International letter rogatory in the romanian criminal law

Author:Bogdan Micu
Position:Associated professor, Law Faculty, Nicolae Titulescu University, Bucharest Romania
Pages:67-75
SUMMARY

The present study deals with the international judicial cooperation in criminal matters, particularly with the letter rogatory as a form of mutual assistance between the states. The study indicates that the cooperation instrument named "letter rogatory" observes the basic principles of judicial cooperation but also includes particularities derived from its specifics. Particularly, the international letter rogatory is regulated differently depending on the legal instruments ratified by the respective state.

 
CONTENT
International letter rogatory in the Romanian Criminal Law 67
INTERNATIONAL LETTER ROGATORY IN THE ROMANIAN
CRIMINAL LAW
PhD Bogdan MICU
Abstract:
The present study deals with the international judicial cooperation in criminal matters,
particularly with the letter rogatory as a form of mutual assistance between the states. The study
indicates that the cooperation instrument named “letter rogatory” observes the basic principles of
judicial cooperation but also includes particularities derived from its specifics. Particularly, the
international letter rogatory is regulated differently depending on the legal instruments ratified by
the respective state.
Keywords: letter rogatory; international letter rogatory; international judicial cooperation in
criminal matters; international judicial assistance in criminal matters
1. International letter rogatory
In nowadays reality, the steps to prevent and fight against the phenomenon of
very high crime can no longer be confined within the territorial boundaries of one
state. Confronted with the internationalization of crime, states find themselves
forced to provide mutual assistance in order to provide an effective response and
avoid the situations of circumvention of criminal consequences of committed
crimes. With regard to this challenge, Romania could not remain outside the
international efforts, particularly given that Romania is a Member State of the
European Union, therefore it adopted Law no. 302/2004 on international judicial
cooperation in criminal matters.1 According to article 1 of Law no. 302/2004, the
regulated forms of international cooperation in criminal matters are the following:
a) extradition; b) transfer based on an European Arrest Warrant; c) transfer of
procedures in criminal matters; d) recognition and enforcement of decisions;
e) transfer of sentenced persons; f) judicial assistance in criminal matters; g) other
forms of international judicial cooperation in criminal matters. These other forms
of international cooperation include: a) international letter rogatory; b) hearings
performed by videoconference; c) appearances in court in the requesting state of
E-mail: bogdan.micu@mnpartners.ro, Associated professor, Law Faculty, Nicolae Titulescu
University, Bucharest Romania.
1 Published in the Official Journal of Romania, Part I, no. 377 dated 31st May 2011, as amended
and supplemented.
Law Review vol. II, issue 2, Jul
y
-December 2015, p. 67-75
68 BOGDAN MICU
witnesses, experts and persons being prosecuted; d) notification of judicial
documents prepared or submitted in a criminal trial; e) criminal records; f) other
forms of judicial assistance.2
The present study shall focus on the international letter rogatory which,
according to provisions of article 173 of Law no. 302/2004, is that form of judicial
assistance that consists in the authorization granted by one judicial authority in
one state to another authority in another state, authorized to perform, in its place
and behalf, some judicial activities related to a particular criminal trial”.
International judicial assistance in criminal matters has a broad sense and a
restricted sense.3 If the broad sense it is considered synonymous with the
international judicial cooperation in criminal matters, including all of its forms4,
the restricted sense defines the international judicial assistance as that form of
international judicial cooperation with which judicial authorities in two or more
states grant mutual assistance within criminal procedures.5
Being a form of judicial cooperation, the letter rogatory is subject to the general
principles of cooperation as basic ideas that govern the matter of interest. Such
principles are as follows:6
a. The principle of moderate exercise of international judicial cooperation
stated under article 3 of Law no. 302/2004. According to this legal text,
international cooperation is subordinated to the protection of interests of
sovereignty, security, public order and other constitutional interests of Romania.
Therefore, each request for international judicial assistance in criminal matters, as
defined under art. 2 of the Law,7 and also when the Romanian state submits such a
request by means of competent authorities, the said interests must be considered
with priority.
b. The principle of pre-eminence of international law stated under article 4 of
Law no. 302/2004 which considers the fact that the internal law is only applied
based on and for the execution of regulations included in international legal
instruments with incidence upon the said matter where Romania is a participant
and filled out only for regulated situations.
c. The principle of reciprocity defined under article 5 of Law no. 302/2004. In
agreement with this text of the law, when there is no international agreement on
international cooperation, it can be performed in the virtue of international
2 As stated under article 171 of Law no. 302/2004.
3 N. Neagu, Cooperarea judiciar internaional în materie penal, Universul Juridic Publishing
House, Bucharest, 2012, p. 175.
4 Ditto.
5 F.R. Radu, Cooperare judiciar internaional şi european în materie penal, C.H. Beck Publishing
House, Bucharest, 2008, p. 76.
6 M. Gorunescu, T.F. Gorunescu, Principiile extrdrii în perspectiva Legii nr. 302/2004 privind
cooperarea judiciar internaional în materie penal, în coautorat, în Pro Patria Lex nr. 9/2006, pp. 57-63.
7 The request for international judicial assistance in criminal matters is the request for
cooperation in a criminal case, in any of the legally stipulated forms.
International letter rogatory in the Romanian Criminal Law 69
courtesy, upon a request submitted on diplomatic channels, with written
assurances regarding the reciprocity submitted by the competent authority of the
said state. Under such circumstances, the general law regarding the observance of
operating conditions for the requested form of legal assistance is represented by
Law no. 302/2004. However, the law admits that the request for assistance must be
approved even in lack of reciprocity if it proves to be necessary due to the nature
of the fact or of the need to fight against particular severe forms of criminality; if
this can contribute to the betterment of the defendant or of the sentenced person or
to their social reintegration; may contribute to the clarification of a Romanian
citizen’s legal situation.
d. The principle of observing human rights arises out of the provisions of
articles 8 and 9 of Law 302/2004. In agreement with the first quoted text, judicial
cooperation shall not operate if:
- the criminal procedure in the requesting state fails to meet or observe the
conditions of the European Convention for the Protection of Human Rights and
Fundamental Freedoms concluded in Rome on 4 November 1950, or of any
pertinent international instrument in this field, ratified by Romania;
- there are serious reasons to believe that judicial assistance is requested in
order to prosecute or punish a person on grounds of race, religion, nationality or
political opinion;
- there is a risk of aggravation of the said person’s situation on one or another
of these reasons;
- the request is submitted in a case pending with extraordinary courts, other
than those established by pertinent international instruments, or in the view of
executing a sentence applied by such court;
- the related crime it is requested for is considered by the requesting state as
political crime or an act related to such crime. In order to avoid any difficulties that
may occur in the way of international cooperation for the punishment of those who
have committed crimes against the international rule of law, however the law
states that the following are not considered as political crimes:
Attempt on the life of a chief of state or of one of their family members;
Crimes against humanity stated in the Convention on the Prevention and
Punishment of the Crime of Genocide, adopted on 9 December 1948 by the General
Assembly of the United Nations;
Crimes specified under article 50 of the Geneva Convention of 1949 for the
amelioration of the condition of the wounded and sick in armed forces in the field,
art. 51 of the Geneva Convention of 1949 for the amelioration of the condition of
the wounded, sick and shipwrecked members of armed forces at sea, art. 129 of
the Geneva Convention of 1949 relative to the treatment of prisoners of war and
art. 147 of the Geneva Convention of 1949 relative to the protection of civilian
persons in time of war;
70 BOGDAN MICU
Any similar violations of the laws of war, not stipulated by the dispositions
in the said Geneva Conventions;
Crimes stipulated under art. 1 of the European Convention on the
Suppression of Terrorism, adopted in Strasbourg on 27 January 1997, and in other
pertinent international instruments;
Actions stipulated in the Convention against torture and other cruel,
inhuman or degrading treatment or punishment, adopted on 17 December 1984 by
the General Assembly of the United Nations;
Any other crime with political characteristic eliminated by the treaties,
conventions or international agreements ratified by Romania.
- the crime mentioned in the request for extradition is a military crime that
does not represent a crime of general law;
However, according to stipulations under art. 9, para. (2) of Law no. 302/2004:
judicial cooperation can be denied when, considering the circumstances of the
crime, the acceptance of the request may involve severe consequence for the
respective person due to their age, health condition or any other personal reasons.
e. The principle of non bis in idem is defined under the name of ne bis in idem
and art. 6 of the Criminal Procedure Code with incidence in the entire matter of
criminal proceedings law. In its general understanding, the principle stipulates
that no person can be prosecuted or put to trial for the perpetration of a crime
when the same person had been previously awarded a final criminal decision with
regard to the same crime, even under another legal classification. The international
judicial cooperation in criminal matters considers the fact that the cooperation is
not permissible if Romania or any other state already performed a criminal lawsuit
for the same crime and if: a final decision ordered the acquittal or termination of
the criminal lawsuit or if the punishment applied in the respective case, by a final
sentence resolution, had been served or was subject to pardon or amnesty, in its
entirety or upon the non-served portion.
The only exception from this principle is when the cooperation is requested in
order to review the final decision, for one of the reasons that justify the promotion
of an extraordinary legal remedy according to the Romanian Criminal Procedure
Code.
f. The principle of specialty is reflected in art. 11 of Law no. 302/2004 and it
states that the person that is in Romania as a result of a request for judicial
assistance in criminal matters, is brought to court in Romania, is transferred or
handed over in Romania cannot be prosecuted, arrested, judged, or subject to a
liberty restriction measure for another act prior to the hand over or transfer other
than the one involved by the international judicial assistance.
The law accepts some exceptions from the principle of specialty:
- the state that handed over the person agrees to the infringement of the
principle. To this end, Romanian authorities shall submit a request accompanied
International letter rogatory in the Romanian Criminal Law 71
by supporting documentation and by a judicial report to include the statements of
the respective person;
- the person handed over or transferred does not leave the Romanian territory
within 45 days following their final dismissal, even if they had this possibility or if
they return to Romania after leaving the Romanian territory;
- the person that benefits from this principle waives it voluntarily and fully
aware by a statement given in front of the judge.
The requesting state shall take all necessary measures for a potential reception
of the said person on its territory but also the measures that refer to the
interruption of the prescription course according to its legislation, possibly even to
the procedure of judgment in absentia.
The principle also admits a possible change of classification of the act but only
in the extent that the constitutive elements of the reclassified crime would allow
the extradition or grant of another form of judicial assistance in criminal matters.
g. The principle of confidentiality is regulated by article 12 of Law no. 302/2004.
In agreement with this principle, the Romanian state must ensure, in the highest
extent possible, upon the demand of the requesting state, confidentiality of
requests for international judicial assistance and documents enclosed thereto.
Should it be impossible to observe the confidentiality clause, the Romanian state
shall notify the requesting state which should make a decision on the method to
proceed.
The international judicial assistance in criminal matters is granted differently
depending on the state with which judicial cooperation is performed. Therefore,
there are considerable differences between the assistance granted or received from
European Union Member States and non-EU states. Generally, judicial assistance
can be requested based on: a) bilateral treaties, in the extent they have not been
abrogated by multilateral treaties ratified by Romania and the requesting state;
b) multilateral agreements adopted at the level of the European Council and of the
Organization of the United States where both Romania and the requesting/
requested state participate, that regulate the judicial assistance in criminal matters8
or which include provisions in this respect,9 adopted for particular categories of
crimes; c) the rules of reciprocity.
In the relationship with the European Union Member States, the conventions
adopted at the level of the European Council that regulate judicial assistance in
8 European Convention on Mutual Assistance in Criminal Matters, adopted in Strasbourg on 20
April 1959, ratified by Romania by Law no. 236/1998; Additional Protocol to the European
Convention on Mutual Assistance in Criminal Matters, adopted in Strasbourg on 17 March 1978,
ratified by Law no. 236/1998; the second Protocol to the European Convention on Mutual Assistance
in Criminal Matters, adopted in Strasbourg, ratified by Law no. 368/2004.
9 E.g.: European Convention on the suppression of terrorism, adopted in Strasbourg on 27
January 1977, ratified by Romania by Law no. 19/1997.
72 BOGDAN MICU
criminal matters and those adopted within the European Union,10 as well as the
Framework Decisions11 adopted for particular fields. Generally, with regard to
European Union Member States, direct cooperation between judicial entities is
promoted particularly with regard to Member States of the Schengen Area.
Subject to these general principles, the letter rogatory as a form of international
judicial assistance in criminal matters also features specific elements.
In the general regulation of article 200 of the Criminal Procedure Code, the
cooperation method of the letter rogatory (regardless whether it is national or
international) is used when a criminal prosecution authority or court of law has no
possibility to hear a witness, perform an investigation on site, proceed with the
seizure of items or perform any other procedural acts. Under such circumstances,
such authority can contact another criminal prosecution authority or another court
of equal rank, which has the possibility to perform activities. There are also certain
limitations with regard to the object which a letter rogatory may have, in the extent
that such forms of legal assistance cannot be represented by documents such as the
initiation of criminal proceedings, adoption of preventative measures, approval of
evidences, as well as the ordering of the other judicial orders and procedures or
measures.
In particular, article 173 of Law no. 302/2004, defines the international letter
rogatory as being the authorization granted by a judicial authority in one state to
an authority in another state, authorized to perform in its stead and behalf, some
judicial activities regarding a particular criminal lawsuit.
The subject of an international letter rogatory may consist basically in activities
specified under art. 174 of Law no. 302/2004, regardless whether Romania is a
requesting or requested state:
a) localization and identification of persons and objects; hearing of the suspect,
defendant, claimant, plaintiff, party with civil liabilities, witnesses and experts, as
well as the confrontation; search, seizure of items and documents, sequester and
special or extended confiscation; on site research and reconstruction; examinations;
submission of necessary information in a particular trial, tapping phone
conversations, examination of archive documents and specialized files together
with other such procedure documents;
b) transmission of material evidence;
c) communication of documents or files.
10 The Convention on Mutual Assistance in Criminal Matters between Member States of the
European Union, adopted in Bruxelles on 29 May 2000 (O.J. C 197 dated 12 July 2000); the Protocol to
the Convention on Mutual Assistance on Criminal Matters between Member States of the European
Union, dated 16 October 2001 (O.J. C326 dated 21 November 2001); the Convention for the application
of the Schengen Agreement concluded on 14 June 1985 on the incremental elimination of inspections
on common borders, signed on 19 June 1990.
11 E.g. Framework Decision dated 22 July 2003 on the execution within the European Union of
mandates for the preservation of evidence and assets (O.J. L 196 dated 2 August 2003; Framework
Decision dated 13 June 2002 on joint inspection teams (O.J. L 162 dated 20 June 2002).
International letter rogatory in the Romanian Criminal Law 73
If Romania is a requested state, witnesses or experts shall take an oath only
when the state that prepares the request for letter rogatory shall request so in an
express manner. Even under such circumstances, the Romanian state shall carry
forward the request only in situations when the internal Romanian law does not
stipulate against. Following the performance of letter rogatory, the Romanian state
shall send the requesting state only copies or certified photocopies of the requested
documents or files. In the extent possible, if the requesting state expressly requests
the submission of original documents, such request shall be carried forward.
It is possible that, on the express request of the foreign state, Romanian
authorities inform about the date and place of performance of letter rogatory.
Within the limits set by the criminal law, authorities and persons mentioned by the
requesting state may be allowed to witness and cooperate for the performance of
letter rogatory. Based on the rule of reciprocity, Romanian authorities may benefit
from the same rights.
With regard to the international letter rogatory, the Romanian state may
request the seizure of items and documents, as well as the performance of searches.
1.1. Letter rogatory in relationship with states non-member of the Schengen Area
On the grounds of article 176, para. (1) of Law no. 302/2004, the competent
Romanian judicial entity authorized to investigate a case may request foreign
authorities to seize items and documents or to perform searches and submit the
items or documents seized during the searches. The purpose of such request is to
discover and gather evidence on territories of other states and is performed in
agreement with the legislation of the respective states.
When Romania is a requested state, the request submitted by competent
foreign authorities must include general information and additional mentions:
a) name, surname and characteristics of the person under investigation by foreign
authorities, indication of traces of committing the crime or of other items that
allegedly exist in the place to be searched; b) the reason for the performance of
such search; c) indication of judicial classification, description of state of facts,
evidence or data to indicate that the place to be searched includes the person
investigated by the foreign authorities or may reveal evidence regarding the
committing of the crime; d) if applicable, indication of evidence or data to generate
reasonable suspicion with regard to the perpetration of a crime or of items and
documents subject to the crime; e) indication of the place where the search shall be
performed.
The request submitted by a foreign state with regard to the seizure of items
and performance of searches is approved provided that the following conditions
are met, as stated under art. 176, para. (4) of Law no. 302/2004, if: “a) the act
subject to the criminal procedure performed by the requesting state would have
74 BOGDAN MICU
represented, if committed on the Romanian territory, a crime and the author
would have been punishable. Should the measure be applied for multiple crimes,
the said conditions shall be checked for each separate crime; b) the punishment
stated by the Romanian Law and that of the requesting state for the crime
perpetrated by the person under investigation is of at least one year in prison.”
In case the submitted request is approved, the seizure of items and documents
is ordered based on the order of the district attorney or the order of the judge, and
the search of the place of residence, based on the authorization issued by the
competent Romanian judge. The Romanian Law institutes the rule according to
which the search of the place of residence is performed only following the
commencement of the criminal prosecution (art. 158, para. 1 Criminal Procedure
Code), but in the matter of letter rogatory art. 176, para. (6) of Law no. 302/2004
institutes an exception, indicating that it can be performed without the observance
of the requirement set by the internal legislation.
1.2. Letter rogatory in relationship with Member States of the Schengen Area
In the relationship with Member States of the Schengen Area, cooperation is
mainly performed by direct contact between judicial authorities. However, art. 206
of Law no. 302/2004 indicates that for the performance of requests for letter
rogatory with the subject of searches or sequesters certain conditions can be
imposed:a) the Romanian Law, as well as that of the requested state, must
provide for the act that determined the letter rogatory a custodial penalty or an
imprisonment measure for at least 6 months, or the Law of one of the parties must
provide for equivalent sanctions and the legislation of the other party the act shall
be punished as an infringement of legal regulations, found by the administrative
authorities with a decision that can be appealed against in front of competent
criminal courts; b) the letter rogatory must be compatible with the Romanian
Law”.
2. Conclusions
The criminal phenomenon is becoming increasingly extraneous, either with
regard to the perpetrators or the crime. In order to avoid impunity situations
generated by problems in the correlation of criminal laws of various states
involved, it is necessary that such states are actively involved to enhance the
efficiency of judicial cooperation. Thus, it is important that the provisions of
national legislation are adapted to standards resulting from international
conventions and from other legal instruments adopted on this purpose. In this
respect, the Romanian criminal law adopted Law no. 302/2004 on international
judicial cooperation on criminal matters that transposes international standards on
such matters in the internal law.
International letter rogatory in the Romanian Criminal Law 75
References
[1] N. Neagu, Cooperarea judiciar internaional în materie penal, Universul Juridic
Publishing House, Bucharest, 2012;
[2] F.R. Radu, Cooperare judiciar internaional şi european în materie penal, C.H. Beck
Publishing House, Bucharest, 2008;
[3] M. Gorunescu, T.F. Gorunescu, Principiile extrdrii în perspectiva Legii nr. 302/2004
privind cooperarea judiciar internaional în materie penal, în coautorat, în Pro Patria Lex
nr. 9/2006, pp. 57-63.