Article 228 of the Penal Code establishes as a condition for the prosecution of the crime of abandonment of family, minors or persons with disabilities in need of special protection provided in articles 226 and 227 of the same legal text, the prior criminal legal complaint by the injured party or his representative.
The recent Judgment No. 557/2020, handed down by the Plenary Session of the Second Chamber of the Supreme Court, dated October 29, 2020, has resolved favourably in some cases the question of whether, despite the literal wording of the article we have just cited, a parent can sue the other parent for non-payment of maintenance when the beneficiary of maintenance is a child of legal age.
The crux of the matter is in the interpretation given to the term "injured party". The Court's understanding is that "a teleological and broad interpretation of this term includes both the holders or beneficiaries of the financial payment which is due, and the parent who lives with the son or daughter of legal age and bears expenses not covered by the unpaid child maintenance. This is because they, as the Civil Chamber of the Supreme Court has repeatedly acknowledged, have a legitimate interest, legally worthy of protection. In addition, there is no doubt that the parent living with the obligee is one of the people who bears the immediate consequences of criminal activity carried out by the other parent who does not pay child maintenance, so should be considered injured for the purposes of having legitimacy to file the appropriate criminal legal complaint and require payment through criminal proceedings."
This interpretation leads the Chamber to conclude that the criminal legal complaint made by the parent who lives with the child of legal age and bears the expenses not covered by unpaid child maintenance is a valid one, which means a shared legitimacy between the children of legal age receiving child maintenance and parents with whom they live.
Therefore, the criminal legal complaint made by the mother or father who receives the maintenance is valid when it refers to amounts not paid when the child is a minor or when he has a disability that merits special protection, even if the children have reached legal age at the time of filing the criminal legal complaint.
Or that the lack of a criminal legal complaint is remedied when the injured party expresses his willingness to report it to the competent authority, even once the procedure has been initiated.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.