trade marks system helps the consumers to choose and buy a product or service due to the fact that the nature and quality of it, indicated by its unique trade mark, correspond to their needs 13. Theoretically, most of the trade marks may be registered 14. Trade marks are distinctive signs, such as: words, including names of people, drawings, letters, numbers, figurative elements, tridimensional forms and, especially, the form of the products or of its package, colours, combination of colours, hologram, sound signals, or combination of all these. The registration of a trade mark gives the owner an exclusive right upon it, for a period of 10 years but, by repeated re-registrations, they may obtain an unlimited protection. Within the trademark forgery field, the commited crime is provided by art 90 parag. (1) from the Law no. 84/1998. Thus, a crime is defined as follows: a) forgery of a trade mark ; b) placing in the public circuit of a product bearing an identical or similar mark with the original products and which brings a prejudice of the beneficial owner of the trade mark; herein below we present a few community marks registered within the gaming industry. ALEXANDRU IOAN CUZA POLICE ACADEMY 4. Forgery of industrial drawing. On the Romanian territory, the industrial drawings rights are recognized and protected under OSIM registration following to which is issued a registration certificate. This certificate represents the industrial drawing protection title. In order to beneficiate of protection, the industrial drawings must fulfill more conditions, namely: to represent an industrial drawing, to be new and to have individual character. The industrial drawing represents the aspect of a product taken as a total or just a part from the total, framed in two dimensions, resulted from the specific characteristics as: lines, shapes, colours, forms, textures or the material of the product or even its decorative surface. An industrial drawing has, primarly, an esthetic part, and protection does not apply to any of its technical characteristics. As examples of industrial drawings, we present: floral setting or other type of setting, graphical symbols, draw of a cloth, an assembley of new dots for lace, motif setting a painted paper and computer icons or sculptures. Graphical representations and motifs created on paper, plastic products, fabrics, porcelain, ceramic or wood. Within the gaming industry, by drawing industry are protected the stylized playing cards used for the gaming machines which can bring earnings. 15 The forgery crime is provided under art. 52 from the Law no. 129/1992 regarding the protection of drawings and industrial models and has the following content:,,(1) Represents a forgery crime and is punished with prison from 6 months to 5 years, the commitment without right of any action provided under art.30, after the registration date of the drawing or model. (2) In case the facts stipulated at parag. (1) represent a social dangerfor the safety or health of the consumers, the punishment consists of 2 to 10 years prison and forbidden of any rights. (3) The penal investigation organs may cause, by default, within the precedent steps, the necessary measures in order to sequester the products bearing forged drawings of models and to preserve the evidences in accordance with the common law and the provisions in force M. Pantea, op.cit., p M. Pantea, op.cit., p ~ 15 ~

16 (4) For the caused prejudices, the owner is entitled to indemnity, in accordance with common law, and may request to the Court, to cause to confiscation, or, depending on the case, to destroy the forged products; these dispositions are applied also for materials and equipment which served to the commitment of forgery crimes. Article 30 has the following content: during the validity of the registration of drawings or JOURNAL OF CRIMINAL INVESTIGATIONS models, the owner has the exclusive right to use it and to prevent their use by third parties without his consent. The owner has the right to forbid the thirds parties to perform, without his consent, the following measures: duplication, manufacter, trade or sale, import, export or use of any product in which the drawing or the model are incorporated or attached to ti or the store of such a product within this scopes. The pictures below, we present a few of the OHIM certificates issued within this industry. ~ 16 ~

17 ALEXANDRU IOAN CUZA POLICE ACADEMY ~ 17 ~

18 JOURNAL OF CRIMINAL INVESTIGATIONS 5. Pirated computing programs. In accordance with the provision of art from the Law no. 8/1996 regarding the copyright and related rights, represent a crime and is punished with prison from 1 to 4 years or with a fine, the unauthorized duplication of computing programs in any of the following modalities: installation, DOS, running or execution, dispay or internal network operation and introducing on the market of products with similar or identical trade mark with a trademark. The legl statute of protection of products within different fields, including the computing programs, considered to be an intellectual creation, has significant differences in European States, previous to 90 s, of nature to affect and perturbate unique market, to which shall be added the massive utilisation of some artwork, such as computing programs 16. In accordance with Intellectual Property World organisation, computing program is an aggregate of instructions which may lead to the fulfillment of a function, a task or a special result by a machine capable of processing the information. Chaptor IX from the law. No. 8/1996, amended and supplemented 17, is dedicated to the computing programs and represents a transposition of protection rules formulated by The Committe s Directive no. 91/250.CEE dated on May 14, 1991 regarding the legal protection of computing programs. The patrimonial rights upon computing programs have unditermined validity, and after the death of the owner, the pass into property of their inheritors, in accordance with the civile legislation, within a period of 70 years. The beneficiars of violated Copyrights may request to the competent courts or other competent bodies the recognition of their rights, to ascertain their violation and to claim the remedies, in accordance with the law 18. As well known, the software piracy 19 means the unauthorized and without copyright utilisation of computing programs. Software piracy, along with forgery, represent a commercial flagellum turned into an universal social phenomenon and represent one of the most increasing forms of economic crime, in Romania but also in the other states, representing a threat for economy of all countries. The software piracy phenomenon is one of the most common, reaching concerning rates within our country. In legal literature, software piracy is defined as follows: including any activities related to computing programs protected by copyright (as such: the copying, loan, import or making it available to the public through the internet or other means performed without the owner s rights consent 20. The surveys are shown that the soft piracy rate in Romania is one of the most highest from the entire world. Gunter von Gravenreuth, as engineer, but also attorney at law and a very qualified specialist within soft piracy lawsuits, afirmed that: even police has started to get trained and to get used to these kind of crimes, still there are big differences, especially, of regional nature, regarding the training of search bodies 21 within computing field, referring to the different ways is seen the phenomenon in important states and localities. As for the software piracy, there is a dissenting opinion on this matter. Some still consider that any computing program should be a public good, because only a general tax should be paid, as it is practiced for the tax related to the use of highways or a bridge. Others, contrary. Consider that a computing program is an act of creation, which implies some production costs and it should be sold as any manufactured product. 22 Within the slot-machine gaming industry, there were identified computing programs having menus identical with originals, as you can see below: 16 M. Pantea, op.cit., p Cele mai recente modificări şi completări au fost cuprinse în cadrul Deciziei nr. 571 din 29 aprilie 2010 şi în cadrul Legii nr. 202 din 25 octombrie C. Moisescu, Protecţia legală a programelor pentru calculator în România, Dreptul, nr. 8/2003, p Prin aceasta înţelegem multiplicarea şi distribuirea ilegală de programe pentru calculator pirat (după ce acestora le au fost înlăturate în prealabil dispozitivele de protecţie), precum şi reproducerea pe suporturile de stocare a informaţiei şi utilizarea unor programe pentru calculator, fără a avea consimţământul titularului drepturilor recunoscute de lege sub forma licenţei de utilizare. 20 C.R. Romiţan, Reproducerea neautorizată a programelor informatice protejate, Dreptul nr. 6/2007, p. 204 şi urm. 21 M. Pantea, Managementul activităţilor de prevenire şi combatere a ilegalităţilor în domeniul jocurilor de noroc în Uniunea Europeană, Publishing House Pro Universitaria, Bucharest, 2011, p zone.ro/despre%20hacking.htm. ~ 18 ~

19 ISSUE 2/2012 ALEXANDRU IOAN CUZA POLICE ACADEMY ~ 19 ~

20 6. Practical aspects related to the identification of pirated and forged programs within slotmachine field Below we present some results of the expertise reports by which are revealed the violations of JOURNAL OF CRIMINAL INVESTIGATIONS intellectual property rights within the slotmachines gaming field. The documents presented are taken from Novomatic Group, and made public under the Forgery Prevention Seminar in Comparison Hot Spot Admiral vs. Hot Spot Admiral BELATRIX Mainboard HOT SPOT ORIGINAL PIRATED VERSION 6.1. Form of presenation ORIGINAL PIRATED VERSION The protection encasement, which might be seen This pirated version does not have a in the picture above, is manufactured from antistatic material, in which the producer delivers the game plate, protecting against the electrostatic discharge through the electronic components placed inside. The electrostatic discharge, may produce in the middle of a running game, and the plate may require a technical intervention These discahrges may affect some electronic protection encasement, as it can be seen from the picture above. The lake of it may lead to deteriorationof the plate due to the shortciurcuit which may appear durin a technical intervention or due to the use of the gaming devices by the players. In the absence of the encasement, the plate is subject to the electrostatic discharges, which components such as RAM memory (random access lead to alteration of the memory areas memory) of the plate, where are stored information related to the credits of the player ( which allow to this to play the game), the awards paid to the player, earned by this one from using the slot-machine. These information are necessary to the organizer in order to calculate the daily incomes, compared to the index of electromechanical counter. responsible for the store of the gaming program and information related to the input and out impulse. Without these there is a risk that the gaming organizer to erroneous calculate the daily earnings, because does not have the possibility to check the calculated sold with the help of the index of electromechanical counter. ~ 20 ~