CRIMINAL PROCEDURE
CODE
THE GENERAL PART
TITLE I
BASIC RULES AND
ACTIONS IN THE CRIMINAL TRIAL
Chapter l
AIM AND BASIC RULES OF
THE CRIMINAL TRIAL
|
The aim of the criminal trial
|
[i]Art. 1 - The
aim of the criminal trial is to acknowledge in due time and completely the
deeds that represent offences, so that any person who has perpetrated an
offence is punished according to his/her guilt, and no innocent person is
held criminally responsible.
The criminal trial must contribute to the
defence of the rule of law, to the defence of the person's rights and
liberties, to the prevention of offences as well as to the citizens’
education in the spirit of law.
|
|
The
legal and official character of the criminal trial
|
Art.2 - The criminal trial takes place both during
the criminal investigation and the trial itself, according to the provisions
of the law.
The papers necessary for the criminal trial
are drawn up ex officio, if the law does not stipulate otherwise.
|
|
The
disclosure of truth
|
Art. 3 - The criminal trial must lead to
the disclosure of the truth regarding the deeds and circumstances of the
case, as well as those regarding the perpetrator.
|
|
The active role
|
Art.4 - Criminal investigation bodies and
courts must take active part in the criminal trial.
|
|
The
guarantee of the person’s liberty
|
No
person may be retained, arrested or deprived of liberty in any way or
subjected to any form of liberty restraint, except for the cases and circumstances
stipulated by the law.
If the
person subjected to preventive arrest or hospitalization or any measure of
liberty restraint considers such measures illegal, he/she has the right,
during the trial, to bring the matter to the attention of the competent court,
under the law.
Any
person who was, during the criminal trial, deprived of liberty, or whose
liberty was restrained, illegally or unjustly, is entitled to reparation of
the damages, in the conditions stipulated by the law.
During the criminal trial, the accused person
or the defendant who is preventively arrested may require temporary release,
under judicial supervision or on bail.
|
|
The
respect of human dignity
|
[iii]Art. 51 - Any person subjected to criminal
investigation or to criminal trail must be treated with respect for human
dignity. Torture and cruel, inhuman or degrading treatment are punished under
the law.
|
|
Presumption
of innocence
|
[iv]Art. 52 - Any person shall be presumed innocent till found guilty by a
final decision of the court.
|
|
The
guarantee of the right to defence
|
[v]Art.6 - The
right to defence is guaranteed to the accused person, to the defendant and to
the other parties all throughout the criminal trial.
During
the criminal trial, the judicial bodies must ensure the parties' full
exertion of their procedural rights, under the circumstances stipulated by
the law and must administrate the evidence necessary for defence.
The
judicial bodies must inform the accused person or the defendant, immediately
and before hearing, of the deed of which he is held responsible and of its
judicial status, and must ensure the preparation and exertion of his/ her
defence.
Any
party is entitled to assistance by defender during the criminal trial.
The
judicial bodies must inform the accused person or the defendant, before his/
her first statement, on his/ her right to be assisted by a defender; this
will be recorded in the official report of the hearing. Under the
circumstances and in the cases stipulated by the law, the judicial bodies
must provide judicial assistance for the defendant, if the latter has not
chosen a defender.
|
|
The language in which the criminal trial is
conducted
|
In
front of the judicial bodies, the parties and other persons summoned to trial
are ensured the use of their native tongue, the procedure documents being
drawn in Romanian.
|
|
The
use of the official language through an interpreter
|
[vii]Art.8 - The
parties who do not speak or do not understand the Romanian language, or who
cannot express themselves, are given the possibility, free of charge, to get
acquainted with the record, to speak in court and pass conclusions, through
an interpreter.
|
CHAPTER II
CRIMINAL ACTION AND CIVIL ACTION AS
PART OF THE CRIMINAL TRIAL
Section I
Criminal Action
|
The
object and
exertion
of
criminal
action
|
Art. 9 - The object of criminal action is to impose
criminal responsibility on the persons who have perpetrated offences.
Criminal
action is initiated by the accusation act stipulated by the law.
Criminal action can be exerted all throughout
the criminal trial.
|
|
|
[viii]Art. 10 - Criminal
action cannot be initiated, or carried out in case it has already been
initiated, in the following cases:
a) the
deed does not exist;
b) the
deed is not stipulated by the criminal law;
b1)
the deed does not present the degree of social danger of an offence;
c) the
deed was not been committed by the accused person or defendant;
d) the
deed lacks one of the constitutive elements of an offence;
e) one
of the cases that annul the criminal nature of the deed is present;
f) the
preliminary complaint of the injured person, the authorization or
notification of the competent body, or any other condition stipulated by the
law, necessary for the initiation of the criminal action, is missing;
g)
amnesty, prescription or death of the perpetrator have occurred;
h) the
preliminary complaint has been withdrawn or the parties have reconciled, in
the case of offences where criminal responsibility is annulled by the
withdrawal of the complaint or the reconciliation of the parties;
i)
replacement of criminal responsibility has been ordered;
i1)
there is motivation for non-punishment, provided by the law.
j)
there is authority of tried matter. The prevention has consequences even if
the finally tried deed were assigned to another judicial category.
In the situation stipulated at letter f),
ulterior criminal action may be initiated under the law.
|
|
Closing,
exemption
from
criminal investigation, cessation of criminal
investigation,
acquittal
and cessation of the criminal trial
|
1.
During the criminal investigation, at the proposal of the criminal
investigation body or ex officio, the prosecutor orders:
a)
closing, when there is no accused person;
b)
exemption from criminal investigation, in the cases stipulated under art. 10
letters a) - e), when the accused person or defendant exist;
c)
cessation of criminal investigation, in the cases stipulated in art. 10
letters f) - j), when the accused person or defendant exist;
2.
During the trial, the court decides:
a)
acquittal, in the cases stipulated in art. 10, letters a) - e);
b) cessation of the criminal trial, in the
cases stipulated in art. 10 letters f) - j).
|
|
Notification of other bodies than the judicial ones
|
Art.12 - In the cases mentioned under art.
10 letters b), d) or e), the prosecutor who orders closing or exemption from
criminal investigation, or the court that decides the acquittal, inform the
competent body if they consider that the deed in question may entail measures
or sanctions other than those stipulated by criminal law, notify the
competent body.
|
|
Resumption
of
criminal
trial in case of amnesty, prescription or withdrawal of preliminary complaint
or existence of motivation for
non-punishment
|
[x]Art. 13 - In
case of amnesty, prescription or withdrawal of the preliminary complaint, as
well as in the case of existence of motivation for non-punishment, the
accused person or the defendant may require the resumption of the criminal
trial.
If one
of the cases stipulated in art. 10 letters a) - e) is acknowledged, the
prosecutor orders exemption from criminal investigation, and the court
decides the acquittal.
If none of the cases stipulated in art. 10
letters a) - e) is acknowledged, the prosecutor orders the cessation of the
criminal investigation, with the exception of cases provided under art. 10
let. i) and i1), and the court orders the cessation of the
criminal trial.
|
Section II
Civil Action
|
The object and exertion of the
civil action
|
[xi]Art. 14 - The
object of the civil action is to impose civil responsibility on the defendant
and on the party that bears the civil responsibility.
Civil
action may be joined with criminal action within the criminal trial, if the
injured person claims for damages as a civil party.
The
damages will be paid for according to the provisions of the civil law:
a) in
kind, by returning the good(s), by re-establishing the situation anterior to
the perpetration of the offence, by partial or total annulment of a document
and by any other means of repair;
b) by
paying a pecuniary compensation, in case restitution in kind is not possible.
Financial
compensations are also granted for the use of which the civil party has been
deprived.
The
civil action may have as its object to impose civil responsibility for
reparation of moral prejudice, according to the civil law.
|
|
Constitution as
civil party
|
Art.15 - The injured person may constitute civil party
against the accused person or the defendant and against the party that bears
civil responsibility.
The
constitution as civil party may be done during criminal investigation, as
well as in court, before the summons act is read out.
The
quality of civil party does not impede the person who has suffered harm by
offence to participate as harmed party in the same case.
Civil
action is exempted from stamp tax.
|
|
The party
who bears civil
responsibility
|
Art. 16 - The introduction in the criminal trial of
the person who bears the civil responsibility may be done upon request or ex
officio, either during the criminal investigation or in court, before the
summons act is read out.
The
person who bears the civil responsibility may intervene in the criminal trial
only until the judicial investigation ends in the first court, the procedure
being assumed in the state in which it is at the moment of intervention.
The
party who bears the civil responsibility has, as far as the civil action is
concerned, all the rights stipulated by the law for the accused person or the
defendant.
|
|
The exertion
ex officio of the
civil action
|
[xii]Art. 17 - Civil
action is also initiated and carried on ex officio, when the injured person
lacks or has limited exertion ability.
For
this purpose, the criminal investigation body or the court will ask the
injured person that, through his/ her legal representative, or, according to
the case, through the person who agrees upon his/ her acts, to present a
report on the size of the damage and of the moral prejudice, as well as data
regarding the acts by which the damage was done.
The
court must decide ex officio on the reparation of damages and of moral
prejudice, even if the injured person does not constitute civil party.
|
|
The support of the civil action by the
prosecutor
|
[xiii]Art. 18 - The
prosecutor may support in court the civil action initiated by the injured
person.
When
the injured person is a person lacking or having limited exertion ability,
the prosecutor, when taking part in the trial, is obliged to defend the
person’s civil interests, even if he/she does not constitute civil party.
|
|
The action addressed
to civil court
|
[xiv]Art. 19 - The
injured person who did not sue for civil injury in the criminal trial may
initiate in the civil court action for repairing the damages and the moral
prejudice caused by the offence.
The
civil trial is postponed until a final decision is passed in the criminal
case.
Civil
action may also be initiated in civil court by the injured person who can sue
for civil injury or for whom civil action has been initiated ex officio
within the criminal trial, but the criminal trial was suspended. In case the
criminal trial is resumed, the action initiated in the civil court is
suspended.
The
injured person who initiated action in the civil court may leave this court
and address the criminal investigation body or the court, if the criminal
action was initiated afterwards or the criminal trial was resumed after
suspension. The person may not leave the civil court if the latter has passed
a decision, even if not final.
|
|
Special cases of solving the civil action
|
[xv]Art. 20 - The
injured person who can sue for civil injury in the criminal trial may
initiate action in the civil court if the criminal court, by its final
decision, has not solved the civil action.
In case
the civil action was carried on ex officio, if new evidence shows that the
damage and moral prejudice have not been entirely repaired, the difference
may be claimed by way of an action in the civil court.
Also,
the injured person may initiate action in the civil court for repairing the
damages and moral prejudice appeared or discovered after the first court has
passed the criminal decision.
|
|
The exertion of civil action to or toward
successors
|
[xvi]Art. 21 - Civil
action remains part of the criminal court competence in case the death of one
party occurs, his/her successors being brought to the case.
If one
of the parties is a legal person, in case it is reorganized, the successor
institution as far as the rights are concerned is brought to the case, and in
case it is abolished or dissolved, the liquidators are brought to the case.
|
|
The authority
of the criminal decision
in the civil matter and the effects
of the civil decision in the criminal matter
|
Art. 22 - The final decision of the criminal court has
authority of tried matter in the civil court that tries the civil action, as
far as the existence of the deed, of the person who committed it and of
his/her guilt are concerned.
The
final decision of the civil court that resolved the civil action does not have
authority of tried matter in front of the criminal investigation body and of
the criminal court, as far as the existence of the criminal deed, of the
person who committed it and of his/her guilt are concerned.
|
Section III
The parties in the criminal trial
|
The defendant
|
Art. 23 - The person against whom criminal
action has been initiated is part of the criminal trial and is called
defendant.
|
|
Other parties in the criminal trial
|
Art. 24
- The person who, as a result of the criminal deed, has suffered a physical,
moral or material harm, if he/she takes part in the criminal trial, is called
victim.
The
injured person that carries out the civil action within the criminal trial is
called plaintiff.
The person called in the criminal trial to
answer, according to the civil law, for the damage done as a result of the
deed committed by the defendant is called the party who bears the civil
responsibility.
|
TITLE II
COMPETENCE
CHAPTER I
TYPES OF COMPETENCE
Section I
Competence according to matter and the quality of the person
|
Competence
of the first instance court
|
[xvii]Art. 25 - The
first instance court tries as first instance all offences, except those
attributed by law to the competence of other courts.
The court of first instance also solves other
cases especially provided by the law.
|
|
Competence
of
the military tribunal
|
1.
tries as first instance:
a) the
offences provided under art. 174-177 of the Penal code, as well as other
offences perpetrated in relation to office duties, committed by officers up
to and including the rank of colonel, except for those falling under the
competence of other courts;
b) the
offences provided by the Penal code under art. 348-354, perpetrated by
civilians;
2. judges and solves also other cases especially
provided by the law.
|
|
Competence
of
the tribunal
|
1.
tries as first instance:
a) the
offences provided by the Penal code at art. 174-177, 179, art. 189 par. 3,
art. 190, art. 197 par. 3, art. 209 par. 3 and 4, art. 211 par. 2, 2 1
and 3, art. 212, art. 215 par. 5, art. 2151 par. 2, art. 252, 254,
255, 257, 266 – 270, 273 – 276 if the deed resulted in a railway catastrophe,
art. 2791, 298, 312 and 317, as well as the offence of contraband,
if its object were weapons, ammunition or explosive or radioactive
materials;
b)
offences committed on purpose, which resulted in death of a person;
c)
offences regarding the national security of
d) the
offence of money laundering, as well as offences regarding trafficking and
illicit consumption of drugs;
e) the
offence of fraudulent bankruptcy, if the offence regards the banking system;
f)
other infractions falling under its competence, under the law:
2. as
appeal court, tries the appeals against the criminal decisions passed by
judges at first instance, except for those regarding the offences mentioned
in art. 279 paragraph 2 letter a);
3. as
recourse court, tries the recourses against criminal decisions passed by
first instance courts for the offences mentioned in art. 279 paragraph 2
letter a), as well as for other cases stipulated by the law;
4. resolves the competence conflicts that
appear between the first instance courts within its territorial area, as well
other cases stipulated by the law.
|
|
Competence
of the territorial military court
|
1.
tries as first instance:
a) the
offences mentioned in art 27 par. 1 letters a) - e), committed in relation to
office duties, by officers up to and including the rank of colonel;
b)
other offences falling under its competence, under the law:
2. as
appeal court, tries the appeals against the decisions passed at first
instance by the military tribunals, except for the offences mentioned in art.
279 paragraph 2 letter a) and for the offences against the military order and
discipline, sanctioned with maximum 2 years imprisonment, under the law;
3. as
recourse court, tries the recourses against the military tribunals for the
offences mentioned in art. 279 paragraph 2 letter a) and the offences against
the military order and discipline, sanctioned with maximum 2 years
imprisonment, under the law, as well as for other cases stipulated by the
law;
4. resolves the competence conflicts that
appear between the military tribunals in its territorial area, as well as
other cases stipulated by the law.
|
|
Competence
of
the Court
of
Appeal
|
1.
tries at first instance:
a) the
offences stipulated in the Penal code at art. 155-173 and 356-361;
b) the
offences committed by judges of first instance courts and tribunals, by
prosecutors of the prosecutor’s offices attached to these courts, as well as
by public notaries;
c) the
offences committed by judges, prosecutors and financial controllers in the
regional chambers of accounts, as well as by financial controllers of the
Court of Accounts;
d)
other offences falling under its competence under the law;
2. as
appeal court, tries the appeals against the criminal decisions passed at
first instance by the tribunals;
3. as
recourse court, tries the recourses against the criminal decisions passed by
the tribunals in appeal, as well as in other cases stipulated by the law;
4.
resolves the competence conflicts that appear between tribunals or between
judges and tribunals in its territorial area, or between judges from the
circumscription of different tribunals in the territorial area of the Court,
as well as in other cases stipulated by the law;
5. solves the requests by which the
extradition or transfer abroad of convicted persons were solicited.
|
|
Competence
of
the Military Court of Appeal
|
1.
judges at first instance:
a) the
offences stipulated by the Penal code at art. 155-173 and art. 356-361,
committed by soldiers;
b)
offences committed by the judges of military tribunals and of territorial
military courts, as well as by the military prosecutors in the military
prosecutor’s offices attached to these courts;
c)
other offences falling under its competence, under the law;
2. as
appeal court, tries the appeals against the decisions passed at first
instance by the territorial military courts;
3. as
recourse court, tries the recourses against the decisions passed by the
territorial military courts in appeal, as well as in other cases stipulated
by the law;
4.
resolves the competence conflicts that appear between the territorial
military courts, or between the military tribunals and the territorial
military courts, or between the military tribunals in the competence area of
different territorial military courts, as well as other cases specially
stipulated by the law.
|
|
Competence
of
the Supreme Court of Justice
|
1.
tries at first instance:
a) the
offences committed by senators and deputies;
b) the
offences committed by members of the Government;
c) the
offences committed by judges of the Constitutional Court, members, judges,
prosecutors and financial controllers of the Court of Accounts, by the
president of the Legislative Council and by the People’s Advocate;
d) the
offences committed by marshals, admirals, generals and quaestors;
e) the
offences committed by the chiefs of religious orders established under the
law and by the other members of the High Clergy, who are at least bishops or
the equivalent;
f) the
offences committed by judges and assistant magistrates of the Supreme Court
of Justice, by the judges of the courts of appeal and of the Military Court
of Appeal, as well as by the prosecutors of the prosecutor’s offices attached
to these courts;
g)
other cases falling under its competence, under the law;
2. as
recourse court, tries:
a)
recourses against the criminal decisions passed, at first instance, by the
courts of appeal and by the Military Court of Appeal;
b)
recourses against the criminal decisions passed, as appeal courts, by the
courts of appeal and by the Military Court of Appeal;
c)
recourses against the criminal decisions passed, at first instance, by the
criminal section of the Supreme Court of Justice, as well as in other case
provided by the law;
3.
tries the recourses in the interest of the law;
4.
tries the actions for cancellation;
5.
resolves:
a) the
competence conflicts in cases when the Supreme Court of Justice is the common
superior court;
b) the
cases in which the course of justice is interrupted;
c) the
removal requests;
d) other cases specially provided by the law.
|
Section II
Territorial Competence
|
Competence
for
the offences
perpetrated
within
the
country
|
a) the
place where the offence was perpetrated;
b) the
place where the perpetrator has been caught:
c) the
place where the perpetrator lives;
d) the
place where the victim lives.
The
case is tried by the competent court under paragraph 1, in whose territorial
area the criminal investigation was performed.
When
the criminal investigation is performed by the General Prosecutor’s Office
attached to the Supreme Court of Justice or by the prosecutor’s offices
attached to the courts of appeal or to tribunals, or by a central or regional
investigation body, the prosecutor settles by charge, the court among those
stipulated at paragraph 1 who has the competence to try, by ensuring a good
progress of the criminal trial, taking into account the circumstances of the
case.
By “the place of perpetration of the offence”
one understands the place where the criminal activity was perpetrated,
completely or partially, or the place where its result was produced.
|
|
Competence
for the offences
perpetrated
abroad
|
[xxv]Art. 31 - The
offences committed outside the country are tried, according to the case, by
the civil or military courts in whose territorial area the perpetrator lives
or has the domicile. If the latter neither lives, nor has the domicile, in
Romania, and the deed falls under the competence of the first instance court,
it is tried by the Court of First Instance of sector 2, and in the other
cases, by the competent court, according to the matter and quality of the
person, of Bucharest, in case the law does not stipulate otherwise.
The
offence committed on a ship falls under the competence of the court in whose
territorial area the first Romanian port where the ship anchors is located,
in case the law does not stipulate otherwise.
The
offence committed on an airship falls under the competence of the court in
whose territorial area the first landing place on Romanian territory is
located.
If the ship does not anchor in a Romanian
port or the airship does not land on Romanian territory, the competence is
that stipulated by paragraph 1, in case the law does not stipulate otherwise.
|
Section III
Competence in case of indivisibility and connexité
|
of cases
|
Art. 32 - In case of indivisibility or connexité, the trial at first instance
is judged by the same court if it takes place at the same time for all deeds
and all perpetrators.
|
|
Cases of
indivisibility
|
Art. 33 - The following cases are considered
indivisibility:
a) when
more persons were involved in committing an offence;
b) when
two or more offences were committed through the same act:
c)
cases of continued offence or any other cases in which two or more material
acts make up one offence.
|
|
Cases of
connexité
|
Art. 34 - The following cases are considered connexité:
a) when
two or more offences are committed through different acts, by one or more
persons together, at the same time and in the same place;
b) when
two or more offences are committed at different times and in different
places, as a result of a prior understanding between the perpetrators;
c) when
an offence is committed in order to prepare, facilitate or hide the
perpetration of another offence, or in order to facilitate or ensure
avoidance of criminal responsibility by the perpetrator of another offence;
d) when
there is a connection between two or more offences and the cases must be
joined for a better justice.
|
|
Competence in cases of
indivisibility
or connexité
|
[xxvi]Art. 35 - In
case of indivisibility or connexité,
if the competence regarding the different perpetrators or the different deeds
belongs, under the law, to various courts, equal in rank, the competence of
trying all the deeds and all the perpetrators belongs to the court first
summoned, and if the competence according to the nature of the deeds or to
the quality of he persons belongs to courts different in rank, the competence
of trying all the joint cases belongs to the hierarchically superior court.
If one
of the courts is civil and the other is military, the competence belongs to
the military court.
If the
civil court is superior in rank, the competence belongs to the military court
equal in rank with the civil court.
The
competence to try the joint cases is kept by the court it was granted to,
even if the closing of the criminal trial or the acquittal were passed for
the deed or the perpetrator who determined the competence of this court.
Hiding
or favouring the perpetrator, or not denouncing an offence fall under the
competence of the court that tries the offence related to them.
|
|
Court competent
to decide
the joining
of cases
|
Art. 36 - Whether the cases are joined or not is
decided by the court which has trying competence, according to the provisions
of art. 35.
In the
case stipulated in art. 35 paragraph 3, the joining of the cases is decided
by the civil court which sends the record to the competent military court.
|
|
Special cases
|
[xxvii]Art. 37 - In
the indivisibility cases stipulated at art. 33 letters a) and b), as well as
in the connexité cases, the cases
are joined if they are before the first instance, even after the annulment of
the decision sent by the appeal court or after the cassation sent by the
recourse court.
The
cases are also joined at the appeal courts, as well as at the recourse courts
equal in rank, it they are at the same stage of the trial.
In the
indivisibility case stipulated at art. 33 letter c), the cases must always be
joined.
|
|
Severance
|
Art. 38 - In the indivisibility case stipulated in art.
33 letter a), as well as in all connexité
cases, the court may order, for the sake of a fair trial, severance of the
cases, so that the trial of some perpetrators or offences is done separately.
|
Section IV
Common provisions
|
Exceptions of incompetence
|
Art. 39 - The exception of material incompetence or
of incompetence according to the quality of the person may be raised all
throughout the criminal trial, until the final decision is passed.
The
exception of territorial incompetence may be raised only until the
notification act is read out in front of the first instance.
The
exceptions of incompetence may be raised by the prosecutor, by any of the
parties or be open to discussion by the parties ex officio.
|
|
Competence
in case of change of the quality of the defendant
|
[xxviii]Art. 40 -
When the competence of the court is determined by the quality of the
defendant, the court keeps its competence to try even if the defendant, after
committing the offence, no longer has that quality, for the cases when:
a) the deed is connected to the
defendant’s work duties;
b) a decision was passed at first
instance.
Acquiring
a quality after committing an offence does not lead to a change of
competence, except for the offences perpetrated by persons provided at art.
29 par. 1.
|
|
Competence in case of change of
the juridical framing or qualification
|
Art. 41 - The court summoned to try an offence keeps
its competence to try it even if it finds out, as a result of judicial
investigations, that the offence falls under the competence of an inferior
court.
A
change in the framing of the offence dictated by a new law, issued during the
trial of a case, does not entail the incompetence of the court, unless that
law stipulates otherwise.
|
|
Declination
of competence
|
[xxix]Art. 42 - The
court which declines its competence sends the record to the court shown as
competent by the declination decision.
If the
declination was determined by the material competence or by the competence
according to the quality of the person, the court to whom the case was sent
may use the already drawn papers and may keep the measures ordered by the
de-summoned court.
In case
of declination for territorial incompetence, the papers drawn or the measures
ordered are kept.
The
competence declination decision is not subject to appeal or recourse.
|
|
Competence conflict
|
[xxx]Art. 43 -
When two or more courts declare themselves competent to try the same case or
decline their competence, the positive or negative competence conflict is
solved by the common hierarchically superior court.
When
the competence conflict appears between a civil and a military court, it is
solved by the Supreme Court of Justice.
The
common hierarchically superior court is summoned, for positive conflicts, by
the court which last declared itself competent and, for negative conflicts,
by the court who last declined its competence.
In all
cases the court may also be summoned by the prosecutor or by the parties.
The
trial is suspended until the positive competence conflict is solved.
The
court which declined its competence or last declared itself competent adopts
the measures and carries out the urgent acts.
The
common hierarchically superior court decides on the competence conflict and
summons the parties.
When
the court summoned to resolve the competence conflict discovers that the
respective case falls under the competence of a court different from those in
conflict and with regard to which there is no common superior court, it sends
the record to the common superior court.
The
court to which the case was sent by competence-establishing decision cannot
declare itself incompetent, unless, following a new situation resulting from
a completion of the judicial investigation, it is established that the deed
is an offence which, legally, falls under the competence of another court.
The
court to which the case was distributed shall enforce the provisions of art.
42 paragraph 2 accordingly.
|
|
Prior matters
|
Art. 44 - The criminal court has the competence to try
any prior matter on which the resolution of the case depends, even if, by its
nature, that matter falls under the competence of another court.
The
prior matter is tried by the criminal court according to the rules and probative
means regarding the field to which the matter belongs.
The
final decision of the civil court on a circumstance that represents prior
matter in the criminal trial has authority of tried matter in front of the
criminal court.
|
|
Provisions applied
for criminal pursuit
|
[xxxi]Art. 45 - The
provisions of art. 30-36, 38, 40, 42 and 44 shall be applied accordingly
during the criminal investigation as well.
The
provisions of art. 35 par. 4 are not applied in case the elimination or the
ceasing of the criminal pursuit was disposed by a military prosecutor.
The
declination of competence is disposed through ordinance.
When
none of the places specified in art. 30 paragraph 1 is known, the competence
belongs to the criminal investigation body first summoned.
In case
of simultaneous summons, the priority is settled according to the listing at
art. 30 paragraph 1.
If'
according to one of the criteria specified in art. 30 paragraph 1, more
criminal investigation bodies are competent, the competence belongs to the
body first summoned. The criminal investigation of the offences committed in
the conditions stipulated in art. 31 is performed by the criminal
investigation body in the territorial area of the court competent to try the
case.
The
competence conflict between two or several prosecutors is solved by the
common superior prosecutor. When the conflict appears between two or several
criminal investigation bodies, the competence is settled by the prosecutor
who supervises the criminal investigation activity of these bodies.
|
CHAPTER II
INCOMPATIBILITY AND REMOVAL
Section I
Incompatibility
|
The kinship between judges
|
|
|
Judge who previously pronounced
his/her opinion
|
[xxxiii]Art. 47 - The
judge who took part in the resolution of a case cannot take part in the
resolution of the same case before a superior court or in the trial of the
case after the dissolution of the decision sent to appeal or after cassation
sent to recourse.
Also,
the judge who has previously expressed his/ her opinion regarding the
possible solution for a case cannot take part in the trial of that case.
|
|
Other causes of incompatibility
|
a) he/
she initiated the criminal action, or ordered sending to court, or passed
conclusions as prosecutor in court, or issued the arrest warrant during
criminal prosecution;
b)
he/she has been representative or defender of one of the parties;
c) he/
she has been expert or witness;
d)
there are circumstances which prove that the spouse or a close relative are
in any way interested.
|
|
Incompatibility of prosecutor,
of criminal investigation body,
of assistant magistrate and of session clerk
|
[xxxv]Art. 49 - The
provisions of art. 46 are applied for the prosecutor and for the assistant
magistrate or, if the case, for the session clerk, when there is
incompatibility between them or between one of them and one of the panel
members.
The
provisions regarding the incompatibility cases stipulated in art. 48 letters
b) - d) are applied for the prosecutor, for the person who performs the
criminal investigation, for the assistant magistrate and for the session
clerk.
The
prosecutor who took part as judge in the resolution of the case in first
instance cannot pass conclusions when the case is tried in appeal or
recourse.
The
person who performed the criminal investigation is incompatible for its
completion or reconstruction, when the completion and reconstruction is
ordered by the court.
|
|
Abstention
|
Art. 50 - The incompatible person must declare,
according to the case, to the president of the court, to the prosecutor who
supervises the criminal investigation or to the hierarchically superior
prosecutor that he refrains from taking part in the criminal trial, showing
the incompatibility case that is the reason for abstention.
The
declaration of abstention is made as soon as the person obliged to it has
acknowledged the incompatibility case.
|
|
Challenge
|
Art. 51 - In case the incompatible person did not make
the declaration of abstention, he/she may be challenged both during the
criminal investigation and during the trial, by any of the parties, as soon
as the party discovers the incompatibility case.
The
challenge is formulated orally or in writing, showing the incompatibility
case that is the reason for challenge.
|
|
Procedure for solution during judgment
|
[xxxvi]Art. 52 - Abstention
or challenge of the judge, of the prosecutor, of the assistant- magistrate or
of the session clerk are resolved by another panel, in secret session,
without the attendance of the person who declares his/her abstention or who
is challenged.
The
abstention declaration or the challenge request are examined immediately, by
hearing the prosecutor when he/she is present in the court, and, if
necessary, the parties, as well as the person who refrains or whose challenge
is demanded.
When
the abstention or challenge regard the case stipulated in art. 46 and 49
paragraph 1, the court, by approving the challenge, decides which of the persons
specified in the mentioned texts will not take part in the trial of the case.
In case
the abstention or challenge is approved, it remains to be established to what
extent the drawn papers or the measures taken shall be maintained.
The
abstention or challenge which regard the whole court must include the
concrete mention of the incompatibility case for each judge and are resolved
by the hierarchically superior court. The latter, when it finds the
abstention or the challenge substantiated, appoints a court equal in rank
with the court in front of which the abstention or challenge have appeared to
try the case.
In
cases in which the defendants are
under preventive arrest, when the whole court is challenged, the
hierarchically superior court competent to solve the challenge request,
before deciding on the challenge, disposes relative to preventive arrest in
the conditions of the law.
The
closing that approved or rejected the abstention, as well as the closing that
approved the challenge, are not subject to any ways of attack.
The
closing through which the challenge was rejected may be attacked only in
recourse, in 48 hours due time from the passing of the decision, and the file
is immediately submitted to the recourse court. The recourse is tried in 48
hours due time from the reception of the file, in the council room, with the
participation of the parties.
|
|
Procedure for solution during criminal investigation
|
[xxxvii]Art. 53 - During
the criminal investigation, the prosecutor who supervises the criminal investigation
or the hierarchically superior prosecutor decides on the abstention or
challenge of the person who performs the criminal investigation or of the
prosecutor.
The
challenge request regarding the person who performs the criminal
investigation is addressed either to that person, or to the prosecutor. In
case the request is addressed to the person who performs the criminal
investigation, the latter must forward it, together with the necessary
clarifications, within 24 hours, to the prosecutor, without interrupting the
course of the criminal investigation.
The
prosecutor must resolve the request within maximum 3 days, by ordinance.
The
challenge request regarding the prosecutor is resolved within the same due
time and in the same conditions by the hierarchically superior prosecutor.
Abstention
is solved according to the provisions of paragraphs 3 and 4, enforced
accordingly.
|
|
Incompatibility of the expert and of the interpreter
|
Art. 54 - The provisions of art. 48, 50, 51, 52 and
53 are enforced accordingly to the expert and the interpreter.
The
quality of expert is incompatible with that of witness in the same case. The
quality of witness comes first.
Participation
as expert or interpreter more than once in the same cases is not a reason for
challenge.
|
[xxxviii]Section II
Removal of the criminal case trial
|
The reason
for removal
|
Art. 55 - The Supreme Court of Justice removes the
trial of a case from the competent instance to another instance equal in
rank, when, considering the seriousness of the reasons for the removal, it
appreciates that the removal would ensure a normal unfolding of the trial.
The
removal may be requested by the interested party, by the prosecutor or the
minister of justice.
|
|
The request
and its effects
|
[xxxix]Art. 56 - The
removal request is addressed to the Supreme Court of Justice and must be
motivated. The writings supporting the request are attached to it when the
party who requests the removal has them.
In the
request it shall be mentioned whether there are arrested persons in the case.
The
suspension of the trial may be ordered by the president of the Supreme Court
of Justice upon reception of the request, or by the Supreme Court of Justice
after it has been given the appropriate authority.
The
request drawn up by the general prosecutor of the Prosecutor’s Office
attached to the Supreme Court of Justice suspends de jure the trial of the case.
|
|
Procedure
of information
|
Art. 57 - The president of the Supreme Court of
Justice requests, in order to clarify certain matters for the court, information
from the president of the court hierarchically superior to that having the
case whose removal is requested, informing him on the date settled for trying
the removal request.
When
the hierarchically superior court is the Supreme Court of Justice, the information
is requested from the Ministry of Justice.
In case
a new removal request is introduced regarding the same case, the request of
information is optional.
|
|
Information
of the parties
|
Art. 58 - The president of the court hierarchically
superior to that which has the case takes measures for informing the parties
about the introduction of the removal request, the date settled for its
resolution, specifying that the parties may send statements and may come at
the settled date for the resolution of the request.
The
information sent to the Supreme Court of Justice will include express
specifications about informing the interested persons, with the corresponding
proofs attached.
When
arrested persons are involved in the case whose removal is requested, the
president orders the appointment of an ex officio defender.
|
|
Examination
of the request
|
Art. 59 - The removal request is examined in secret
session.
When
the parties are present, their conclusions are also heard.
|
|
Solution
of the request
|
Art. 60 - The Supreme Court of Justice orders, without
disclosing the reasons, the approval or rejection of the request.
In case
it finds the request substantiated, it orders the removal of the trial,
deciding at the same time the extent to which the acts performed in front of
the court from which the case has been removed are kept.
This
court will be immediately informed about the approval of the removal request.
If the
court which has the case to which the removal request is demanded has in the
meantime tried it, the decision passed is dissolved by the approval of the
removal request.
|
|
Reiteration
of the request
|
Art. 61 - The removal of the case cannot be demanded
again, unless the new request is based on circumstances unknown to the
Supreme Court of Justice at the resolution of the previous request or that
appeared after that.
|
TITLE III
EVIDENCE AND MEANS OF EVIDENCE
CHAPTER
I
GENERAL PROVISIONS
|
Clarification
of the case
through evidence
|
Art. 62 - In order to find out the truth, the criminal
investigation body and the court must clarify the case under all its aspects,
on the basis of evidence.
|
|
Evidence
and their appreciation
|
[xl]Art. 63 - Any
fact that leads to the acknowledgement of the existence or non-existence of
an offence, to the identification of the person who committed it and to the
discovery of the circumstances necessary for the fair resolution of the case
is considered evidence.
The
value of the evidence is not established in advance. The criminal
investigation body and the court appreciate each piece of evidence according
to their own convictions, formed after examining all the evidence
administrated, and using their own conscience as guide.
|
|
Means of evidence
|
[xli]Art.64 - The
means of evidence that lead to the factual elements which may serve as
evidence are: the testimonies of the accused person or the defendant, the
testimonies of the victim, of the civil party or of the party who bears the
civil responsibility, the testimonies of the witnesses, the writings, the
audio or video recordings, the photos, the probative material means, the
technical-scientific findings, the forensic findings and the expertise.
Pieces
of evidence that were illegally obtained may not be used in the course of the
criminal trial.
|
|
The task of administrating
the evidence
|
Art. 65 - The task of administrating the evidence
during the criminal trial belongs to the criminal investigation body and to
the court.
Upon
request from the criminal investigation body or the court, any person who
knows of a piece of evidence or holds a means of evidence must reveal or
present it.
|
|
The right to prove the inconsistency
of evidence
|
[xlii]Art. 66 - The
accused person or the defendant benefits from the presumption of evidence and
is not obliged to prove his/her innocence.
In case
there is evidence for his/her guilt, the accused person or the defendant has
the right to prove their inconsistency.
|
|
Conclusiveness and usefulness
of evidence
|
Art. 67 - During the criminal trial the parties may
propose pieces of evidence and may request their administration.
The request
for administration of a piece of evidence cannot be rejected, if the
respective piece of evidence is conclusive and useful.
Approval
or rejection of requests shall be motivated.
|
|
Interdiction
of means
of constraint
|
Art. 68 - It is forbidden to use violence, threats
or any other constraints, as well as promises or encouragement with the
purpose of obtaining evidence.
Also,
it is forbidden to force a person to commit or to continue committing an
offence with the purpose of obtaining evidence.
|
CHAPTER
III
MEANS OF EVIDENCE
Section I
Statements of the accused person or the defendant
|
Statements of the accused
person or defendant
|
Art. 69 - The statements given by the accused person or
defendant during the criminal trial may lead to the truth only to the extent
to which they are corroborated with facts and circumstances resulted from all
the evidence in the case.
|
|
Questions
and preliminary clarifications
|
[xliii]Art. 70 - Before
being heard, the accused person or defendant is asked about his/her name,
surname, nickname, date and place of birth, name and surname of parents,
citizenship, education, military service, working place, occupation, address,
criminal antecedents and other data necessary to determine his/her personal
situation.
The
accused person or defendant is then informed about the deed that makes the
object of the case, the right to have a defender, as well as the right not to
make any statement, at the same time being informed that everything he
declares may be used against him/her as well. If the accused person or
defendant makes a statement, he/she is asked to declare everything he/she
knows related to the deed and to the accusation in connection to this.
If the
accused person or defendant agrees to make a statement, the criminal
investigation body, before hearing him/her, asks him/her to write personally
a statement related to the guilt he is made responsible of.
|
|
Modality
of hearing
|
Art. 71 - Every accused person or defendant is heard
separately.
During
the criminal investigation, if there are several accused persons or
defendants, each of them is heard without the others attending.
The
accused person or defendant is first left to declare everything he/she knows
in relation with the case.
The
hearing of the accused person or defendant cannot begin by reading or
reminding the statements that the latter has previously given in relation
with the case.
The
accused person or defendant cannot present or read a previously written
statement, but he/ she may use notes for details that are difficult to remember.
|
|
Questions related
to the deed
|
Art. 72 - After the accused person or defendant has
given the statement, he/she may be asked questions in relation with the deed
that constitutes the object of the case and with his/her guilt. He/she is
also asked about the evidence that he/she considers fit to propose.
|
|
Registering
of declarations
|
[xliv]Art. 73 - The
statements of the accused person or defendant are written down. Each
declaration will also include a mention of the hour of the beginning and
ending of the hearing of the accused person or defendant. The written
statement is read to the accused person or defendant and, if he/she asks,
he/she is handed the statement to read it. When he/she agrees with its
content, signs on every page and at the end.
When
the accused person or defendant cannot or refuses to sign the statement, this
will be mentioned in the written statement.
The
written statement is also signed by the criminal investigation body that has
heard the accused person or defendant or by the president of the panel and by
the clerk, as well as by the interpreter, when the declaration has been given
through an interpreter.
If the
accused person or defendant changes his/her mind about one of his statements
or wants to make adding, corrections or specifications, these are written
down and signed under the conditions shown in the present article.
|
|
Hearing of the accused person
or defendant where he/she is
|
[xlv]Art. 74 -
Whenever the accused person or defendant finds himself/ herself in the
impossibility to come for a hearing, the criminal investigation body or the
court hear him at the place where he/she is, unless it is provided otherwise
by the law.
|
Section II
Statements of the victim, the civil party and the party bearing the civil
responsibility
|
Statements of the
other parties
in the trial
|
Art. 75 - The statements given during the trial by
the victim, by the civil party and by the party bearing the civil
responsibility may lead to the truth only to the extent to which they are
corroborated with facts or circumstances resulting from all the evidence in
the case.
|
|
Preliminary explanations
|
[xlvi]Art. 76 - The
criminal investigation body or the court must call, in order to be heard, the
person harmed by offence, as well as the person bearing the civil
responsibility.
Before
being heard, the injured person is informed that he/she may take part in the
trial as victim and, in case he/she suffered material damage, that he/she may
constitute himself/herself as a civil party. The victim is also informed that
the statement of taking part in the trial as victim or of suing for civil
injury may be given all throughout the criminal investigation, until the
summons act is read.
|
|
Modality
of hearing
|
Art. 77 - The hearing of the victim, of the civil
party and of the party bearing the civil responsibility is conducted
according to the provisions regarding the hearing of the accused person or
defendant, enforced accordingly.
|
Section III
Statements of the witnesses
|
The witness
|
Art. 78 - The
person who knows of any fact or circumstance that may lead to finding the
truth in the criminal trial may be heard as witness.
|
|
Hearing
the person obliged
to keep the professional secret
|
[xlvii]Art. 79 - The
person obliged to keep a professional secret cannot be heard as witness in
relation to facts and circumstances that he/she learned about while exerting
his/her profession, without the approval of the person or institution towards
which he/she has the obligation of keeping the secret.
The quality of witness comes
before that of defender, in relation with the facts and circumstances that a
person learned about before becoming defender or representative of one of the
parties.
|
|
Hearing
the spouse
and close relatives
|
Art. 80 - The accused person or defendant's spouse and
close relatives are not obliged to testify as witnesses.
The judicial bodies will inform
the persons mentioned in the above paragraph about this as soon as the
provisions of art. 84 paragraph 3 have been satisfied.
|
|
The juvenile
as witness
|
Art. 81 – The
juvenile may be heard as witness. Up to 14 years old, his/her hearing will be
conducted in front of one of his parents or of his/her tutor or of the person
to whom he/she has been given for upbringing and education.
|
|
The injured person
|
Art. 82 - The
injured person may be heard as witness, if he/she does not constitute
himself/herself as a civil party and will not take part in the trial as
victim.
|
|
The obligation
to appear
|
Art. 83 - The
person summoned as witness must come at the place and on the day and hour
mentioned in the summons and has the duty to declare everything he/she knows
in relation to the deeds of the case.
|
|
Preliminary questions
|
Art. 84 - The witness is first asked about his name,
surname, age, address and occupation.
In case
of doubt over the witness' identity, this will be established by any means of
evidence.
The witness will then be asked
whether he/she is spouse or relative of any of the parties and about his/her
relations with the latter, as well as whether he/she has suffered any damage
as a result of the offence.
|
|
The witness’ oath
|
[xlviii]Art. 85 -
Before being heard, the witness will take the following oath: “I swear to
tell the truth and not to hide anything that I know. So help me God!”
While
taking the oath, the witness will keep his/her hand on the cross or on the Bible.
The
reference to divinity in the oath is changed according to the religious creed
of the witness.
For the
witness of other religion than Christian, the provisions of par. 2 are not
enforceable. The irreligious witness shall take the following oath: “I swear
on my honour and conscience to tell the truth and not to hide anything that I
know."
The
witnesses who, from reasons of conscience or religion, do not take the oath,
will utter the following formulation in front of the court: "I oblige
myself to tell the truth and not to hide anything that I know."
The situations mentioned in
paragraphs 3, 4 and 5 are acknowledged by the judicial body on the basis of
the statements given by the witness.
After taking the oath or uttering
the formulation stipulated in paragraph 5, the witness will be informed that,
by not telling the truth, he commits the offence of false testimony.
All these will be mentioned in the
written statement.
The juvenile under 14 years does
not take oath; however, he is asked to tell the truth.
|
|
Modality
and limits
of hearing
the witness
|
Art. 86 - The witness is informed about the object of
the case and the deeds and circumstances for whose proof he/she was proposed
as witness, being asked to declare everything he/she knows in relation to
them.
After
the witness has given his statement, he may be asked questions connected to
the deeds and circumstances that need to be acknowledged in the case, related
to the parties' person, as well as to the way in which he learnt about the
things declared.
The
provisions of art. 71-74 are enforced accordingly to the witness' hearing.
|
|
Protection
of data
for witness identification
|
[xlix]Art. 861 – If there is evidence or solid indications that by declaring the real
identity of the witness or his/her place of domicile or residence the life,
corporal integrity or freedom of the latter or of another person might be
endangered, the witness may be given permission not to declare this
information, being attributed a different identity under which to appear in front
of the judicial body.
This
measure may be disposed by the prosecutor during criminal prosecution and by
the court during trial, upon motivated request from the prosecutor, witness
or any other entitled person.
The
information about the real identity of the witness is mentioned in an
official report that will be kept at the prosecutor’s office which performed
or supervised the performing of the criminal investigation or, according to
the case, at the court, in a special place, in a sealed envelope, in conditions
of maxim security. The official report will be signed by the person who
handed the request, as well as by the one who disposed the measure.
The
documents concerning the real identity of the witness shall be presented to
the prosecutor or, according to the case, to the panel of judges, in
conditions of strict confidentiality.
In all
cases, the documents regarding the real identity of the witness will be
introduced in the criminal file only after the prosecutor, by ordinance, or,
according to the case, the court, by closing, established that the danger
which determined taking measures for witness protection has disappeared.
The
statements of witnesses who were attributed another identity, reproduced in
the prosecutor’s report, according to art. 862 par. 5, as well as
the witness’ statement, recorded during trial and signed by the prosecutor
present at the witness’ hearing and by the president of the panel, according
to art. 862 par. 6, thesis I, may serve to finding out the truth
only to the extent to which they are corroborated with facts and
circumstances resulted from all the evidence in the case.
Other
persons who may be heard as witnesses that were attributed another identity
are undercover investigators.
Dispositions
provided by par. 1-6 are also applied to experts.
|
|
Special modalities
of hearing
the witness
|
[l]Art. 862 – In the situations provided by art. 861, if there are
appropriate technical means, the prosecutor or, according to the case, the
court may allow the witness to be heard without actually being present at the
place where the criminal investigation body is or in the room where the
judgment takes place, through technical means provided in the following
paragraphs.
Recording
the witness’ statement, in the conditions described at par. 1, will be
performed in the presence of the prosecutor.
The
witness may be heard through a television network, with the image and voice
distorted so as not to be recognised.
The
statement of the witness heard, in the conditions stated at par. 1 and 2, are
recorded through technical video and audio means and are rendered entirely in
written form.
During
the criminal investigation, a report is made in which the witness’ statement
is accurately rendered and which is signed by the prosecutor present at the
witness’ hearing and by the criminal investigation body and kept with the
case file. The witness’ statement, transcribed, shall be signed also by the
latter and kept in the file set down at the court, in the conditions provided
under par. 5.
Video
and audio tapes, on which the witness’ statement was recorded, as an
original, sealed with the prosecutor’s office seal or, according to the case,
to that of the court in front of which the statement was made, are kept in
the conditions provided at art. 5. The video and audio tapes recorded during
the criminal investigation shall be handed, at the ending of the criminal
investigation, to the competent court, together with the case file, and shall
be kept in the same conditions.
The
provisions of art. 78, 85 and of art. 86 par. 1 and 2 shall be applied
accordingly.
|
|
Checking
the means
for hearing
the witnesses
|
[li]Art. 863 – The court may admit, upon request from the prosecutor, from the parties
or ex officio, the carrying out of a technical expertise regarding the means
for hearing the witnesses, in the conditions provided under art. 862.
|
|
Hearing witnesses under 16 years old in certain
cases
|
[lii]Art. 864 – In the cases regarding violence offences between the members of the
same family, the court may dispose the witness under 16 years old shall not
be heard in the courtroom, allowing the presentation of a previously
performed, as audio-video recordings, in the conditions provided under art.
862 par. 2, 4, 5 and 7.
|
|
The protection
of witness’ displacements
|
[liii]Art. 865 – The prosecutor who performs or supervises the criminal investigation or,
according to the case, the court may dispose that the police units supervise
the witness’ domicile or residence or to ensure for the latter a temporary
supervised residence, as well as to accompany him/her to the prosecutor’s
office or to court and back to the place of residence or domicile.
The
measures provided at art. 1 will be eliminated by the prosecutor or,
according to the case, by the court, when they decide that the danger which imposed
them has disappeared.
|
Section IV
Confrontation
|
The object of
confrontation
|
Art. 87 - When
there are contradictions between the declarations of the persons heard in the
same case, the respective persons are confronted, if this is necessary for the
clarification of the case.
|
|
The confrontation
procedure
|
Art. 88 – The persons confronted are heard on the deeds
and circumstances in relation to which the previous declarations contradict
each other.
The
criminal investigation body or the court may approve that the confronted
persons ask one another questions.
The declarations made by the
confronted persons are written down in an official report.
|
Section V
Writings
|
Written means of evidence
|
Art. 89 - Documents may serve as means of evidence if
they contain reference of deeds or circumstances that may contribute to
revealing the truth.
|
|
|
[liv]Art. 891 – The forms in which any statement is to be recorded, at the stage of
criminal prosecution, shall be recorded and numbered beforehand, as forms
with a special status, and after filling in, will be introduced in the case
file.
|
|
The official
report
as means
of evidence
|
[lv]Art. 90 - The
official reports drawn up by the criminal investigation body or by the court
are means of evidence.
The official reports and acknowledgment
papers drawn up by other bodies are also means of evidence, if the law
stipulates so.
|
|
The contents and form of the official report
|
Art. 91 - The official report must include: a) the date
and the place where it is drawn up; b) the name, surname and position of the
person who draws it up; c) the names, surnames, occupations and addresses of
the assistant witnesses, when they exist; d) a detailed description of the
things found out, as well as of the measures taken; e) the names, surnames
occupations and addresses of the persons referred to in the official report,
their objections and explanations; f) the specifications stipulated by the
law for special cases.
The official report must be signed
on every page and at the end by the person who draws it up, as well as by the
persons mentioned at letters c) and e). If one of these persons cannot or
refuses to sign, this will be mentioned in the official report.
|
[lvi]Section V1
Audio or video interceptions and
recordings
|
Conditions
and cases
of interception
and recording
of conversations or communications
|
Art. 911 – The interceptions and recordings
on magnetic tape or on any other type of material of certain conversations or
communications shall be performed with motivated authorization from the
court, upon prosecutor’s request, in the cases and under the conditions
stipulated by the law, if there are substantial data or indications regarding
the preparation or commitment of an offence that is investigated ex officio,
and the interception and recording are mandatory for revealing the truth. The
authorization is given by the president of the court that would be competent
to judge the case at first instance, in the council room. The interception
and recording of conversations are mandatory for revealing the truth, when
the establishment of the situation de facto or the identification of the
perpetrator cannot be accomplished on the basis of other evidence.
The
interception and recording of conversations or communications may be
authorized in the case of offences against national security provided by the
Penal code and by other special laws, as well as in the case of offences such
as trafficking in drugs, trafficking in weapons, trafficking in human beings,
terrorist acts, money laundering, forgery of money or of other values, in the
case of offences provided by the Law no. 78/2000 for the prevention,
detection and sanctioning of corruption deeds or of other serious offences,
which cannot be discovered or whose perpetrators cannot be identified through
other means, or in the case of offences perpetrated through means of
telephone communication or through other means of telecommunications.
The
authorization is given for the duration necessary for the recording, up to
maximum 30 days. The authorization may be extended under the same conditions,
for fully justified reasons, each extension being of maximum 30 days. The
maxim duration for authorized recordings is 4 months.
Measures
disposed by the court shall be annulled before the expiration of the due time
for which they were authorized, as soon as the reasons that justified them
have ceased.
The
recordings stipulated in paragraph 1 may also be done at the justified
request of the victim, regarding the communications addressed to him/her,
having the authorization of the court.
The authorization of interception
and recording of conversations or communications is done through motivated
closing, which shall comprise: concrete indications and facts that justify
the measure; reasons why the measure is mandatory for discovering the truth;
the person, the means of communication or the place subject to supervision;
the period for which the interception and recording are authorized.
|
|
The bodies performing interception
and recording
|
Art. 912 – The prosecutor proceeds
personally to the interceptions and recordings provided under art. 911
or may dispose that these are performed by the criminal investigation body.
The persons called to technically support the interceptions and recordings
are obliged to keep the secret of the operation performed, the violation of
this obligation being punished according to the Penal code.
In
emergency cases, when the delay in obtaining the authorization provided at
art. 911 par. 1 would entail serious prejudice for the
investigation activity the prosecutor may dispose, with provisional title, by
motivated ordinance, the interception and recording on magnetic tape or on
any other type of material of conversations and communications, transmitting
this to the court immediately, but no later than 24 hours.
The
court must decide in 24 hours at most on the prosecutor’s ordinance and, and
if it is confirmed and if necessary, shall dispose further authorization of
interception and recording, in the conditions of art. 911 par.
1-3. If the court does not confirm the prosecutor’s ordinance, it must
dispose immediate ceasing of interceptions and recordings and the destruction
of those already made.
The court disposes, until the end
of the criminal investigation, the information, in writing, of persons whose
conversations or communications were intercepted and recorded, the dates when
these were performed.
|
|
Certification
of recordings
|
Art. 913 – About the performing of interceptions and recordings mentioned in the
art. 911 and 912, the prosecutor or the criminal
investigation body draws up an official report, that will include: the
authorization given by the court for their performing, the phone number or
numbers involved, the names of the persons having the conversations, if
known, the date and time of each conversation and the number of the magnetic
tape or of any other material on which the recording was made.
The recorded conversations are
entirely transcribed in writing and attached to the official report, with
certificate for authenticity from the criminal investigation body, checked
and countersigned by the prosecutor who performs or supervises the respective
criminal investigation. In case the prosecutor proceeds to interceptions and
recordings, the certification for authenticity is made by the latter, and the
checking and countersigning, by the hierarchically superior prosecutor.
Correspondence in other language
than Romanian is transcribed in Romanian, through an interpreter. The
magnetic tape or other material containing the recorded conversation, sealed
with the seal of the criminal investigation body is attached to the official
report.
The magnetic tape or any other
type of material containing the recording of the conversation, its written
transcription and the official report are handed to the court which, after
hearing the prosecutor and the parties, decides which of the gathered
information is of interest for the investigation and solution of the case,
drawing up an official report in this sense. The conversations or
communications that contain state secrets or professional secrets shall not
be mentioned in the official report. If the perpetration of offences takes
place through conversations or communications which contain state secrets,
they are mentioned in separate official reports, and the dispositions of art.
97 par. 3 are applied accordingly.
The magnetic tape or any other
type of material, together with the entire transcription and copies of
official reports, are kept at the court clerk’s office, in special places, in
sealed envelope.
The court may approve, upon
motivated request from the defendant, from the civil party or their defender,
the consultation of parties in the recording and entire transcription,
transmitted at the court clerk’s office, which are not included in the
official report.
The court disposes through closing
the destruction of recordings which were not used as means of evidence in the
case. The other recordings shall be kept until the file is archived.
The recording of conversations
between the defender and the defendant
may not be used as a means of evidence.
|
|
Other recordings
|
Art. 914 – The conditions and modalities for making the interceptions and
recordings provided at art. 911 – 913 are applicable,
accordingly, also in the case of conversations through other means of telecommunication,
authorized in the conditions of the law.
|
|
Image recordings
|
Art. 915 - The provisions of art. 911 and 912 are also
enforceable in the case of image recording, and the certification procedure
is the one stipulated in art. 913, except for the transcription,
according to the case.
|
|
Checking
the means
of evidence
|
Art. 916 - The means of evidence
stipulated in the present section may be technically examined at the request
of the prosecutor, of the parties or ex officio.
The recordings stipulated in the
present section, presented by the parties, may serve as means of evidence, if
they are not forbidden by the law.
|
Section VI
Assistant witnesses
|
Presence
of assistant witnesses
|
Art. 92 - When the law stipulates that assistant
witnesses should be present when performing a procedural act, the number of
the assistant witnesses is of at least two.
Juveniles under 14, persons
interested in the case and persons from the same institution with the body
performing the procedural act may not be assistant witnesses.
|
|
Establishing the identity of assistant witnesses
|
Art. 93 - The
body that performs a procedural act in the presence of assistant witnesses
must acknowledge and mention in the official report drawn data regarding the
identity of assistant witnesses, including the observations the latter were
invited to make in connection with the facts acknowledged and to the
operations that they assist.
|
Section VII
Material probative evidence
|
Objects as means
of evidence
|
Art. 94 - The
objects that contain or bear a trace of the deed committed, as well as any
other objects that may serve to reveal the truth may serve as material means
of evidence.
|
|
Material evidence
|
Art. 95 - The objects that were used or destined to be
used for committing an offence, as well as objects that are the result of an
offence are also material means of evidence.
|
Section VII
Confiscation of objects and writings.
Performance of searches
|
Confiscation
of objects
and writings
|
Art. 96 - The criminal investigation body or the court
must take away the objects or writings that may serve as means of evidence in
the criminal trial.
|
|
Delivery
of objects
and writings
|
[lvii]Art. 97 - Any
natural person or legal person who possesses an object or a piece of writing
that may serve as means of evidence must appear and hand it, and take a proof
for this, to the criminal investigation body or to the court, at their
request.
If the
criminal investigation body or the court considers that even a copy of a
piece of writing may serve as a means of evidence, it keeps only the copy.
If the
object or the writing has a secret or confidential character, the
presentation or the delivery is done in circumstances that would ensure
keeping the secret or confidentiality.
|
|
Retaining and handing over of correspondence
and objects
|
[lviii]Art. 98 - The
court, with the prosecutor's proposal, during the criminal investigation or
ex officio, may order that any post or transport office retain and deliver
the letters, telegrams or any other correspondence, or the objects sent by
the accused person or defendant, or addressed to him/her, either directly or
indirectly.
The
measure provided at par. 1 is disposed if the conditions shown in art. 911
par. 1 are met and according to the procedure provided there.
The
retaining and handing over of letters, telegrams or any other correspondence
or objects to which par. 1 makes reference may be disposed, in writing, in
urgent and fully justified cases , by the prosecutor as well, who is obliged
to immediately inform the court about this.
Retained
correspondence and objects that have nothing to do with the case are returned
to the addressee.
|
|
Confiscation
by force
of objects
or writings
|
Art. 99 – If the object or writing required is not
delivered voluntarily, the criminal investigation body or the court order
confiscation by force.
During
the trial, the order of confiscation by force of objects or writings is
communicated to the prosecutor, who takes enforcement measures through the
criminal investigation body.
|
|
The search
|
[lix]Art. 100 - When
the person asked to deliver one of the objects or writings mentioned in art.
98 denies their existence or possession, as well as whenever the search is
necessary in order to discover and gather evidence, a search may be ordered.
The
search may be domiciliary or corporal.
Domiciliary
search may be disposed only by the judge, through motivated closing, during
criminal prosecution, upon prosecutor’s request, or during trial.
Domiciliary
search is disposed during criminal prosecution in the council room, without
summoning of the parties. The participation of the prosecutor is mandatory.
Corporal
search may be disposed, according to the case, by the criminal investigation
body, by the prosecutor or by the judge.
Domiciliary
search may not be disposed before the beginning of the criminal
investigation.
|
|
Domiciliary search during
criminal investigation
|
[lx]Art. 101 - The
search ordered during criminal investigation, according to art. 100, is
performed by the prosecutor or by the criminal investigation body,
accompanied, according to the case, by operational workers.
|
|
Domiciliary search
during trial
|
Art. 102 - The court may perform a search on the
occasion of a local investigation.
In the
other cases, the court's order to perform a search is communicated to the
prosecutor, in order to proceed with the search.
|
|
The time
for making
the search
|
[lxi]Art. 103 - Confiscation
of objects and writings, as well as domiciliary search may be performed
between 6 a.m. - 8 p.m., and at other times only in case of flagrante delicto, or when the search
is to be performed in a public place. The search begun between 6 a.m. - 8
p.m. may continue during the night.
|
|
The search procedure
|
[lxii]Art. 104 - The
judicial body that will perform the search must prove its identity and, in
the cases stipulated by the law, present the authorization given by the
prosecutor.
The
taking away of objects and writings, as well as domiciliary search are
performed in the presence of the person from whom the objects or the writings
are taken away, or whose place is searched and, when the person is absent, in
the presence of a representative, of a member of the family or of a
neighbour, having exertion ability.
These
operations are performed by the criminal investigation body in the presence
of assistant witnesses.
When
the person whose place is searched is held or arrested, he/she will be
brought to the search. In case he/she cannot be brought, the taking away of
objects and writings, as well as domiciliary search, are performed in the
presence of a representative or a member of the family, and, in their
absence, in the presence of a neighbour having exertion ability.
|
|
Performing domiciliary search
|
Art. 105 - The judicial body that performs the search
has the right to open the rooms or other means of enclosing where the objects
or the writings wanted may be found, if the person entitled to open them
refuses to do so. The judicial body must limit itself to confiscation of
objects and writings connected to the deed committed; objects and writings
whose circulation and possession are forbidden are always taken away.
The
judicial body must take measures so that facts and circumstances in the
personal life of the person whose place is searched which are not connected
with the case are not made public.
|
|
Performing corporal search
|
Art. 106 - Corporal search is performed by the judicial
body that ordered it, following the provisions of art. 104 paragraph 1, or by
the person appointed by this body.
Corporal
search is performed only by a person of the same gender with the person being
searched.
|
|
Identifying and keeping objects
|
Art. 107 - Objects and writings are shown to the person
from whom they are taken away and to those who assist, in order to be
recognized and marked by them in order not to be changed, after which they
are labelled and sealed.
The
objects that cannot be marked, labelled or sealed are wrapped up or closed,
together if possible, after which they are sealed.
The
objects that cannot be taken away are attached and left to be kept, either by
the person who has them or by a custodian.
Tests
for analysis are taken at least twice and are sealed. One test is left with
the person from whom they are taken or, in his/her absence, with one of the
persons mentioned in art. 108, final paragraph.
|
|
Official report for search and confiscation
of objects
and writings
|
Art. 108 - An official report is drawn up mentioning the
performance of the search and confiscation of objects and writings.
The
official report must include, besides the specifications stipulated in art.
91, the following: place, date and circumstances in which the writings and
the objects have been found and taken away, a list and detailed description
of these, in order to be recognized.
The
objects that have not been taken away, as well as those left for keeping are
also mentioned in the official report.
A copy
of the official report is left with the person to whom the search has been
performed or from whom the objects or writings have been taken away, with the
representative, a member of the family, the persons he lives with or a
neighbour and, if such is the case, with the custodian.
|
|
Measures regarding confiscated objects
|
Art. 109 - The criminal investigation body or the court
order that the objects or writings taken away, that represent means of
evidence are, according to case, attached to the record or kept in another
way.
The
taken away objects and writings that are not attached to the file may be
photographed. In this case, the photos are stamped and attached to the
record.
Until
the case is finally resolved, material means of evidence are kept by the
criminal investigation body or by the court where the record is.
Objects
and writings delivered or taken away during the search which are not
connected with the case are returned to the person to whom they belong.
Confiscated objects are not returned.
The
objects that serve as means of evidence, if they are not subject to
confiscation, may be returned to the person to whom they belong, even before
the trial is finally resolved, unless the return might impede the revealing of
the truth. The criminal investigation body or the court informs the person to
whom the objects were returned that he/she must keep them until the case is
finally resolved.
|
|
Conservation or use of confiscated objects
|
Art. 110 - The objects that serve as means of evidence,
if they are among those mentioned in art. 165 paragraph 2 and if they are not
to be returned are kept or used according to the provisions of that article.
|
|
Special provisions regarding public units and other legal persons
|
[lxiii]Art. 111 - The
provisions in the present section are also enforced accordingly when the
procedural acts are performed at a unit among those referred to in art. 145
in the Penal code, provisions completed as follows:
a) the
judicial body proves its identity and, according to the case, shows to the
representative of the public unit or to another legal person the
authorization given;
b) the
confiscation of objects and writings, as well as the search, are performed in
the presence of the representative of the unit;
c) when
the presence of assistant witnesses is obligatory, they may be part of the
unit staff;
d) a
copy of the official report is left with the representative of the unit.
|
Section IX
Technical-scientific and
legal-medical acknowledgments
|
The use of specialists
|
Art. 112 - When there is the danger that some means
of evidence might disappear or some states of facts might change, and the
immediate clarification of deeds and circumstances related to the case is
necessary, the criminal investigation body may resort to the knowledge of a
specialist or technician, ordering ex officio or upon request a
technical-scientific acknowledgment.
The technical-scientific
acknowledgment is usually performed by specialists or technicians working for
or affiliated to the institution to which the criminal investigation body
belongs. It may also be performed by specialists or technicians working for
other bodies.
|
|
The object and
material of
technical-scientific acknowledgement
|
Art. 113 - The criminal investigation body that orders
the technical-scientific acknowledgment decides upon its object, formulates
the questions that must be answered and settles the due time for their work.
The
technical-scientific acknowledgment is performed in connection with the
materials and data provided or indicated by the criminal investigation body.
The person who performs the acknowledgment cannot be granted and cannot
assume attributions specific for a criminal investigation body or control
body.
The specialist or technician who
performs the acknowledgment, if he/she considers the materials provided or
data indicated insufficient, communicates this to the criminal investigation
body, for their completion.
|
|
Forensic acknowledgement
|
Art. 114 - In case of violent death, of death by unknown
or suspect cause, or when a corporal examination of the defendant or the
injured person is needed in order to see the traces of the offence on their
bodies, the criminal investigation body orders a forensic acknowledgment and
asks the forensic body who has the appropriate competence under the law to
perform this acknowledgment.
Exhumation in order to find out
the causes of death is done only with the prosecutor's approval.
|
|
The report of technical-scientific or forensic
acknowledgement
|
Art. 115 - The operations and conclusions of the
technical-scientific and forensic acknowledgment are written down in an
official report.
The
criminal investigation body or the court, ex officio or at the request of any
of the parties, if they consider that the technical-scientific or forensic
report is not complete or that its conclusions are not accurate, has it
redone or orders an expertise.
When redoing or completion of the
technical-scientific or forensic acknowledgment is ordered by the court, the
report is sent to the prosecutor, in order for the latter to take measures
for its completion or redoing.
|
Section X
Expertise
|
Ordering
an expertise
|
Art. 116 - When,
for the clarification of certain deeds and circumstances of the case, in
order to find out the truth, the knowledge of an expert is necessary, the
criminal investigation body or the court order, ex officio or upon request,
an expertise.
|
|
Obligatory expertise
|
[lxiv]Art. 117 - A
psychiatric expertise is obligatory in case of the offence of extremely
serious murder, as well as when the criminal investigation body or the court
has doubts about the defendant's mental health.
In such
cases, the expertise is performed in specialized sanitary institutions. In
order to make the expertise, the criminal investigation body, with the
approval of the prosecutor or the court, orders hospitalization of the
accused person or defendant for the necessary period. This measure is
executory and is enforced, in case of opposition, by the police bodies.
Also, an expertise is obligatory
in order to clarify the causes of death, if a forensic report has not been
drawn up.
|
|
The expertise procedure
|
Art. 118 - The expertise is performed in accordance with
the provisions of the present code, if the law does not stipulate otherwise.
The provisions of art. 113 are enforced accordingly.
The
expert is appointed by the criminal investigation body or by the court,
except for the expertise stipulated in art. 119 paragraph 2.
Each party is entitled to request
that an expert recommended by it take part in the expertise.
|
|
Official experts
|
Art. 119 - If there are forensic experts or official
experts in the respective specialty, another person may not be appointed
expert, except when special circumstances would demand it.
When
the expertise is to be performed by a forensic service, by a criminological
expertise laboratory or by any specialized institute, the criminal
investigation body or the court ask them to perform the expertise.
When the forensic service, the
criminological expertise laboratory or the specialized institute consider
necessary that specialists from other institutions should take part or pass
their opinion on the expertise, it may use their assistance or their advice.
|
|
Explanations given to the expert and parties
|
[lxv]Art.120 - The
criminal investigation body or the court, when they order an expertise,
settle a date when the parties, as well as the expert, are summoned, if the
latter was appointed by the criminal investigation body or the court.
At the
settled date, the object of the expertise and the questions that the expert
has to answer are communicated to the parties and to the expert and they are
informed that they have the right to make observations regarding these
questions and that they may require their modification and completion.
The
parties are also informed that they have the right to ask the appointment of
an expert recommended by each of them, who will take part in the expertise.
After the examination of
objections and claims of the parties and the expert, the criminal
investigation body or the court notifies the expert on the due time of the
expertise, as well as inform him/her whether the parties are going to attend
the expertise.
|
|
The expert’s rights
|
Art. 121 - The expert is entitled to familiarize
himself/herself with the material of the record necessary for the expertise.
During the criminal investigation, the record is consulted with the approval
of the investigation body.
The
expert may require clarifications from the criminal investigation body or the
court regarding certain deeds or circumstances of the case.
The parties, with the approval and
in the conditions settled by the criminal investigation body or the court,
may offer the expert the necessary clarifications.
|
|
The expertise report
|
Art. 122 - After the expertise, the expert draws up a
written report.
When
there are several experts, only one expertise report is drawn up. If there
are different opinions, they are mentioned in the report or in an annex.
The expertise report is submitted
to the criminal investigation body or to the court that ordered the
expertise.
|
|
The content
of the report
|
An. 123 -The expertise report includes:
a) the
introduction, which states the criminal investigation body or the court that
ordered the expertise, the date when it was ordered, the name and surname of
the expert, the date and place of expertise, the date when the report was
drawn up, its object and the questions that the expert had to answer, the
material on which the expertise was based and whether the attending parties
offered explanations during the
expertise;
b) a
detailed description of the expertise operations, the objections or
explanations given by the parties, as well as the analysis of these
objections or explanations based on the facts discovered by the expert;
c) the conclusions, including the
answers to the questions and the expert's opinion on the object of the
expertise.
|
|
Supplementary expertise
|
Art.124 - When the criminal investigation body or the
instance discover, ex officio or upon request, that the expertise is not
complete, it orders an expertise supplement, either to the same expert or to
another.
Also,
when it is considered necessary, the expert is asked for supplementary
written explanations or is called to give verbal explanations in relation
with the expertise report.
In this
case, the hearing is conducted according to the provisions regarding the
witnesses' hearing.
Supplementary
written clarifications may also be requested from the forensic service, the
criminological expertise laboratory or the specialized institute that
completed the expertise.
|
|
Making a new expertise
|
Art. 125 - If the criminal investigation body or the
court has doubts about the accuracy of the expertise report conclusions, they
order a new expertise.
|
|
Clarifications required from the issuing institute
|
Art. 126 - In cases of forgery of money or other
values, the criminal investigation body or the court may require
clarifications from the issuing institute.
|
|
Presentation
of scripts
of comparison
|
Art. 127 - In relation with offences of false in
writings, the criminal Investigation body or the instance may require that
scripts of comparison to be presented.
If the
scripts are found in public deposits, the lawful authorities must provide
them.
If the
scripts are found at a private person who is neither spouse nor close relative
of the accused person or defendant, the criminal investigation body or the
court informs him/her that he/she must provide them.
The
scripts of comparison must be acknowledged by the criminal investigation body
or the by the president of the panel, and signed by the person who provides
them.
The
criminal investigation body or the instance may order that the defendant
provide something handwritten by himself/ herself or write by dictation.
If the
defendant refuses, this will be mentioned in the official report.
|
Section XI
The use of interpreters
|
Cases and procedure
for the use of
interpreters
|
[lxvi]Art. 128 - When
one of the parties or other person that is to be heard cannot understand or
speak Romanian, and the criminal investigation body or the court cannot
communicate with him/her, they provide an interpreter, free of charge. The
interpreter may be appointed or chosen by the parties; in this case, it must
be an authorized interpreter, according to the law.
The
provisions of the previous paragraph are also enforced accordingly in case
some of the writings in the case record or presented in court are in another
language than Romanian.
The provisions of art. 83, 84 and
85 are enforced accordingly on the interpreter as well.
|
Section XII
Field investigation and
reconstruction
|
Field investigation
|
Art. 129 - Field investigation is done when it is
necessary to establish the situation of the place where the offence was
committed to find out and settle the traces of the offence, to establish the
position and condition of the material means of evidence, and the
circumstances of the offence.
The
criminal investigation body performs the above mentioned investigation in the
presence of assistant witnesses, except for the case when this is impossible.
The investigation is performed in the presence of the parties, when this is
necessary. The parties' failure to come after having been informed does not
impede the investigation.
The
accused person or defendant who is held or arrested, if he/she cannot be
brought to the investigation place, is informed by the criminal investigation
body that he/she has the right to be represented and is ensured, if he/she
requires it, representation.
The
court performs the field investigation after summoning the parties, in the
presence of the prosecutor, when the latter's attendance in the trial is
obligatory.
The criminal investigation body or
the court may forbid the persons who are present or come to the place of
investigation to communicate between them or with other persons, or to leave
before the investigation is over.
|
|
Reconstruction
|
Art. 130 - The criminal investigation body or the court,
if they find it necessary for checking on and clarification of some data, may
perform a total or partial field reconstruction of the way and conditions in
which the deed was committed.
The reconstruction is done in the
presence of the accused person or defendant. The provisions of art. 129
paragraph 2 are enforced accordingly.
|
|
Official report
of the field investigation
|
Art. 131 - An official report is drawn up on the field
investigation, that must include, besides the specifications shown in art.
91, a detailed description of the situation of the place, of the traces
found, of the objects examined or taken away, of the position and condition
of the other material means of evidence, so that these are rendered
accurately and, as much as possible, with the respective dimensions.
In case of reconstruction of the
way in which the deed was committed, a detailed description of the
reconstruction is also included.
In all cases, sketches, drawings,
photos or other such things may be done, which will be acknowledged and
placed as annexes in the official report.
|
Section XIII
Rogatory commission and delegation
|
Conditions for disposing
the rogatory commission
|
Art. 132 - When a criminal investigation body or the
court cannot hear a witness, perform a field investigation, take away objects
or perform any other procedural act, they may address another criminal
investigation body or another court, who have the possibility to perform
them.
Initiating
the criminal action, taking preventive measures, approving the evidence
gathering procedure, as well as ordering the other procedural acts or
measures are not the object of the rogatory commission.
The rogatory commission may only
address a body or a court that are equal in rank.
|
|
The content
of the rogatory commission
|
Art. 133 - The cancellation or closing by which the
rogatory commission was instituted must include all clarifications on the
performance of the act that makes its object, and in case a person is to be
heard, the questions that he/she will be asked are also included.
The criminal investigation body or
the court that form the rogatory commission may ask other questions too, if
their necessity results during the hearing.
|
|
The rights
of the parties
in case of rogatory commission
|
Art. 134 - When the rogatory commission was ordered by
the court, the parties may ask questions that will be communicated to the
court which is to form the rogatory commission.
At the
same time, any of the parties may ask to be summoned when the rogatory
commission is formed.
When the defendant is under
arrest, the court that will form the rogatory commission appoints an ex
officio defender who will represent the defendant.
|
|
Delegation
|
Art. 135 - The criminal investigation body or the
court may order, under the conditions mentioned in art.132, the performance
of a procedural act by delegation as well. Only a hierarchically inferior
body or court may be delegated.
The dispositions regarding the
rogatory commission are enforced accordingly in the case of delegation.
|
TITLE IV
PREVENTIVE MEASURES AND OTHER PROCEDURAL MEASURES
CHAPTER I
PREVENTIVE MEASURES
Section I
General provisions
|
The purpose
and categories of
preventive measures
|
[lxvii]Art. 136 - In cases related to offences punished by life detention or
imprisonment, in order to ensure a successful unfolding of the criminal trial
or to prevent elusion of the accused person or defendant from criminal
investigation, from trial or punishment enforcement, one of the following
preventive measures may be taken:
a) confinement;
b) obligation not to leave the
locality;
c) preventive arrest.
The purpose of preventive measures may
be accomplished also by provisional release under judicial control or on
bail.
The measure under par. 1 let. a) may be
taken by the criminal investigation body or by the prosecutor.
The measures under par. 1 let. b) and
c) may be taken by the prosecutor, during criminal investigation, or by the
court, during trial.
The measure under par. 1 let. d) may be taken by the judge.
The measure of preventive arrest may not be taken in the case of
offences for which the law provides alternatively the fine punishment.
Provisional release is ordered by the court.
The choice of the measure to be taken is made taking into account
its aim, the degree of social danger of the offence, the health, age,
antecedents and other situations related to the person against whom the
measure is taken.
|
|
Content of the act by which the preventive measure
is taken
|
Art.137 - The act by which the preventive measure is taken must show the
deed that is the object of the blame or accusation, the corresponding law,
the punishment stipulated by the law for the offence committed and the
concrete reasons that led to the respective preventive measure.
|
|
Informing on the reasons for taking preventive
measures and on the blame
|
[lxviii]Art.1371 - The person held or arrested is immediately informed of the
reasons why he/she is held or arrested. The person arrested is informed of
his/her blame as soon as possible, in the presence of a lawyer.
When preventive arrest of the accused person or defendant is
ordered, the judge communicates it, within 24 hours, to a member of his/her
family or to other person appointed by the accused person or defendant, which
will be mentioned in an official report.
The person held may demand that a family member or one of the
persons mentioned at par. 2 is informed on the measure taken. Both the
request of the person held and the notification are written down in an
official report. Exceptionally, if the criminal investigation body considers
that this would affect the criminal investigation, it informs the prosecutor,
who will decide on the held person’s request.
|
|
Informing
the prosecutor
in order to take preventive measures
|
[lxix]Art. 138 - When the criminal investigation body thinks it appropriate to take
one of the measures stipulated in art. 136 paragraph 1 letters b) - d), it
draws a justified report that it submits to the prosecutor.
In the case of measures provided at art. 136 par. 1 let. b) and
c), the prosecutor must take a decision within 24 hours.
In the case of the measure
stipulated in art. 136, paragraph 1, letter d), the prosecutor, if he
appreciates the conditions provided by the law are met, proceeds, as it is
the case, according to art. 146 or 1491.
|
|
The replacement
or revocation of preventive measures
|
[lxx]Art. 139 - The preventive measure taken is replaced with another
preventive measure when the reasons that determined the first measure have
changed.
When there is no longer a reason to
justify the maintenance of the preventive measure, it must be revoked ex
officio or upon request.
In case the preventive measure was
taken, during criminal investigation, by the court or by the prosecutor, the
criminal investigation body must immediately inform the prosecutor of the
change or cessation of the reasons motivating the respective measure.
In case the preventive measure was
taken, during criminal investigation, by the prosecutor or by the court, if
the prosecutor considers that the information received from the criminal
investigation body justify the replacement or revocation of the measure,
he/she orders this or, according to the case, informs the court.
The prosecutor must inform the court ex
officio as well, for the replacement or revocation of the preventive measure
taken by the latter, when he realises that the reason which justified taking
the measure no loner exists.
Also, the preventive measure is
cancelled ex officio when it was taken
by violation of the legal provisions, disposing, in the case of confinement
and preventive arrest, the immediate release of the accused person or
defendant, unless he/ she is arrested in another case.
Also, if the court establishes, based
on forensic expertise, that the person under preventive arrest suffers from a
disease which cannot be treated within the network of the General Direction
of Penitentiaries, it orders, upon request or ex officio, the revocation of
the preventive arrest measure.
The preventive arrest measure may be
replaced with one of the measures provided by art. 136 par. 1 let. b) and c).
The provisions of the previous paragraphs are enforced even if the
judicial body is to decline its competence.
|
|
The lawful
cessation
of preventive measures
|
a) expiration of the due times
stipulated by the law or settled by the judicial bodies;
b) exemption from investigation,
cessation of criminal investigation, closing of the criminal trial or
acquittal.
The preventive arrest measure lawfully
ceases when, before passing a conviction decision in first instance, the
duration of the arrest has reached half of the maximum punishment stipulated
by the law for the respective offence, without exceeding, during criminal
investigation, the maxim provided at art. 159 par. 13, as well as in the
other cases especially stipulated by the law.
In the cases shown at paragraph 1 and 2, the court, ex officio or
upon notification from the prosecutor, or the prosecutor, in the case of
confinement, ex officio or, as a result of informing the investigation body,
must order the immediate release of the person held or arrested. Also, they
must send to the administration of the detention place a copy of the ordinance
or disposition, or an extract including the following specifications: the
data necessary to identify the accused person or defendant, the number of the
arrest warrant, the number and date of the ordinance, of the closing or
decision by which the release was ordered, as well as the legal justification
for release.
|
|
Complaint against
the ordinance
of the prosecutor
or criminal investigation body regarding
the measure
of confinement
|
[lxxii]Art.1401 – Complaint may be made against the ordinance of preventive arrest
issued by the criminal investigation body, before the expiry of the 24 hours
from taking the measure, at the prosecutor who supervises the criminal
investigation. Complaint may be made against the ordinance issued by
prosecutor for taking this measure, before the expiry of 24 hours, at the
prime- prosecutor of the prosecutor’s office or, according to the case, to
the hierarchically superior prosecutor, in the conditions of art. 278 par. 1
and 2.
The prosecutor decides through
ordinance before the expiry of the 24 hours from taking the measure of
confinement.
If he/she considers the measure of confinement illegal or not
justified, the prosecutor orders its revocation.
|
|
Complaint against prosecutor ordinance regarding
preventive measures provided
at art. 136
let. b) and c)
|
[lxxiii]Art. 1402 – Complaint may be made against the prosecutor ordinance disposing,
the measure of interdiction to leave the locality or the measure of
interdiction to leave the country, by the accused person or defendant, within
3 days from taking the measure, at the court that would have the competence
to try the case at first instance.
The complaint will be examined in the
council room.
The summoning of the accused person or
defendant is obligatory. His/her absence does impede on the complaint
judgment.
The prosecutor's attendance to the
complaint judgment is obligatory.
The record of the case will be sent to
the court, within 24 hours, and the complaint is solved in 3 days due time.
The court decides on the same day,
through closing.
When the court considers the preventive
measure illegal or unjustified, it orders its revocation.
The execution of the accused person or
defendant’s complaint against the prosecutor ordinance, disposing the
preventive measure, may not be suspended.
The record is returned to the prosecutor within 24 hours from the
solution of the complaint.
|
|
The way of attack
against the closing passed by the court
during criminal investigation, regarding
preventive arrest[lxxiv]
|
[lxxv]Art. 1403 – Against the closing which disposes, during criminal
investigation, the measure of preventive arrest of the accused person or
defendant, against the closing which disposes the revocation, replacement,
cessation or extension of preventive arrest, as well as against the closing
for the rejection of proposal for preventive arrest, the accused person or
defendant and the prosecutor may promote recourse at the superior court. The due time is 24 hours from passing the
decision, for those present and from the communication, for those absent.
The accused person or defendant
arrested will be brought to court and heard in the presence of his/her
defender. In case the defendant is hospitalized and the state of his health
does not allow him/her to appear in court or, in other cases when he cannot appear,
the complaint will be examined in his/her absence, but only in the presence
of the defender who is allowed to pass conclusions.
The prosecutor's attendance in the
recourse is obligatory.
The record will be presented to the
recourse court, within 24 hours, and the recourse is solved within 48 hours,
in case of arrest of the accused person, and within 3 days, in case of arrest
of the defendant.
The court takes its decision on the
same day, by closing.
When the court considers the preventive
measure taken illegal or unjustified, it orders its revocation and the
immediate release of the accused
person or defendant, unless he/she is arrested in another case.
The execution of the recourse against
closing which disposed taking the measure of preventive arrest or which
established the lawful cessation of this measure may not be suspended.
The file is returned to the court whose
closing was attacked within 24 hours from the solution of the recourse.
|
|
The way of attack
against closing passed by the court
during trial, regarding preventive measures
|
[lxxvi]Art. 141 - The closing in first instance and in recourse, by which taking,
revocation, replacement, cessation or maintaining of a preventive measure is
ordered or by which the lawful cessation of preventive arrest is established,
may be attacked separately by recourse, by the prosecutor or by the
defendant. The recourse due time is of 24 hours and is calculated from
decision passing, for those present and from decision communication, for
those absent.
The file is transmitted to the recourse court within 24 hours and
the recourse is judged within 3 days. The recourse court is to return the
file to the first instance within 24 hours from the recourse solution.
The execution of the recourse declared against closing by which
taking or maintaining a preventive measure was ordered, or by which the
lawful cessation of the preventive arrest was established, may not be
suspended.
|
|
Separate confinement of certain categories
of delinquents
|
Art. 142 - During confinement or arrest, the juveniles are kept separately
from adults, and women separately from men.
|
Section II
Confinement
|
Confinement
conditions
|
[lxxvii]Art. 143 - The confinement measure may be taken by the criminal investigation
body against the accused person if there are pieces of evidence or strong
signs that he/she committed a deed stipulated by the criminal law. The
criminal investigation body must immediately inform the prosecutor about
taking the measure of confinement.
The criminal investigation body will
inform the accused person of his right to appoint a defender. Also, he/she is
informed of his/her right not to make any statement, and on the fact that
anything he/she declares may be used against him/her as well.
The confinement measure may be taken
also by the prosecutor, in the conditions of par. 1 and 11, in
which case the head of the prosecutor’s office where he/she functions is
informed.
The confinement measure is taken in the
cases stipulated by art. 148, regardless of the limits of the imprisonment
punishment stipulated by the law for the deed committed.
The existence of strong signs means that the data on the case lead
to the presupposition that the person criminally investigated committed the
deed.
|
|
Confinement duration
|
[lxxviii]Art. 144 - The confinement measure may only be enforced for maximum 24
hours. From the duration of the confinement measure is deduced the period
when the person was deprived of liberty as a result of the administrative
measure of being taken to the police office, provided at art. 31 par. 1 let.
b) of the Law no. 218/2002 regarding the organisation and functioning of the
Romanian Police.
The ordinance that enforced the
confinement measure must mention the day and time when the confinement
started, and the release ordinance, the day and time when the confinement
ceased.
When the criminal investigation body considers it necessary to
enforce the measure of preventive arrest, it submits to the prosecutor a
motivated report, in the first 10 hours from the accused persons’
confinement, together with the notification mentioned by art. 143 par. 1. The
prosecutor, if he/she appreciates the conditions provided by the law for the
measure of preventive arrest, proceeds, within the due time provided at par.
1, according to art. 146.
When the confinement measure is taken by the prosecutor, if he/she
considers appropriate to take the measure of preventive arrest, proceeds,
within 10 hours from the confinement measure, according to art. 146.
|
Section III
Interdiction to leave the
locality
|
Content of
the measure
|
[lxxix]Art. 145 - The obligation not to leave the locality consists in the
obligation imposed on the accused person or defendant by the prosecutor,
during criminal investigation, or by the court, during trial, not to leave
the locality where he lives without the approval of the body that enforced
this measure. This measure may be taken only if the conditions stipulated in
art. 143 paragraph 1 are met.
During the criminal investigation, the
duration of the measure stipulated in the paragraph 1 may not exceed 30 days,
unless it is extended in the conditions of the law. The measure of obligation
not to leave the locality may be extended during criminal investigation, in
case of necessity and only with a motivation. The extension is ordered by the
court competent to judge the case, each extension not exceeding 30 days. The
provisions of art. 159 par. 7 -9 are applied accordingly. The maxim duration
of the measure provided at par. 1 during criminal investigation is one year.
Exceptionally, when the punishment provided by the law is life detention or
10 years imprisonment or more, the maxim duration of the obligation not to
leave the locality is of 2 years.
A copy of the prosecutor’s ordinance
or, according to the case, of the court closing, which remained final, is
communicated to the accused person or defendant, respectively to the police
office in whose territorial area the accused person or defendant lives.
In case the enforced measure is violated, one of the other
preventive measures may be taken against the defendant, if the conditions
stipulated by the law for enforcing those measures are met.
|
[lxxx]Section III1
Interdiction to leave the
country
|
The obligation not to
leave
the
country
|
Art.
1451 – The obligation not to leave the
country consists in the obligation imposed on the accused person or defendant
by the prosecutor, during criminal investigation, or by the court, during
trial, not to leave the locality where he lives without the approval of the
body that enforced this measure.
The provisions of art. 145 are applied
accordingly in the case of the measure of obligation not to leave the country
as well.
A copy of the prosecutor’s ordinance
or, according to the case, of the court closing, which remained final, is
communicated, according to the case, to the accused person or defendant and
to the police office in whose territorial area he/she lives, to bodies
competent to release his/her passport, as well as to frontier police bodies.
The authorized bodies deny the release of the passport or, according to the case,
temporarily retain the passport for the duration of the measure.
|
Section IV
Preventive arrest
- Arrest of the accused
person
|
Arrest
of
the
accused
person
during
criminal
investigation
|
[lxxxi]Art. 146 – The prosecutor, ex officio or solicited by the criminal
investigation body, when the conditions stipulated in art. 143 are met and
there is evidence from which results one of the cases provided at art. 148,
if he considers the accused person's arrest to be in the interest of the
criminal investigation, and only after hearing the latter in the presence of
his/her defender, presents the case file, with the motivated proposal to take
the measure of preventive arrest of the accused person, to the president of
the court or to the judge delegated by the latter.
The file is presented to the president
of the court that would be competent to judge the case at first instance, or
of the corresponding court in whose jurisdiction the detention place is, or
to the judge delegated by the court president.
At the presentation of the file by the
prosecutor, the court president or the delegated judge settle the day and
hour for the solution of the proposal for preventive arrest, before the
expiry of the 24 hours, in case the accused person is held. The day and the
hour are communicated both to the chosen or appointed ex officio defender and
to the prosecutor, the latter being obliged to ensure the presence in front
of the judge of the accused person confined.
The proposal for preventive arrest is
solved in the council room by only one judge, regardless of the nature of the
offence.
The accused person is brought in front
of the judge and will be assisted by a defender.
The provisions of art. 1491
par. 6 and of art. 150 are applied accordingly.
The prosecutor’s attendance is obligatory.
After hearing the accused person, the
judge immediately admits or rejects the proposal of preventive arrest,
through motivated closing.
If the conditions provided at par. 1
are met, the judge orders, by closing, the preventive arrest of the accused
person, showing the reasons justifying the preventive arrest and settling its
duration, which may not exceed 10 days.
At the same time, the judge, after
admitting the proposal, urgently issues an arrest warrant for the accused
person. The warrant includes the corresponding specifications mentioned in
art. 151 par. 3 letters a) - c), e) and j), as well as the accused person's
name and surname and the duration of the preventive arrest.
The provisions of art. 152 par. 1 are
applied accordingly.
Recourse may be introduced against the
closing, within 24 hours from the passing, for those present, and from the
communication, for those absent.
|
|
Arrest of the accused
person at court
|
Art.
147 - The court, in the situations shown in the
special part, title 11, may order the arrest of the accused person in the
cases and conditions stipulated in art 146. When the arrest has been ordered,
the president of the panel issues the arrest warrant for the accused person.
The accused person arrested is immediately sent to the prosecutor together
with the arrest warrant.
|
2. Arrest of the defendant
|
Conditions and cases
in which the arrest of the defendant
is disposed
|
[lxxxii]Art. 148 - The arrest measure may be taken against the defendant if the
conditions stipulated in art. 143 are met and only in one of the following
cases:
a) the defendant's identity or domicile
cannot be clarified without the necessary data;
b) the offence is flagrant, and
imprisonment punishment stipulated by the law is longer than one year;
c) the defendant has run away or hidden
himself with the purpose of escaping the investigation or the trial, or has
made preparations to do so, as well as if during the trial, there are signs
that the defendant wants to escape the execution of punishment;
d) there are sufficient data that the
defendant has tried to impede the revealing of the truth, by influencing a
witness or an expert, by destroying or altering the material means of
evidence or by other such acts;
e) the defendant has committed a new
offence or there are data that justify the fear that he might commit other
offences;
f) the defendant is recidivist;
g) abrogated;
h) the defendant has committed an
offence for which the law stipulates imprisonment for life alternatively with
a imprisonment punishment or imprisonment for more than 4 years and there is
clear evidence that the release would be too great a danger for the public
order;
i) there are sufficient data or signs
which motivate the fear that the defendant will exert pressure on the injured
person or will attempt to make an illegal agreement with the latter.
In the cases stipulated at par. 1 letters c)-f) and i), the arrest
measure may be taken against the defendant only if the punishment stipulated
by the law is imprisonment for life or imprisonment for more than 2 years.
|
|
Duration
of the defendant’s arrest
|
[lxxxiii]Art. 149 - The duration of the defendant's arrest during criminal
investigation may not exceed 30 days, except for the case when it is extended
under the law. The due time is calculated from the date when the warrant was
issued, when the arrest was ordered after hearing the defendant, and in case
the arrest was ordered in the defendant's absence, the due time is calculated
from the date of execution of the arrest warrant.
When a case is moved in the course of criminal investigation from
one investigation body to another, the arrest warrant previously issued
remains valid. The duration of the arrest is calculated according to the
provisions of the previous paragraph.
|
|
Arrest of
the defendant
during criminal investigation
|
[lxxxiv]Art. 1491 - The prosecutor, ex officio or solicited by the criminal
investigation body, when the conditions stipulated in art. 143 are met and
there is evidence from which results one of the cases provided at art. 148,
if he considers the defendant's arrest to be in the interest of the criminal
investigation, and only after hearing the latter in the presence of his/her
defender, presents the case file, with the motivated proposal to take the
measure of preventive arrest of the defendant, to the president of the court
or to the judge delegated by the latter.
The file is presented to the president
of the court that would be competent to judge the case at first instance, or
of the corresponding court in whose jurisdiction the detention place is, or
to the judge delegated by the court president.
At the presentation of the file by the
prosecutor, the court president or the delegated judge settle the day and
hour for the solution of the proposal for preventive arrest, before the
expiry of the preventive arrest warrant of the accused person which became
defendant or, in case the defendant is held, until the expiry of the 24 hours
of confinement. The day and the hour are communicated both to the chosen or
appointed ex officio defender and to the prosecutor, the latter being obliged
to ensure the presence in front of the judge of the confined or arrested
defendant.
The proposal for preventive arrest is
solved in the council room by only one judge, regardless of the nature of the
offence.
The defendant is brought in front of
the judge and will be assisted by a defender.
In case the defendant is in a state of
confinement or arrest according to art. 146 and because of the state of
his/her health or because of emergency reasons or necessity he/she cannot
appear in court, the arrest proposal will be examined in the absence of the
defendant, but in the presence of the defender who is allowed to pass
conclusions.
The provisions of art. 150 are applied
accordingly.
The prosecutor’s attendance is
obligatory.
The judge admits or rejects the
proposal of preventive arrest, through motivated closing.
If the conditions provided at par. 1
are met, the judge orders, by closing, the preventive arrest of the
defendant, showing the reasons justifying the preventive arrest and settling
its duration, which may not exceed 30 days.
The defendant’s arrest may be disposed
only for the days left after subtracting from 30 days the period when he/she
was previously held or arrested. The preventive arrest of the defendant is
ordered before the expiry of the duration of the accused person’s arrest.
The provisions of art. 146 par. 10 and
of art. 152 par. 1 are applied accordingly.
Recourse may be introduced against the closing, within 24 hours
from the passing, for those present, and from the communication, for those
absent.
The provisions of previous paragraphs are applied also for the
case when the prosecutor initiates the criminal action before the expiry of
the duration of the accused person’s arrest warrant. The accused person’s
arrest warrant ceases at the date when the defendant’s arrest warrant is
issued.
|
|
Hearing
the defendant
|
[lxxxv]Art. 150 - The arrest measure may be taken against the defendant only after
the prosecutor or the court have heard him, except for the case when the
defendant has disappeared, is abroad or escapes from investigation or trial,
or is in one of the situations provided at art. 1491 par. 6.
In case the defendant has disappeared, is abroad or escapes from
investigation or trial, when the warrant has been issued without hearing the
defendant, the latter will be heard as soon as he/she is caught or appears.
|
|
Content
of the arrest warrant
|
[lxxxvi]Art. 151 - Immediately after drawing up the decision ordering the defendant's
arrest, the judge issues an arrest warrant.
If the same decision orders the arrest
of several defendants, separate arrest warrants are issued for each of them.
The arrest warrant should mention:
a) the court that ordered the arrest
measure against the defendant.
b) the date and place of issue;
c) the name, surname and position of
the person who issued the arrest warrant;
d) the data regarding the defendant,
stipulated in art. 70, and his/her identity number;
e) the deed that makes the object of
the accusation and the name of the offence;
f) the legal framing of the deed and
the punishment stipulated by the law;
g) the concrete reasons leading to the
arrest;
h) the arrest order for the defendant;
i) the place where the person to be
arrested will be kept;
j) the signature of the judge.
|
|
Execution of the warrant
|
[lxxxvii]Art. 152 - When the arrest warrant was issued after hearing the defendant,
the judge who issued the warrant hands a copy of the warrant to the arrested
person, and sends another copy to the police body, in order to be left at the
detention place with the arrested person.
When the arrest measure was ordered in
the absence of the defendant according to art. 150, the warrant issued is
submitted in 2 copies to the police body for enforcement.
The police body arrests the person
designated in the warrant, to whom it gives a copy of the warrant, and brings
him/her before the judge who issued the warrant.
The judge hears the defendant, and if the latter has objections
that need urgent clarifications, he/she immediately settles a trial date.
|
|
Objections regarding identity
|
[lxxxviii]Art.153 - If the arrested person has objections against the enforcement
of the warrant only as far as the identity is concerned, he/she is brought
before the court of the place where he/she was found. When it is necessary,
the court asks the judge who issued the warrant for information.
Until the objections are clarified, the
court, if it considers there is no danger of disappearance, orders the
release of the person against whom the warrant has been enforced.
If the court discovers that the person
brought is not the one specified in the warrant, it releases him/her
immediately, and if it discovers that the objections are not justified,
orders the enforcement of the warrant, according to the provisions of art.
152 paragraph 3.
In the cases provided at par. 1 -3, the court orders through
closing, that will also be sent to the judge who issued the warrant.
|
|
Not finding the person stipulated in the warrant
|
Art. 154 - When the person stipulated in the warrant has not been found, the
enforcing body draws up an official report by which it acknowledges this and
informs the judicial body that issued the warrant, as well as the competent
bodies for searching.
|
|
Extension of the arrest duration during criminal
investigation
|
[lxxxix]Art. 155 - The duration of the defendant's arrest ordered by the court may
be extended, during criminal prosecution, for justified reasons, if the
reasons which determined initial arrest impose further deprivation of freedom
or if there are new reasons to justify the deprivation of freedom.
In the case provided at par. 1, the extension of the defendant's
arrest may be ordered by the court who would have the competence to try the
case or by the corresponding court in whose territorial area the detention
place is located.
|
|
Proposal for extension of arrest ordered during
criminal investigation
|
[xc]Art. 156 - The extension of the arrest provided at art. 155 is ordered on the
basis of the justified proposal of the body that performs the criminal
investigation.
The proposal of the criminal
investigation body is acknowledged by the supervising prosecutor and
forwarded by the latter, with at least 5 days before the expiry of the arrest
duration, to the court provided at art. 155 par. 2.
If the arrest was ordered by a court
inferior to the one competent to grant the extension, the proposal is
forwarded to the competent court.
The proposal is included as annex to the paper informing the
court. The paper may also include other reasons justifying the extension of
the arrest than those included in the proposal.
When in the same case there are several defendants arrested, whose
preventive arrest duration expires at different dates, the prosecutor who
informs the court for one of the defendants will inform it about the other
defendants as well.
|
|
|
|
|
|
|
|
Procedure for extension of arrest ordered during
criminal investigation
|
[xciii]Art. 159 – The record of the case will be brought by the prosecutor, together
with the court notification, at least 5 days before the expiry of the preventive
arrest and the defender will be able to consult it.
The proposal of extension of the arrest
is solved in the council room, by only one judge, regardless of the nature of
the offence.
The defendant is brought before the
court and will be assisted by the defender.
In case the arrested defendant is
hospitalized and, because of the state of his/her health, cannot be brought
before the court, or in other cases when his/her displacement is not
possible, the proposal will be examined in the absence of the defendant, but
only in the presence of the defender, who is allowed to pass conclusions.
The prosecutor’s attendance is
obligatory.
In case the court approves the
extension, this cannot exceed 30 days.
The court solves the proposal and takes
a decision with regard to the preventive arrest extension, within 24 hours
from receiving the file, and communicates the closing to those absent from
trial, within the same due time.
The closing by which the arrest
extension was decided may be attacked by recourse by the prosecutor or by the
defender, within 24 hours from decision passing, for those present and, from
decision communication, for those absent. The recourse is solved before the
expiry of the preventive arrest duration.
The enforcement of the recourse declared
against the closing by which the preventive arrest extension was decided may
not be suspended.
The defendant is brought at recourse
trial.
The measure disposed by the court is
communicated to the administration of the detention place, which must inform
the defendant about it.
If the closing of the first instance deciding on the extension of
preventive arrest is not attacked by recourse, the court must return the file
to the prosecutor within 24 hours from the expiry of the recourse due time.
The judge may also approve other extensions, each of less than 30
days. The provisions of the previous paragraphs are enforced accordingly. The
total duration of preventive arrest during criminal investigation may not
exceed 180 days.
|
|
Maintaining
the defendant’s arrest upon receiving
the file
|
[xciv]Art.160 - When the prosecutor disposes, by charge, the summoning to court
of the defendant under arrest, the file is transmitted to the competent court
at least 5 days before the expiry of the arrest warrant or, according to the
case, of the duration for which extension of the arrest was disposed.
The court, in the council room, proceeds according to art. 3001.
|
|
The defendant’s arrest
during trial
|
[xcv]Art. 160a – The preventive arrest of the defendant may be ordered during trial,
through motivated closing, if the conditions provided at art. 143 are met and
if there is one of the cases provided at art. 148.
The closing may be attacked by recourse. The due time for recourse
is 24 hours and is calculated from passing the decision, for those present
and, from communication, for those absent. The file will be communicated to
the recourse court in 24 hours due time, and the recourse is judged in 3
days. The execution of the recourse pronounced against the closing by which
arrest was ordered may not be suspended.
The provisions of art. 151 are applied also for the case of the
defendant’s arrest during trial.
With regard to the defendant who has previously been arrested in
the same case, during criminal prosecution or trial, the same measure may be
disposed again, if new clemencies have intervened, which make necessary
his/her deprivation of freedom.
|
|
Checking related to
the defendant’s arrest
during trial
|
[xcvi]Art. 160b – During trial, the court checks periodically, but no later than 60
days, the legality and justification of the preventive arrest.
If the court establishes that the reasons which determined
preventive arrest have ceased or there are no new reasons to justify the
deprivation of freedom, it orders, through closing, the revocation of
preventive arrest and immediate release of the defendant.
When the court establishes that the reasons which determined
preventive arrest impose further deprivation of freedom or that there are new
reasons that justify the deprivation of freedom, it orders, through motivated
closing, the maintaining of preventive arrest.
The closing may be attacked by recourse, the provisions of art.
160a par. 2 being applied accordingly.
|
|
|
|
|
|
[xcix]Section IV1
Special provisions for juveniles
|
General provisions
|
[c]Art. 160e – The confinement and preventive arrest of the juvenile are
performed according to the provisions from sections I, II and IV, with the
derogations and completions of the present section.
|
|
Specific rights and special conditions
for juveniles
|
Art. 160f - The confined or preventively arrested juveniles are ensured,
besides the rights provided by the law for the persons under preventive
arrest over 18 years old, specific rights and special conditions of preventive
arrest, related to the characteristics of their age, so that the measures
privative of freedom, taken for juveniles with the purpose of a good
unfolding of the criminal trial or of preventing their escaping criminal
prosecution, trial or the execution of punishment, do not bring prejudice to
the physical, mental or moral development of the juvenile.
The juvenile accused persons or defendants, confined or
preventively arrested, are ensured in all cases obligatory judicial
assistance, the judicial bodies being obliged to take measures in order to
appoint an ex officio defender, if the juvenile has not chosen one, and so
that the defender may directly contact the arrested juvenile and communicate
with him/her.
When the confinement or preventive arrest of a juvenile accused
person or defendant, this will be, immediately, in the case of confinement,
and within 24 hours, in the case of arrest, brought to the notice of the
parents, tutor, the person in whose care or supervision the juvenile is,
other persons designated by the latter, and, in case of arrest, also the
service of social reintegration of delinquents and of supervision of the
execution of sanctions non-privative of freedom, attached to the court that
would be competent to judge the case at first instance, this being mentioned
in an official report.
During confinement or preventive arrest, the juveniles are kept
separate from adults, in special places destined for juveniles under
preventive arrest.
The observance of rights and of the special conditions provided by
the law for the confined or preventively arrested juveniles is ensured
through the control of a judge especially appointed by the court president,
through the visits of the preventive arrest locations by the prosecutor, as
well as through the control of other bodies authorized by the law to visit
preventively arrested persons.
|
|
Keeping the juvenile
at the disposal
of the criminal investigation body or of prosecutor
|
Art. 160g – Exceptionally, the juvenile between 14 and 16 years of age, who is
criminally responsible, may be retained at the disposal of the prosecutor or
of the criminal investigation body, with the notification and under the
supervision of prosecutor, for a duration which may not exceed 10 hours, if
there is clear information the juvenile has committed an offence punished by
the law with life detention or imprisonment for 10 years or more.
Confinement may be extended only if this is imposed, through
motivated ordinance, by the prosecutor, for 10 hours duration at most.
|
|
Preventive arrest of the juvenile
|
[ci]Art. 160h – The juvenile between 14
and 16 years old may not be preventively arrested unless the punishment provided by the law for the deed he/she is
charged with is life detention or imprisonment for 10 years or more and
another preventive measure is insufficient.
The duration of arrest of the juvenile defendant, between 14 and
16 years of age is, during criminal prosecution, of 15 days at most, and the
checking of the legality and justification of preventive arrest is performed
periodically during trial, but not later than 30 days. The extension of this
measure during criminal investigation or its maintaining during trial may be
disposed only exceptionally. The preventive arrest of the juvenile during
criminal investigation may not exceed, as a whole, a reasonable due time and
no more than 60 days, each extension not surpassing 15 days. Exceptionally,
when the punishment provided by the law is life detention or imprisonment for
20 years or more, the preventive arrest of the juvenile defendant between 14
and 16 years of age, during criminal investigation, may be extended up to 180
days.
The juvenile defendant who is older that 16 may be preventively
arrested during criminal investigation for a duration of 20 days at most. The
duration of the preventive measure may be extended during criminal
investigation, each time with 20 days. The preventive arrest of the juvenile
defendant during criminal investigation may not exceed, as a whole, a
reasonable due time and no more than 90 days. Exceptionally, when the
punishment provided by the law is life detention or imprisonment for 10 years
or more, the preventive arrest of the juvenile defendant, during criminal
investigation, may be extended up to 180 days. The checking of the legality
and justification of the preventive arrest of the juvenile defendant over 16
years of age is performed periodically during trial, but not later than 40
days.
The duration of arrest for the juvenile defendant is 3 days at
most.
|
[cii]Section V
Temporary release under
judicial control and temporary release on bail
|
Modalities of
temporary release
|
[ciii]Art.1601 - All throughout the criminal trial, the defendant under
preventive arrest may ask for temporary release, under judicial control or on
bail.
|
- Temporary release under judicial control
|
Conditions of release
|
[civ]Art.1602 - Temporary release under judicial control may be approved in the
case of offences from guilt, as well as for intentional offences for which
the imprisonment punishment stipulated by the law does not exceed 12 years.
Temporary release under judicial
control is not approved in case the accused person or defendant is recidivist
or when there are data justifying the necessity to prevent him/her from
committing other offences or proving that he/she will try to impede the
revealing of the truth, by influencing witnesses or experts, altering or
destroying means of evidence or by other such acts.
The judicial body orders that, during
the temporary release, one or more of the following obligations should be
followed by the defendant:
a) not to trespass the territorial
limit agreed upon, except under the conditions settled by the judicial body;
b) inform the judicial body of any
change of domicile or residence;
c) not to go to places previously
agreed upon;
d) to come to criminal investigation
body or, if such is the case, to the court whenever he/she is called;
e) not to get in touch with certain
persons;
f) not to drive cars, or certain cars;
g) not to exert a profession of the nature of the one used for
committing the offence.
|
|
The body disposing temporary release
|
[cv]Art.1602a – Temporary release under judicial control is ordered, both during
criminal prosecution and during trial, by the court.
|
|
The body checking
the observance
of obligations
|
[cvi]Art.1602b – The control of the way in which the accused person or defendant
observes the obligations established by the court rests upon the judge
delegated for the execution, as well as to the prosecutor and to the police
body.
|
|
Modification or suspension of judicial control
|
[cvii]Art.1603 - The judicial control instituted by the court may be modified or
suspended by the latter anytime, partially or totally, for justified reasons.
|
- Temporary release on
bail
|
Conditions
for release
|
[cviii]Art.1604 - Temporary release on bail may be approved upon request, by the
court, both during criminal investigation and during trial, when the bail has
been paid and the conditions provided at art. 1602 par. 1 and 2
are met.
During temporary release, the accused
person or defendant must present himself/herself whenever the judicial bodies
solicit him/her, communicate any change of domicile or residence and observe
the obligations provided at art. 1602 par. 3, ordered by the
court.
Temporary release on bail is not
approved in the case of intentional offences for which the jail punishment
stipulated by the law is of more than 7 years. or when the defendant is
recidivist, or there are data that justify the fear that the defendant might
commit another offence or might try to impede the revealing of the truth by
influencing witnesses or experts, altering or destroying material means of
evidence or by other such acts.
|
|
The bail
|
[cix]Art.1605 - The bail guarantees the compliance by the accused person or
defendant with the obligations imposed on him/her during the temporary
release.
The bail amounts to at least 10.000.000
lei.
The bail is registered on the accused
person or defendant's name and at the order of the court that settled its
value.
The bail is returned when:
a) the temporary release is revoked in
the case stipulated in art.16010 paragraph 1 letter a);
b) the court acknowledges, by closing,
that the reasons which justified the preventive arrest no longer exist;
c) exemption from criminal
investigation, cessation of criminal investigation acquittal or cessation of
criminal trial are ordered;
d) the fine or imprisonment punishments
are ordered, with conditional suspension of enforcement or with suspension of
enforcement under supervision or with execution at the working place;
e) imprisonment punishment is ordered;
f) the request for temporary release
was rejected according to art. 1608a par.6.
The bail is not returned in the case
stipulated at letter e), when the temporary release was revoked under the
provisions of art.16010 paragraph 1 letter b). The bail represents
income for the state budget, once the conviction decision is final.
In the cases stipulated at letters b) -
e), the cessation of temporary release is ordered.
|
- [cx]Common provisions
|
The request
of temporary release
and the body
competent to solve it
|
[cxi]Art.1606 - The temporary release request may be made during the criminal
investigation, as well as during the trial, by the accused person or
defendant, by the defendant's spouse or close relatives.
The request must include the name,
surname, domicile and position of the person who makes it, as well the
specification that the respective person is aware of the legal provisions
regarding the cases when the bail is not returned.
In case of provisional release on bail,
the request must include also the obligation to deposit the bail and the
specification that the respective person is aware of the legal provisions
regarding the cases when the bail is not returned.
The competence to solve the request
belongs, during the criminal investigation, to the court that would be
competent to solve the case and, during the criminal trial, to the court
summoned to try the case.
The request submitted to the criminal investigation body or to the
administration of the detention place is forwarded, within 24 hours, to the
competent court.
|
|
Measures preliminary
to the request examination
|
[cxii]Art.1607 - The court checks if the temporary release request includes the
specifications stipulated in art. 1606 paragraphs 2 and 3 and, if
the case, takes measures for its completion. When the request is submitted to
the court before the trial date, these obligations belong to the president of
the court, who also informs the petitioner of the request trial date.
When the request is made by another person than the accused person
or defendant, according to art. 1606 paragraph 1, the court asks
the accused person or defendant whether he acknowledges the request, and
his/her declaration is written in the request.
|
|
The examination and admissibility in principle
of the request
|
[cxiii]Art.1608 - The court immediately examines the request, checking if the
conditions stipulated by the law for its admissibility are met.
In the case of the request for release
on bail, if the court establishes that the conditions stipulated by the law
are met, settles the bail value and informs the person who made the request
about this. After the proof of bail acknowledgment has been submitted, the
court admits the request in principle and settles the trial date.
If the conditions of the law are not met and the proof for
acknowledgement of bail was not submitted, the request is denied.
|
|
Solution of
the request
|
[cxiv]Art.1608a – The request is solved after hearing the accused person or
defendant, the defender’s conclusions, as well as the prosecutor's
conclusions.
In case the conditions stipulated by
the law are met and the request is justified, the court approves the request
and orders the temporary release of the accused person or defendant.
The court, in case the temporary
release under judicial control request is approved, establishes also the
obligations that are to be followed by the accused person or defendant.
A copy of the closing order, which
remained final, or an extract, is sent to the administration of the detention
place, as well as to the police body in whose territorial area the accused
person or defendant lives. The interested persons are informed.
The administration of the detention
place must take measures for the immediate release of the accused person or
defendant.
In case the conditions provided by the
law are not met, when the request is not justified or when it was made by
another person and not acknowledged by the accused person or defendant, the
court rejects the request.
|
|
The recourse against closings regarding temporary
release
|
[cxv]Art.1609 – Recourse may be introduced against the closing through which the
request for temporary release was admitted or rejected, by the accused person
or defendant or by the prosecutor, at the superior court.
The
recourse due time is of 24 hours and is calculated from decision taking, for
those present, and from decision communication, for those absent.
The
file will be transmitted to the recourse court within 24 hours.
The
recourse is tried in 2 days due time.
The
recourse is solved in the council room.
The
accused person or defendant is brought to recourse trial. The prosecutor’s
attendance is obligatory.
The
court decides on the same day on the admission or rejection of the recourse.
The
execution of the recourse against the closing by which the request for
temporary release was rejected may not be suspended.
The
file is returned within 24 hours from the solution of the recourse.
The provisions of previous
paragraphs are applied accordingly also in the case of modification or
suspension of judicial control.
|
|
Release revocation
|
a} facts or circumstances unknown at
the time when the temporary release request was approved are revealed,
justifying the accused person or defendant's arrest;
b} the accused person or defendant does
not fulfil, on purpose, the obligations due to him/her under art. 1602
paragraph 3 and art. 1604 paragraph 2, or tries to impede the
revealing of truth or intentionally commits an offence for which he/she is
investigated or tried.
Revocation of the temporary release is
ordered by the court, through closing, after hearing the accused person or
defendant assisted by the defender. Revocation is also ordered in the absence
of the accused person or defendant, when the latter, having no justified
reasons, does not respond to the summons.
In case the temporary release is
revoked, the court orders the preventive arrest of the accused person or
defendant and issues a new arrest warrant.
Recourse may be introduced against the
court closing by which revocation of provisional release was ordered.
The provisions of art. 1609 are applied accordingly.
|
CHAPTER II
OTHER PROCEDURAL MEASURES
Section I
Protection and safety
measures
|
Protection measures in
case of confinement or preventive arrest
|
Art.
161 - When the confinement or preventive arrest
measure was taken against an accused person or defendant who takes care of a
juvenile, of a person under interdiction, of a person for whom a guardianship
has been established, or of a person who needs help because of age, disease
or other cause, the competent authority must be informed in order to take
protection measures. The judicial body which took the confinement or
preventive arrest measure has the obligation to make the notification.
|
|
Taking safety measures
|
[cxvii]Art. 162 – If the prosecutor,
during criminal trial, notices that the accused person or defendant is in one
of the situations shown in art. 113 or 114 of the Penal code, he/she informs
the court which, if the case, orders temporary enforcement of the
corresponding safety measure. During trial, the corresponding safety measure
is also disposed temporarily by the court.
The court orders taking the safety
measures provided at par. 1 only after hearing the accused person or
defendant and in the presence of the defender and of the prosecutor.
The court takes measures for temporary
hospitalization and, at the same time, informs the medical commission that
has the competence to approve the hospitalization of mentally deranged
persons and of dangerous drug addicts.
The temporary hospitalization measure
is valid until its acknowledgment by the court.
The acknowledgment is done on the basis
of the medical commission approval.
In case hospitalization has been
ordered, the measures stipulated in art. 161 will be enforced.
The decision by which the court
acknowledges the hospitalization measure may be attacked separately through
recourse. The recourse does not suspend the execution.
|
Section II
Insuring measures, return
of objects and reestablishment
of the situation anterior
to the offence
|
Insuring measures
|
[cxviii]Art. 163 - The insuring measures are taken during the criminal trial by the
prosecutor or by the court and consist in non-availability by instituting an
attachment of movables and of real estate, in order to repair the damage caused
by the offence, as well as in order to make sure the fine punishment will be
executed.
The insuring measures in order to
repair the damage may be taken with regard to the goods of the accused person
or defendant and of the person who bears the civil responsibility, until the
estimated value of the damage is reached.
The insuring measures taken as
guarantee for the fine punishment execution are only taken with regard to the
goods of the accused person or defendant.
One may not attach the goods that belong
to one of the institutions referred to in art. 145 in the Penal code, as well
as those excepted by the law.
The insuring measures for repair of the
damage may be taken at the request of the civil party or ex officio.
The enforcement of the insuring measures
is obligatory when:
a) abrogated;
b) the victim is the person who lacks or has limited exertion
ability.
|
|
The bodies which accomplish insuring measures
|
[cxix]Art. 164 - The insuring measure ordinance is enforced by the criminal
investigation body which has taken the measure.
The closing by which the court ordered
the insuring measure is enforced by the judicial executor.
The insuring measures ordered by the
prosecutor or by the court may also be enforced by the execution bodies of
the damaged unit, in case this unit is one of those referred to in art. 145
of the Penal code.
In case the criminal investigation is performed by the prosecutor,
the latter may order that the insuring measure taken is enforced by the
secretary of the prosecutor’s office.
|
|
The attachment procedure
|
[cxx]Art. 165 - The body that enforces the attachment must identify and evaluate
the goods in question may, in case of necessity, appeal to experts.
Perishable goods, objects made of
precious metals or stones, foreign payment means, domestic value titles,
museum and art objects, valuable collections, as well as sums of money that
are subject to attachment, will obligatorily be taken away.
Perishable goods are delivered to
commercial institutions where the State is the major shareholder, according
to their activity profile, which must accept and use them immediately.
The precious metals or stones, or the
objects made of them and foreign payment means are deposited at the nearest
competent banking institution.
Domestic value titles, art or museum objects
and valuable collections are given for keeping to the specialized
institutions.
The objects stipulated in paragraphs 4
and 5 are delivered within 48 hours from taking. If the objects are strictly
necessary to the criminal investigation, they are delivered afterwards, but
not later than 48 hours from the solution of the case by the prosecutor,
after the criminal investigation has been completed.
The attached objects are kept until the
suspension of attachment.
The sums resulted from the use under paragraphs
3 and 7 as well as the sums taken under paragraph 2 are acknowledged,
according to the case, under the name of the accused person or defendant or
of the person bearing the civil responsibility, following the writ of the
body that disposed the institution of attachment, to whom the written
acknowledgment of receipt of the sum is given, within maximum 3 days from the
date when the money was taken or the goods have been used.
If there is the danger of estrangement, the other movables
attached will be sealed or taken away, and a custodian may be appointed.
|
|
The official report of attachment
and mortgage inscription
|
Art. 166 - The body that enforces the attachment draws
up an official report on all acts performed under art. 165, including a
detailed description of the goods attached and specifying their value. The
goods exempted from investigation under the law, found at the person to whom
attachment was enforced are also mentioned in the official report. Objections
of the parties or other interested persons are included as well.
A copy
of the official report is left with the person to whom attachment has been
enforced, and in his/her absence, to the persons he/she lives with, the
administrator, the janitor or his replacement, or to a neighbour. In case part
of or all the goods have been delivered to a custodian, a copy of the
official report is left with him/her. A copy is forwarded to the body that
ordered the insuring measure, within 24 hours from the conclusion of the
official report.
For the real estate attached, the
body that ordered the institution of the attachment asks the competent body
to take a mortgage inscription of all attached real estate, including as
annexes copies of the writ by which the attachment was ordered and a copy of
the official report of the attachment.
|
|
The garnishment
|
Art. 167 - The
sums owed under any title to the accused person or defendant or to the person
bearing the civil responsibility by a third party or by the injured person,
are garnisheed in their hands and within the limits stipulated by the law,
from the date of receiving the papers by which the attachment is instituted.
These sums will be acknowledged by debtors, according to the case, and put at
the disposal of the body that ordered the garnishment or of the execution
body, within 5 days from the settling day, the receipts being delivered to
the same body within 24 hours from this.
|
|
Contestation of ensuring measures
|
[cxxi]Art. 168 - Against
the insuring measure taken and of its enforcement means, the accused person
or defendant, the party bearing the civil responsibility, as well as any
other interested person may complain to the prosecutor or to the court, at
any stage of the criminal trial.
The
decision of the court may be attacked separately by recourse. The recourse
does not suspend the execution.
After the final settlement of the
criminal trial, if no complaint has been filed against the enforcement of the
insuring measure, contestation may be made under the civil law.
|
|
Restoring things
|
[cxxii]Art. 169 - If
the prosecutor or the court finds out that the things taken away from the
accused person or defendant, or from any other person who received them for
custody, are the property of the victim or have been unjustly taken away from
him/her, it orders the return of the respective things to the victim. Any
other person who claims a right over the things taken away may ask, under
art. 168, the enforcement of this right and return of the things.
The things taken away are returned
only if this does not impede the revealing of truth and the just settlement
of the case, and imposing upon the person to whom they are returned the
obligation to keep them until the decision is declared final.
|
|
Reestablishment of the previous situation
|
[cxxiii]Art. 170 - The
prosecutor or the court may take measures for the reestablishment of the
situation prior to the offence, when the change of that situation was clearly
the result of the offence, and the reestablishment is possible.
|
TITLE V
TRIAL-RELATED AND COMMON PROCEDURAL
ACTS
CHAPTER
I
JUDICIAL ASSISTANCE AND
REPRESENTATION
|
Assistance of the accused person
or defendant
|
[cxxiv]Art. 171 – The
accused person or defendant has the right to be assisted by a defender all
throughout the criminal investigation and the trial, and the judicial bodies
must inform him/her of this right.
Judicial
assistance is obligatory when the accused person or defendant is a juvenile,
military in service, military with reduced service, called-up reservist,
student of a military educational institute, held in a re-education centre or
in a medical-educational unit, when arrested in another case, or when the
criminal investigation body or the court appreciate that the accused person
or defendant could not defend himself/herself, as well as in other cases
stipulated by the law.
During
the trial, judicial assistance is obligatory, also in the cases in which the
law provides for the offence committed life detention or imprisonment for 5
years or more.
When
judicial assistance is obligatory, if the defendant has not chosen a
defender, measures are taken for appointing one ex officio.
When
judicial assistance is obligatory, if the chosen defender does not appear,
without reason, at two consecutive summons, according to the case, at the
date established for an action of criminal investigation or at the date
settled for trial, thus creating difficulties for the development and
solution of the criminal trial, the judicial body appoints an ex officio
defender to replace the chosen one, granting him/her the necessary time to
prepare the defence, which may not be shorter than 3 days, except the
solution of requests regarding preventive arrest, when the due time may not
be shorter than 24 hours.
The
delegation of the ex officio defender ceases once the chosen defender
appears.
If the defender is absent from the
trial and cannot be replaced, in the conditions of par. 41, the case is
postponed.
|
|
The rights of the defender
|
[cxxv]Art. 172 - During
the criminal investigation, the defender of the accused person or defendant
has the right to assist in the performance of every criminal investigation
act and may draw up requests and statements. The absence of the defender does
not impede the performance of the criminal investigation act, if there is
proof that the defender has been informed on the date and time of the act
performance.
When
judicial assistance is obligatory, the criminal investigation body will
ensure the presence of the defender at the defendant's hearing.
In case
the defender of the accused person or defendant is present at the performance
of a criminal investigation act, this will be mentioned and the act is also
signed by the defender.
The
arrested accused person or defendant has the right to get in touch with the
defender, the confidentiality of talks being ensured.
The contacting of the defender may not
be forbidden at the extension of the arrest duration by the court, while at
the presentation of the criminal investigation material it is obligatory.
The
defender has the right to complain, under art. 275, if his/her claims have
not been approved; in the situations stipulated in paragraphs 2, 4 and 5, the
prosecutor must solve the complaint in maximum 48 hours.
During
the trial, the defender has the right to assist the defendant to exert the
trial-related rights of the latter, and in case the defendant is arrested, to
get in touch with him.
The
defender chosen or appointed ex officio must ensure the judicial assistance
of the accused person or defendant. In case of non-compliance with this
obligation, the criminal investigation body or the court may inform the
managing board of the bar, in order to take measures.
|
|
Assistance of other parties
|
[cxxvi]Art. 173 - The
defender of the victim, of the civil party and of the party bearing the civil
responsibility has the right to draw up requests and statements.
During
the trial, the defender exerts the rights of the party that he/she assists.
When the court considers that, for
certain reasons, the victim, the civil party or the party bearing the civil
responsibility cannot handle their own defence, it orders, ex officio or upon
request, enforcement of the measures for appointing a defendant.
|
|
Representation
|
[cxxvii]Art. 174 - During
the trial, the accused person and the defendant, as well as the other parties
may be represented, with the exception of the cases when the presence of the
accused person or defendant is obligatory.
In all the cases when the law
allows the representation of the accused person or defendant, the court has
the right, when it considers the presence of the accused person or defendant
necessary, to order his/her presentation.
|
CHAPTER
II
SUMMONS COMMUNICATION OF PROCEDURAL
ACTS, ORDER TO APPEAR
|
The way of summoning
|
Art. 175 - A person is called in front of the criminal
investigation body or the court by written summons. The summons may also be
done by phone or telegraph.
The summons is handed by agents
especially appointed to exert this attribution or by the mail service.
|
|
Content of the summons
|
Art. 176 - The summons is individual and must include
the following specifications:
a) the
name of the criminal investigation body or the court who issues the summons,
its headquarters, the date of issue and the number of the file;
b) the
name, surname of the person summoned, the quality in which he/she is summoned
and the object of the case;
c) the
address of the person summoned, which, in the case of towns and
municipalities must include: the town/municipality, county, street, number of
street and apartment, and, for communes: county, commune and village. When
such is the case, other data necessary for establishing the address of the
person summoned are included in the summons;
d) the time, month and year, place
of appearance, as well as the invitation for the person summoned to appear at
the specified time and place, mentioning the consequences in case of failure
to appear.
The summons is signed by the
issuing body.
|
|
Place of summoning
|
[cxxviii]Art. 177 - The
accused person or defendant is summoned at the address where he/she lives,
and if this is not known, at the address of his/her work place, through the
human resources department of the institution where he/she works.
If, by
a statement made during the criminal trial, the accused person or defendant
indicated another place where he/she can be summoned, he/she is summoned at
the specified place.
In case
the address specified in the accused person or defendant's statement is
changed, the latter is summoned at the new address, only if he/she has
notified the criminal investigation body or the court of the change, or if
the judicial body considers, on the basis of the data obtained according to
art. 180 that the address has changed.
If the
accused person or defendant's address or his/her work place is not known, the
summons is posted at the headquarters of the local council in whose
territorial area the offence was committed. When the criminal activity was
performed in more than one place, the summons is posted at the headquarters
of the local council in whose territorial area the body that conducts the
criminal investigation is located.
Sick
persons in hospitals or sanatoriums are summoned through the administration
of these institutions.
Convicts
are summoned at the detention place, through its administration.
Militaries
are summoned at the unit where they belong, through their commander.
If the
defendant lives abroad, he is summoned by registered letter, if the law does
no stipulate otherwise. The delivery receipt replaces the proof of summons
performance.
Other persons than the accused
person or defendant are summoned according to the provisions of the present
article. The institution referred to in art. 145 in the Penal code and other
legal persons are summoned at their headquarters, and in case the
headquarters is not identified, the summons is posted at the headquarters of
the local council in whose territorial area the offence was committed.
|
|
Handing
the summons
|
[cxxix]Art. 178 - The
summons is handed personally to the person summoned, who will sign the proof
of receiving.
If the
person summoned refuses to receive the summons, or after receiving it refuses
to or is unable to sign the proof of receiving, the agent leaves the summons
with the person summoned or, in case of refusal, posts it on his/her door,
drawing up an official response on this.
In case
the registered letter, by which an accused person or defendant who lives abroad
is summoned, cannot be handed because of the person’s refusal to receive it
or for any other reason, as well as in the case when the state of the
addressee does not allow the summoning of its citizens by mail, the summons
will be posted at the headquarters of the prosecutor’s office or the court,
according to the case.
When
the summons is made according to art. 177 paragraph 1 final part, paragraphs
5, 6 and 7, the institutions referred to must immediately hand the summons to
the summoned person and take proof for this, certifying his/her signature, or
specifying the reason why the signature could not be obtained. The proof is
handed to the procedural agent, and he forwards it to the criminal
investigation body or the court that issued the summons.
The summons destined to one of the
institutions referred to in art. 145 of the Penal code is delivered to the
registry office or to the clerk who receives the correspondence. The
provisions of paragraph 2 are enforced accordingly.
|
|
Handing the summons to other persons
|
Art. 179 - If the person summoned is not at home, the
agent hands the summons to the spouse, to a relative or to any person living
with him/her or who usually receives his/her correspondence. The summons
cannot be handed to a juvenile under 14 or to an irrational person.
If the
person summoned lives in a block of flats or in a hotel, in the absence of
the persons shown in paragraph 1, the summons is handed to the administrator,
the janitor or the person who usually replaces the latter.
The
person who receives the summons signs for receiving, and the agent certifies
his/her identity and signature and draws up an official report. If the person
refuses to or is unable to sign the proof of receiving, the agent posts the
summons on his/her door and draws up an official report.
In the
absence of the persons referred to in paragraphs 1 and 2, the agent must find
out when he/she can find the summoned person to hand him/her the summons.
When he/she cannot hand the summons this way either, the agent posts the
summons on the door of the person summoned and draws up an official report.
In case the person summoned lives
in a block of flats or in a hotel, if the summons does not specify the
apartment or the room he/she lives in, the agent must try to find them out.
If he does not succeed, the agent posts the summons on the main door of the
building and draws up an official report, specifying the circumstances that
made it impossible to hand the summons.
|
|
Research made in order to hand the summons
|
Art. 180 - If
the person summoned has changed his/her address, the agent posts the summons
on the door of the place shown in the summons and tries to find out the new
address, specifying the results of the investigation in the official report.
|
|
The proof of reception and official report
of handing
the summons
|
Art. 181 - The proof of receiving the summons must
include the number of the file, the name of the criminal investigation body
or the court that issued the summons, the name, surname and quality of the
person summoned, as well as the date when he/she is summoned to appear. Also,
it must include the date when the summons is handed, the quality and
signature of the person who hands the summons, certification by the latter of
the identity and signature of the person to whom the summons has been handed,
as well as his/her quality.
Whenever, on the occasion of
delivering or posting a summons, an official report is drawn up, this will
correspondingly include the specifications shown in the previous paragraph.
|
|
Communication of other procedural papers
|
Art. 182 - Communication
of the other procedural papers is done according to the provisions in the
present chapter.
|
|
Order of appearance
|
[cxxx]Art. 183 - A
person may be brought before the criminal investigation body or the court on
the basis of an order to appear, drawn up according to the provisions of art.
176, if he/she has been previously summoned and did not appear, and his/her
hearing or presence is necessary.
The defendant may be brought on
the basis of an appearance order even before being summoned, if the criminal
investigation body or the court justifiably thinks that this measure is
necessary for the settlement of the case.
The persons brought through order
of appearance, according to par. 1 and 2, may remain at the disposal of the
judicial body only for the time necessary for their hearing, except the case
when their confinement or preventive arrest was disposed.
|
|
Enforcement of the order of appearance
|
If the
person specified in the order of appearance cannot be brought because of an
illness, the person appointed to enforce the order acknowledges this
situation in an official report, which is immediately handed to the criminal
investigation body or the court.
The provisions of par. 2 are
applied also in the case when the person mentioned in the order cannot be
brought for any other reason.
If the person appointed to enforce
the order of appearance does not find the person specified in the order at
the specified address, he/she makes investigations and, if he/she does not
succeed, he/she draws up an official report including mentions of the
investigations made.
If the accused person or defendant
refuses to obey the order or attempts to escape, he/she will be constraint to
do so.
Enforcement of the orders of
appearance regarding the militaries is done through the commander of the
military unit or of the garrison.
|
CHAPTER
III
DUE DATES
|
Consequences
for not observing
the due time
|
Art. 185 - When the law stipulates a certain due time
for the exertion of a trial-related right, non-compliance with it entails
inability to exert the respective right and nullity of the act performed
after the due time.
When a
trial-related measure may only be enforced in a limited period, the
expiration of the due time entails the cessation of the effect of the
measure.
For the other procedural due
times, the provisions regarding nullities are enforced in case of
non-compliance.
|
|
Calculating procedural
due dates
|
Art. 186 - When procedural due dates are calculated, the
starting point is the time, day, month or year mentioned in the act that
determined the due time, if the law does not stipulate otherwise.
When
the due dates are calculated by hours or days, the time or day when the
interval begins or ends are not taken into account.
The due
dates calculated by months or years expire, according to case, on the last
corresponding day of the last month, or on the last day of the last
corresponding month of the last year. If this day is in a month that does not
have a corresponding day, the due time is the last day of that month.
When the interval ends on a
holiday, the due time is the next working day.
|
|
Acts considered
as performed
within the due time
|
[cxxxii]Art. 187 - The
paper submitted within the due time stipulated by the law at the
administration of the detention place, the military unit or post office by
registered letter is considered to be done in time. Registration or
certification of the submitted paper by the administration of the detention
place, or the post office receipt, as well as the registration or
certification of the submitted paper by the military unit, serve as proof of
the date of submission.
Except for the ways of attack, the
paper drawn up by the prosecutor is considered as done in time, if the date
when it was registered in the issue-register of the prosecutor’s office is
anterior to the due time stipulated by the law for the respective paper.
|
|
Calculating
due times for preventive measures
|
[cxxxiii]Art. 188 - When
the due times regarding preventive measures are calculated, the time and day
when the interval begins or ends are considered as part of it.
|
CHAPTER
IV
JUDICIAL EXPENSES
|
Covering judicial
expenses
|
[cxxxiv]Art. 189 - The
expenses necessary for the performance of the procedural acts, administration
of evidence, maintenance of material means of evidence defenders’
remuneration, as well as any other expenses related to the criminal trial are
covered from the sums forwarded by the state or paid by the parties.
The
judicial expenses provided at par. 1, forwarded by the state, are separately
included, according to the case, in the budget of revenues and expenses of
the Ministry of Justice, of the Public Ministry and of the Ministry of
Interior.
|
|
Sums due to the witness, expert and interpreter
|
[cxxxv]Art. 190 - The
witness, expert and interpreter called by the criminal investigation body or
the court are entitled to reimbursement of expenses related to transport,
maintenance, accommodation and other necessary expenses, caused by their summons.
The
witness, expert and interpreter who are employed are also entitled to the
income due to them at their work place, for the period while they are absent
from work, as a result of their being called by the criminal investigation
body or the court.
The
witness who is not employed, but has an income, is entitled also to
compensation.
The
expert and the interpreter are entitled also to remuneration for
accomplishing the task given to them, in the cases and under the
circumstances stipulated by legal provisions.
The
sums given according to paragraphs 1, 3 and 4 are paid on the basis of
decisions made by the body that ordered the calling and in front of which the
witness, expert or interpreter appeared, out of the allotted judicial
expenses fund. These sums are paid to the witness immediately after appearing
and to the expert and interpreter after they have completed their tasks.
The sum
representing the income mentioned in paragraph 2 is paid by the institution
where the witness, expert or interpreter is employed.
|
|
Payment of expenses made
by the state
in case of conviction
|
[cxxxvi]Art.191 - In
case of conviction, the defendant must cover the judicial expenses made by
the state, with the exception of expenses for interpreters appointed by the
judicial bodies, according to the law, as well as in case assistance free of
charge has been granted, these being covered by the state.
When
more defendants are convicted, the court decides on the part of the judicial
expenses that each of them will pay. When making this decision, one will take
into account the extent to which each defendant has caused judicial expenses.
The
party bearing the civil responsibility, to the extent to which it must pay
for damages along with the defendant, must also cover the judicial expenses forwarded
by the state, along with the defendant.
|
|
Payment of expenses made
by the state
in other cases
|
[cxxxvii]Art. 192 - In
case of acquittal or cessation of the criminal trial in court, the judicial
expenses forwarded by the state are paid for as follows:
1. In
case of acquittal, by:
a) the
victim, to the extent to which they were caused by him/her;
b) the
civil party whose civil claims were totally rejected, to the extent to which
the expenses were caused by this party;
c) the
defendant, when, even if acquitted, he/she was still obliged to pay for
damages.
2. In
case of cessation of the criminal trial, by:
a) the
defendant, if the replacement of crimina1 responsibility has been ordered or
there is a cause for non-punishment;
b) both
parties, in case of reconciliation;
c) the
victim, in case the complaint has been withdrawn.
3. In
case of amnesty, prescription or withdrawal of the complaint, as well as in
the case of existence of a cause for non-punishment, if the defendant demands
the continuation of the criminal trial, the judicial expenses are covered by:
a) the
victim, when art. 13 paragraph 2 is enforced:
b) the
defendant, when art. 13 paragraph 3 is enforced.
In case
of appeal, recourse or submission of any other request, the judicial expenses
are covered by the person whose appeal, recourse or request were rejected, or
who withdrew them.
In all
other cases, the judicial expenses forwarded by the state are the state's
concern.
In case
several parties are obliged to cover the judicial expenses, the court decides
on the part of the judicial expenses owed by each party.
The
provisions stipulated at point 1 letter a), as well as at points 2 and 3 are
also enforced accordingly in case of closing, exemption from criminal
investigation or cessation of criminal investigation.
The
expenses for the payment of interpreters appointed by the judicial bodies,
according to the law, to assist the parties, remain, in all cases, in the
state’s charge.
|
|
Payment of judicial expenses made by
the parties
|
Art. 193 - The defendant must pay to the victim, in case
he/she is convicted, as well as to the civil party whose civil action has
been approved, their judicial expenses.
When
the civil action is only partially approved, the court may oblige the
defendant to pay for the whole or part of the judicial expenses. In case the
civil action is given up, the court decides on the expenses at the request of
the parties.
In the
situations stipulated in paragraphs 1 and 2, when there is more than one
convict, or if there is a party who bears the civil responsibility, the
provisions of art. 191 paragraphs 2 and 3 are enforced accordingly.
In case
of acquittal, the victim must pay to the defendant and to the party bearing
the civil responsibility their judicial expenses, to the extent to which these
expenses were caused by the victim.
In the
other cases related to the reimbursement of judicial expenses caused by the
parties during the criminal trial, the court decides on the reimbursement
obligation according to the civil law.
|
CHAPTER
V
MODIFICATION OF PROCEDURAL PAPERS,
CORRECTION OF MATERIAL ERRORS AND
CORRECTION
OF OBVIOUS OMISSIONS
|
Modifications of
procedural papers
|
Art. 194 - Any completion, correction or elimination
done in a procedural paper is taken into account only if these modifications
are acknowledged in writing, in the paper or at the end of it by those who
have signed it.
Unacknowledged
modifications that do not change the meaning of the phrase are valid.
Blanks in a statement must be
crossed, so that completions cannot be made.
|
|
Correction of material errors
|
Art. 195 - The obvious material errors in a procedural
paper are corrected by the criminal investigation body or the court that has
drawn up the act, at the request of the person interested or ex officio.
For the
correction of the error, the parties may be called to offer clarifications.
The criminal investigation body or
the court, according to case, draw up an official report or a closing on the
correction made, mentioning this at the end of the corrected paper.
|
|
Correction
of obvious omissions
|
Art. 196 - The
provisions of art. 195 are also enforced in case the criminal investigation
body or the court, as a result of an obvious omission, has not decided on the
sums claimed by witnesses, experts, interpreters, defenders, according to
art. 189 or 190, as well as on the return of things or suspension of insuring
measures.
|
CHAPTER
VI
NULLITIES
|
Violations which
entail nullity
|
Art. 197 - Violations of legal provisions that regulate
the unfolding of the criminal trial entail the nullity of the act, only when
the harm done can only be removed by abatement of the respective act.
The provisions regarding the
competence according to matter or quality of the person, appealing to court,
its composition and the publicity of the session are stipulated under the
sanction of nullity. So are the provisions regarding the prosecutor's
participation, the defendant's presence and his/her being assisted by the
defender, when they are obligatory under the law, as well as those regarding
the performance of the social inquiry, when juvenile perpetrators are
involved.
The nullity stipulated in
paragraph 2 may not be suspended in any way. It may be claimed at any stage
in the trial and it is considered even ex officio. Violation of any legal
provision, other than those stipulated in paragraph 2, entails the nullity of
the act under paragraph 1, only if the nullity was claimed during the
performance of the act, when the party was present, or at the first trial
date with complete procedure, when the party was absent from the performance
of the act. The court takes into consideration ex officio the violations, at
any stage of the trial, if the abatement of the act is necessary for
revealing the truth and finding a just settlement for the case.
|
CHAPTER
VII
JUDICIAL FINE
|
Judicial violations
|
[cxxxviii]Art. 198 - The
following violations done during the criminal trial are sanctioned by
judicial fine between 500. 000 lei -2.000.000 lei:
a)
failure to accomplish, un-accomplishment or late accomplishment of activities
related to summons communication of procedural papers, sending the files, as
well as any other activities, if they led to delays in the unfolding of the
criminal trial;
b)
failure to accomplish or un-accomplishment of the duties regarding handing or
communicating the summons or the other procedural papers, as well as failure
to enforce the orders of appearance.
Unjustified
absence of the defender, chosen or appointed ex officio, when the judicial
assistance of the defendant is obligatory under the law, is sanctioned by
judicial fine between 1.000.000 lei -2.500.000 lei.
The
following violations, committed during criminal trial, are sanctioned with
judicial fine between 1.000.000 – 10.000.000 lei:
a)
unjustified absence of the witness, expert or interpreter legally summoned;
b)
tergiversation by the expert or by the interpreter of the accomplishment of
the tasks assigned to them;
c)
failure of any person to comply with the duty to bring, at the request of the
criminal investigation body or court, the objects or writings requested by
the latter, as well as failure to comply with the same duty of the commander
of the unit or the person whose task is to accomplish this duty;
d)
failure to comply with the custody duty stipulated in art. 109 paragraph 5;
e)
failure of the commander of the unit where an expertise is to be conducted,
to take into consideration the measures necessary for performing the
expertise;
f)
unjustified failure of the criminal investigation body to comply with
dispositions given by the prosecutor, according to the law, or unjustified
failure to present to the prosecutor the criminal investigation files or
acts, within the due time provided by the law;
g)
unjustified failure of the criminal investigation body to communicate to the
prosecutor, within the due time provided by the law, the initiation of
criminal investigation, as well as the failure of the same body to carry out,
within the due time and in the conditions provided by the law, the written
dispositions of the prosecutor and of the court;
h)
failure of any party or person who attends the session to comply with the
measures decided on by the president of the panel according to art. 298.
The
enforcement of the judicial fine does not remove the criminal responsibility,
when the deed committed is an offence.
|
|
Procedure related to judicial fine
|
Art. 199 - The fine is enforced by the criminal
investigation body, by ordinance, and by the court, by closing.
The
person upon whom the fine is enforced may ask for exemption from or reduction
of the fine. The exemption or reduction request may be submitted within 10
days from the communication of the fine ordinance or closing.
If the
person upon whom the fine is enforced justifies why he/she was unable to comply with his/her
obligation, the criminal investigation body or the court consider his/her
reasons and orders exemption from or reduction of the fine.
|
SPECIAL PART
TITLE I
CRIMINAL INVESTIGATION
CHAPTER
I
GENERAL PROVISIONS
|
The object
of criminal
investigation
|
Art. 200 - The aims of the criminal investigation are
the gathering of necessary evidence regarding the existence of offences,
identification of the perpetrators and establishing their responsibility in order to see whether they should be sent
to court or not.
|
|
The criminal investigation bodies
|
[cxxxix]Art. 201 - The
criminal investigation is performed by prosecutors and the criminal
investigation bodies.
The
criminal investigation bodies are the following:
a) the
judicial police investigation bodies;
b) the
special investigation bodies.
The
investigation bodies of the judicial police are made up of specialised
employees of the Ministry of Interior, which are especially appointed by the
minister of interior, with the approval of the General prosecutor of the
General Prosecutor’s Office attached to the Supreme Court of Justice or which
are appointed and function in a different way, according to special laws.
|
|
The active role of the criminal investigation body
|
Art. 202 - The criminal investigation body must gather
the necessary evidence for revealing the truth and for clarification of the
case under all its aspects, for its just settlement. The criminal
investigation body gathers evidence both in favour and in the detriment of
the accused person or defendant.
The
duties stipulated in the previous paragraph are accomplished even if the
accused person or defendant admits his/her offence.
The
criminal investigation body is obliged to explain to accused person or
defendant, as well as to the other parties, their trial-related rights.
The
criminal investigation body is also obliged to gather data regarding the
circumstances that led to, facilitated or favoured the offence, as well as
any other data that may serve to settle the case.
|
|
The criminal investigation body’s ordinances
|
Art. 203 - During the criminal investigation, the
criminal investigation body has the power of decision over the acts and
trial-related measures by ordinance, when stipulated by the law or, in the
other cases, by justified resolution.
The
ordinance must be justified and must always include the date and place where
it was drawn up, name, surname and position of the person who draws it up,
the case it refers to, the object of the act or of the trial-related measure,
its legal justification and the signature of the person who drew it up. The
ordinance will also include the special mentions stipulated by the law for
certain acts or measures.
When
the criminal investigation body considers it is necessary to enforce certain
measures, it makes justified proposals.
|
|
Performing investigation acts within certain units
|
[cxl]Art. 204 - Any
criminal investigation act on the premises of one of the units referred to in
art. 145 of the Penal code may be performed only with the approval of the
managing board of that unit or with the authorization of the prosecutor.
In case
of flagrante delicto, the approval
or the authorization is not necessary.
|
|
Keeping certain acts of criminal investigation
|
Art. 205 - When the law stipulates that an act or a
trial-related measure must be approved, authorized or confirmed by the
prosecutor, a copy of the ordinance or of the trial- related act is given to
the prosecutor.
|
CHAPTER
II
COMPETENCE OF CRIMINAL INVESTIGATION
BODIES
|
|
|
|
Competence
of investigation
bodies of the
judicial police
|
Art. 207 - The criminal investigation is performed by
the police investigation bodies for any offence that does not obligatorily
tall under the competence of other investigation bodies.
|
|
Competence of special criminal investigation bodies
|
a)
officers especially appointed by commanders of military units special corps
and similar, for the subordinated militaries. The investigation may also be
performed personally by the commander.
b) officers
especially appointed by the garrison commanders, for offences committed by
militaries outside the military units. The investigation may also be
performed personally by the garrison commanders.
c)
officers especially appointed by the commanders of military centres, for
offences falling under the competence of military courts, committed by civil
persons in relation with their military duties. The investigation may also be
performed personally by the commanders of the military centres.
At the
request of the commander of the military centre, the police body performs
certain investigation acts, after which it leaves the activity to the
commander of the military centre;
d)
frontier police officers, especially appointed for frontier offences;
e) port
captains, for offences against security of water navigation and against order
and discipline on board, as well as for work or work-related offences
stipulated in the Penal code, committed by the navigating staff of the civil
marine, if the offence did endanger or could have endangered the security of
the ship or of navigation.
In the
cases stipulated at letters a), b) and c), the criminal investigation is
obligatorily performed by the special bodies mentioned there.
|
|
The prosecutor’s competence
at the stage
of investigation
|
[cxliii]Art. 209 - The
prosecutor supervises the criminal investigation; while exerting this
attribution, the prosecutors directly conduct and control the criminal
investigation activity performed by the judicial police and by other special
investigation bodies.
The
prosecutor may perform any criminal investigation acts in the cases that
he/she supervises.
The
criminal investigation is performed obligatorily by the prosecutor for the
offences stipulated in art. 155-173, 174-177, 179, 189 paragraph 3 - 5, art.
190, 191, 211 paragraph 4, art. 212, 236, 2361, 239, 2391,
250, 252, 254, 255, 257, 265, 266, 267, 2671, 268, 273-276, 2791,
280, 2801, 3022, 317, 323 and 356-361 of the Penal
code, for the offences specified in art. 27 point 1 letter b) – e), art. 281
point 1 letters b) and c), and art. 282 point 1 letter b) and art.
29 point 1 of the present Code, for offences against work protection, as well
as in the case of other offences given by law in its competence.
The
competence to perform the criminal investigation, in the cases stipulated in
the previous paragraph, and to supervise the criminal investigation belongs
to the prosecutor in the prosecutor’s office corresponding to the court that,
under the law, tries the case in first instance.
When
the criminal investigation is performed by the prosecutor, the charge is
submitted for acknowledgment to the prime-prosecutor of the prosecutor’s
office, and when the investigation is performed by the latter, the
acknowledgment is done by the hierarchically superior prosecutor. When the
criminal investigation is performed by a prosecutor of the Prosecutor’s
Office attached to the Supreme Court of Justice, the charge is subject to
acknowledgement by the prosecutor head of section, and when the investigation
is performed by the latter, acknowledgement is performed by the General
prosecutor of this prosecutor’s office.
|
|
Checking competence
|
Art. 210 - The criminal investigation body solicited
according to art. 221 must verify its competence.
If the
criminal investigation body finds that it is not competent to perform the
investigation, it immediately transmits the case to the supervising
prosecutor, so that he may notify the competent body.
|
|
Extension of territorial competence
|
Art. 211 - When certain criminal investigation acts must
be performed outside the territorial area where the investigation is
conducted, the criminal investigation body may perform them itself or order
their performance by rogatory commission or delegation.
In case
the criminal investigation body decides to perform the acts itself, it
informs first the corresponding body in the territorial area where it will
perform the respective acts.
The
criminal investigation body performs all the investigation acts in the same
locality, even if some of them must be performed outside its territorial
area, complying with the provision in the previous paragraph.
|
|
|
|
|
Emergency cases
|
Art. 213 - The criminal investigation body must perform
the investigation acts that may not be postponed, even if they are related to
a case that is not of its competence. Activities performed in such cases are
immediately transmitted, through the prosecutor supervising the body which
performed the respective activities, to the competent prosecutor.
|
|
Acts concluded
by certain investigation bodies
|
[cxlv]Art. 214 - The
following bodies are obliged to take statements from the perpetrator and
eye-witnesses to the perpetration of an offence and to draw up an official
report on the concrete circumstances of the offence:
a) the
state inspections bodies, other state bodies, as well as the units referred
to in art. 145 of the Penal code, for offences that constitute violations of
the provisions and obligations whose enforcement they control under the law;
b) the
control and managing bodies of the public administration and of other units
referred to in art. 145 of the Penal code, for work-related offences
committed by those subordinated to them or under their control;
c)
officers and non-commissioned officers of the Romanian Gendarmerie for the
offences discovered during specific missions.
The
above mentioned bodies have the right to hold the material evidence, to proceed to the evaluation of
damages, and to perform any other acts, if the law stipulates so.
The
acts concluded are forwarded to the prosecutor within maximum 3 days from the
discovery of the deed that constitutes offence, if the law does not stipulate
otherwise.
In case
of flagrante delicto, the same
bodies must immediately bring to the prosecutor the perpetrator, together
with the results of the activities performed and with the material means of
evidence.
The
official reports drawn up by these bodies are means of evidence.
|
|
Acts concluded by commanders of ships and airships,
as well as by frontier police officers
|
[cxlvi]Art. 215 - The
obligations and rights stipulated in art. 214 paragraphs 1 and 2 also apply
to the following bodies;
a) the
commanders of ships and airships for offences committed on board, when the
ships and airships are outside ports and airports;
b)
officers of the frontier police, for frontier offences.
The
above mentioned bodies may perform corporal searches on the perpetrator and
may verify the things that the latter has with him.
Also,
the above mentioned bodies may catch the perpetrator and, in this case, they
will bring him/her to the prosecutor or the criminal investigation body,
together with results of the activities performed and the material means of
evidence.
In the
other cases, the results of the activities performed are handed to the
competent investigation body within at most 5 days from the first
acknowledgment, together with the material means of evidence.
When
the offence was committed on a ship or an airship, the above mentioned
intervals begin when the ship anchors or the airship lands on Romanian
territory.
The
official reports drawn up by these bodies are means of evidence.
|
CHAPTER
III
SUPERVISION BY THE PROSECUTOR
DURING THE CRIMINAL INVESTIGATION
|
The object
of supervision
|
Art. 216 - The prosecutor, while supervising the
compliance with the law in the criminal investigation, makes sure that every
offence is discovered, every perpetrator is held responsible for his/her
offences and no person is criminally investigated, unless there is strong
evidence that he/she committed a deed stipulated by the criminal law.
Also,
the prosecutor makes sure that no person is held or arrested, except in the
cases and under the conditions stipulated by the law. During supervision, the
prosecutor takes the necessary measures or orders that the criminal investigation
bodies should take such measures.
The
prosecutor takes measures and gives orders in writing and justifiably.
|
|
Transmitting the case from one body
to an other
|
[cxlvii]Art.217 - The
prosecutor may order, according to necessity, that a case that should be
criminally investigated by a certain investigation body, is investigated by
another such body.
Taking
of a case by a hierarchically superior investigation body is ordered by the
prosecutor in the prosecutor’s office supervising it, on the basis of the justified
proposal of the criminal investigation body that takes the case, and after
notifying the prosecutor who supervises it.
The
cases taken by a central criminal investigation body are supervised by a
prosecutor in the General Prosecutor’s Office attached to the Supreme Court
of Justice.
For the
cases criminally investigated by the prosecutor, the latter may order that
certain criminal investigation acts should be performed by the police bodies.
|
|
Ways of exerting supervision
|
[cxlviii]Art. 218 - The
prosecutor directly conducts and checks the criminal investigation activity
performed by the judicial police and by other investigation bodies and makes
sure that the criminal investigation acts are performed in compliance with
the legal provisions.
The
criminal investigation bodies are obliged to inform immediately the
prosecutor of the offences they found out about.
The
prosecutor may assist in the performance of any criminal investigation act or
to perform it personally. The prosecutor may ask for verification any file
from the criminal investigation body, which is obliged to deliver it,
accompanied by all the acts, materials and data that make up the object of
investigation.
|
|
Orders given by the prosecutor
|
[cxlix]Art.219 - The
prosecutor may give orders regarding the performance of any criminal
investigation act. In the case of investigation bodies of the criminal
police, the bodies hierarchically superior to the latter may not give them
advice or orders regarding the criminal investigation, the prosecutor being
the only one competent in this sense.
The
orders given by the prosecutor are compulsory for the criminal investigation
body. If this body has objections, it may inform the prime-prosecutor in the
prosecutor’s office or, when the orders were given by the latter, the hierarchically
superior prosecutor, without interrupting the execution of the orders. The
prime-prosecutor or the hierarchically superior prosecutor is obliged to make
a decision within 3 days from notification.
In the
case of failure to accomplish or of defective accomplishment, by the criminal
investigation body, of orders given by
the prosecutor, the latter will inform the head of the criminal investigation
body, who has the obligation to communicate the disposed measures to the
prosecutor, within 3 days from the notification.
|
|
Rejection of illegal trial-related acts
or measures
|
Art. 220 - When the prosecutor notices that a
trial-related act or measure taken by the criminal investigation body does
not comply with the legal provisions, he/she justifiably rejects it.
|
CHAPTER
IV
PERFORMANCE OF THE CRIMINAL
INVESTIGATION
Section I
Informing the criminal investigation bodies
|
Ways
of informing
|
[cl]Art. 221 - The criminal investigation body is informed by
complaint or denunciation, or ex officio, when it discovers the perpetration
of an offence in any other way.
When, according to the law, the initiation of criminal investigation may
only be done after the prior complaint of, notification by or authorization
of the body stipulated by the law, the criminal investigation may not begin
in their absence.
Also, the criminal investigation may not begin unless the foreign
government expressed its will relative to the offence stipulated in art. 171
in the Penal code.
When, by the perpetration of an offence,
damage has been caused to one of the units referred to in art. 145 in the
Penal code, the respective unit is obliged to inform immediately the criminal
investigation body and to give explanations regarding the size of the damage,
as well as the deeds that caused the damage, and to constitute itself as a
civil party.
|
|
Complaint
|
[cli]Art. 222 - The complaint is the informing by a natural or
legal person, relative to a damage caused by an offence.
The complaint must include: name, surname, position and domicile of the
petitioner, description of the deed that makes the object of the complaint,
specification of the perpetrator, if known, and of the probative means.
The complaint may be filed personally or by authorized agent. The mandate
must be special and the procuration remains attached to the complaint.
The oral complaint is written in an official report by the body who
receives it.
The complaint may also be filed by one spouse for the other or by the
child who is of age for his/her parents. The victim may declare non-appropriation
of the complaint.
For the person lacking the exertion capacity,
the complaint is filed by his/her legal representative. The person with
limited exertion capacity may file a complaint with the approval of the
persons stipulated by the civil law.
|
|
Denunciation
|
[clii]Art. 223 - The denunciation is the notification made by a
natural or legal person on the perpetration of an offence.
The denunciation must include the same data as the complaint.
The written denunciation must be signed by the
denouncer, while the oral denunciation is written in an official report by
the body in front of which it was made.
|
|
Preliminary
acts
|
[cliii]Art. 224 - In order to initiate the criminal
investigation, the criminal investigation body may perform preliminary acts.
Also, in order to gather evidence necessary to the criminal investigation
bodies for the initiation of criminal investigation, the operative employees
of the Ministry of Interior, as well as of the other state bodies having
attributions related to national security, especially appointed for this
purpose, may perform preliminary acts in connection with the deeds that
constitute, according to the law, threats to national security.
The official report that acknowledges the
performance of preliminary acts may constitute means of evidence.
|
|
Preliminary
acts performed
by
undercover investigators
|
[cliv]Art. 2241 – In case there are
solid and concrete proofs that an offence against national security provided
in the Penal code and in special laws, has been or is going to be
perpetrated, as well as in the case of offences of trafficking in drugs and
weapons, trafficking in persons, terrorist actions, money laundering, money
or other values forgery, or of an offence provided by the Law no. 78/2000 for
the prevention, detection or sanctioning of corruption deeds, with the
ulterior modifications and completions, or of another serious offence which
cannot be discovered or whose perpetrators cannot be identified through other
means, investigators with an identity different from the real one may be
used, with a view to gather information on the existence of the offence and identification of the persons who are
supposed to have committed an offence.
Undercover investigators are operative
employees of the Ministry of Interior, as well as of the state bodies which
perform, under the law, information activities for the assurance of national
security, they are especially appointed for this purpose and may be used only
for a determined period, in the conditions provided by art. 2242
and 2243.
The undercover investigator gathers data and
information on the basis of the authorization issued according to provisions
of art. 2242, that he/she leaves, as a whole, at the disposal of
the criminal investigation body.
|
|
Authorising
the
use of undercover investigators
|
[clv]Art. 2242 – The persons provided
at art. 2241 may perform investigations only with the motivated
authorization of the prosecutor appointed by the general prosecutor of the
prosecutor’s office attached to the court of appeal.
The authorization is given through motivated
ordinance, for a period of 60 days at most, and may be extended only for
seriously justified reasons. Each extension may not exceed 30 days, and the
whole duration of the authorization, in the same case and with regard to the
same person, may not exceed one year.
In the request for authorization addressed to
the prosecutor, the data and indications relative to deeds and persons who
are suspected of having committed an offence shall be mentioned, together
with the period for which the authorization is requested.
The prosecutor’s ordinance, by which the use
of the undercover investigator is authorized, must include, besides the
mentions provided at art. 203, the following:
a) solid and concrete indications justifying
the measure and reasons for which the measure is necessary;
b) the activities that the undercover
investigator may perform;
c) the persons relative to whom there is the
presupposition that they perpetrated an offence;
d) the identity under which the undercover
investigator will perform the authorized activities;
e) the period for which the authorization is
given;
f) other mentions provided by the law.
In urgent and solidly justified cases, the
authorization of other activities than the one authorized may by solicited,
the prosecutor taking an immediate decision.
|
|
The
use of data obtained
by
undercover investigators
|
[clvi]Art. 2243 – The data and
information obtained by the undercover investigator may be used only for the
criminal case and related to the persons to whom the authorization issued by
the prosecutor makes reference.
These data and information may be used also
for other cases and related to other persons, if they are conclusive and
useful.
|
|
Measures
for
the
protection
of
undercover investigators
|
[clvii]Art. 2244 – The real identity of
undercover investigators may not be revealed during or after the conclusion
of their action.
The prosecutor competent to authorize the use
of an undercover investigator has the right to know the latter’s real
identity, with the observance of the professional secret.
|
|
Notification
upon request from the competent body
|
Art.
225 - When the law stipulates that the criminal investigation may not begin in
the absence of a special notification, this must be made in writing and
signed by the competent body. The notification act must specify the data
stipulated in art. 222 paragraph 2.
|
|
Certain
provisions regarding criminal investigation
of
militaries
|
[clviii]Art. 226 - For the offences stipulated in the Penal code
in art. 331-336, 348, 353 and 354, the criminal investigation may begin only
upon notification from the commander.
For the other offences committed by
militaries, the criminal investigation body acts according to the usual
rules, informing the commander as soon as the criminal investigation is
initiated.
|
|
Notifications
made by persons in managing positions and by other employees
|
[clix]Art. 227 - Any person in a managing position in one of
the units referred to in art. 145 in the Penal code or having control
attributions, who found out about the perpetration of an offence in the
respective unit, is obliged to inform immediately the prosecutor or the
criminal investigation body and to take measures so that the traces of the
offence, the material evidence and any other means of evidence do not
disappear.
The obligations stipulated in paragraph 1
apply also to any employee who found out about the perpetration of an offence
related to the department where he accomplishes his/her tasks.
|
Section II
The unfolding of the criminal investigation
|
The initiation
of
criminal investigation
|
[clx]Art. 228 - The criminal investigation bodies informed in
one of the ways stipulated in art. 221 orders by resolution the initiation of
the criminal investigation, when the informing act or one of the preliminary
acts performed do not lead to one of the cases that impede the criminal
action stipulated in art. 10, except for that under letter b1).
In the case shown in art. 10 letter b1), the criminal
investigation body submits the file to the prosecutor, with the proposal of
exemption from the criminal investigation.
When the criminal investigation body is informed ex officio, it draws up
an official report that constitutes the act of initiation of the criminal
investigation.
The resolution and official report for the initiation of the criminal
investigation, issued by the criminal investigation body, are subject to
motivated approval from the prosecutor who supervises the criminal
investigation activity, within at most 48 hours from the date of initiation
of the criminal investigation, the criminal investigation bodies being
obliged to present also the case file.
If the informing act or the preliminary acts performed after receiving
the complaint or the denunciation lead to one of the cases that impede the
initiation of the criminal investigation stipulated in art. 10, except for
the one at letter b1), the criminal investigation body submits to
the prosecutor the acts drawn up, with the proposal not to initiate the
criminal investigation.
If the prosecutor finds that the conditions shown under paragraph 4 are
not met, the latter returns the acts to the criminal investigation body,
either for completing the preliminary acts or for the initiation of the
criminal investigation.
In case the prosecutor agrees with the proposal, he/she confirms it by justified
resolution and informs the person who made the notification of all these.
Complaint may be drawn up against the resolution of non-initiation of the
criminal investigation before the court, according to art. 2781
and the following.
If one finds afterwards that the circumstance
supporting the proposal not to initiate the criminal investigation did not
exist or disappeared, the prosecutor rejects the resolution and returns the
acts to the criminal investigation body, ordering the initiation of the criminal
investigation.
|
|
The
accused person
|
Art.
229 - The person criminally investigated is called accused person as long as
criminal action has not been initiated against him.
|
|
Exemption
from criminal investigation when the deed does not present the social danger
of an offence
|
[clxi]Art. 230 - The prosecutor, informed according to art. 228
paragraph 2, orders by ordinance the exemption from criminal investigation
and informs of this, when necessary, the person who made the notification.
|
|
The
restitution of the file for the continuation
of
criminal investigation
|
[clxii]Art.231 - If the prosecutor, informed according to the
provisions of art. 228 paragraph 2, finds that the exemption from criminal
investigation is not appropriate, he/she returns the file to the criminal investigation
body for the initiation of criminal investigation.
|
|
The
restitution of the file for initiation or continuation
of
the criminal investigation
|
[clxiii]Art. 232 - If the prosecutor returned, on the basis of
art. 228 paragraph 5 or art. 231, the acts and file, to the criminal
investigation body, the latter initiates or, if such is the case, continues
the criminal investigation, according to the law and taking into account the
special circumstances of each case.
|
|
Preventive
arrest of the accused person
|
[clxiv]Art. 233 - During the criminal investigation, if the
criminal investigation considers that the conditions stipulated by the law
for taking the preventive arrest measure against the accused person are met,
makes proposals in this sense and submits them to the prosecutor to decide.
If the prosecutor, having examined the file of
the case, finds it appropriate to enforce the preventive arrest measure on
the accused person, he/she proceeds according to art. 146.
|
|
Proposals
made by the criminal investigation body
|
[clxv]Art. 234 - If the criminal investigation body thinks
there are reasons for initiating the criminal investigation, it makes
proposals in this sense and submits them to the prosecutor.
The criminal investigation body, if it
considers that the conditions stipulated by the law for enforcing the
preventive arrest measure are also met, proceeds in the same way.
|
|
The
initiation
of
criminal investigation through ordinance
|
Art. 235 - The prosecutor makes
a decision regarding the initiation of criminal investigation after having
examined the file.
If the prosecutor agrees with the proposal, he/she initiates the criminal
investigation by ordinance.
The ordinance of criminal investigation
initiation must include, besides the specifications shown in art. 203, data
on the defendant, the deed of which he/she is blamed and its judicial
framing.
|
|
Preventive
arrest of the defendant
|
[clxvi]Art. 236 - The prosecutor informed according to art. 234,
if he/she initiates the criminal investigation and sees that the conditions
stipulated by the law for enforcing the preventive arrest measure on the
defendant are met, acts according to art. 1491.
|
|
Continuing
the
investigation
and
hearing
the
defendant
|
[clxvii]Art. 237 - After having accomplished the provisions of
art. 233-236, the prosecutor, if such is the case, orders the continuation of
the criminal investigation. The criminal investigation body continues the
performance of investigation acts, being also obliged to comply with the
prosecutor's orders.
If the prosecutor initiated the criminal investigation, the criminal
investigation body calls the defendant, informs him/her of the deed for which
he/she is blamed and offers him/her explanations regarding his/her rights and
obligations. When the defendant does not live in the country, the criminal
investigation body will take into account, in settling the due time for
presentation before it, the special regulations regarding judicial assistance
in criminal matters.
The criminal investigation body informs the free defendant that he/she is
obliged to show up at every call that he/she receives during the criminal
trial and that he/she has the duty to inform the authorities of any change of
address.
The criminal investigation body will continue
the investigation without hearing the defendant in case of disappearance,
elusion from investigation or in case he/she lives abroad.
|
|
Extension
of
the
criminal investigation
|
[clxviii]Art. 238 - The criminal investigation body, if it finds
out new deeds related to the defendant or new circumstances that may change
the judicial framing of the deed for which the initiation of criminal
investigation was disposed or has already started, or data on another person
having taken part in its perpetration, makes proposals in this sense and
submits them to the prosecutor, so that the later may decide on the extension
of the criminal investigation or the change of judicial framing. Proposals
are submitted within at most 3 days from the date of discovering the new
deeds, circumstances or persons. The prosecutor will take a decision, through
ordinance, in 5 days at most.
|
Section III
Suspension of criminal investigation
|
Suspension
cases
|
[clxix]Art. 239 - In case a forensic expertise shows that the
accused person or defendant is suffering from a serious illness that impedes
him/her from taking part in the criminal trial, the criminal investigation
body submits its proposals to the prosecutor, along with the file, in order
for the prosecutor to order the suspension or the criminal investigation.
The prosecutor decides on the suspension of the
criminal investigation by ordinance.
|
|
The
suspension
ordinance
|
[clxx]Art. 240 - The ordinance must include, besides the
specifications shown in art. 203, the data on the accused person or
defendant, the deed of which he/she is blamed, the cases that led to the
suspension and the measures taken for the recovery of the accused person or
defendant.
The ordinance for the suspension of criminal
investigation is communicated, in copy, to the accused person or defendant
and to the harmed party. After communication, the file is returned to the
criminal investigation body.
|
|
The
task of the investigation body during suspension
|
Art. 241 - During the
suspension period, the criminal investigation body continues to perform all
acts whose performance is not impeded by the situation of the defendant.
The criminal investigation is obliged to
inquire periodically whether the case that led to the suspension still
exists.
|
Section IV
Cessation of criminal investigation
|
Cases of cessation
|
[clxxi]Art. 242 - The criminal investigation may be terminated
if one of the cases stipulated in art. 10 letters f)-h) and j) occurs and
there is an accused person or defendant in the case.
If there are several accused persons or defendants in the same case or if
several deeds make the object of the same case, the criminal investigation is
terminated only in connection with the accused persons or defendants or deeds
to which the case for criminal investigation cessation applies.
|
|
The cessation procedure
|
[clxxii]Art. 243 - The criminal investigation body, when it
acknowledges the existence of one of the cases stipulated in art. 10 letters
f)-h) and j), submits the file and the proposals of investigation cessation
to the prosecutor.
The prosecutor makes a decision regarding the cessation of criminal
investigation by ordinance, according to art. 11 point 1 letter c). In case
the criminal action has not been initiated, the cessation of the
investigation is decided by justified resolution.
When the investigation cessation regards an arrested accused person or
defendant, the prosecutor must decide on the cessation of the investigation
on the same day of receiving the cessation proposal from the criminal
investigation body. If the prosecutor disposed the cessation of criminal
investigation, he/she must immediately solicit the court the revocation of
the preventive arrest measure. Within 24 hours from receiving from prosecutor
the file, together with a report mentioning the case or cases of cessation of
the criminal investigation discovered, the court disposes, through closing,
the revocation of the measure and immediate release of the accused person or
defendant and returns the file to the prosecutor, within the same due time,
together with a copy of the closing.
|
|
The ordinance of cessation
of criminal investigation
|
Art. 244 - The ordinance of
investigation cessation must include, besides the specifications shown in
art. 203, data on the person and the deed to which the cessation refers, as
well as the reasons on the basis of which the cessation is ordered.
|
|
Complementary provisions of the ordinance
|
[clxxiii]Art. 245 - The ordinance of investigation cessation also
settles the following:
a) revocation of the insuring measures taken with a view to enforcement
of the fine;
b) confiscation of things that are, according to art. 118 in the Penal
code, subject to special confiscation, and return of the others.
If the property over material evidence and other objects which served as
material means of evidence is contested, they are kept by the criminal
investigation body until the civil court makes a decision.
c) the insuring measures regarding the civil repairs and reestablishment
of the situation prior to the perpetration of the offence.
In case the maintenance of the insuring measures regarding the civil
repairs has been ordered, these measures will be considered dissolved, if the
victim does not initiate action in the civil court within 30 days from the
communication of criminal investigation cessation.
d) judicial expenses, settling their value, which must cover them and
ordering their payment;
e) return of the bail in the cases stipulated by the law.
If, during the criminal investigation, one of the assurance measures
shown in art. 162 was enforced, this will be specified.
In case the cessation of criminal investigation regards an accused person
or defendant arrested, the ordinance will include mention of the revocation
of preventive arrest by the court, according to art. 243 par. 3.
|
|
Informing on the cessation
of criminal investigation
|
[clxxiv]Art. 246 - The prosecutor informs the interested persons
of the cessation of the criminal investigation.
When the accused person or defendant is preventively arrested, the
prosecutor informs in writing the administration of the detention place,
ordering the immediate release of the accused person or defendant, according
to art. 243 par. 3.
|
|
|
[clxxv]Art. 247 - Abrogated.
|
|
Return of
the file and continuation
of criminal investigation
|
Art 248 - The prosecutor if
he/she does not think it appropriate to order the cessation or if he/she has
partially ordered the cessation, returns the file to the criminal
investigation body, ordering the continuation of the investigation.
|
Section V
Exemption from criminal investigation
|
Cases and procedure
of exemption from
investigation
|
[clxxvi]Art. 249 - The exemption from criminal investigation
takes place when one of the cases stipulated in art. 10 letters a)-e) occurs
and there is an accused person or defendant in the case.
The provisions of art. 242-246 and 248 are also enforced accordingly in
the procedure of exemption from investigation.
In the case stipulated in art. 10 letter b1), the prosecutor
decides by ordinance.
|
|
The execution of ordinance by which
an administrative
sanction
was enforced
|
[clxxvii]Art. 2491 - In case the exemption
from criminal investigation has been ordered according to the art. 10 letter
b1), the enforcement of reprimand or of reprimand with warning,
stipulated in art. 91 in the Penal code, enforced by the prosecutor, is done
according to art. 487, which is enforced accordingly.
The execution of the administrative sanction of fine is done according to
the art. 442 and 443.
A complaint may be filed against the ordinance on exemption from criminal
investigation according to art. 10 letter b1), within 20 days from
the notification stipulated in art. 246.
The execution of the ordinance by which the administrative sanction fine
has been enforced is done after the period stipulated in paragraph 3 is over
and if a complaint has been filed and rejected, after its rejection.
|
[i] Art. 1 par. 2 is reproduced as it was modified by the Law no.
45/1993, published in the Official Gazette of Romania, no. 147 of July 1, 1993.
[ii] Art. 5 was modified by the Law no. 32/1990, published in the
Official Gazette of Romania no. 128 of November 17, 1990. Art. 5, par. 2-4 are
reproduced as they were modified by the Law no. 281/2003, published in the
Official Gazette of Romania no.468 of July 1, 2003.
[iii] Art. 51 was introduced by the Law no. 32/1990, published
in the Official Gazette of Romania no. 128 of November 17, 1990.
[iv] Art. 52 was introduced by the Law no. 281/2003,
published in the Official Gazette of Romania no. 468 of July 1, 2003.
[v] Art. 6 was modified by the Law no. 32/1990, published in the
Official Gazette of Romania no. 128 of November 17, 1990. Art. 6 par. 3 is
reproduced as it was modified by the Law no. 281/2003, published in the
Official Gazette of Romania no. 468, of July 1, 2003.
[vi] Art. 7 is reproduced as it was modified by the Law no. 281/2003,
published in the Official Gazette of Romania no. 468 of July 1, 2003.
[vii] Art. 8 is reproduced as it was modified by the Law no. 281/2003,
published in the Official Gazette of Romania no. 468 of July 1, 2003.
[viii] Art. 10 par. 1 let. b1) was modified by the Law no.
7/1993, published in the Official Bulletin no. 49 of April 6, 1973.
Art. 10
par. 1 let. i1) was introduced by the Law no. 281/2003, published in
the Official Gazette of Romania no. 468 of July 1, 2003.
[ix] Art. 11 par. 1 let. c is reproduced as it was modified by the Law
no. 141/1996, published in the Official Gazette of Romania no. 289 of November
14, 1996.
[x] The marginal name and par. 1 and 3 of art. 13 are reproduced as
they were modified by the Law no. 281/2003, published in the Official Gazette
of Romania no. 468 of July 1, 2003.
[xi] Art. 14 par. 5 was introduced by the Law no. 281/2003, published in
the Official Gazette of Romania no. 468 of July 1, 2003.
[xii] Art. 17 is reproduced as it was modified by the Law no. 281/2003,
published in the Official Gazette of Romania no. 468 of July 1, 2003.
[xiii] Art. 18 par. 2 is reproduced as it was modified by the Law no.
281/2003, published in the Official Gazette of Romania no. 468 of July 1, 2003.
[xiv] Art. 19 par. 1 is reproduced as it was modified by the Law no.
281/2003, published in the Official Gazette of Romania no. 468 of July 1, 2003.
[xv] Art. 20 par. 2 and 3 are reproduced as they were modified by the
Law no. 281/2003, published in the Official Gazette of Romania no. 468 of July
1, 2003.
[xvi] Art. 21 par. 2 contains the term “institution”, as it was provided
under art. II of the Law no. 141/ 1996, published in the Official Gazette of
Romania no. 289 of November 14, 1996, which replaced the old term.
[xvii] Art. 25 par. 2 was introduced by the Law no. 281/2003, published in
the Official Gazette of Romania no. 468 of July 1, 2003.
[xviii] Art. 26 is reproduced as it was modified by the Law no. 281/2003,
published in the Official Gazette of Romania no. 468 of July 1, 2003.
[xix] Art. 27 par. 1 let. c) was abrogated by the Law no. 7/1973,
published in the Official Bulletin no. 49 of April 6, 1973. Art. 27 was completely
modified by the Law no. 45/1993, published in the Official Gazette of Romania
no. 147 of July 1, 1993, by reintroducing let. c) under par. 1 and adding par.
4. Art. 27 par. 1 let. a) is reproduced as it was modified by the Emergency
Ordinance no. 109/2003, published in the Official Gazette of Romania no. 748 of
October 26, 2003. Art. 27 par. 1 let. d) is reproduced as it was modified by
the Law no. 456/2001, published in the Official Gazette of Romania no. 410 of
July 25, 2001. Art. 27 par. 4 is reproduced as it was modified by the Law no.
281/2003, published in the Official Gazette of Romania no. 468 of July 1, 2003.
[xx] Art. 28 is reproduced as it was modified by the Law no. 281/2003,
published in the Official Gazette of Romania no. 468 of July 1, 2003.
[xxi] Art. 281 was introduced by the Law no. 45/1993,
published in the Official Gazette of Romania no. 147 of July 1, 1993 and
modified by the Law no. 141/1996, published in the Official Gazette of Romania
no. 289 of November 14, 1996; Law no. 296/2001, published in the Official
Gazette of Romania no. 2 of January 4, 2002.
Art. 281 par. 1 let.
c) and par. 4 are reproduced as they were modified by the Law no. 281/2003,
published in the Official Gazette of Romania no. 468 of July 1, 2003. Also,
through the Law no. 281/2003, art. 281 par. 1 let. e) and f) were
abrogated, and art. 281 par. 5 was introduced.
[xxii] Art. 282 was introduced by the Law no. 45/1993,
published in the Official Gazette of Romania no. 147 of July 1, 1993. Art. 282
par. 1 let. a) and par. 4 are reproduced as they were modified by the Law no.
281/2003, published in the Official Gazette of Romania no. 468 of July 1, 2003.
[xxiii] Art. 29 as a whole was modified by the Law no. 45/1993, published
in the Official Gazette of Romania no. 147 of July 1, 1993. Art. 29 par. 1 let.
c), d) and f), as well as par. 2 let. c), are reproduced as they were modified
by the Law no. 281/2003, published in the Official Gazette of Romania no. 468
of July 1, 2003. Art. 29 par. 5 let. d) was introduced by the Law no. 281/2003.
[xxiv] The term “territorial area” of art. 30 par. 2 was replaced with the
term “circumscription”, by art. II of the Law no. 281/2003, published in the
Official Gazette of Romania no. 468 of July 1, 2003. Art. 30 par. 3 is
reproduced as it was modified by the Law no. 281/2003.
[xxv] Art. 31 par. 2 and 4 are reproduced as they were modified by the
Decree no. 203/1974, published in the Official Bulletin no. 131 of October 31,
1974. Art. 31 par. 1 is reproduced as it was modified by the Law no. 281/2003,
published in the Official Gazette of Romania no. 468 of July 1, 2003. The term
“territorial area” of art. 31 par. 2 and 3 was replaced with the term
“circumscription”, by art. II of the Law no. 281/2003
[xxvi] Art. 35 par. 3 is reproduced as it was modified by the Law no.
281/2003, published in the Official Gazette of Romania no. 468 of July 1, 2003.
[xxvii] Art. 37 par. 1 and 2 were modified by the Law no. 45/1993,
published in the Official Gazette of Romania no. 147 of July 1, 1993. Art. 37
par. 1 is reproduced as it was modified by the Law no. 141/1996, published in
the Official Gazette of Romania no. 289 of November 14, 1996.
[xxviii] Art. 40 par. 1 is reproduced as it was modified by the Law no.
281/2003, published in the Official Gazette of Romania no. 468 of July 1, 2003.
Art. 40 par. 2 is reproduced as it was modified by the Emergency Ordinance no.
109/2003, published in the Official Gazette of Romania no. 748 of October 26,
2003.
[xxix]Art. 42 par. 4 is reproduced as it was modified by the Law no.
45/1993, published in the Official Gazette of Romania no. 147 of July 1, 1993.
[xxx] The term “Supreme Tribunal” was replaced with the term “Supreme
Court of Justice”, according to art. II of the Law no. 45/1993, published in
the Official Gazette of Romania no. 147 of July 1, 1993. Art. 43 par. 8 was
modified by the Law no. 45/1993, published in the Official Gazette of Romania
no. 147 of July 1, 1993.
[xxxi] Art. 45 par. 11 and 12 were introduced by the
Law no. 281/2003, published in the Official Gazette of Romania no. 468 of July
1, 2003. The term “territorial area”, from art. 45 par. 5, was replaced with
the due time “circumscription”, by art. II of the Law no. 281/2003.
[xxxii] Art. 46 is reproduced as it was implicitly modified by the Law no.
45/1991, published in the Official Gazette of Romania no. 142 of July 11, 1991,
which dissolved the institution of assessors. Art. 1 from this law provides
that courts judge as panels made up only of judges.
[xxxiii] Art. 47 par. 1 is reproduced as it was modified by the Law no.
45/1993, published in the Official Gazette of Romania no. 147 of July 1, 1993.
[xxxiv] Art. 48 is reproduced as it was implicitly modified by the Law no.
45/1991, published in the Official Gazette of Romania no. 142 of July 11, 1991,
which dissolved the institution of assessors. Art. 1 from this law provides
that courts judge as panels made up only of judges. Art. 48 let. a) is
reproduced as it was modified by the Emergency Ordinance no. 109/2003,
published in the Official Gazette of Romania no. 748 of October 26, 2003.
[xxxv] The marginal name and par. 1-2 of art. 49 are reproduced as they
were modified by the Law no. 281/2003, published in the Official Gazette of
Romania no. 468 of July 1, 2003. Par. 3 of art. 49 is reproduced as it was
modified by the Emergency Ordinance no. 109/2003, published in the Official
Gazette of Romania no. 748 of October 26, 2003.
[xxxvi] Art. 52 was implicitly modified by the Law no. 45/1991, published
in the Official Gazette of Romania no. 142 of July 11, 1991, which dissolved
the institution of assessors. Art. 1 from this law provides that courts judge
as panels made up only of judges. Art. 52 par. 1 and 5 are reproduced as they
were modified by the Law 281/2003, published in the Official Gazette of Romania
no. 468 of July 1, 2003. Par. 51 and par. 7 of art. 52 were
introduced by the Law 281/2003, published in the Official Gazette of Romania
no. 468 of July 1, 2003.
[xxxvii] Art. 53 par. 1 is reproduced as it was modified by the Law no.
281/2003, published in the Official Gazette of Romania no. 468 of July 1, 2003.
[xxxviii] The term “Supreme Tribunal” used in the texts of Section II was
replaced with the term “Supreme Court of Justice”, according to art. II of the
Law no. 45/1993, published in the Official Gazette of Romania no. 147 of July
1, 1993.
[xxxix] Art. 56 par. 4 is reproduced as it was modified by the Law no.
281/2003, published in the Official Gazette of Romania no. 468 of July 1, 2003.
[xl] Art. 63 par. 2 is reproduced as it was modified by the Law no.
141/1996, published in the Official Gazette of Romania no. 468 of July 1, 2003.
[xli] Art. 64 is reproduced as it was modified by the Law no. 141/1996,
published in the Official Gazette of Romania no. 289 of November 14, 1996. Art.
64 par. 2 was introduced by the Law no. 281/2003, published in the Official
Gazette of Romania no. 468 of July 1, 2003.
[xlii] The marginal name and par. 1 of art. 66 are reproduced as they were
modified by the Law no. 281/2003, published in the Official Gazette of Romania
no. 468 of July 1, 2003.
[xliii] Art. 70 par. 2 and 3 are reproduced as they were modified by the
Law no. 281/2003, published in the Official Gazette of Romania no. 468 of July
1, 2003.
[xliv] Art. 73 par. 1 is reproduced as it was modified by the Law no.
281/2003, published in the Official Gazette of Romania no. 468 of July 1, 2003.
[xlv] Art. 74 is reproduced as it was modified by the Law no. 281/2003,
published in the Official Gazette of Romania no. 468 of July 1, 2003.
[xlvi] Art. 76 par. 2 is reproduced as it was modified by the Law no.
281/2003, published in the Official Gazette of Romania no. 468 of July 1, 2003.
[xlvii] The term “institution” from art. 79, par. 1 was replaced with the
term “unit”, according to art. II of the Law no. 141/1996, published in the
Official Gazette of Romania no. 289 of November 14, 1996.
[xlviii] Art. 85 is modified by the Law no. 45/1993, published in the Official
Gazette of Romania no. 147 of July 1, 1993. Art. 85 par. 6 and 7 are reproduced
as they were modified by the Law no. 141/1996, published in the Official
Gazette of Romania no. 289 of November 14, 1996.
[xlix] Art. 861 was introduced by the Law no. 281/2003, published
in the Official Gazette of Romania no. 468 of July 1, 2003.
[l] Art. 862 was introduced by the Law no. 281/2003,
published in the Official Gazette of Romania no. 468 of July 1, 2003.
[li] Art. 863 was introduced by the Law no. 281/2003,
published in the Official Gazette of Romania no. 468 of July 1, 2003.
[lii] Art. 864 was introduced by the Law no. 281/2003,
published in the Official Gazette of Romania no. 468 of July 1, 2003.
[liii] Art. 865 was introduced by the Law no. 281/2003,
published in the Official Gazette of Romania no. 468 of July 1, 2003.
[liv] Art. 891 was introduced by the Law no. 281/2003,
published in the Official Gazette of Romania no. 468 of July 1, 2003.
[lv] Art. 90 par. 2 is reproduced as it was modified by the Law no.
141/1996, published in the Official Gazette of Romania no. 289 of November 14,
1996.
[lvi] Section V1 of Chapter II (art. 911 – 916)
is reproduced as it was modified by the Law no. 281/2003, published in the
Official Gazette of Romania no. 468 of July 1, 2003.
[lvii] Art. 97 par. 1 and 3 are reproduced as they were modified by the
Law no. 281/2003, published in the Official Gazette of Romania no. 468 of July
1, 2003.
[lviii] Art. 98 par. 1 is reproduced as it was modified by the Law no.
281/2003, published in the Official Gazette of Romania no. 468 of July 1, 2003.
Art. 97 par. 11 and 12 were introduced by the Law no.
281/2003.
[lix] Art. 100 is reproduced as it was modified by the Emergency
Ordinance no. 109/2003, published in the Official Gazette of Romania no. 748 of
October 26, 2003.
[lx] The marginal name and content of art. 101 are reproduced as they
were modified by the Law no. 281/2003, published in the Official Gazette of
Romania no. 468 of July 1, 2003.
[lxi] Art. 103 is reproduced as it was modified by the Law no. 281/2003,
published in the Official Gazette of Romania no. 468 of July 1, 2003.
[lxii] Art. 104 par. 1 is reproduced as it was modified by the Emergency
Ordinance no. 109/2003, published in the Official Gazette of Romania no. 748 of
October 26, 2003. Art. 104 par. 3 is reproduced as it was modified by the Law
no. 281/2003, published in the Official Gazette of Romania no. 468 of July 1,
2003.
[lxiii] The term “institution” from art. 111 was replaced with the term
“unit”, according to art. II of the Law no. 141/1996, published in the Official
Gazette of Romania no. 289 of November 14, 1996. The marginal name and
introductory part and let. a) of art. 111 are reproduced as they were modified
by the Law no. 281/2003, published in the Official Gazette of Romania no. 468
of July 1, 2003.
[lxiv] The term “militia body” was replaced with the term “police body” in
par. 2 of art. 117, on account of the Law no. 32/1990, published in the
Official Gazette of Romania no. 128 of November 17, 1990.
[lxv] Art. 120 par. 5 was abrogated by the Law no. 281/2003, published in
the Official Gazette of Romania no. 468 of July 1. 2003.
[lxvi] Art. 128 par. 1 is reproduced as it was modified by the Law no.
281/2003, published in the Official Gazette of Romania no. 468 of July 1. 2003.
[lxvii] Art. 136 is reproduced as it was modified by the Law no. 281/2003,
published in the Official Gazette no. 468 of July 1, 2003. Par. 5 of art. 136
is reproduced as it was modified by the Emergency Ordinance no. 109/2003,
published in the Official Gazette no. 748 of October 26, 2003.
[lxviii] Art. 1371 was introduced by the Law no. 45/1993,
published in the Official Gazette no. 147 of July 1, 1993. The Emergency
Ordinance no.109/2003, published in the Official Gazette no. 748 of October 26,
2003, modified par. 2 of art. 1371 and the Law no. 281/2003,
published in the Official Gazette no. 468 of July 1, 2003, introduced par. 3.
[lxix] Art. 138 is reproduced as it was modified by the Law no. 281/2003,
published in the Official Gazette no. 468 of July 1, 2003.
[lxx] The Law no. 45/1993, published in the Official Gazette no. 147 of
July 1, 1993, modified par. 3 of art. 139 and introduced par. 31 – 35.
The Emergency Ordinance no.109/2003, published in the Official Gazette no. 748
of October 26, 2003, modified par. 34 of art. 139.
[lxxi] Art. 140 par. 2 is reproduced as it was modified by the Law no.
281/2003, published in the Official Gazette no. 468 of July 1, 2003. Par. 3 of
art. 140 is reproduced as it was modified by the Emergency Ordinance no.
109/2003, published in the Official Gazette no. 748 of October 26, 2003.
[lxxii] Art. 1401 is reproduced as it was modified by the Law
no. 281/2003, published in the Official Gazette no. 468 of July 1, 2003.
[lxxiii] Art. 1402 was introduced by the Law no. 281/2003,
published in the Official Gazette no. 468 of July 1, 2003.
[lxxiv] On the grounds of art. II par. (1) from the Government Emergency
Ordinance no. 109/2003 regarding the modification of the Criminal Procedure
Code, „everytime when, in the Criminal Procedure Code and in other laws
containing criminal procedure provisions, the term instance refers to house search or to ordering preventive arrest,
it shall be replaced with the term judge.”
[lxxv] Art. 1403 was introduced by the Law no. 281/2003,
published in the Official Gazette no. 468 of July 1, 2003. The Emergency
Ordinance no.109/2003, published in the Official Gazette no. 748 of October 26,
2003, modified par. 1 and 8 of art. 1403 and abrogated par. 2.
[lxxvi] Art. 141 is reproduced as it was modified by the Law no. 281/2003,
published in the Official Gazette no. 468 of July 1, 2003.
[lxxvii] Art. 143 is reproduced as it was modified by the Law no. 281/2003,
published in the Official Gazette no. 468 of July 1, 2003. The same law
introduced par. 11 and 12 of art. 143.
[lxxviii] Par. 1 and 3 of art. 144 are reproduced as they were modified by
the Law no. 281/2003, published in the Official Gazette no. 468 of July 1,
2003. The same law introduced par. 4 of the same article.
[lxxix] Par. 1 of art. 143 is reproduced as it was modified by the Law no.
281/2003, published in the Official Gazette no. 468 of July 1, 2003. The same
law introduced par. 21 of art. 145. Par. 2 of art. 145 is reproduced
as it was modified by The Emergency Ordinance no.109/2003, published in the
Official Gazette no. 748 of October 26, 2003.
[lxxx] Section III is introduced by the Law no. 281/2003, published in the
Official Gazette no. 468 of July 1, 2003.
[lxxxi] Art. 146 is reproduced as it was modified by The Emergency
Ordinance no.109/2003, published in the Official Gazette no. 748 of October 26,
2003.
[lxxxii] Par. 1 let. b), e), h)
and par. 2 of art. 148 are reproduced as they were
modified by the Law no. 281/2003, published in the Official Gazette no. 468 of
July 1, 2003. The same law abrogated let. g) and introduced let. i).
[lxxxiii] Art. 149 par. 1 is reproduced as it was modified by The Emergency
Ordinance no.109/2003, published in the Official Gazette no. 748 of October 26,
2003. Par. 3 of art. 149 was abrogated by the Law no. 281/2003, published in
the Official Gazette no. 468 of July 1, 2003.
[lxxxiv] Art. 1491 was introduced by the Law no. 281/2003,
published in the Official Gazette no. 468 of July 1, 2003 and is reproduced as
it was modified by The Emergency Ordinance no.109/2003, published in the
Official Gazette no. 748 of October 26, 2003.
[lxxxv] Par. 1 of art. 150 is reproduced as it was modified by The Emergency Ordinance
no.109/2003, published in the Official Gazette no. 748 of October 26, 2003.
Par. 2 of art. 150 is reproduced as it was modified by the Law no. 281/2003,
published in the Official Gazette no. 468 of July 1, 2003.
[lxxxvi] Art. 151 is reproduced as it was modified by The Emergency Ordinance
no.109/2003, published in the Official Gazette no. 748 of October 26, 2003.
[lxxxvii] Art. 152 is reproduced as it was modified by The Emergency Ordinance
no.109/2003, published in the Official Gazette no. 748 of October 26, 2003.
[lxxxviii] Art. 153 is reproduced as it was modified by The Emergency Ordinance
no.109/2003, published in the Official Gazette no. 748 of October 26, 2003.
[lxxxix] Art. 155 par. 1 is
reproduced as it was modified by the Emergency Ordinance no. 66/2003, regarding
the modification of certain dispositions of the Criminal procedure code,
published in the Official Gazette no. 502 of July 11, 2003. Art. 155 par. 2 is reproduced as it was modified by the Law no. 281/2003, published
in the Official Gazette no. 468 of July 1, 2003.
[xc] Art. 156 is reproduced as it was modified by the Law no. 281/2003,
published in the Official Gazette no. 468 of July 1, 2003.
[xci] Art. 157 was abrogated by the Law no. 45/1993, published in the
Official Gazette no. 147 of July 1, 1993.
[xcii] Art. 157 was abrogated by the Law no. 45/1993, published in the
Official Gazette no. 147 of July 1, 1993.
[xciii] Art. 159 is reproduced as it was modified by the Law no. 281/2003, published
in the Official Gazette no. 468 of July 1, 2003. Par. 2 and 13 of art. 159 are
reproduced as they were modified by the Emergency Ordinance no.109/2003,
published in the Official Gazette no. 748 of October 26, 2003.
[xciv] Art. 160 is reproduced as it was modified by the Emergency
Ordinance no.109/2003, published in the Official Gazette no. 748 of October 26,
2003.
[xcv] Art. 160a
was introduced by the Law no. 281/2003, published in the Official Gazette no.
468 of July 1, 2003, and is reproduced as it was
modified by the Emergency Ordinance no.109/2003, published in the Official
Gazette no. 748 of October 26, 2003. Through the modification from the Official
Gazette no. 756 of October 29, 2003, it is shown that, at par. 4 of art. 160a instead of: “…if new clemencies have intervened, which make necessary his/her
deprivation of freedom”, it will be read: “…if new elements have intervened,
which make necessary his/her deprivation of freedom”.
[xcvi] Art. 160b
was introduced by the Law no. 281/2003, published in the Official Gazette no.
468 of July 1, 2003, and is reproduced as it was
modified by the Emergency Ordinance no.109/2003, published in the Official
Gazette no. 748 of October 26, 2003.
[xcvii] Art. 160c
was introduced by the Law no. 281/2003, published in the Official Gazette no.
468 of July 1, 2003. and abrogated by the Emergency
Ordinance no.109/2003, published in the Official Gazette no. 748 of October 26,
2003.
[xcviii] Art. 160d
was introduced by the Law no. 281/2003, published in the Official Gazette no.
468 of July 1, 2003, and abrogated by the Emergency
Ordinance no.109/2003, published in the Official Gazette no. 748 of October 26,
2003.
[xcix] Section IV was
introduced by the Law no. 281/2003, published in the Official Gazette no. 468
of July 1, 2003.
[c] Art. 160e is
reproduced as it was modified by the Emergency
Ordinance no.109/2003, published in the Official Gazette no. 748 of October 26,
2003.
[ci] Art. 160h par. 2 and 3 are reproduced as they
were modified by the Emergency Ordinance no.109/2003, published in the Official
Gazette no. 748 of October 26, 2003.
[cii] Section V (art. 1601 – 16010) was introduced
by the Law no. 32/1990, published in the Official Gazette of Romania no. 128 of
November 17, 1990.
[ciii] Art. 1601 is reproduced as it was modified by the Law
no. 281/2003, published in the Official Gazette no. 468 of July 1, 2003.
[civ] Art. 1602 par. 1 and 2 are reproduced as they were
modified by the Law no. 281/2003, published in the Official Gazette no. 468 of
July 1, 2003.
[cv] Art. 1602a and 1602b are reproduced as they
were modified by the Law no. 281/2003, published in the Official Gazette no.
468 of July 1, 2003.
[cvi] Art. 1602a and 1602b are reproduced as they
were modified by the Law no. 281/2003, published in the Official Gazette no.
468 of July 1, 2003.
[cvii] Art. 1603 is reproduced as it was modified by the Law
no. 281/2003, published in the Official Gazette no. 468 of July 1, 2003.
[cviii] Art. 1604 is reproduced as it was modified by the Law
no. 281/2003, published in the Official Gazette no. 468 of July 1, 2003.
[cix] Art. 1605 was modified by the Law no. 141/1996,
published in the Official Gazette of Romania no. 289 of November 14, 1996 (par.
2 and par. 4 let. d), by the Law no. 169/2002, published in the Official
Gazette of Romania no. 261 of April 18, 2002 (par. 2) and by the Law no.
281/2003, published in the Official Gazette of Romania no. 468 of July 1, 2003
(par. 1, par. 3 and par. 4 let. b and f).
[cx] Art. 1606 - 16010 make up a new paragraph,
par. 3, entitled “Common provisions”, within Section II from Chapter I of Title
IV from the General part, according to the Law no. 45/1993, published in the
Official Gazette of Romania no. 147 of July 1, 1993.
[cxi] Art. 1606 is reproduced as it was modified by the Law
no. 281/2003, published in the Official Gazette no. 468 of July 1, 2003.
[cxii] Art. 1607 is reproduced as it was modified by the Law
no. 281/2003, published in the Official Gazette no. 468 of July 1, 2003.
[cxiii] Art. 1608 is reproduced as it was modified by the Law
no. 281/2003, published in the Official Gazette no. 468 of July 1, 2003.
[cxiv] Art. 1608a was
introduced by the Law no. 281/2003, published in the Official Gazette no. 468
of July 1, 2003.
[cxv] Art. 1609 is reproduced as it was modified by the Law
no. 281/2003, published in the Official Gazette no. 468 of July 1, 2003.
[cxvi] Art. 16010 is reproduced as it was modified by the Law
no. 281/2003, published in the Official Gazette no. 468 of July 1, 2003.
[cxvii] Par. 1 and 2 of art. 162 were modified by the Law no. 281/2003,
published in the Official Gazette no. 468 of July 1, 2003. The same law
introduced par. 11 of art. 162.
[cxviii] Art. 163 par. 1 is reproduced as it was modified by the Law no.
281/2003, published in the Official Gazette of Romania no. 468 of July 1, 2003.
The same law, art. 163 par. 6 let. a) (declared as unconstitutional by the
decision of the Constitutional Court no. 191 of October 12, 2000, published in
the Official Gazette of Romania no. 665 of December 16, 2000) was abrogated.
Par. 3 and 4 of art. 163 are reproduced as they were modified by the Law no.
141/1996, published in the Official Gazette of Romania no. 289 of November 14,
1996. The same law abrogated par. 6 let. c) of art. 163.
[cxix] Par. 3 of art. 164 is reproduced as it was modified by the Law no.
281/2003, published in the Official Gazette of Romania no. 468 of July 1, 2003.
The term “prosecution department” was replaced with the term “prosecutor’s
office” according to art. II of the Law no. 45/1993, published in the Official
Gazette of Romania no. 147 of July 1, 1993. The same law abrogated the last
par. of art. 164 (par. 5).
[cxx] Art. 165 par. 3 is reproduced as it was modified by the Law no.
141/1996, published in the Official Gazette of Romania no. 289 of November 14,
1996, and art. 7 of the same article is reproduced as it was modified by the
Law no. 281/2003 published in the Official Gazette of Romania no. 468 of July
1, 2003.
[cxxi] Art. 168 is reproduced as it was modified by the Law no. 281/2003,
published in the Official Gazette of Romania no. 468 of July 1, 2003.
[cxxii] Par. 1 of art. 170 is reproduced as it was modified by the Law no.
281/2003, published in the Official Gazette of Romania no. 468 of July 1, 2003.
[cxxiii] Art. 170 is reproduced as it was modified by the Law no. 281/2003,
published in the Official Gazette of Romania no. 468 of July 1, 2003.
[cxxiv] Art. 171 par. 1 is reproduced as it was modified by the Law no.
32/1990, published in the Official Gazette of Romania no. 128 of November 17,
1990. Art. 171 par. 2, 3 and 6 are reproduced as they were modified by the Law
no. 281/2003, published in the Official Gazette of Romania no. 468 of July 1,
2003, law by which par. 41 was introduced as well.
[cxxv] Art. 172 was modified by the Law no. 32/1990, published in the
Official Gazette of Romania no. 128 of November 17, 1990. Art. 172 par. 4 is
reproduced as it was modified by the Law no. 281/2003, published in the
Official Gazette of Romania no. 468 of July 1, 2003. Art. 172 par. 6 and 8 are
reproduced as they were modified by the Law no. 45/1993, published in the
Official Gazette of Romania no. 147 of July 1, 1993.
[cxxvi] Art. 173 par. 1 is reproduced as it was modified by the Law no.
281/2003, published in the Official Gazette of Romania no. 468 of July 1, 2003.
[cxxvii] Art. 174 is reproduced as it was modified by the Law no. 281/2003,
published in the Official Gazette of Romania no. 468 of July 1, 2003.
[cxxviii] In art. 177 par. 4, the term “popular council” was replaced with
the term “local council”, according to art. II of the Law no. 45/1993,
published in the Official Gazette of Romania no. 147 of July 1, 1993. Par. 8
and 9 of art. 177 are reproduced as they were modified by the Law no. 281/2003,
published in the Official Gazette of Romania no. 468 of July 1, 2003.
[cxxix] Art. 178 par. 4 is reproduced as it was modified by the Law no.
281/2003, published in the Official Gazette of Romania no. 468 of July 1, 2003.
The same law introduced par. 21 of art. 178.
[cxxx] At art. 183, par. 3 and 4 were introduced through the Law no.
281/2003, published in the Official Gazette of Romania no. 468 of July 1, 2003.
[cxxxi] Art. 184 par. 1 is reproduced as it was modified by the Law no.
32/1990, published in the Official Gazette of Romania no. 128 of November 17,
1990 and by the Law no. 45/1993, published in the Official Gazette of Romania
no. 147 of July 1, 1993. Art. 184 par. 2 is reproduced as it was modified by
the Law no. 281/2003, published in the Official Gazette of Romania no. 468 of
July 1, 2003. The same law introduced par. 21 and 31.
[cxxxii] Art. 187 par. 2 is reproduced as it was modified by art. II of the
Law no. 45/1993, published in the Official Gazette of Romania no. 147 of July
1, 1993, the term “prosecution department” being replaced with that of
“prosecutor’s office”.
[cxxxiii] Art. 188 is reproduced as it was modified by the Law no. 281/2003,
published in the Official Gazette of Romania no. 468 of July 1, 2003.
[cxxxiv] Par. 2 was introduced to art. 189 by the Law no. 281/2003,
published in the Official Gazette of Romania no. 468 of July 1, 2003.
[cxxxv] At art. 190, par. 2, 3 and 6 are reproduced as they were modified
by the Law no. 281/2003, published in the Official Gazette of Romania no. 468
of July 1, 2003.
[cxxxvi] Art. 191 par. 1 is reproduced as it was modified by the Law no.
281/2003, published in the Official Gazette of Romania no. 468 of July 1, 2003.
[cxxxvii] Art. 192 point. 2 lat. a) and the introduction of point 3 of par. 1
are reproduced as they were modified by the Law no. 281/2003, published in the
Official Gazette of Romania no. 468 of July 1, 2003. Art. 192 par. 2 was introduced
by the Law no. 7/1973, published in the Official Gazette of Romania no. 49 of
April 6, 1973 and modified by the Law no. 45/1993, published in the Official
Gazette of Romania no. 147 of July 1, 1993. Par. 6 of art. 192 was introduced
by the Law no. 281/2003, published in the Official Gazette of Romania no. 468
of July 1, 2003.
[cxxxviii] Art. 198 is reproduced as it was modified by the Law no. 281/2003,
published in the Official Gazette of Romania no. 468 of July 1, 2003.
[cxxxix] Art. 201 was modified
by the Law no. 32/1990, published in the Official Gazette no. 128 of November
17, 1990. Art. 201 par. 2 let. a) and art. 201 par. 3 are reproduced as they
were modified by the Law no. 281/2003, published in the Official Gazette no.
468 of July 1, 2003.
[cxl] At art. 204 par. 1,
the term “institution” was replaced by the term “unit”, according to art. II of
the Law no. 141/1996, published in the Official Gazette no. 289 of November 14,
1996.
[cxli] Art. 206 was modified by the Law no. 7/1973, published in the
Official Gazette no. 49 of April 6, 1973 and abrogated by art. 2 of the
Decree-Law no. 12/1990, published in the Official Gazette no. 7 of January 12,
1990.
[cxlii] Art. 208 par. 1 let. a) and d) are reproduced as they were modified
by the Law no. 281/2003, published in the Official Gazette no. 468 of July 1,
2003. Art. 208 par. 1 let. e) is reproduced as it was modified by the Decree
no. 203/1974, published in the Official Gazette no. 131 of October 31, 1974.
[cxliii] Art. 209 par. 1, 3 and 5 are reproduced as they were modified by
the Law no. 281/2003, published in the Official Gazette no. 468 of July 1,
2003. Art. 209 par. 4 is reproduced as it was modified by the Law no. 45/1993,
published in the Official Gazette no. 147 of July 1, 1993.
[cxliv] Art. 212 was abrogated by the Law no. 45/1993, published in the
Official Gazette no. 147 of July 1, 1993.
[cxlv] At art. 214, the term “institution” was replaced by the term
“unit”, according to art. II of the Law no. 141/1996, published in the Official
Gazette of Romania no. 289 of November 14, 1996. At art. 214 par. 1, letter c)
was introduced letter c) after letter b) by the Law no. 281/2003, published in
the Official Gazette of Romania no. 468 of July 1, 2003.
[cxlvi] At art. 215, the marginal name and text of par. 1 let. b) are
reproduced as they were modified by the Law no. 281/2003, published in the
Official Gazette no. 468 of July 1, 2003.
[cxlvii] Art. 217 was modified by the Law no. 45/1993, published in the
Official Gazette of Romania no. 147 of July 1, 1993, which introduced a new
paragraph and modified par. 2, which became par. 3. The Law no. 141/1996,
published in the Official Gazette of Romania no. 289 of November 14, 1996,
introduced a new paragraph, which became par. 3, and the former par. 3 became
par. 4.
[cxlviii] Art. 218 par. 1 is reproduced as it was modified by the Law no.
281/2003, published in the Official Gazette no. 468 of July 1, 2003.
[cxlix] The Law no. 281/2003, published in the Official Gazette no. 468 of
July 1, 2003, modified art. 219 par. 1, as it is reproduced, and introduced
par. 3.
[cl] Art. 221 par. 4 is reproduced as it was modified by the Law no.
141/1996, published in the Official Gazette of Romania no. 289 of November 14,
1996.
[cli] Art. 222 par. 1 is reproduced as it was modified by the Law no.
281/2003, published in the Official Gazette no. 468 of July 1, 2003.
[clii] Art. 223 par. 1 is reproduced as it was modified by the Law no.
281/2003, published in the Official Gazette no. 468 of July 1, 2003. Through
the same law, art. 223 par. 4 (introduced by the Law no. 704/2001, published in
the Official Gazette of Romania no. 807, of December 17, 2001) was abrogated.
[cliii] Art. 224 par. 1 is reproduced as it was modified by the Law no.
7/1993, published in the Official Gazette of Romania no. 49 of April 6, 1973.
Par. 2 of art. 224 is reproduced as it was modified by the Law no. 141/1996,
published in the Official Gazette of Romania no. 289 of November 14, 1996.
[cliv] Art. 2241 – 2242 were introduced by the Law
no. 281/2003, published in the Official Gazette no. 468 of July 1, 2003.
[clv] Art. 2241 – 2242 were introduced by the Law
no. 281/2003, published in the Official Gazette no. 468 of July 1, 2003.
[clvi] Art. 2241 – 2242 were introduced by the Law
no. 281/2003, published in the Official Gazette no. 468 of July 1, 2003.
[clvii] Art. 2241 – 2242 were introduced by the Law
no. 281/2003, published in the Official Gazette no. 468 of July 1, 2003.
[clviii] Art. 226 par. 3 was abrogated by the Law no. 104/1992, published in
the Official Gazette of Romania no. 244 of October 1, 1992.
[clix] At art. 227 par. 1, the term “institution” was replaced with the
term “unit” according to art. II of the Law no. 141/1996, published in the
Official Gazette of Romania no. 289 of November 14, 1996. The marginal name and
par. 2 of art. 227 are reproduced as they were modified by the Law no.
281/2003, published in the Official Gazette no. 468 of July 1, 2003.
[clx] At art. 228, par. 5 was modified and par. 31 and 61were
introduced by the Law no. 281/2003, published in the Official Gazette no. 468
of July 1, 2003.
[clxi] Art. 230 and 231 are reproduced as they were modified by the Law
no. 7/1973, published in the Official Gazette of Romania no. 49 of April 6,
1973.
[clxii] Art. 230 and 231 are reproduced as they were modified by the Law
no. 7/1973, published in the Official Gazette of Romania no. 49 of April 6,
1973.
[clxiii] Art. 232 is reproduced as it was modified by the Law no. 281/2003,
published in the Official Gazette no. 468 of July 1, 2003.
[clxiv] Art. 233 is reproduced as it was modified by the Law no. 281/2003,
published in the Official Gazette no. 468 of July 1, 2003.
[clxv] Art. 234 par. 2 is reproduced as it was modified by the Law no.
281/2003, published in the Official Gazette no. 468 of July 1, 2003.
[clxvi] Art. 236 is reproduced as it was modified by the Law no. 281/2003,
published in the Official Gazette no. 468 of July 1, 2003.
[clxvii] Art. 237 par. 2 is reproduced as it was modified by the Law no.
281/2003, published in the Official Gazette no. 468 of July 1, 2003.
[clxviii] Art. 238 is reproduced as it was modified by the Law no. 281/2003,
published in the Official Gazette no. 468 of July 1, 2003.
[clxix] Art. 239 par. 1 is reproduced as it was modified by the Law no.
281/2003, published in the Official Gazette no. 468 of July 1, 2003.
[clxx] Art. 240 par. 2 is reproduced as it was modified by the Law no.
281/2003, published in the Official Gazette no. 468 of July 1, 2003.
[clxxi] Art. 242 par. 1 is reproduced as it was modified by the Law no.
141/1996, published in the Official Gazette no. 289 of November 14, 1996.
[clxxii] Art. 243 par. 1 is reproduced as it was modified by the Law no.
141/1996, published in the Official Gazette of Romania no. 289 of November 14,
1996. Art. 243 par. 2 is reproduced as it was modified by the Law no. 7/1973,
published in the Official Bulletin no. 49 of April 6, 1996. Art. 243 par. 3 is
reproduced as it was modified by the Law no. 281/2003, published in the
Official Gazette no. 468 of July 1, 2003.
[clxxiii] Art. 245 par. 1 let. a) is reproduced as it was modified by the Law
no. 281/2003, published in the Official Gazette no. 468 of July 1, 2003. The
same law introduced par. 3 of art. 245.
[clxxiv] Art. 246 par. 2 is reproduced as it was modified by the Law no.
281/2003, published in the Official Gazette no. 468 of July 1, 2003.
[clxxv] Art. 247 was modified by the Law no. 45/1993, published in the
Official Gazette of Romania no. 147 of July 1, 1993, and was abrogated by the
Law no. 141/1996, published in the Official Gazette of Romania no. 289 of
November 14, 1996.
[clxxvi] Art. 249 par. 3 was introduced by the Law no. 7/1973, published in
the Official Bulletin no. 49 of April 6, 1973.
[clxxvii] Art. 2491 was introduced by the Law no. 7/1973,
published in the Official Bulletin no. 49 of April 6, 1973 and modified by the
Law no. 45/1993, published in the Official Gazette of Romania no. 147 of July
1, 1993, and by the Law no. 141/1996, published in the Official Gazette of
Romania no. 289 of November 14, 1996. Par. 3 is reproduced as it was modified
by the Law no. 281/2003, published in the Official Gazette no. 468 of July 1,
2003.
No comments:
Post a Comment