Presentation of romanian national systems of investigation, prosecution and evidence (Part I)

44 ANCA AUGUSTA LAZĂR

COMPARATIVE LAW

PRESENTATION OF ROMANIAN NATIONAL SYSTEMS OF

INVESTIGATION, PROSECUTION AND EVIDENCE (PART I)

ANCA AUGUSTA LAZĂR

Prosecutor within the Prosecutor’s Office Attached

to the Cluj Court of Appeal

ABSTRACT

This study is the first part of a presentation of Romanian national legal system, with

regard to investigation, prosecution and evidence in Romanian criminal procedural law.

The study also contains comparative law elements with reference to the French legal

system and is structured in several chapters regarding general aspects of the procedure,

phases of the criminal procedure, as concerns the meaning of investigation and

prosecution in the Romanian and French legal system and the meaning of bringing to

trial in both legal systems, sources of criminal procedural law, bodies carrying out

investigation and prosecution, with regard to investigation bodies of the criminal police,

the prosecutor, specialised investigative bodies and certain bodies outside judicial

structures. Other chapters of the study refer to threshold for initiating investigation and

prosecution, the legality and opportunity principle, the status of the suspect/defendant,

specialised procedure for financial criminal investigations.

The chapters of the study regarding investigation measures refer to formal designation

as a suspect, questioning the suspect pre-trial, interrogation of witnesses in the

investigation stage (including complainants/injured party), arresting the suspect and

detention for questioning, pre-trial custodial detention and house arrest, interception of

postal communications (letters), electronic surveillance, monitoring of bank transactions,

with reference to obtaining data on a person’s financial transactions and obtaining data

regarding the financial status of a person. Other themes include tracking and tracing of

objects and persons, data mining and profiling, access to relevant premises ('crime scene'),

search and seizure, on-line search of computers, freezing, production orders (in particular

for banks, service providers, public authorities and administrators of other data

collections), invoking the assistance of experts to examine clues, infiltration, controlled

deliveries.

The study also analyses prosecution measures, with regard to opening of investigation

and prosecution, unilateral disposal of the case (including remedy against it), multilateral

disposal of the case (including negotiated justice, diversion and remedy against it),

Law Review  vol. IX, issue 1, Januar

y

-June 2019, pp. 44-101

Presentation of Romanian National Systems of Investigation… 45

reopening of the case closed on different grounds, committing to trial and presenting the

case in court. The study ends by focusing on evidence, with regard to the status of illegally

or improperly obtained evidence, admissibility of written reports and status of evidence

obtained in other member states.

The second part of the presentation of Romanian national legal system will refer to the

rights of the suspect/defendant during investigation and prosecution.

Key words: Romanian national legal system, prosecution, Romanian criminal

procedural law, comparative law, investigation measures, the legality and opportunity

principle, the status of the suspect/defendant, negotiated justice, evidence.

A. GENERAL ASPECTS OF THE PROCEDURE

1. Phases of the Criminal Procedure

(a) The meaning of Investigation and Prosecution in the Romanian Legal System

The Romanian criminal trial is composed of certain phases, within which

different categories of judicial bodies fulfil various procedural functions. When all

the phases are completed, a solution can be given and the case is closed. In the

typical structure of the Romanian criminal process, there are four phases: the

criminal prosecution, the preliminary chamber, the trial and the execution of

decisions. The identification of the offender, his or her capture and the production

of evidence in order to be brought to trial, requires the completion of a pre-trial

procedural phase,1 which is regulated by CCP, Articles 285-341 and is known as

the criminal prosecution phase. The Romanian CCP refers to the investigation

when it stipulates the bodies which carry out the criminal prosecution: the

investigation bodies and the prosecutor.

The first phase of the criminal trial, namely the criminal prosecution phase

(CCP, Special Part, Title I), during which the criminal investigation takes place,

aims at collecting evidence and bringing the defendant to trial. The CCP contains

many provisions regarding the criminal investigation. This is carried out by the

criminal investigation bodies of the judicial police (CCP, Article 57 para 1), by the

special criminal investigation bodies (CCP, Article 57 para 2) and by the prosecutor

(CCP, Article 56). According to Article 56 para 1 CCP, the prosecutor coordinates

and controls directly criminal investigation activities performed by the judicial

police and by special criminal investigation bodies set by law.2 Also, the prosecutor

makes sure that criminal investigation acts are performed in compliance with the

legal stipulations.

1 N Volonciu et alii, Codul de procedură penală comentat, 3rd edn (Bucharest, Ha mangiu

Publishing House, 2017) 818.

2 A Lazar et alii, cap. 16, Romania, in K. Ligeti (editor), Toward a Prosecutor for the European

Union, Volume 1, A Comparative Analysis, Series Modern Studies in European Law (Oxford, Hart

Publishing House, 2013) 586.

46 ANCA AUGUSTA LAZĂR

According to CCP, Article 285 para 1, the object of the criminal investigation is

to collect the necessary evidence to prove the existence of criminal offences, to

identify the individuals who committed a criminal offence and to establish their

criminal liability, in order to decide whether they ought to be brought to trial.

Throughout the criminal trial, the perpetrator may become subject to legal

rights and obligations, as a suspect or, as the case may be, as a defendant. Thus,

CCP stipulates that the suspect is the person in respect of whom, from the data and

evidence existing in a case, there is a reasonable suspicion that they committed an

offence stipulated by the criminal law (CCP, Article 77), and the defendant is the

person against whom criminal action is initiated (CCP, Article 82). Therefore, the

capacity of defendant arises only when the criminal action is initiated. 'Collection of

evidence' is understood as comprising both the collecting of evidence and the

operation of examining and evaluating it in order to find out whether the offender

should be brought to trial.3 Even if CCP, Article 285 does not contain express

stipulations in this regard, the object of the criminal prosecution also includes the

identification of the victim of the offence, as a necessary activity in the criminal

trial.4

As opposed to the previous CCP (the 1968 CCP), the current CCP introduces a

new second phase of the criminal process, namely the preliminary chamber.5

According to CCP, Article 342, the object of the preliminary chamber procedure is

examination, after return of the indictment, of the court’s jurisdiction and of

lawfulness of the referral to the court, as well as examination of the lawfulness of

evidence-gathering and performance of the criminal investigation acts.

The second phase justifies its importance by the fact that the judge verifies the

procedural activity carried out by the criminal investigation bodies or by the

prosecutor, before the case trial.6 If the preliminary chamber judge finds it

necessary to invalidate a piece of evidence due to an essential violation of the

procedural rights of one party, he/she will eliminate it as proof of evidence. If the

judge excludes all evidence, he/she returns the file to the prosecutor so that the

criminal investigation may be performed again.

The third phase of the criminal process is the trial, as regulated by CCP,

Articles 349-4771. This phase allows for a continuation in the process of solving the

criminal case, under conditions of publicity and with the observance of the

defendant's right to actively present their case and the right to a defence, so that

the final court decision would be based on the truth regarding the offence and that

3 V Dongoroz, Tratat de procedură penală, vol 3 (Bucharest, All Beck Publishing House, 2003) 140.

4 M Udroiu, Procedură penală. Partea specială, 5th edn (Bucharest, CH Beck Publishing House,

2018) 1.

5 Romania’s new CCP was adopted through the Law 135/20 10, published in the Official

Journal of Romania No 486, 15 July 2010, which came into effect on 1 February 2014.

6 Volo nciu et alii (n 1) 1002.

Presentation of Romanian National Systems of Investigation… 47

the guilt of the offender, if proved, would be correctly established and synthesised

in the sanction applied against him/her.7 Another essential element of the trial

phase is the independence and the impartiality of the judges. Thus, judges are

under an obligation to be impartial and to decide objectively, free from any

influence. It is imperative that the impartiality of judges be absolute, because

public confidence and respect for the legal system are the guarantees of its

effectiveness.8 The trial phase begins from the moment when the preliminary

chamber phase is finished and ends with the final solution of the criminal case.9

Having as its object the final solution of the criminal case, the trial is considered,

with good reason, the central phase and the most important of the criminal

process.10

The last phase is the execution of the court decision, CCP, Articles 550-6011, the

scope of which is to watch over the actual realisation of the decision reached

during the third phase.

As opposed to the previous CCP (the 1968 CCP), the current Romanian CCP

(the 2010 CCP) explicitly regulates the principle of separating the judicial

functions, by stipulating in Article 3 para 1 that there are four judicial functions

which are exercised during the criminal proceedings: the criminal investigative

function, the function of issuing orders concerning the fundamental rights and

liberties of a person at the stage of the criminal investigation, the function of

examining the lawfulness of the decision to prosecute or drop charges and the trial

function.

The specialised literature considers that there is a fifth judicial function, which

corresponds with the execution phase and is exerted by the enforcement court or,

as the case may be, by the judge delegate in charge of enforcement.11

By comparison with the Romanian legal system, the French criminal

procedure distinguishes two phases: the pre-trial phase, which is ordinarily carried

out by the police, under the supervision of the public prosecutor service and more

exceptionally by a judge, and the trial phase. The pre-trial phase encompasses the

investigation stage, conducted by the police under the supervision of the public

prosecutor service, and the instruction or judicial investigation stage, which

involves the intervention of a magistrate of a specialised nature: the investigating

judge.12

7 Lazar e t alii (n 2) 587.

8 See O Predescu, M Udroiu, Protectia europeana a drepturilor omului si procesul penal roman

(Bucharest, CH Beck Publishing House, 2008) 572-593.

9 Udroiu (n 4) 235.

10 Lazar et alii (n 2) 587.

11 See M Udroiu, Procedură penală. Partea generală, 5th edn (Bucharest, CH Beck Publishing House,

2018) 6.

12 See J Tricot, cap. 6, France, in K. Ligeti (editor), Toward a Prosecutor for the European Union,

Volume 1, A Comparative Analysis, Series Modern Studies in European Law (Oxford, Hart

Publishing House, 2013) 225.

48 ANCA AUGUSTA LAZĂR

(b) The Meaning of Bringing to Trial in the Romanian Legal System

The prosecutor is obliged to proceed to examining the criminal investigation

actions and rule concerning them, within no longer than 15 days of receiving the

case file referred to them by the criminal investigation body (CCP, Article 322).

Cases are resolved in accordance with CCP, Article 327, as follows. First, the

prosecutor must establish that the legal provisions which safeguard the finding of

truth were observed, that the criminal prosecution is completed and that the

necessary evidence exists and was legally produced. The prosecutor may then

proceed, as follows: a) if, from the criminal prosecution material, it is concluded

that the offence exists, that it was perpetrated by the defendant and that the latter

has criminal liability, the prosecutor issues the indictment act, through which he

orders the sending to court; the indictment must be limited to the offence and the

person who is criminally investigated and must include, besides the specifications

stipulated in CCP, Article 286 para 2 (date, place of issue, name and surname,

quality of the issuing authority etc.), the information concerning the offender, the

offence of which he is accused, the judicial setting, the evidence upon which the

accusation is founded, the preventive measure taken and its duration as well as the

arraignment decision; b) the prosecutor issues an ordinance through which he

closes the case or drops the charges.

As opposed to the previous CCP (the 1968 CCP), the current CCP does not

stipulate the obligation of the criminal investigation body or of the prosecutor to

present the case file to the defendant, as the latter's right to defence is ensured by

the regulations which stipulate the suspect's right or the defendant's right or their

lawyer's right to assist to most of the criminal prosecution acts and their right to

consult the file throughout all the criminal trial, under the conditions stipulated by

the law.13

In the French legal system, the instruction stage aims at bringing the case to

judgment. It differs according to the type of offence under investigation: it is

compulsory in the case of a felony (crime), optional for a misdemeanour (délit) and

exceptional for a petty offence (contravention). Where optional, the decision to open

an instruction is based on the complexity of the case.14

2. Sources of Criminal Procedural Law

Romania's laws (constitutional, organic and ordinary) are themselves the main

source of criminal procedural law, the 2010 CCP and its future amendments being

the source of most regulations. Other sources of regulations are: international

treaties, government ordinances (in areas which are not the object of organic laws;

GOs are subject to Parliament's approval) and, in exceptional cases, emergency

13 Volonciu et alii (n 1) 921.

14 See Tricot (n 12) 227.

Presentation of Romanian National Systems of Investigation… 49

ordinances, which come into effect only following their deposition in Parliament,

and as long as they are not rejected by the latter.

Criminal procedural rules in the Romanian legal system require a statutory

base. The criminal procedural law is first of all connected to the constitutional law,

because at the base of every branch of law there are juridical constitutional norms.

The Romanian Constitution lays down numerous rules for various fields, which

directly concern the criminal procedural law. A few examples can be given in this

respect. Article 126 para 3 of the Romanian Constitution mentions that The High

Court of Cassation and Justice ensures the unitary interpretation and enforcement

of the law by the other courts of law, according to its competence.

Criminal procedural rules in the Romanian legal system also have a case law

base, including the case law of the ECtHR and of the ECJ. The ECHR and its 11

additional protocols were ratified by Romania on 20 June 1994, since when

Romania has recognised the jurisdiction and case law of the ECtHR as binding on

Romanian courts in the matter resolved. In the event of the ECtHR finding that a

Romanian court has violated a right stipulated in the ECHR, the decision of that

court is subject to revision.

According to Article 20 of the Romanian Constitution, the constitutional

regulations concerning the rights and freedoms of the citizens will be interpreted

and applied in accordance with the Universal Declaration of Human Rights, with

the pacts and other treaties to which Romania adhered. If there are inconsistencies

regarding the fundamental human rights between the pacts and the treaties to

which Romania adhered and the domestic laws, the international regulations will

have priority, except for the case where the Romanian Constitution or the domestic

laws contain provisions which are more favourable15.

As to the French legal system, the main source of criminal procedural law is

the CCP. The French CCP consists of a preliminary title and six chapters. Since the

introduction in 2000 of the preliminary article, setting out guiding principles, the

preliminary part of the Code has gained in importance.16

3. Bodies Carrying out Investigation and Prosecution

Criminal prosecution is carried out by the criminal investigation bodies and by

the prosecutor, according to CCP, Article 55. The criminal investigation bodies are:

a) the criminal investigation bodies of the judicial police, b) the special criminal

investigation bodies. The criminal investigation bodies of the criminal police

consist of agents from the Ministry of Administration and Interior, designated

under conditions stipulated by the special law, with the assent of the general

15 Lazar et alii (n 2) 588, 589.

16 See Tricot (n 12) 224.

50 ANCA AUGUSTA LAZĂR

prosecutor of the Prosecutor's Office attached to the High Court of Cassation and

Justice or of the designated prosecutor.

(a) Investigation Bodies of the Criminal Police

The investigation bodies of the criminal police have a special role among the

criminal investigation bodies, because they have very wide competences, being

able to carry out investigations for every offence not mandatorily assigned to other

investigation bodies' competence. The Ministry of Administration and Interior

organises and carries out, through specialised structures, according to their

competence, activities in order to prevent and fight terrorism, organised crime,

crimes against the financial interests of the EU, as well as other criminal

phenomena and antisocial actions. For this reason, the investigation bodies of the

criminal police are considered by the specialised literature to have general material

competence.17 In urgent cases, they can carry out investigation acts which cannot

be delayed, even if they concern a case which is not within their competence. Their

work is immediately reported to the prosecutor who supervises their activity, or to

the competent prosecutor. He can visit the crime scene, he can make drawings and

take photographs. The data collected in this manner will be corroborated with

other information obtained personally.18

(b) The Prosecutor

The role of the prosecutor is essential, as he supervises the criminal

prosecution, conducts and controls directly the criminal prosecution activity

performed by the criminal police and by other special investigative bodies. The

prosecutor can carry out any act of criminal prosecution in the files he supervises.

According to CCP, Article 56 para 3, the criminal prosecution is performed

mandatorily by the prosecutor in the following cases: crimes for which the High

Court of Cassation and Justice or the Court of Appeal is the court of first instance,

bribery (CC, Articles 289-294), crimes against the financial interests of the EU

stipulated by Law 78/2000 etc. In special cases, where the prosecutor does not

have the possibility to carry out the criminal investigation personally, a delegation

can intervene through rogatory letter, according to CCP, Articles 200, 201.19 The

prosecutors within hierarchically superior prosecutor's offices can, in order to

perform the criminal investigation, take over cases under the competence of a

lower prosecutor's office, on command of the hierarchically superior leader.

By comparison, in the French legal system, the main actor of investigation is

the judicial police, who acts under the supervision of the investigating judge, once

a judicial investigation has been opened (the investigating judge carries out both

17 Volonciu et alii (n 1) 170.

18 Decision no 740/1998, High Court of Cassation and Justice, Criminal Section, 508-10; Decision

no 851/1980, High Court of Cassation and Justice.

19 Decision no 1665/1992, High Court of Cassation and Justice, Criminal Section, C 6, 452.

Presentation of Romanian National Systems of Investigation… 51

investigative and judicial functions, once an instruction is opened), and the

competent authority responsible for prosecution is the public prosecutor. 20

In the Romanian legal system, there is no investigating judge, as opposed to

the French legal system, which gives the investigating judge investigating powers

(generally delegated to the police through letters rogatory), as well as jurisdictional

powers, except for pre-trial detention, which falls under the exclusive competence

of the liberty and custody judge.21

(c) Specialised Investigative Bodies

The CCP expressly stipulates that the criminal prosecution be carried out by a

special investigative body in some cases, given the nature of the offence as well as

that of the offender (CCP, Article 57 para 2).

The criminal investigation may be carried out in such cases by the following

special investigative bodies: officers designated by military unit commanders in

cases regarding offences perpetrated within the unit by subordinate military; the

commanders of the military unit, the officers designated by the garrison

commanders etc.22.

(d) Certain Bodies Outside Judicial Structures

According to CCP, Article 61, besides the judicial bodies, there can be other

non-judicial bodies which can participate in the process of discovering and

establishing crimes. The role of these bodies is to ascertain the existence of crimes

committed in their field of activity. Such bodies are: a) the bodies of state

inspections, of other state bodies, as well as of public authorities, public institutions

or of other public-law legal entities; b) the control and leading bodies of the public

administration; c) the public order and national security bodies, for offences

identified during the exercise of responsibilities set by law.

Whenever there is a reasonable suspicion related to the commission of an

offence, the above-mentioned bodies are under an obligation to prepare minutes

on the identified circumstances. The minutes concluded represent an act seizing

the criminal investigation bodies and may not be subject to administrative

litigation challenge.

The above-mentioned bodies draft documents which ascertain the crime, are

under the obligation to take measures to preserve the location where offences were

committed and to collect or preserve material evidence. In the case of flagrante

delicto, the same bodies have the right to conduct body and vehicle searches, to

apprehend the offender and bring them forthwith before the criminal investigation

bodies.

20 See Tricot (n 12) 227, 228.

21 See Tricot (n 12) 227.

22 The legal provisions were similar under the previous CCP (the 1968 CCP), see Lazar et alii

(n 2) 590.

52 ANCA AUGUSTA LAZĂR

They do not have the competence of drawing up the indictment (which is an

exclusive prerogative of the prosecutor) and they also cannot defend it before the

court—the prosecutor defends the indictment before the court. The documents

issued by the same bodies are sent to the prosecutor. Specialised agencies do not

carry out the criminal prosecution (CCP, Article 61).

4. Threshold for Initiating Investigation and Prosecution

When the referral meets the conditions required by law, the initiation of the

criminal prosecution is ordered by the criminal prosecution body in regard to the

committed act or to the commission of which is being prepared, even if the author

is indicated or known (CCP, Article 305 para 1). The criminal prosecution bodies

can only take action after being formally notified about the perpetration of an

offence. The external notification is done through complaint or denunciation. The

criminal prosecution body can be informed ex officio and drafts an official record.

When the existing evidence in the case constitute probable cause to believe

that a certain individual has committed the offence that warranted the start of the

criminal investigation and none of the cases preventing criminal action as under

Article 16 para 1 CCP apply, the criminal prosecution bodies shall order that the

criminal investigation continue in relation to that individual, and the latter shall

acquire the capacity of suspect. The decision taken by the criminal investigation

body is submitted for confirmation of the prosecutor within 3 days (Article 305

para 3 CCP).

From the moment of initiation of the criminal prosecution, the perpetrator, in

the juridical rapport of the substantive criminal law, is termed the suspect in the

juridical rapport of the criminal procedural law, until such point as the criminal

action is initiated against him, whereafter he is termed the defendant.

The criminal action is initiated by the prosecutor, through an ordinance,

during the criminal investigation, when they find that evidence exists to attest that

an individual has committed an offence and none of the cases under Article 16

para 1 apply (CCP, Article 309).

As opposed to the Romanian legal system, which institutes the obligation of

the criminal prosecution body to initiate criminal prosecution when the referral

meets the conditions required by law (CCP, Article 305 para 1), the French criminal

procedure is based on the principle of discretionary prosecution, which means that

before initiating the prosecution, the prosecutor must assess not only the legal

basis of the case, but also the appropriateness of prosecution, given, as the case

may be, the general or individual instructions issued by the Ministry of Justice.23

Nevertheless, in the Romanian criminal procedure, although the criminal

prosecution body is under an obligation to initiate criminal prosecution when the

23 See Tricot (n 12) 229.

Presentation of Romanian National Systems of Investigation… 53

referral meets the conditions required by law, the prosecutor can afterwards waive

the exercise of the criminal action if, considering the concrete elements of the case,

there is no public interest in performing its object, as mentioned below.

5. The Legality and Opportunity Principle

The principles nullum crimen sine lege and nulla poena sine lege, which signify

the legality of incriminations and the legality of punishments in the criminal law

have as correspondent in the procedure the principle nulla justitia sine lege, namely

that there is no justice outside the law. Consecrated as a basic rule of the criminal

proceedings in CCP, Article 2, it is shown that the criminal process is carried out

according to the law. The provisions of the CCP allow the prosecutor to ponder the

opportunity of a criminal investigation in a low importance case, in order that the

investigative resources may be channelled towards more important files.24 Thus,

the CCP expressly makes reference to the opportunity principle in Article 7 para 2,

which stipulates that 'in the cases and conditions specifically stipulated by law, the

prosecutor can waive the exercise of the criminal action if, considering the concrete

elements of the case, there is no public interest in performing its object'.

Furthermore, Article 318 CCP provides that in the situation of offences for

which the law requires the penalty of a fine or a penalty of imprisonment of no

more than 7 years, the prosecutor can drop charges when it is found that there is

no public interest in prosecuting. Article 318 para 2 CCP provides the criteria taken

into consideration by the prosecutor when assessing whether there is or not such a

public interest, e.g. the contents of the offence and the concrete circumstances of its

commission, the modus operandi and the instruments used, the goal of the offence,

the consequences that occurred or could have occurred, etc. The text is also applied

in the situation of an unknown perpetrator (the text allows for the investigation to

be terminated and the application, from the part of the prosecutor, after consulting

with the suspect or defendant, of a sanction stipulated by CCP, Article 318 para 6.

These sanctions are: removing the consequences of the criminal offence or making

redress or agreeing with the civil party on an avenue of redress; making a public

apology to the victim; performing community service for a time span of no less

than 30 and no more than 60 days, except for the case where their health precludes

them to provide such community service; enlisting in a counselling program.

In case of non-compliance in ill-faith of the obligations within the deadline

stipulated by the prosecutor, they shall rescind their order. The burden of proof for

compliance with the obligations or submitting the reasons for failure to comply

with the obligations shall fall on the suspect or defendant. A new waiver of

prosecution in this same case is no longer possible.

24 Lazar et alii (n 2) 591.

54 ANCA AUGUSTA LAZĂR

The prosecutor's order to waive the exercise of the criminal action is verified

by the preliminary chamber judge, who determines the lawfulness and legitimacy

of the order (CCP, Article 318 para 12-16).

6. The Status of the Suspect/Defendant

In the Romanian criminal process, the parties are: the defendant, the civil

party and the party with civil liability. The parties are litigants who file judicial

action or against whom judicial action is filed (CCP, Article 32).

In the course of the criminal process, the active subject25 of the crime receives

different procedural qualities, which have distinct significations, with resonances

in the structure of the content of the juridical criminal procedural relationship. In

other words, the procedural qualities received by the perpetrator during the

criminal process entail obligations and rights which the person held criminally

responsible has to bear or execute during the procedural activity.

The suspect is the main passive subject of the juridical procedural relationship

and this quality is received through the ordinance or, exceptionally, the oral

statement of the prosecutor (in the case of crimes committed by the audience, in

the course of a court hearing, under the conditions stipulated at CCP, Article 360),

when the existing evidence in the case constitute probable cause to believe that a

certain individual has committed the offence that warranted the start of the

criminal investigation and none of the cases preventing criminal action as under

Article 16 para 1 CCP apply (CCP, Articles 33 and 305 para 3). Thus, the criminal

investigation body orders that the criminal investigation continue in relation to

that individual, and the latter shall acquire the capacity of suspect and become

subject to procedural rights and obligations.26

The suspect is the person against whom the criminal prosecution is carried

out, as long as the criminal action has not been initiated against him/her. Unless

the law stipulates otherwise, the suspect has the rights stipulated by the law for the

defendant (CCP, Article 78). The quality of defendant appears once the criminal

action has been initiated. The person against whom the criminal action has been

initiated (when the criminal investigation and the criminal prosecution confirm the

guilt) is part of the criminal process and is called the defendant (CCP, Article 82).

The criminal action represents the legal means by which the goal of the criminal

process is realised. Its object is to hold criminally responsible those natural and

legal persons who have committed crimes.

25 The term 'active subject' generally means perpetrator, but it also encompasses the notions of

'author', ‘instigator’ and 'accomplice' in the sense of the criminal law.

26 The current Romanian CCP (the 2010 CCP) consecrates the term ‘suspect’, while under the

former CCP (the 1968 CCP), the term was absent from the CCP, being used only by the legal

literature.

Presentation of Romanian National Systems of Investigation… 55

The criminal prosecution bodies decide the moment of initiation of the

criminal action, respectively when there is enough evidence of guilt brought into

the case. The procedural acts through which a person is conferred this status, are

the ordinance of initiating criminal action and, exceptionally, the oral statement of

the prosecutor (in the case of crimes committed by the audience, in the course of a

court hearing, under the conditions stipulated at CCP, Article 360).

The defendant is thus considered a party in the process, having certain

obligations which the suspect does not have. For example, the only preventive

measure which may be ordered against the suspect is taking in custody, whereas

the judicial bodies can take any preventive measure against the defendant,

including judicial control, judicial control on bail, house arrest or pre-trial arrest.

The defendant, against whom the house arrest or pre-trial arrest is ordered, must

be heard. The quality of defendant will change to that of convict when the criminal

decision becomes final. The defendant also has rights, e.g.: the right to a defence,

the right to consult the case file, under the law, the right to have the last word

before court, the right to appeal the decisions rendered against him. To comply

with the obligations he/she has, as well as to exercise his/her rights, the defendant

must effectively participate in the criminal process (CCP, Article 364 para 1).

While the term 'suspect' appears in the Romanian CCP, in the French legal

system, it is absent from the CCP, being consecrated only in the legal literature.

Thus, according to the French legal doctrine, the suspect is the person who is

suspected of the commission of the offence without being yet prosecuted.27

7. Specialised Procedure for Financial Criminal Investigations

There is no specialised procedure for criminal financial investigations in the

Romanian legal system. By contrast, the French legal system consecrates a new

Title XIII in the French CCP dedicated to the specialised procedure in the field,

which has as purpose to provide for specific rules on competence and to create

specialised jurisdictions. Furthermore, the French CCP distinguishes between cases

of great complexity and cases of even greater complexity (due to the large number

of perpetrators, accomplices or victims or of the geographical jurisdcition over

which they were committed).28

Nevertheless, in the Romanian legal system, there are specialised institutions

which carry out periodical financial controls at those institutions which have

financial attributions; when these institutions become aware that certain acts must

be investigated by the criminal investigation bodies, they inform the prosecutor's

office or the judicial police. The Audit Court exercises a control function over the

formation, administration and use of the financial reserves of the state and of the

27 See Tricot (n 12) 231.

28 See Tricot (n 12) 230, 231.

56 ANCA AUGUSTA LAZĂR

public sector, delivering to Parliament and to the territorial-administrative units

reports regarding their use and administration, in accordance with the principles

of legality, regularity, economy, efficiency and effectiveness (Article 21 of Law

94/92 for the Organisation and the functioning of the Audit Court). Under the

subordination of the National Agency for Tax Administration (Government

Decision no 109/2009) there operates the Financial Investigation Office29.

The object of the National Office for Preventing and Combating Money

Laundering is the prevention and combating of money laundering, for which

purpose it receives and analyses the information and informs the Prosecutor's

Office attached to the High Court of Cassation and Justice, or the Directorate for

Investigating Organised Criminality and Terrorism (Law no 656/2002).

Also, the Antifraud Fighting Department (DLAF) aims at the protection of the

financial interests of the EU in Romania. The Department has control competences

for the Community funds, being national leader in the fight against fraud. DLAF is

the contact institution of OLAF and ensures, supports or coordinates, as the case

may be, the fulfilment of Romania's duties regarding the protection of the financial

interests of the EU. According to Article 325 of the Treaty, it has the competence to

control the allocation and use of Community funds, as well as of the different

co-financing funds. DLAF carries out operative on-site checks following the

information received from OLAF, from the authorities with competences in the

management of the community financial assistance, or ex officio. In exerting these

investigative attributions, DLAF - which has unconditional access to the premises

of units, as well as vehicles or any other spaces used for economical purposes - can

take statements from the perpetrator or the witnesses who have been present at the

committing of crimes, can draw up official records about the real circumstances of

the perpetration of crimes, and can seize corpus delicti.

CCP, Article 300 para 2 stipulates the legal obligation of the criminal

prosecution body to inform the prosecutor of the activities they are undertaking or

intend to undertake. After drawing up the indictment, through which the

defendant is sent to trial, the prosecutor is no longer informed about the case.

According to the draft law on certain measures for the application by

Romania of Council Regulation (EU) 2017/1939 of 12 October 2017 implementing

enhanced cooperation with regard to the establishment of the European Public

Prosecutor's Office (EPPO),30 the Minister of Justice designates three candidates on

behalf of Romania to be appointed by the Council of the European Union as

European Prosecutor.

29 Lazar et alii (n 2) 593.

30 The above-mentioned draft law was published on the official website of the Ministry of Justice

and can be found at http://www.just.ro/proiectul-de-lege-privind-unele-masuri-pentru-aplicarea-

de-catre-romania-a-regulamentului-ue-20171939-al-consiliului-din-12-octombrie-2017-de-punere-in-a

plicare-a-unei-forme-de-cooperare-consolidat (accessed on 11.12.2018).

Presentation of Romanian National Systems of Investigation… 57

Prosecutors or judges of at least 15 years of service as prosecutors or judges

who have relevant experience in the Romanian legal system, prosecution or trial of

financial crimes and international judicial cooperation in criminal matters may

participate in the interview in order to become a European prosecutor.

Also, the TFEU provides that the material scope of competence of the EPPO is

limited to criminal offences affecting the financial interests of the Union in

accordance with the above-mentioned Regulation. The tasks of the EPPO should

thus be to investigate, prosecute and bring to judgment the perpetrators of offences

against the Union’s financial interests under Directive (EU) 2017/1371 of the

European Parliament and of the Council and offences which are inextricably linked

to them. However, it should be noted that the initial and legislative discussions on

the draft regulation also focused on the possible extension of EPPO's competence

to high gravity transnational crimes.31

Transnational crime has been defined in the legal literature as the one

involving multiple jurisdictions, without being an offence under international

law.32 Nevertheless, any extension of the above-mentioned competence to include

serious crimes having a cross-border dimension requires a unanimous decision of

the European Council.

In the matter of substantive criminal law devoted to this area, one can notice a

propensity of European Union law towards harmonization (in the form of the

adoption of common minimum rules). Harmonization has been the first idea that

the Union has approached in the field of criminal proceedings in the Member

States for the purpose of defining common procedural rules applicable to the fight

against offences concerning financial interests.

Furthermore, as a crowning achievement to approximate legislation in this

area, the European Prosecutor's Office would take over the institutional role of

organising a coherent and unique system of prosecution and sending to trial. This

idea was one of the most profound and interesting approaches of the Union

regarding an articulated and thorough legal battle system for the financial interests

of the Union - it is the famous project „Corpus Juris”, which was coordinated by

prof. univ. dr. John A.E. Vervaele, from Utrecht University and by prof. univ. dr.

Mireille Delmas-Marty, from Panthéon-Sorbonne University.33

31

See JAE Vervaele, S Gless, Editorial ”Law Should Guvern: Aspiring General Principles for

Transnational Criminal Justice” (Utrecht Law Review, vol. 9, nr. 4) 1-10.

32 See Vervaele et alii (n 31) 1-10.

33 „La mise en oeuv re du Corpus Juris dans les Etats Membres”, vol. I-IV, Prof. M. Delmas-Marty et

Prof. J.A.E. Vervaele (eds), Intersentia, Antwerp-Groningen-Oxford, 2000.

„Corpus juris portant dispositions pénales pour la protection des intérêts financiers de l’Union

européenne”, sous la direction de Mireille Delmas-Marty, Economica,Paris, 1997.

„Către un spaţiu judiciar european. CORPUS JURIS – dispoziţii penale privind protecţia intereselor

financiare ale Uniunii Europene”, a study carried out at the request of the European Parliament with the

assistance of the Associations of European Lawyers and under the auspices of the European

Commission's Directorate-General for Financial Control, Bucharest, Efemerida Publishing House,

2000.

58 ANCA AUGUSTA LAZĂR

Regarding this approach, one must also mention the scientific research efforts

carried out within the framework of the European project "Criminal Investigation

and Prosecution of Criminal Offences Affecting the Financial Interests of the European

Union", coordinated by the University of Luxembourg during 2010-2012, to which

the Romanian Association for Community Law Research has brought its

contribution.34.

B. GENERAL ASPECTS OF THE PROCEDURE

1. Formal Designation as a Suspect

When the existing evidence in the case constitute probable cause to believe

that a certain individual has committed the offence that warranted the start of the

criminal investigation and none of the cases preventing criminal action as under

Article 16 para 1 CCP apply, the criminal prosecution bodies shall order that the

criminal investigation continue in relation to that individual, and the latter shall

acquire the capacity of suspect (CCP, Article 305 para 3). The decision taken by the

criminal investigation body is submitted for confirmation of the prosecutor within

3 days. Thus, a person becomes a suspect only after the beginning of the criminal

prosecution.

Furthermore, as a special condition, Article 109 of the Romanian Constitution

stipulates that only the Deputies Chamber, the Senate and the President of

Romania have the right to request the criminal prosecution of government

ministers for acts committed during the exercise of their functions. If criminal

prosecution has been requested, the President of Romania can order their

suspension from office. The bringing before court of a member of the government

leads to his suspension from office.

In the special criminal laws, both legal persons and natural persons are

obliged to give information requested by the specialised authorities. Similarly, the

provisions of Law 87/1994 on combating tax fraud and of the CCP which

stipulates the obligation of persons holding leading positions, to immediately

inform the prosecutor or the criminal investigation body of the perpetration of a

crime. Under CC, Article 267, violation of this obligation can become an offence

(omission to notify the judicial bodies - the act of a public servant who, becoming

aware of the commission of an offence criminalized by law in connection with the

service where they work, omits to immediately notify the criminal investigation

body, is punishable by no less than 3 months and no more than 3 years of

imprisonment or by a fine). If the act is committed with recklessness, the penalty

consists of no less than 3 months and no more than 1 year of imprisonment or a

fine.

34 See A Lazăr, „Procurorul European – retrospectiva cercetării ştiinţifice premergătoare propunerii

Comisiei Europene”, „Pro Lege” Magazine, nr. 4/2016, 21-33.

Presentation of Romanian National Systems of Investigation… 59

In the Romanian CC, both a natural person and a legal person can be a

defendant. CC, Article 136 stipulates main and complementary punishments

applicable to legal persons. The main punishment is a fine calculated according to

CC, Article 137. Thus, the amount of the fine is determined based on the fine-days

system. The amount corresponding to the fine-days, varying between Lei 100 and

5000, shall be multiplied by the number of days subject to the fine (between 30 and

600 days). The court shall decide on the number of days subject to the fine

considering the general criteria for the customization of penalty. The amount of the

fine-days is determined by taking into account the turnover (in case of for-profit

legal entities), and the value of assets (in case of the other legal entities), as well as

other obligations of the legal entity. CC, Article 137 para 4 stipulates the special

limits of the days subject to the fine range between 60 and 510 days.

The complementary punishments are dissolution, suspension of the activity of

the legal person or suspension of one of the activities of the legal person, related to

which the crime has been perpetrated. Other such punishments are closure of

operation locations of a legal entity, ban on taking part in public procurement

tenders, placement under judicial supervision for a period between one and three

years and posting or publication of the conviction sentence (CC, Articles 139-145).

The financial investigations are carried out by the criminal investigation bodies or

by the prosecutor. There are special laws which regulate the initiation procedure.

For example, one of the procedures consists of informing the Office for Prevention

and Combating of Money Laundering by the institutions and bodies stipulated in

Article 8 of the Law on money laundering. The office will then inform the National

Anticorruption Directorate and the Directorate for Investigation of Organised

Crime and Terrorism. In the case of financial crimes under the competence of the

National Anticorruption Directorate, the provisions of the criminal procedure are

applied35.

In the case of crimes in flagrante delicto, there are some special procedural rules

which were instituted due to the necessity of simplifying the forms of performing

the criminal process and for promptly holding the perpetrator criminally

responsible (CCP, Articles 293, 298). Although there are some derogatory norms

from the normal procedure of the criminal process, the basic principles which

guide the criminal process are observed in the same manner. Sometimes the

perpetrator is caught 'red-handed', or immediately after the perpetration. The

offender can at times be pursued by the injured person, by an eye-witness or by

public outcry and also by CCTV and other public cameras. Also, the perpetrator

may be caught close to the crime scene with weapons, tools or any other objects

which suggest that he/she was a participant in the crime. Based on the emergency

character of this special procedure, the criminal investigation bodies can take some

35 Lazar et alii (n 2) 594.

60 ANCA AUGUSTA LAZĂR

urgent measures in cases concerning crimes which are given to the exclusive

competence of the prosecutor. In this regard, Article 60 CCP refers to urgent

situations and stipulates that the prosecutor or the criminal investigation body, as

applicable, is under an obligation to perform criminal investigation acts that cannot

be delayed, even if these concern a case that does not fall under their jurisdiction.

Work prepared in such cases shall be sent forthwith to the prosecutor who has

jurisdiction. Other bodies stipulated in CCP, Articles 61 and 62 are competent to

establish a crime in flagrante delicto as well, eg: the state inspection agencies, the

captains of ship or aircraft etc, who are required to immediately turn over to the

prosecutor or to the criminal prosecution body, the perpetrator, the works carried

out and the evidence collected, in order to observe the terms of this procedure.

In the case of crimes in flagrante delicto, the public order and national security

bodies shall write a report and describe all the elements they found and activities

undertaken and shall submit the report to the criminal investigation body without

delay. Complaints and requests filed in writing, material evidence, as well as

objects and documents seized on finding commission of the offence shall be turned

over to the criminal investigation body (CCP, Article 293 para 3, 4). The procedure

in case of an offence “in the act” sets an obligation for the criminal investigation

body to officially find the commission of an offence even in the absence of a

preliminary complaint. After finding the commission of a crime in flagrante delicto,

the criminal investigation body shall call upon the victim to ask whether they wish

to file a preliminary complaint and if the answer is in the affirmative it shall begin

the criminal investigation. If the answer is negative, the criminal investigation

body shall submit its documentation to the prosecutor, accompanied by a proposal

to close the case.

2. Questioning the Suspect Pre-Trial

The statements of the suspect or of the defendant are included amongst the

means of evidence in the criminal proceedings, (CCP, Article 97) due to the fact

that they know best the circumstances in which the crime was committed.

Nevertheless, the statements of the suspect or of the defendant represent a right

and not a duty (nemo tenetur edere contra se). In the first stage of the criminal

process, the suspect is heard at the beginning of the criminal prosecution (CCP,

Articles 107, 109), as well as when any preventive measure is taken (taking in

custody, judicial control, judicial control on bail, house arrest, pre-trial arrest, CCP,

Articles 209, 212, 214, 216, 219, 220, 225).

In the case of the suspect or the defendant, the questioning procedure follows

a set of procedural or tactical rules. Before being questioned, the suspect or the

defendant is asked about his personal data, after which he/she is informed about

the act which constitutes the object of the case, about the legal considerations, the

Presentation of Romanian National Systems of Investigation… 61

right to have a defence lawyer as well as the right to remain silent, as anything

he/she says may be used against him/her.

The procedure is similar in the French legal system, which stipulates that

during a judicial investigation, hearing of the suspect by the investigating judge

encompasses the right to be assisted by a defence lawyer and to be informed of this

right at the beginning of the first hearing.36

Nevertheless, Article 109 para 2 of the Romanian Constitution provides for a

limitation to this measure, stipulating that only the Deputies Chamber, the Senate

and the President of Romania have the right to request the criminal prosecution of

the members of government for acts committed during the exercise of their

functions. Therefore, even if the suspect or the defendant admits the offence

(self-incrimination), they cannot be questioned by the criminal prosecution bodies

for this act without the authority of the above-mentioned institutions (Article 109

para 2 of the Constitution).

The statement is recorded in written form and is signed by the suspect,

defendant, the criminal prosecution body, the defence lawyer of the

suspect/defendant, if he/she was present and the interpreter, if one is appointed.

Furthermore, during the criminal investigation, the hearing of a suspect or

defendant is recorded with audio or audio-video devices. When such recording is

not possible, this fact is mentioned in the statement of the suspect or defendant,

indicating the actual reason why such recording was not possible (CCP, Article 110

para 5).

The questioning of the suspect is also subject to audio-visual recording in the

French criminal procedure, except for offences relating to organised crime and

terrorism.37

In the Romanian CCP, there is no stipulation of the obligation to cooperate

with the criminal prosecution bodies, but such cooperation has some significance,

because sincerity and the facilitation of finding or arresting the participants in a

crime can represent an element that leads to a reduction in the punishment. The

questioning is done by the criminal investigation bodies and by the prosecutor, in

the criminal prosecution phase. In the case of flagrante delicto crimes, the notified

criminal investigation body issues a protocol in which the facts of the crime are

recorded (CCP, Articles 293 and 298).

Assistance by a defence lawyer is mandatory at each stage of the criminal

prosecution, as well as during the questioning, only when the suspect or the

defendant is a minor, committed to a rehabilitation centre or a medical and

educational facility (as an educative measure), when he or she is detained or

arrested, even in another case, when the security measure of being committed to a

medical facility was taken against them, even in another case, as well as in other

36 See Tricot (n 12) 233.

37 See Tricot (n 12) 233.

62 ANCA AUGUSTA LAZĂR

situations established by law or when the judicial body deems that the suspect or

the defendant could not defend themselves.38

In the judicial review, the preliminary chamber judge, if the file is returned for

supplementing the criminal prosecution, can order a new hearing of the suspect or

of the defendant.

3. Interrogation of Witnesses in the Investigation Stage

(Including Complainants/Injured Party)

The statements of witnesses are an essential contribution to finding the truth

in a criminal case, a fact which has led some authors to consider testimony

evidence as a natural, inevitable proof.

When defining the witness, the law (CCP, Article 114 para 1) stipulates that it

is the person who has knowledge of facts or factual circumstances representing

evidence in a criminal case. Any natural person can be summoned as a witness in

the criminal process, irrespective of his or her physical condition (blind, deaf,

dumb; for instance, a blind person can be heard about a circumstance he/she has

heard, and a deaf about a circumstance he/she has seen),39 or a psychological

condition (a psychologically ill person can be heard), and the judicial bodies have

the latitude to appreciate which of these persons are qualified to deliver

information, necessary for the solution of the criminal cases.

Nevertheless, there are restrictions stipulated in CCP. Thus, persons who are

in a situation of nature to reasonably question their capacity to testify may be

heard only when judicial bodies establish that the person is able to consciously

present facts and factual circumstances according to reality. In order to decide on a

person’s capacity to testify, judicial bodies order, upon request or ex officio, any

necessary examination, through means set by the law (CCP, Article 115 para 2, 3).

Another restriction can be found in CCP, Article 115 para 1, which stipulates

that any person may be summoned and heard as witness, except for the parties

and the main trial subjects. This restriction is justified by the fact that they are

persons interested in the case and they cannot combine the status of witness with

that of a party/main trial subject, as nobody can speak as a witness in his/her own

case (nemo testis idoneus in re sua). The parties to criminal proceedings are: the

defendant, the civil party and the party with civil liability (CCP, Article 32) and the

main trial subjects are the suspect and the injured person (CCP, Article 33).

The injured person can, however, be heard as a witness if he/she is not a civil

party in the case or is not participating in the process as an injured party, as long as

for the respective crime the criminal action is initiated ex officio (CCP, Article 81

para 2).

38 Lazar et alii (n 2) 596.

39 Volonciu et alii (n 1) 327.

Presentation of Romanian National Systems of Investigation… 63

As opposed to the Romanian CCP, the French CCP has specific provisions

concerning the questioning of the injured party only when he/she has the status of

civil party within the framework of a judicial investigation. Thus, he/she is entitled

with the same rights as the suspect and is not required to swear under oath.40

The Romanian CCP, Article 118 also provides for the right of witnesses to

avoid self-incrimination. Thus, a witness statement given by a person who had the

capacity as suspect or defendant before such testimony or subsequently acquired

the capacity of suspect or defendant in the same case may not be used against

them. At the moment when they record the statement, judicial bodies are under an

obligation to mention their previous capacity.

As a particularity, in the French legal system, an intermediate status has been

created, between a simple witness and a suspect placed under judicial

examination. Thus, a person against whom there is serious and consistent evidence

of participation in the crime may not be heard as an ordinary witness, but must be

heard instead as an assisted witness. An assisted witness may not swear under

oath and enjoys the right to be assisted by a lawyer, who is informed prior to the

hearing and has access to the case file.41

Furthermore, there is another restriction in the Romanian criminal procedure

regarding professionals who are obliged to observe the professional confidences

(lawyers, doctors, notaries public etc). In this respect, Article 116 para 3, 4 CCP

stipulates that those facts or circumstances the lawful secrecy or confidentiality of

which can be raised before judicial bodies cannot be the subject matter of a witness

statement, except when the relevant authority or the entitled person expresses their

consent for this purpose or when there is another legal reason for removing the

obligation to keep secrecy or confidentiality. The disclosure of a state secret or of a

professional secret represents a crime (CC, Articles 227, 303, 304,407).

The capacity as witness prevails on the capacity as expert or defence lawyer,

mediator or representative of either party or as main subject in respect of facts and

factual circumstances known to a person before they acquired this capacity. Those

persons, who are not obligated to appear as witnesses, make declarations if they

agree to this. In this respect, CCP, Article 117 stipulates that the persons who are

entitled to refuse to testify are a suspect’s or defendant’s spouse, ancestors and

descendants in direct line, as well as their siblings and the persons who were a

suspect’s or defendant’s spouse. If they agree however, they can give evidence as

witnesses.

CC, Article 273 stipulates the offence of perjury, which is defined as the act of

a witness who is heard in criminal, civil or other proceedings in which witnesses

are heard and gives false statements, or does not tell everything they know

40 See Tricot (n 12) 234.

41 See Tricot (n 12) 234.

64 ANCA AUGUSTA LAZĂR

regarding the essential acts or circumstances in relation to which they are heard.

The punishment for this offence is no less than 6 months and no more than 3 years

of imprisonment or a fine. The punishment is more drastic if the offence is

committed by a witness whose identity is protected or who is included in the

witness protection program, an investigator working undercover, a person who

prepares an expert report or an interpreter or in relation to an offence for which the

law provides life imprisonment or a term of imprisonment of 10 years or more. In

these cases, the punishment is no less than 1 and no more than 5 years of

imprisonment. Nevertheless, the witness is not be punishable if they withdraw

their testimony, in criminal cases, before the defendant’s detention or arrest, or

before the initiation of the criminal action or in other cases before a decision or

another solution is given, following the false testimony given.

The witness has three obligations: to appear at the established place, on the

day and at the hour mentioned in the summons, to communicate in writing, within

5 days, any change of the address where the summons is served and to declare

everything he or she knows related to the aspects of the case. If these three

obligations are not properly observed, the witness can be sanctioned with a fine

between 500 and 5,000 Lei.

As opposed to the Romanian criminal procedure, which institutes the

obligation of the witness to declare everything they know related to the case,

irrelevant of the judicial body which interrogates them, in the French legal system,

there is a distinction, depending on the judicial body doing the interrogation. Thus,

witnesses summoned by the police are obliged to appear, but they are not obliged

to testify, whereas witnesses summoned by the investigating judge are obliged to

appear and bound to testify on oath and make a statement. Where refusing to

comply with their obligation, they are liable to a fine for petty offences of the fifth

class.42

In the Romanian criminal procedure, the interrogation of the witness is done

by the criminal investigation bodies or by the prosecutor. As in the case of

questioning of the suspect, the defendant or the other parties, this interrogation

procedure is preceded by an identification phase (CCP, Article 119). If he/she has a

hostile relationship with the parties, the witness may still be heard, but for the

evaluation of proofs this aspect will be taken into account.

Before being heard, the witness will swear an oath to tell the truth and not to

hide anything of what he/she knows, holding his/her hand on the cross or on the

Bible. A witness without religion will swear a very similar oath. If there are more

witnesses, each one will be heard separately (CCP, Article 122 para 1). During the

criminal prosecution, if there are more witnesses, each one will be heard without

the others being present.

42 See Tricot (n 12) 233.

Presentation of Romanian National Systems of Investigation… 65

First, the witness is allowed to declare everything he/she knows related to the

case. The provisions concerning the recording of the statement of the suspect or the

defendant also apply in the procedure of witness interrogation (CCP, Articles 110

and 123 para 1), with one exception. Whereas the hearing of a suspect or defendant

shall be recorded with audio or audio-video devices, except for when it is not

possible, the hearing of a witness shall only be recorded with such devices during

the criminal investigation if the criminal investigation bodies deem this necessary

or if the witness requests this specifically and such recording is possible (CCP,

Article 123 para 2).

CCP also stipulates rules regarding the interrogation as witnesses of certain

protected persons. Therefore, whenever there is a reasonable suspicion that the life,

physical integrity, freedom, assets or professional activity of a witness or of a

member of their family could be jeopardized as a result of the data provided by

them to judicial bodies or of their statements, the judicial bodies of competent

jurisdiction grant them the status of threatened witness and order one or more of

the protection measures set by Articles 126 or 127, as applicable. The judicial body

competent to order these measures is the prosecutor in the phase of criminal

prosecution, ex officio or upon request by the witness, one of the parties or a main

trial subject and in the trial phase, the court, ex officio or on the motivated request of

the prosecutor, the witness, one of the parties or a main trial subject.

As mentioned previously, the protection measures which can be ordered

during the criminal investigation and during the trial are stipulated in Articles 126

and 127 CCP. Thus, during the criminal investigation, once the status of threatened

witness is granted, the prosecutor orders the application of one or more of the

following measures: surveillance and guard of the witness’ residence or providing

of a temporary dwelling space; accompanying and ensuring protection to the

witness or to their family members during travels; protection of identity data, by

issuing them a pseudonym under which the witness shall sign their statement;

hearing of a witness without them being physically present, through audio-video

transmission devices, with their voice and image distorted, when the other

measures are not sufficient, so that the witness cannot be recognised. The

prosecutor supervising the criminal prosecution gives the approval to the criminal

investigation body for this modality of hearing the witness. Statements of

protected witnesses are recorded using audio and video technical devices and are

fully transcribed in a written format. The protection measures which can be

ordered during the trial are similar to the above-mentioned ones and also include

closed court sessions during the hearing of witnesses.

The absence of the defence lawyer does not hinder criminal prosecution, if

there is proof that the lawyer was informed of the date and the hour of the hearing

(e.g. of a witness) in case he/she requested to be informed. The notification is

performed through phone or other means of communication, and an official report

is drafted to this effect43.

43 Lazar et alii (n 2) 597.

66 ANCA AUGUSTA LAZĂR

4. Arresting the Suspect and Detention for Questioning

The suspect or the defendant can be brought in by bench warrant even before

having been summoned, if such step is required in the interest of settling the case.

During the criminal investigation, the bench warrant is issued by the criminal

prosecution body, while during the trial it is issued by the court. In case

enforcement of the bench warrant requires entering a domicile or place of business

without securing previous consent, during the criminal investigation the bench

warrant can be issued, based on affidavit by the prosecutor, by the judge for rights

and liberties of the court. The judicial body shall hear without delay the person

brought in by bench warrant or, as the case may be, shall immediately perform the

act that made that person’s presence necessary. Persons brought in by bench

warrant shall remain at the disposal of the judicial body only for the duration

required by their hearing or by the procedural act that made their presence

necessary, but no longer than 8 hours, except for the case where an order has been

issued for their being placed in custody or under pre-trial arrest (CCP, Article 265

para 11, 12).

A bench warrant is enforced by the criminal investigation bodies of the

judicial police and by the public order bodies. In case the person indicated in the

warrant refuses to comply or tries to escape, they will be brought in by force before

the criminal prosecution bodies or before the court (CCP, Article 266 para 1).

Arresting the suspect and detention for questioning are measures which can

also be taken in the French legal system, by the prosecutor or, as the case may be,

by the investigating judge or by the judicial police, with or without prior

authorisation of the prosecutor, in certain cases stipulated by the law.44

5. Pre-Trial Custodial Detention and House Arrest

Pre-trial custodial detention and house arrest45 fall within the category of

preventive measures, which are process measures of criminal procedural law,

having a coercive character, through which the suspect or the defendant is

prevented from certain actions with possible negative repercussions on the

criminal proceedings. The preventive measures are: taking in custody, judicial

control, judicial control on bail, house arrest and pre-trial custodial detention

(pre-trial arrest) (CCP, Article 202). Due to its duration and content, the measure of

pre-trial custodial detention of the defendant is the most severe of the custodial

preventive measures. Whereas taking in custody is a preventive measure which

44 See Tricot (n 12) 234-237.

45 House arrest is a new preventive measure introduced by the current CCP (the 2010 CCP), as

opposed to the former CCP (the 1968 CCP), which did not provide for this preventive measure.

Presentation of Romanian National Systems of Investigation… 67

can be taken against the suspect and the defendant, all the other preventive

measures can only be taken against the defendant, but not the suspect (CCP,

Article 203).

The conditions required cumulatively in order to take the measure of pre-trial

custodial detention or house arrest (CCP, Articles 218 para 1, 223 para 1), are: 1) the

existence of evidence which generate a reasonable suspicion that the defendant

committed an offence; 2) the existence of one of the cases stipulated in CCP, Article

223, namely: a) the defendant has run away or went into hiding in order to avoid

the criminal investigation or trial, or has made preparations of any nature

whatsoever for such acts; b) a defendant tries to influence another participant in

the commission of the offence, or a witness or an expert, or to destroy, alter or hide

or to steal physical evidence or to determine a different person to adopt such

behaviour; c) a defendant exerts pressures on the victim or tries to reach a

fraudulent agreement with them; d) there is reasonable suspicion that, after the

initiation of the criminal action against them, the defendant committed a new

offence with intent or is preparing to commit a new offence.

Pre-trial arrest of the defendant and house arrest can also be ordered if the

evidence generate reasonable suspicion that they committed an offence with intent

against life, an offence having caused bodily harm or death of a person, an offence

against national security as under the Criminal Code and other special laws, an

offence of drug trafficking, weapons trafficking, trafficking in human beings, acts

of terrorism, money laundering, counterfeiting of currency or other securities,

blackmail, rape, deprivation of freedom, tax evasion, assault of an official, judicial

assault, corruption, an offence committed through electronic communication

means or another offence for which the law requires a penalty of no less than 5

years of imprisonment and, based on an assessment of the seriousness of facts, of

the manner and circumstances under which it was committed, or the entourage

and the environment from where the defendant comes, of their criminal history

and other circumstances regarding their person, it is decided that their deprivation

of freedom is necessary in order to eliminate a threat to public order.

If these conditions are met, the prosecutor can issue ex officio or after being

notified by the criminal investigation body, a motivated proposal for taking

preventive measures against the defendant, when he considers that his detention is

necessary in the interest of the criminal prosecution; prior to this, the defendant

ought to be questioned in the presence of a defence lawyer. The proposal of

pre-trial custodial detention or house arrest is resolved by a single judge for rights

and liberties, irrespective of the nature of the crime. The defendant is brought

before the judge and will be assisted by a defence lawyer. The participation of the

prosecutor is mandatory. If the above-mentioned conditions are fulfilled, the judge

for rights and liberties orders the pre-trial custodial detention or the house arrest of

the defendant for a period not exceeding 30 days. The decision can be appealed,

68 ANCA AUGUSTA LAZĂR

within 48 hours from the moment of its issue for persons who were present, or

from the moment of communication in the case of persons who were absent.

The pre-trial arrest of a defendant and the house arrest may be extended

during the criminal investigation if the grounds having caused the initial arrest

further require the detention of the defendant or there are new grounds justifying

the extension of such measures. The extension of a defendant’s pre-trial arrest or

house arrest term may be ordered for a maximum period of 30 days. The judge for

rights and liberties may also award, during the criminal investigation, further

extension. The total duration of the defendant’s pre-trial arrest or house arrest

during the criminal investigation cannot exceed a reasonable term, and can be no

longer than 180 days (CCP, Articles 222, 236). The duration of the house arrest

measure is taken into consideration when calculating the total and maximum

duration of the pre-trial arrest measure during the criminal investigation (CCP,

Article 222 para 10).

House arrest is ordered if the above-mentioned requirements are met and if

such measure is necessary and sufficient for the attainment of one of the purposes

set by CCP, Article 202 para 1 (to ensure a proper conducting of criminal

proceedings, to prevent the defendant from avoiding the criminal investigation or

trial or to prevent the commission of another offence). The fulfilment of the house

arrest terms is assessed by considering the threat level posed by the offence, the

purpose of such measure, the health condition, age, family status and other

circumstances related to the person against whom such measure is taken. House

arrest measure may not be ordered against a defendant in whose respect there is a

reasonable suspicion that he committed an offence against a family member or a

defendant who previously received a final conviction for an escape offence (CCP,

Article 218 para 3).

According to CCP, Article 221, the house arrest measure consists of an

obligation imposed on a defendant, for a determined time period, not to leave the

building where they live, without permission from the judicial bodies having

ordered such measure or with which the case is pending, and to observe certain

restrictions imposed by those. During house arrest, a defendant has the following

obligations: to appear before criminal investigation bodies, the judge for rights and

liberties, the preliminary chamber judge or the court whenever they are called; not

to communicate with the victim or with members of their family, with other

participants in the commission of the offence, with witnesses or experts, as well as

with other persons established by the judicial bodies. Also, the judicial body may

order that, during house arrest, a defendant permanently wear an electronic

surveillance system.

In order to execute the arrest warrant, the police can enter the domicile or the

residence of a person without their consent, as well as the premises of a legal

person, without the consent of its representative. The defence lawyer is informed

Presentation of Romanian National Systems of Investigation… 69

about the place and the moment of the execution of this measure. It is requested

that the lawyer be present at the execution of the measure (when the defence is

mandatory ie when the defendant is arrested).46

In the French criminal procedure, pre-trial custodial detention was originally

in the hands of the investigating judge and afterwards withdrawn from this judge

to the benefit of the liberty and custody judge. Although the investigating judge

may never order pre-trial detention, they may order the release, which is why they

are considered a liberty judge. The maximum length of custiodial detention varies

according to the nature of the offence.47

6. Interception of Postal Communications (Letters)

The secrecy of correspondence is not an absolute right, and is susceptible to

certain restraints, justified by the necessity of the criminal instruction. Such legal

provisions are necessary in a democratic society, in order to safeguard national

security, defend public order and prevent crime.48

The seizure, surrender and search of postal deliveries can be ordered under

conditions stipulated by CCP. Thus, the judge for rights and liberties may, at the

prosecutor's request during the criminal investigation, order the seizure, surrender

and search of postal deliveries, in respect of letters, postal dispatches or items sent

or received by a perpetrator, suspect, defendant or by any person suspected to

receive or send, by any means, such goods from/to a perpetrator, suspect or

defendant, or goods intended to it, if three conditions are met. These are: a) there is

a reasonable suspicion related to the preparation or commission of an offence; b)

such step is necessary and proportional to the restriction of fundamental rights and

freedoms, considering the particularities of the case, the importance of information

or of evidence to be obtained or the offence seriousness; c) evidence could not be

obtained in other way, or obtaining it would imply extreme difficulties that would

harm the investigation or there is a threat against the safety of persons or of high

value goods (CCP, Article 147 para 1).

The seizure, surrender and search of mail or of postal deliveries sent or

received based on the relation between the counsel and the suspect, defendant or

any other person defended by them are prohibited, except for situations where

there is data that the counsel perpetrates or prepares the commission of any of the

offences for which the judge can order electronic surveillance, listed under Article

139 para 2 CCP. This measure is decided according to the procedure stipulated by

CCP, Article 140, regarding electronic surveillance and its duration can be

46 Lazar et alii (n 2) 599.

47 See Tricot (n 12) 237, 238.

48 Decision no 410/2008, Constitutional Court (Jurisprudenţa.com).

70 ANCA AUGUSTA LAZĂR

extended under the same conditions as electronic surveillance; the total duration of

a measure related to the same person and the same act may not exceed, in the same

case, 6 months (CCP, Article 147 para 9).

In emergency situations, when the obtaining of a warrant for the withholding,

surrender and search of postal deliveries under the terms of Article 140 CCP

would result in a substantial delay of the investigations, in the loss, alteration or

destruction of evidence or would endanger the safety of the victim or of other

persons, and the legal requirements are met, the prosecutor may order, for a term

of maximum 48 hours, the seizure, surrender and search of postal deliveries to

which the law makes reference. The prosecutor is under an obligation to notify the

judge for rights and liberties in order for him to confirm the measure.

Following performance of the authorized activities, the prosecutor must

inform each subject of a warrant on the measure taken against them, in writing,

within maximum 10 days. After the moment of such information, the person

whose mail, postal deliveries or items were seized and searched has the right to

learn of the activities performed. Nevertheless, the prosecutor may postpone such

information or the presentation of media on which electronic surveillance activities

are stored or the minutes transcribing them, in a justified way, if this could result

in disruption or jeopardizing of the proper conducting of the criminal investigation

in the case, or jeopardizing of the safety of the victim, witnesses or members of

their families, or difficulties in the electronic surveillance of other persons involved

in the case. The postponement may be ordered until completion of the criminal

investigation or until the case closure, at the latest.

In the French legal system, the measure of intercepting postal communications

(letters) is governed by the French rules on search and seizure, where specific

provisions apply concerning documents covered by professional secrecy, and

especially those in possession of a defence lawyer.49

7. Electronic surveillance

Article 138 para 1 CCP stipulates surveillance or investigation special

methods, as follows : a) wiretapping of communications or of any type of remote

communication; b) accessing a computer system; c) video, audio or photo

surveillance; d) tracking or tracing with the use of technical devices; e) obtaining

data regarding the financial transactions of individuals; f) withholding, delivery or

search of mail deliveries; g) use of undercover investigators and informants; h)

authorized participation in specific activities; i) controlled delivery; j) obtaining

traffic and location data processed by providers of public electronic

communication networks or by providers of electronic communication services

intended for the public.

49 See Tricot (n 12) 238.

Presentation of Romanian National Systems of Investigation… 71

According to CCP, Article 138 para 13, technical surveillance means the use of

one of the methods provided for in Article 138 para 1 lett. a) to d).

Electronic surveillance is ordered by the judge for rights and liberties when

the following requirements are cumulatively met: a) there is a reasonable suspicion

in relation to the preparation or commission of one of the offences listed under

para 2; b) such measure is proportional to the restriction of fundamental rights and

freedoms, considering the particularities of the case, the importance of information

or evidence that are to be obtained or the seriousness of the offence; c) evidence

could not be obtained in any other way or its obtaining implies special difficulties

that would harm the investigation, or there is a threat for the safety of persons or of

valuable goods (CCP, Article 139 para 1).

Electronic surveillance may be ordered in case of offences against national

security stipulated by the Criminal Code and by special laws, as well as in case of

drug trafficking, weapons trafficking, trafficking in human beings, acts of

terrorism, money laundering, counterfeiting of currency or securities,

counterfeiting electronic payment instruments, offences committed by means of

computer systems or electronic communication devices, offences against property,

blackmail, rape, deprivation of freedom, tax evasion, corruption offences and

offences assimilated to corruption, offences against the European Union’s financial

interests, or in case of other offences in respect of which the law sets forth a penalty

of no less than 5 years of imprisonment (CCP, Article 139 para 2).

The recordings done by the parties or by other persons represent evidence

when they concern their own conversations or communications with third parties.

Any other recordings may constitute evidence unless prohibited by law. The

relationship between a counsel and a person assisted or represented by them may

be subject to electronic surveillance only when there is information that the counsel

perpetrates or prepares the commission of any of the above-mentioned offences.

Noteworthy is the fact that the Constitutional Court allowed the objection of

unconstitutionality raised against Article 142 para 1 CCP and found that the phrase

'or other specialized bodies of the state' in the above-mentioned legal provision is

unconstitutional.50 Before this decision, CCP, Article 142 para 1 stipulated that the

prosecutor enforces an electronic surveillance measure or may order that this be

enforced by criminal investigation bodies or by specialized employees of the law

enforcement bodies or of other specialized bodies of the state.

Thus, the Constitutional Court found that, given the intrusive nature of the

electronic surveillance measure, it is mandatory for it to be carried out in a clear,

precise and predictable legal framework, both for the person subject to that

measure and for the tracing authorities and for the courts. The Court observed that

the choice of the legislator is not justified with regard to the inclusion in Article 142

50 Decision no 51/2016, Constitutional Court (Jurisprudenţa.com).

72 ANCA AUGUSTA LAZĂR

para 1 CCP of the phrase 'other specialized bodies of the state', given that it is not

specified in the CCP or in other special laws. Therefore, the Court found that the

provisions criticized breach the constitutional provisions contained in Article 1

para 3 of the Constitution on the rule of law in its component of guaranteeing

citizens' rights and in Article 1 para 5 of the Constitution, which enshrines the

principle of legality.

In order to set the provisions of CCP, Article 142 para 1 in accordance with the

Constitutional Court's decision, Emergency Ordinance no 6/2016 was adopted and

published. Following this step, based on the legal provisions of Emergency

Ordinance no 6/2016, for the relationship with publicly provided electronic

communications providers, the National Interception Centre for Communications

within the Romanian Intelligence Service was designated with the role of

obtaining, processing and storing information in the field of national security. At

the request of the criminal investigative bodies, the Centre has the role to ensure

their direct and independent access to the technical systems, for the purpose of

performing the technical supervision provided in CCP, Article 138 para 1 lett. a).

According to Article IV of the Emergency Ordinance no 6/2016, which

amended Article 8 of Law no 14/1992 on the organisation and functioning of the

Romanian Intelligence Service, the specific conditions for access to the technical

systems of the judicial bodies are established through cooperation protocols

concluded by the Romanian Intelligence Service with the Public Ministry, the

Ministry of Internal Affairs, as well as with other institutions in which operate

special criminal investigation bodies.

Therefore, based on the above-mentioned legal provisions, the Public Ministry

concluded in 2016 the cooperation protocol with the Romanian Intelligence Service

and gained access to the technical system of the National Interception Centre for

Communications within the Romanian Intelligence Service.51 Also, based on the

Constitutional Court's decision and the Emergency Ordinance no 6/2016, technical

services have been set up within the Prosecutor's Office attached to the High Court

of Cassation and Justice, the National Anticorruption Directorate and the

Directorate for Investigating Organised Crime and Terrorism.

Electronic surveillance may be ordered during the criminal investigation, for a

term of maximum 30 days, upon request by the prosecutor, the judge for rights

and liberties of the court having the competence of jurisdiction to examine the case

in first instance or of the court corresponding to its level under whose territorial

jurisdiction the premises of the prosecutors’ office to which the prosecutor who

filed the application belongs are located. An electronic surveillance warrant may

51 The existence of this protocol has generated a very strong public debate; individuals held

criminally responsible, especially for corruption offences, invoked alleged violations of fundamental

rights. In the context of these debates, it was proposed de lege ferenda that a national interception

authority should be established under the control of the Parliament.

Presentation of Romanian National Systems of Investigation… 73

be extended, for well-grounded reasons, under the same conditions, each

extension not exceeding 30 days. The total duration of an electronic surveillance

measure, related to the same person and the same act, may not exceed, in the same

case, 6 months, except for the measure of video, audio or photo surveillance in

private spaces, which may not exceed 120 days (CCP, Article 144).

The prosecutor may authorize, for a time period of maximum 48 hours,

electronic surveillance measures when there is an emergency situation, and the

obtaining of an electronic surveillance warrant under the fore-mentioned terms

would lead to a substantial delay of investigations, to the loss, alteration or

destruction of evidence, or would jeopardize the safety of the victim, of witnesses

or of their family members and the requirements set by Article 139 para 1 and 2 are

met. Within a maximum of 24 hours following expiry of a measure, the prosecutor

is under an obligation to notify the judge for rights and liberties of the court and, at

the same time, shall forward a report presenting a summary of the electronic

surveillance activities performed and the case file. If the judge decides that the

legal requirements are met, they shall confirm the measure ordered by the

prosecutor within 24 hours, through a court resolution, returned in chambers,

without summoning the parties.

Wiretapped and recorded phone conversations, communications or

discussions concerning an act subject to investigation or which contribute to the

identification or localization of persons are transcribed by the prosecutor or the

criminal investigation bodies in a report. The judge must approve the measure,

and he/she also controls its execution. There are no restrictions (e.g. professional

privileges) in taking this measure.

Following termination of an electronic surveillance measure, the prosecutor

must inform each subject of the warrant for electronic surveillance enforced against

them, in writing, within maximum 10 days (CCP, Article 145 para 1). Following

such information, a person subject to surveillance has the right to learn, upon

request, of the content of the minutes recording the electronic surveillance

activities performed. Also, the prosecutor must ensure, upon request, the listening

to discussions, communications or conversations, or the watching of images

resulted from each electronic surveillance activity. The term for filing a request in

this sense is of 20 days as of the date of communication of the written information

set under para 1. The prosecutor may postpone such information or the

presentation of media on which electronic surveillance activities are stored or the

minutes transcribing them, in a justified way, if this could result in: a) disruption

or jeopardizing of the proper conducting of the criminal investigation in the case;

b) jeopardizing of the safety of the victim, witnesses or members of their families;

c) difficulties in the electronic surveillance of other persons involved in the case.

The postponement may be ordered until completion of the criminal investigation

or until the case closure, at the latest.

74 ANCA AUGUSTA LAZĂR

In the French criminal procedure, interception of the contents of

telecommunications (content data) is ordered by the investigating judge, in case of

felonies or misdemeanours punishable by at least two years’ imprisonment. Pollice

officers are also allowed to resort to an interception within the framework of a

flagrant offence investigation or a preliminary police inquiry when they carry out

investigations on organised crime offences. The authorisation is made by the

liberty and custody judge, at the request of the prosecutor.52

8. Monitoring of Bank Transactions

a) Obtaining data on a person's financial transactions

The obtaining of data regarding the financial transactions performed by a

person may be ordered by the judge for rights and liberties with regard to the

financial transactions of the perpetrator, suspect, defendant or any person

suspected of performing such transactions with the perpetrator, suspect or

defendant, if: a) there is a reasonable suspicion in relation to the preparation or

commission of one of an offence; b) such measure is proportional to the restriction

of fundamental rights and freedoms, considering the particularities of the case, the

importance of information or evidence that are to be obtained or the seriousness of

the offence; c) evidence could not be obtained in any other way or its obtaining

implies special difficulties that would harm the investigation, or there is a threat

for the safety of persons or of valuable goods (CCP, Article 1461 para 1).

This measure may be ordered for a term of maximum 30 days by the judge for

rights and liberties and may be extended, for well-grounded reasons, under the

same conditions, each extension not exceeding 30 days. The total duration of the

above-mentioned measure, related to the same case and the same person, may not

exceed 6 months (CCP, Article 1461 para 4).

The prosecutor may authorize, for a time period of maximum 48 hours, the

obtaining of data regarding the financial transactions, when there is an emergency

situation, and the obtaining of the data warrant under the fore-mentioned terms

would lead to a substantial delay of investigations, to the loss, alteration or

destruction of evidence, or would jeopardize the safety of the victim, of witnesses

or of their family members and the legal requirements are met. In this case, the

same legal provisions apply, as in the case of electronic surveillance.

b) Obtaining data regarding the financial status of a person

The prosecutor may request a credit institution or any other institution

holding data regarding the financial status of a person, to communicate data

52 See Tricot (n 12) 239.

Presentation of Romanian National Systems of Investigation… 75

referring to the existence and content of accounts of a person, if there is probable

cause in respect of the commission of an offence and there are grounds to believe

that the requested data represent evidence. This measure is ordered ex officio or

upon request by criminal investigation bodies, through an ordinance. The

respective institution is under an obligation to provide the requested data

forthwith (CCP, Article 153).

In the French system, the CCP does not foresee the monitoring of banking

transactions. However, it is in practice covered by the general power of requisition

provided for in the French CCP, which stipulates that judicial police officers may

request information on bank accounts, on banking transactions and the monitoring

of banking transactions. Furthermore, the public prosecutor, the investigating

judge or the trial court may require the parties, any public administrations,

financial institutions or persons holding funds for the defendant, to communicate

relevant information of financial or fiscal nature, without confidentiality being

raised as an objection.53

9. Tracking and Tracing of Objects and Persons

A wanted notice is requested and granted to identify, search for, locate and

apprehend an individual in order to bring them before the judicial bodies or to

enforce certain court orders. A wanted notice is requested and ordered in the

following situations (CCP, Article 521):

a) it was not possible to enforce a pre-trial arrest warrant, a warrant to enforce

a custodial penalty, a custodial educational measure, a medical internment

measure or the expulsion measure, because the person against whom one of those

measures was ordered could not be found; for this case the wanted notice is

requested by the police body which found the impossibility of enforcing the

above-mentioned measures;

b) the person escaped from legal arrest or detention or ran away from an

educational centre, custodial centre or medical facility where they were medically

interned; in this case, the wanted notice is requested by the management of the

place of detention, educational centre or medical facility;

c) to find a person who is wanted internationally and information exists that

they are in Romania; in this case, the right to request the wanted notice rests with

the judicial body that has jurisdiction under special law.

A person is placed on wanted status by order of the General Police

Inspectorate of Romania. During the search procedure, a number of activities can

be performed in order to identify, search, locate and apprehend the wanted

persons, under the conditions stipulated by the law (CCP, Article 523): a) electronic

surveillance; b) intercepting, seizing and searching mail and items; b1) obtaining

53 See Tricot (n 12) 241.

76 ANCA AUGUSTA LAZĂR

traffic and localisation data processed by providers of public electronic

communications networks or providers of electronic communication services

intended for the public; c) search warrants; d) seizing items or documents. The

activities stipulated under a)-c) can only be performed on the basis of a warrant

issued by the judge for rights and liberties (CCP, Article 523 para 2), whereas the

activities stipulated under d) can only be performed with the authorisation of the

prosecutor who supervises the activity of the police which searches for the wanted

person (CCP, Article 523 para 3).

Asset freezing is a procedural measure which aims at avoiding concealment,

destruction, disposal or dissipation of the assets that may be subject to special or

extended confiscation or that may serve to secure the penalty by fine enforcement

or to pay court fees or to compensate damages caused by the committed offence

(CCP, Article 249 para 1).

In the French legal system, tracking and tracing of objects and persons are not

regulated as such by the CCP. Nevertheless, to some extent, provisions on acoustic

and visual surveillance and controlled deliveries may serve the same purposes.54

10. Data Mining and Profiling

The Ministry of Administration and Home Affairs has a data base, which is

exploited by the department for technology of information within this ministry. At

the level of the Romanian police, there is an application called CAMAS, which

stores the informational data of all police structures, regarding all types of crimes,

including organised crime, corruption and protection of the financial interests of

the European Communities. Within this application there is a sub/module called

EGI (which keeps the evidence of all criminal groups). This data base is managed

by the Central Unit for Information Analysis of the Police (UCAI)55.

The prosecutor and the court have the right of direct access to the electronic

data bases held by the agencies of the state administration. The agencies of public

administration which have electronic data bases are obligated to collaborate with

the prosecutor or with the court in order to ensure their direct access to the

information of the electronic data bases (CCP, Article 267). To ensure the

application of these legal provisions, The Ministry of Justice and the Public

Ministry arranged collaboration protocols with the public authorities and

institutions which have electronic data bases.

The services and agencies specialised in collecting, processing and archiving

information are obligated to immediately provide the competent Prosecutor's

Office with all the data and information, unprocessed, held with respect to a

54 See Tricot (n 12) 241.

55 Lazar et alii (n 2) 602, 603.

Presentation of Romanian National Systems of Investigation… 77

certain crime, necessary to the evaluation of the necessity of initiating criminal

prosecution (Art 66 of Law no 304/2004).

Pursuant to CCP, Article 152, criminal investigation bodies, based on a prior

authorization from the judge for rights and liberties, may request traffic and

localisation data processed by providers of public electronic communications

networks or providers of electronic communication services intended for the

public, when the following requirements are cumulatively met: a) there is a

reasonable suspicion in relation to the preparation or commission of one of the

offences listed under Article 139 para 2 CCP or of an offence of unfair competition,

escape, forgery in documents, offences concerning non-compliance with the

regime of weapons, ammunition, nuclear material and explosives etc.; b) there are

reasonable grounds to believe that the data requested constitute evidence; c)

evidence could not be obtained in other way, or obtaining it would imply extreme

difficulties that would harm the investigation or there is a threat against the safety

of persons or of high value goods; d) such measure is proportional to the

restriction of fundamental rights and freedoms, considering the particularities of

the case, the importance of information or evidence that are to be obtained or the

seriousness of the offence (CCP, Article 152 para 1). The judge for rights and

liberties rules within 48 hours on requests transmitted by criminal investigation

bodies regarding the transmission of data, through a reasoned court resolution, in

chambers.

Also, according to Law no. 506/2004, amended by Law no 235/2015, the

storage of information or access to information stored in the terminal equipment of

a subscriber or user is permitted only if the following conditions are met

cumulatively: a) the subscriber or user concerned has given his/her consent; b) the

subscriber or user concerned was provided, prior to expressing the consent, in

accordance with the legal provisions, clear and complete information that: (i) be

displayed in an easily understandable language and be easily accessible to the

subscriber or user; (ii) include insights into the purpose of processing the

information stored by the subscriber or user or the information to which he or she

has access (Article 4, Law no 506/2004).

Furthermore, according to Article 5, Law no. 506/2004, traffic data relating to

subscribers and users, processed and stored by the provider of a public electronic

communications network or by the provider of a publicly available electronic

communications service, must be deleted or transformed into anonymous data,

when they are not necessary any more for the transmission of a communication,

but not later than 3 years from the date of the communication, except in the cases

provided for in paras 2, 3 and 5.

Para 2 stipulates that the processing of traffic data for the purpose of billing

subscribers or establishing payment obligations for interconnection is allowed only

up to a period of 3 years from the due date of the corresponding payment

78 ANCA AUGUSTA LAZĂR

obligation. Processing of traffic data made for the purpose of setting contractual

obligations regarding subscribers of prepaid communications services is allowed

until a period of 3 years from the date of the communication has been completed.

According to para 3, the provider of a publicly available electronic

communications service may process the data provided in para 1 for the purpose

of commercializing its services or providing value added services only to the

extent and for the duration necessary for the commercialization or provision of

such services and only with the prior consent of the subscriber or user to whom the

data relate. The subscriber or, as the case may be, the user may at any time

withdraw his or her consent to the processing of traffic data.

Finally, para 5 stipulates that processing of traffic data under paras 1-4 may

only be performed by persons acting under the authority of providers of public

electronic communications networks or publicly available electronic

communications services, such as billing or traffic management, customer

relations, fraud detection, marketing electronic communications services or the

supply of value adding services, and is allowed only to the extent necessary for the

performance of those tasks.

The prosecutors and the officers of the judicial police have access, according to

their authorization, to classified information. The surveillance performed by the

prosecutor also consists of the authorised activities of data collection carried out by

undercover agents who have to report the gathered information connected to the

preparation and the perpetration of crimes. The surveillance conducted by the

prosecutor consists of both the preliminary activity of data collection with a view

to initiating criminal prosecution and the activity of criminal prosecution itself.

In the French criminal procedure, the CCP has a section entitled ‘Police

databases’, which gathers several police databases of information on persons who

have been wanted, prosecuted or convicted. There are three types of police

database: criminal records databases, serial analysis databases and the official

record of the person sought, which records data on persons object of a warrant, an

order or a note of a magistrate seeking their search or arrest. The French CCP also

authorises the use of software developing forensic analysis, allowing police officers

to crosscheck data on modus operandi.56

11. Access to Relevant Premises ('Crime Scene')

This measure can be applied for any type/gravity of offences when a direct

fact-finding is necessary in order to establish or clarify factual circumstances of

importance for establishing the truth, as well as whenever there are suspicions on a

person’s death (CCP, Article 192). Crime scene investigation is ordered by the

56 See Tricot (n 12) 242.

Presentation of Romanian National Systems of Investigation… 79

criminal investigation body or by the prosecutor and, during the trial, by the court.

The criminal prosecution body or the court may prohibit the persons who are at

the crime scene or come to that location from communicating among them or with

other persons. An official report is drawn up following the onsite investigation.

In the French criminal procedure, access to relevant premises is regulated in

the case of a crime that is flagrant, or of a death, the cause of which is unknown or

suspicious. In these situations, any police officer informed of such crimes must

immediately inform the prosecutor, visit the scene of the crime without delay and

record any appropriate findings; responsibility is transferred from the police

officer to the public prosecutor, once the latter arrives at the scene. In the context of

an instruction, the investigating judge may travel with his clerk anywhere in the

country in order to take any investigative steps, after informing the public

prosecutor.57

12. Search and Seizure

According to CCP, Article 171, which stipulates the forced seizure of objects

and documents, if a requested object or document is not surrendered voluntarily,

the criminal prosecution body or the court orders their forced seizure. During the

trial, an order regarding the forced seizure of objects and documents is

communicated to the prosecutor, who takes steps to implement such measure,

through criminal investigation bodies.

Furthermore, a home search or a search of goods found in a residence may be

ordered if there is a reasonable suspicion that a person committed an offence or

that such person is holding objects or documents that are connected to an offence

and it is assumed that the search could lead to the discovery and collection of

evidence related to such offence, to the preservation of traces left by the committed

offence or to the capturing of the suspect or defendant. This measure can be

applied for any type/ gravity of offences, when it is necessary to take away the

objects or documents that may serve as means of evidence in the criminal trial. For

seizure, no legal restrictions are stipulated. The home search may be performed

between 6 am and 8 pm, and at other times only in case of flagrante delicto, or when

the search is to be performed in a place open to the public at that time. A search

which began between 6 am and 8 pm may continue during the night (CCP, Articles

157, 159).

CCP, Article 164 stipulates special provisions regarding searches conducted at

a public authority, public institution or at other public-law legal entities. These

provisions are as follows: a) the judicial bodies identify themselves and hand a

copy of the search warrant to the representative of such authority, institution or

57 See Tricot (n 12) 243.

80 ANCA AUGUSTA LAZĂR

public-law legal entity; b) the search is conducted in the presence of the

representative of such authority, institution or public-law legal entity or of other

persons having full legal capacity; c) a copy of the search report is left with the

representative of such authority, institution or public-law legal entity (CCP,

Article 164).

Searches are conducted by a prosecutor or by criminal investigation bodies,

accompanied, as applicable, by operational workers (CCP, Article 159 para 2).

Home search may be ordered during the criminal investigation, upon request by

the prosecutor, by the judge for rights and liberties. During the trial, search is

ordered by the court vested to rule in the case, ex officio or upon request by the

prosecutor. Applications requesting approval of a home search are ruled on within

24 hours, in chambers, without summoning the parties. The prosecutor’s

attendance is mandatory (CCP, Article 158).

The home search is performed in the presence of the person whose place is

searched and, when the person is absent, in the presence of a representative, of a

family member or, in their absence, of any other person having full capacity of

exercise who knows the person whose domicile is subject to search and, if the case

arises, in the presence of the custodian (CCP, Article 159 para 5). In the case of

search conducted at the premises of a legal entity, the search is performed in the

presence of its legal representative or, in the absence of such representative, in the

presence of any other person having full capacity of exercise who is on the

premises or is an employee of that legal entity. This measure may not be carried

out clandestinely.

In the event that in the space where search is to be conducted there is no

person, the search is performed in the presence of an assistant witness. Also, when

a person whose domicile is searched is held in custody or arrested, they must be

brought to assist to the search. If they cannot be brought, the seizure of objects and

documents and the home search must take place in the presence of a representative

or an assistant witness (CCP, Article 159 para 11).

In the case of searches which are extended to the neighbouring dwellings,

under the terms of Article 158 para 3 CCP, persons found in such spaces must be

informed of the search extension. In this respect, Article 158 para 3 CCP stipulates

that in the event that, during a search, it is found that sought evidence or data were

transferred or that searched persons were hidden in neighbouring places, the

search warrant is also valid, under the law, for such places. A search continuation

under these circumstances must be approved by the prosecutor, who afterwards

shall submit an application to the judge for rights and liberties, requesting

approval of the home search.

If the presence of a defence lawyer is requested, the search initiation is

postponed until their arrival, but no longer than two hours of the moment when

Presentation of Romanian National Systems of Investigation… 81

this right was communicated, and steps for the preservation of the venue to be

subject to search are taken. In exceptional situations, requiring the conducting of a

search on an emergency basis, or when the defence lawyer cannot be contacted, a

search can be started even prior to the expiry of the two-hour term. The defence

lawyer is informed about the place and time of the execution of this measure when

the search is about to begin, and not before this moment, in order to keep the

surprise element. The defence lawyer has the right to complain, under CCP, Article

336, to the prosecutor who supervises the activity. Furthermore, a person subject to

search is also allowed to be assisted or represented by a trustworthy person.

Exceptionally, a search may be started without handing a copy of the search

warrant, without a prior request to hand over the person or objects, and without

prior information regarding the possibility to request the presence of a defence

lawyer, or of a trustworthy person, in the following cases: a) when it is obvious

that preparations are made in order to cover traces or to destroy evidence or

elements that are of importance to the case; b) if there is a suspicion that in the

space where search is to be conducted, there is a person whose life or bodily

integrity is threatened; c) if there is a suspicion that the wanted person may avoid

the procedure (CCP, Article 159 para 14).

Body search implies the examination of the exterior of a person’s body, oral

cavity, nose, ears, hair, clothing and of objects a person has with them or under

their control at the moment of search. If there is a reasonable suspicion that, by

conducting a body search, traces of an offence, physical evidence or other objects

having importance for finding the truth in the case can be discovered, judicial

bodies or any other authority having responsibilities in ensuring public order and

safety proceed to conducting it (CCP, Article 165). A body search can only be

performed by a person of the same sex as the individual subjected to the body

search and in accordance with the principle of human dignity.

A doctor's presence is mandatory when the inside of a person's body is

examined. In this respect, CCP, article 190 stipulates that in the absence of a written

consent by the person to be examined, of their legal representative or of an

approval by the legal guardian, the request for physical examination must be

approved by the judge for rights and liberties or, in case of an emergency, by the

criminal prosecution body, through an ordinance which must later be validated by

the judge. The physical internal examination of a person's body or the drawing of

biological samples must be performed by a doctor, a medical assistant or a person

with specialised medical training, according to the principles of human dignity

and private life.

Following a home search, as well as a body search, an official report is drawn

up mentioning the performance of the search. A copy of the official report is left

with the person on whom the search has been performed or from whom the

objects or writings have been removed, with the representative, a family member

82 ANCA AUGUSTA LAZĂR

or, in their absence, to any other person having full capacity of exercise who knows

the person whose domicile is subject to search and, if the case arises, with the

custodian (CCP, Articles 161 para 4, 166 para 6).

In the French legal system, both the suspect and the witness may be subject to

body search, within a police or a judicial investigation. Such measures require

consent, but the refusal of the suspect constitutes an offence, punishable by a fine.

The search of premises may be carried out by police officers or by the investigating

judge, with the express consent of the person upon whose premises the operation

is to take place or, in cases stipulated by the law, without the person’s consent. As

to the measure of seizure, the French CCP stipulates that any objects which may

assist in revealing the truth or whose disclosure might harm the investigation may

be seized.58

13. On-line Search of Computers

The Romanian criminal law makes a difference between computer search (ie

search of terminals or work stations belonging to the perpetrator) and online

search of computers.

A computer system search or a computer data storage medium search

designates the procedure for the investigation, discovery, identification and

collection of evidence stored in a computer system or in a computer data storage

medium, performed by means of adequate technical devices and procedures, of

nature to ensure the integrity of the information contained by these. During the

criminal investigation, the judge for rights and liberties may order the conducting

of a computer search, upon request by the prosecutor, when the investigation of a

computer system or of a computer data storage medium is necessary for the

discovery and collection of evidence.

The prosecutor submits an application requesting the approval of a computer

search, together with the case file to the judge for rights and liberties. Such

application is ruled on in chambers, without summoning the parties. The

prosecutor’s attendance is mandatory. The judge approves the computer search,

through a court resolution, when the request is well-grounded and issues a search

warrant forthwith.

In the event that, on the occasion of a search of a computer system or of a

computer data storage medium, it is found that the sought computer data is stored

in a different computer system or a computer data storage medium, and is

accessible from the initial system or medium, the prosecutor immediately orders

the preservation and copying of the identified computer data and requests the

issuance of a warrant on an emergency basis.

58 See Tricot (n 12) 245.

Presentation of Romanian National Systems of Investigation… 83

A computer system or computer data storage medium search is conducted in

the presence of a suspect or a defendant. An official report is drawn up mentioning

the performance of the computer search. During the trial, computer search is

ordered by the court, ex officio or upon request by the prosecutor, by the parties or

the victim (CCP, Article 168).

The measure of immediate preservation of computer data can be ordered if

there is a reasonable suspicion in relation to the preparation or commission of an

offence, for the purpose of collecting evidence or of identifying a perpetrator,

suspect or defendant. Thus, the prosecutor supervising or conducting the criminal

investigation may order immediate preservation of computer data, including of

data referring to information traffic, that were stored by means of a computer

system and that is in the possession or under the control of a provider of public

electronic communication networks or of a provider of electronic communication

services intended for the public, in the event that there is a danger that such data

may be lost or altered.

Such preservation is ordered by the prosecutor, ex officio or upon request by

criminal investigation bodies, for a term of maximum 60 days and may be

extended by the prosecutor, only once, for well-grounded reasons, for a term of

maximum 30 days.

The prosecutor’s ordinance is transmitted forthwith to any provider of public

electronic communication networks or provider of electronic communication

services intended for the public holding the data or having control on such data,

and the latter are under an obligation to preserve it immediately, under

confidentiality terms.

Within the above-mentioned terms, the prosecutor, based on a prior

authorization from the judge for rights and liberties, may request a provider of

public electronic communication networks or a provider of electronic

communication services intended for the public to transmit the data preserved

under the law or may order cancellation of such measure.

The judge for rights and liberties rules on requests transmitted by criminal

investigation bodies regarding the transmission of data within 48 hours, through a

reasoned court resolution, in chambers. These provisions also apply to computer

data, including data relating to information traffic, stored by means of a computer

system which is in the possession or control of other persons.

Before completion of the criminal investigation, the prosecutor is under an

obligation to inform in writing the persons against whom the criminal

investigation is conducted and whose data were preserved (CCP, Article 154).

In the French criminal procedure, on-line search of computers may be

authorised by an investigating judge, in the case of remote computer data capture,

and the procedure is carried out by police officers under the authority and the

supervision of the investigating judge. The remote computer data capture may be

84 ANCA AUGUSTA LAZĂR

authorised for a maximum period of four months, renewable once. The French

CCP also allows police officers, during the course of a search, to access any data

relevant to the on-going inquiry, stored in a computer system, in cases of flagrant

offence investigation, preliminary police inquiry or judicial investigation.59

14. Freezing

Freezing is ordered mainly for offences which caused financial losses or for

offences that require the confiscation of goods acquired or created as a result of the

offence. In this respect, CCP, Article 249 stipulates that the prosecutor, during the

criminal investigation, the preliminary chamber judge or the court, ex officio or

upon request by the prosecutor, during preliminary chamber procedure or

throughout the trial, may order asset freezing, by a prosecutor’s ordinance or, as

the case may be, by a reasoned court resolution, in order to avoid concealment,

destruction, disposal or dissipation of the assets that may be subject to special or

extended confiscation or that may serve to secure the penalty by fine enforcement

or to pay court fees or to compensate damages caused by the committed offence.

The measure, ordered by the prosecutor, can be maintained throughout the

criminal trial until a final decision is pronounced, when the court has to decide on

the sequestration, according to CCP, Article 397 paras 2 and 4. According to CCP,

Articles 252 and 254, there are two types of sequestration: freezing of movables and

immovable goods with the obligation to identify and evaluate them; or freezing of

bank accounts, registering the amounts at the disposal of the criminal investigation

body on behalf of the suspect/defendant. The prosecutor is assisted in this work

by the judicial police officers who enforce the sequester ordinance.

Freezing ordered under legal terms is mandatory if the injured person lacks

legal capacity or has a limited legal capacity. As a special rule, movable and

immovable goods belonging to a public authority or institution or to other

public-law legal persons as well as property exempted by law cannot be placed

under sequester. In the case of corruption offences, crimes assimilated to

corruption offences, offences directly connected to corruption and fraud offences

affecting the financial interests of the EU, however, the measure is mandatory

(CCP, Article 249).

The body that enforces the sequestration draws up an official report of

sequester and registration of the mortgage on all acts performed, including a

detailed description of the sequestered assets and the specification of their value.

The presence of a defence lawyer is not mandatory; nevertheless, he/she must be

informed.60

59 See Tricot (n 12) 245, 246.

60 Lazar et alii (n 2) 605, 606.

Presentation of Romanian National Systems of Investigation… 85

In French criminal procedural law, freezing arises in connection with the

financing of terrorism and the cooperation between EU Member States. The French

CCP adapted the criminal procedure to the EU requirements.61

15. Production Orders (in Particular for Banks, Service Providers, Public

Authorities and Administrators of other Data Collections)

According to CCP, Article 169, the criminal prosecution body or the court are

under an obligation to seize objects and documents that may serve as evidence in

criminal proceedings. Therefore, this measure can be ordered for any offence

stipulated in the CC or in other special criminal laws. This kind of criminal

investigation act is often requested by the judicial police officers, who perform

their duties under the direct supervision of the prosecutor. The handing in of

objects and documents is performed according to CCP, Article 170.

Furthermore, CCP, Article 306 para 6 stipulates that banking and professional

secrecy, except for the lawyer’s professional secrecy, cannot serve as a basis to

deny a prosecutor’s requests once the criminal investigation has started.

In the event that there is a reasonable suspicion in relation to the preparation

or commission of an offence and there are reasons to believe that an object or

document can serve as evidence in a case, the criminal investigation bodies or the

court may order the natural person or legal entity holding them to provide and

surrender them, subject to receiving proof of surrender (CCP, Article 170 para 1).

Also, under the same terms, the criminal prosecution bodies or the court may

order: a) any natural person or legal entity on the territory of Romania to

communicate specific computer data in their possession or under their control that

is stored in a computer system or on a computer data storage medium; b) any

provider of public electronic communication networks or provider of electronic

communication services intended for the public to communicate specific data

referring to subscribers, users and to the provided services that is in its possession

or under its control, other than the content of communications and then those

specified by Article 138 para 1 lett. j).62

If a requested object or document is not surrendered voluntarily, either the

criminal prosecution body, through an ordinance, or the court, through a court

resolution, order their forced seizure. During the trial, an order regarding the

forced seizure of objects and documents is communicated to the prosecutor, who

takes steps to implement such measure, through criminal investigation bodies.

Against such measure, or against the manner in which such measure is

61 See Tricot (n 12) 246.

62 Article 138 para 1 lett. j) stipulates the measure of obtaining traffic and location data processed

by providers of public electronic communication networks or by providers of electronic

communication services intended for the public.

86 ANCA AUGUSTA LAZĂR

implemented, a complaint may be filed by any interested person, to the judge of

rights and liberties (CCP, Article 171).

In the French legal system, production orders refer to the power of réquisition

in French criminal procedural law. Thus, police officers are vested with a general

power to request the production of documents or information, whereas special

agents in charge of tax, customs or consumer law are vested with similar powers.

In both cases, the refusal to execute the request constitutes a criminal offence.63

16. Invoking the Assistance of Experts to Examine Clues

When for the ascertaining, clarification or assessment of facts or circumstances

that have importance for finding the truth in a case, the opinion of an expert is also

required, the criminal prosecution body or the court, during the trial, may order an

expert to report on the matter, according to CCP, Article 172.

The criminal law does not stipulate the categories of offence for which an

expert is mandatory, with a few exceptions provided by CCP, Articles 184 para 1,

185 paras 1 and 2, 187 and 188.

Thus, CCP, Article 184 para 1 stipulates that in case of offences committed by

juveniles aged between 14 and 16, in case of killing or injury of a new-born infant

or of a fetus by the mother, as well as when the criminal prosecution body or the

court have doubts about the judgment of a suspect or defendant at the moment of

commission of the offence subject to indictment, these judicial bodies order a

forensic psychiatric expert examination.

Also, according to CCP, Article 185 para 1, forensic autopsy is ordered by the

criminal prosecution body or by the court, in case of violent death or when there is

a suspicion of violent death, or when the cause of death is not known, or when

there is a reasonable suspicion that a death was caused directly or indirectly by an

offence or in relation to the commission of an offence. If the body of a victim was

buried, exhumation is ordered for the examination of the corpse by autopsy.

Furthermore, CCP Article 185 para 2 stipulates that the prosecutor shall order

immediately the conducting of a forensic autopsy if death occurred during a time

frame while a person was in the custody of the police, of the National

Administration of Penitentiaries, during involuntary medical admission or in case

of any death raising suspicions of non-observance of human rights, to the

application of torture or of inhumane treatments

Also, according to CCP, Article 187, the forensic autopsy of a fetus is ordered

in order to establish its intra-uterus age, its extra-uterus survival capacity, the type

and cause of death, and in order to establish filiation, when the case. The forensic

autopsy of a new-born infant is ordered in order to establish whether the infant

63 See Tricot (n 12) 246.

Presentation of Romanian National Systems of Investigation… 87

was born alive, their viability, the term of extra-uterus survival, the type and

medical cause of death, the date of death, whether medical care was provided to

them after birth, and in order to establish filiation, when the case.

Finally, CCP, Article 188 stipulates that in the event that there is a suspicion

related to poisoning, the conducting of a toxicological expert examination is

ordered.

The main types of expertise required in courts of law are medico-legal

expertise, technical expertise, forensic expertise and financial accounting expertise.

The expertise is performed, according to CCP, Articles 172 and 173, by

officially authorised experts who are registered with the central office for technical

judicial expertise in the Ministry of Justice. The expertise can also be performed by

the Institute of Forensic Medicine, the National Criminology Institute and by the

laboratory of forensic expertise of the National Inspectorate of the Romanian

Police.

The prosecutor, the judicial police or the court, during the trial, decide the

administration of this means of evidence. When there is a danger that certain

evidence might disappear or some facts or circumstances related to the case might

change, or when the urgent clarification of facts or circumstances of the case is

necessary, the criminal investigation body may use the knowledge of a specialist,

ordering a technical-scientific ascertainment, according to CCP, Article 172 paras 9

and 10.

The above-mentioned judicial bodies inform the parties about the objectives of

the expertise and about the fact that they have the right to ask that an expert

proposed by each of them be appointed, who will take part in the expertise in

order to protect their interests, according to CCP, Article 173 para 4 and Article 177

paras 1 and 2.64

Also, the parties have the right to make observations regarding the objectives

of the expertise and may request their modification and completion. The legal

remedies for such situation are provided by CCP, Articles 180 and 181. Thus, CCP,

Article 180 stipulates that when the criminal prosecution body or the court finds,

upon request or ex officio, that an expert report is incomplete and such flaws cannot

be remedied by hearing the expert, these judicial bodies order the conducting of an

additional expert examination by the same expert. When the appointment of the

same expert is not possible, they order the conducting of another expert

examination by another expert.

Furthermore, CCP, Article 181 stipulates that the criminal prosecution body or

the court orders the conducting of a new expert examination when the conclusions

of an expert report are ambiguous or contradictory or when there are

64 There was a simila r regulation under the former CCP (the 1968 CCP), see Lazar et alii (n 2)

606, 607.

88 ANCA AUGUSTA LAZĂR

contradictions between the content and the conclusions of an expert report and

such flaws cannot be remedied by hearing the expert.

In the French criminal procedure, in a strict sense, during the pre-trial phase,

resort to expert opinion is restricted to the investigating authorities (investigating

judge and second-tier investigating jurisdiction). Hoewever, the public prosecutor

or the police officer may call on any qualified person if any technical or scientific

reports or examinations need to be carried out. During a judicial investigation, an

expert opinion may be ordered by the investigating judge or the second-tier

investigating jurisdiction.65

17. Infiltration

If there is a reasonable suspicion related to the preparation or commission of a

serious offence, if such measure is necessary and proportional to the restriction of

fundamental rights and freedoms, considering the particularities of the offence, the

importance of information or of evidence to be obtained, or the seriousness of the

offence and if the evidence or the offender’s, the suspect’s or defendant’s

localisation or identity could not be obtained in other way or obtaining it would

imply extreme difficulties that would harm the investigation, or there is a threat to

the safety of persons or of high value goods, investigators with an identity

different from the real one may be used in order to gather information (CCP,

Article 148).

The prosecutor supervising or conducting the criminal investigation may

authorize the use of undercover investigators in cases of offences against national

security, drug trafficking, weapons trafficking, trafficking in human beings, acts of

terrorism or acts assimilated to those, terrorism financing, money laundering,

counterfeiting of currency or other securities, counterfeiting of electronic payment

instruments, blackmail, deprivation of freedom, tax evasion, corruption offences,

offences assimilated to corruption offences and other serious offences (CCP, Article

148 para 1).

As a restriction, the authorisation for using the undercover investigators is

given for an initial period of 60 days and may be extended up to one year only for

well-grounded reasons (CCP, Article 148 para 9). Therefore, the total duration of

such measure, in the same case and in respect of the same person, may not exceed

one year, except for offences against life, national security, drug trafficking, failure

to comply with the arms, munitions, nuclear materials and explosives regime,

trafficking and exploitation of vulnerable persons, acts of terrorism, money

laundering, as well as for offences against the European Union’s financial interests.

65 See Tricot (n 12) 247.

Presentation of Romanian National Systems of Investigation… 89

The undercover investigators are judicial police officers, specially designated

by the Ministry of Interior, acting as undercover investigators. The investigators

may perform investigations only with the authorisation of the prosecutor who

performs or supervises the criminal investigation (CCP, Article 148 para 1). The use

of undercover investigators can be requested by the judicial police or can be

ordered, ex officio, by the prosecutor. All the data and information is included in an

official report drawn up by the undercover investigator, which may constitute

evidence in the criminal case.

According to CCP, Article 148 para 10, in exceptional situations, provided that

the above-mentioned requirements are met, and the use of undercover

investigators is not sufficient for obtaining data or information or such obtaining is

not possible, the prosecutor supervising or conducting the criminal investigation

may authorize the use of an informant, to whom an identity different from their

real one can be attributed.

In the French legal system, infiltration is a measure with a restricted scope of

application, limited to organised crime, drug trafficking and few offences related to

the endagering of minors (prostitution) and the trafficking of human beings. The

decision to authorise an infiltration may only be taken by a magistrate, who is

either the prosecutor in case of a police investigation or the investigating judge in

case of a judicial investigation, the latter being obliged to solicit the prior opinion

of the former.66

18. Controlled Deliveries

A controlled delivery may be requested by the specialised structures for

combating organised crime within the Ministry of Interior, Border Police, Customs

or may be ordered ex officio by prosecutors. Also, in case of joint actions with other

states, the supervised deliveries can be requested by rogatory letter issued by the

judges or prosecutors from the Members States of the EU or from other states.67

The supervised delivery may be authorized, through an ordinance, by the

prosecutor supervising or conducting the criminal investigation, upon request by

institutions or bodies of competent jurisdiction, with or without the total or partial

substitution of the goods subject to delivery.

A controlled delivery may be authorized only in the following situations: a) if

persons involved in illegal transport of drugs, weapons, stolen items, explosive or

nuclear materials, radioactive materials, money amounts and other proceeds

resulting from illegal activities or of items used for the purpose of perpetrating

offences could not be discovered or arrested in other ways or if this implies

extreme difficulties that would harm the investigation or would be a threat against

66 See Tricot (n 12) 248.

67 Lazar et alii (n 2) 608.

90 ANCA AUGUSTA LAZĂR

the safety of persons or of high value goods; b) if the discovery or proving of

offences committed in relation to the delivery of illegal or suspicious transports is

impossible or extremely difficult in another way.

A controlled delivery is performed by law enforcement bodies or by another

competent authority. A prosecutor establishes, coordinates and controls the

performance of a controlled delivery. Performance of a controlled delivery does

not represent an offence. Upon completion of a controlled delivery on the territory

of Romania, the competent bodies are under an obligation to prepare a report

regarding the performed activities, which is forwarded to the prosecutor (CCP,

Article 151).

The duty to cooperate with the investigative authorities is stipulated by CCP,

Article 170, which mentions that 'in the event that there is a reasonable suspicion in

relation to the preparation or commission of an offence and there are reasons to

believe that an object or document can serve as evidence in a case, the criminal

investigation bodies or the court may order the natural person or legal entity

holding them to provide and surrender them, subject to receiving proof of

surrender'.

Any person who holds a managerial position with an authority of the public

administration or with other public authorities, public institutions or other public

legal entities, as well as any person who holds an oversight authority, who, in the

exercise of their responsibilities, have acquired knowledge of the commission of a

criminal offence that warrants ex officio criminal investigation, is under an

obligation to immediately file a referral with the criminal investigation body and

take steps to preserve the crime scene, the corpus delicti and any other forms of

evidence.

Furthermore, any person who performs a public-interest service for which

they have been mandated by public authorities or who is subject to oversight or

supervision by these authorities concerning the performance of the public-interest

service, and who in the exercise of their responsibilities acquired knowledge of the

commission of a criminal offence that warrants ex officio criminal investigation, is

under an obligation to immediately inform the criminal investigation body.

The suspect/defendant or any other interested person can file a complaint

against the performance of the measure before the hierarchically superior

prosecutor, who has to solve the complaint within the 20 days, according to CCP,

Article 339, and communicate the solution immediately. The special measures

(interception, undercover investigators, supervised delivery) cannot be notified to

the suspect or the defence lawyer.

According to CCP, Article 339, the prosecutor's ordinance ordering the use of

undercover investigators and supervised delivery can be challenged by the suspect

or by the defendant at the hierarchically superior prosecutor, if their legitimate

interests have been harmed. They can find out about the measure after its

execution, by requesting consultation of the case file.

Presentation of Romanian National Systems of Investigation… 91

In the French criminal procedure, controlled delivery is included within the

framework of special procedures applicable to organised crime and is defined as

the surveillance of the transport of objects, goods or products arising from the

commission of any of the offences falling within the scope of organised crime or

used to commit them.68

C. PROSECUTION MEASURES

1. Opening of Investigation and Prosecution

CCP, Articles 288-292 provide for the rules regarding the initiation of criminal

investigation, which consist of the information of the criminal investigation body

by complaint or denunciation, or ex officio. Any individual or legal person must

inform the prosecutor or the competent criminal investigation body when they

discover a crime. There is also the possibility that the criminal investigation body is

informed ex officio69.

The prosecutor conducts and checks the criminal investigation performed by

the Police or other bodies, and makes sure that the criminal investigation acts are

performed in compliance with the legal provisions (CCP, Articles 299-300). The

orders given by the prosecutor are compulsory for the criminal investigation body

(CCP, Article 303). The prosecutor is the only one who decides how to complete

the criminal investigation, having exclusive powers in this phase of the criminal

investigation.

Any person may file a complaint against the criminal investigation acts and

measures enforced by the prosecutor if they harmed his/her legitimate interests.

The complaint is settled by the hierarchically superior prosecutor (CCP, Article

339). If the complaint is justified, the criminal investigation case is reopened and

the measure taken by the prosecutor's act is invalidated. The reopening of the

criminal prosecution is subject to the confirmation of the preliminary chamber

judge, within no more than 3 days, under penalty of nullification (CCP, Article 335

para 4).

The French criminal procedure regarding opening of investigation and

prosecution is similar, as opening of investigation is mostly in the hands of the

police, who is obliged to inform the public prosecutor, as police officers act under

his/her authority. Also, the public prosecutor may decide whether to prosecute or

not either on legal grounds or on discretionary grounds, in accordance with the

opportunity principle.70

68 See Tricot (n 12) 249.

69 There was a simila r regulation under the former CCP (the 1968 CCP), see Lazar et alii (n 2)

609.

70 See Tricot (n 12) 250.

92 ANCA AUGUSTA LAZĂR

2. Unilateral Disposal of the Case (Including Remedy Against it)

After examining the referral, when the prosecutor finds that all the necessary

evidence has been collected, they decide, by ordinance, either to close the case,

when they do not wish to exercise criminal action or, as the case may be,

discontinue criminal action that has started, because of applicability of one of the

cases stipulated in Article 16 para 1 CCP, or to drop charges (CCP, Article 318),

when there is no public interest in prosecuting the suspect or the defendant (CCP,

Article 314 para 1).

According to CCP, Article 305, when the referral meets the conditions

required by law, the criminal prosecution body orders the criminal investigation to

start, by ordinance, in relation to the offence which has been committed or the

commission of which is being prepared, even if the author is indicated or known.

When the existing evidence in the case constitute probable cause to believe that a

certain individual has committed the offence that warranted the start of the

criminal investigation and none of the cases preventing criminal action as under

Article 16 para 1 applies, the criminal prosecution body orders that the criminal

investigation continue in relation to that individual, and the latter shall acquire the

capacity of suspect. The measure ordered by the criminal investigation body is

submitted within 3 days to the confirmation of the prosecutor supervising the

criminal investigation.

The cases preventing initiation and exercise of criminal action are stipulated in

CCP, Article 16 para 1, as follows: a) the act does not exist; b) the act is not

stipulated in the criminal law or was not committed with the guilt required by law;

c) there is no evidence that a person committed the offence; d) there is a justifying

or non-imputability cause; e) a prior complaint, the authorisation or seizure of the

body of competent jurisdiction, or any other condition stipulated by the law,

necessary to the initiation of the criminal action is missing; f) amnesty or statute of

limitations, or death of a natural-person suspect or defendant occurred or

de-registration of a legal-entity suspect or defendant was ordered; g) a prior

complaint was withdrawn, for offences in relation to which its withdrawal

removes criminal liability, reconciliation took place or a mediation agreement was

concluded under the law; h) there is a non-penalty clause set by the law; i) double

jeopardy (res judicata); j) a transfer of proceedings with a different country took

place under the law. In the situations set under para 1 lett. e), j), criminal action

may be initiated subsequently, under the terms set by the law.

The criminal investigation may be terminated by the prosecutor’s decision to

close a case or to drop charges. According to CCP, Article 315 para 1, a case shall

be ordered closed when: a) the criminal investigation cannot start, because the

referral’s crucial requirements of content and form are not met; b) one of the cases

under Article 16 para 1 applies.

Presentation of Romanian National Systems of Investigation… 93

Also, based on CCP, Article 318, in the situation of offences for which the law

requires the penalty of a fine or a penalty of imprisonment of no more than 7 years,

the prosecutor can drop charges when, considering the contents of the offence, the

modus operandi and the instruments used, the goal of the offence and the concrete

circumstances of its commission, the consequences that occurred or could have

occurred, they find that a public interest is not served in prosecuting. When the

offender is identified, weighing the public interest aspect also involves the person

of the suspect or defendant, their conduct previous to the offence and the efforts

they made in removing or minimizing the consequences of the offence.

After consulting with the suspect or defendant, the prosecutor can order that

they comply with one or several of the following obligations: a) remove the

consequences of the criminal offence or make redress, or agree with the civil party

on an avenue of redress; b) make a public apology to the victim; c) perform

community service for a time span of no less than 30 and no more than 60 days,

except for the case where their health precludes them to provide such community

service; d) enlist in a counselling program. In case of non-compliance in ill-faith of

the obligations within the deadline, the prosecutor rescinds his/her order. A new

waiver of prosecution in this same case is no longer possible. The ordinance

ordering the waiver of the criminal prosecution is verified by the hierarchically

superior prosecutor and is forwarded to the preliminary chamber judge for

confirmation, within 10 days from the date on which it was issued (CCP, Article

318 paras 10-12).

The prosecutor either closes the case or drops the charges by issuing a

motivated ordinance, which is communicated to the person who made the

demand, to the suspect or defendant and to any other interested person. Against

the prosecutor's decision to terminate the criminal investigation, by closing the

case or dropping charges, the victim or any other person whose legitimate interests

have been harmed may file a complaint. The complaint is settled by the

hierarchically superior prosecutor, within 20 days, and the solution is

communicated immediately to the person who filed the complaint. If the

above-mentioned persons are not satisfied by the solution of the complaint filed,

they can address to the preliminary chamber judge from the court of first instance,

the acts and the measures enforced by the prosecutor being subject to judicial

control (CCP, Articles 339-341).

Also, according to CCP, Article 396 para 3 and CC, Article 80, a court can

waive enforcement of a penalty if the following conditions are met: a) the

committed offence has a low degree of seriousness, given the nature and extent of

its consequences, means used, manner and circumstances of commission, reason

and goal intended; b) considering the person of the defendant, their conduct before

committing the offence, their efforts to remove or minimize the consequences of

their offence, and their likelihood of rehabilitation, the court feels that enforcing a

94 ANCA AUGUSTA LAZĂR

penalty would be untimely because of its consequences on the defendant.

Nevertheless, enforcement of a penalty cannot be waived if: a) the defendant has a

previous conviction, except for the cases stipulated in Article 42 lett. a) (acts that

are no longer stipulated in criminal law) and lett. b) (violations that have been

pardoned) or for which rehabilitation has taken place or the deadline for

rehabilitation has arrived; b) the same defendant has already had a case of penalty

waiver granted to them in the 2 years previous to the commission of the offence for

which they are on trial; c) the defendant has evaded criminal investigation or trial

or tried to obstruct discovery of the truth or identification and prosecution of

themselves or participants in the offence; d) the penalty for that offence is more

than 5 years of imprisonment. When ruling to waive a penalty, the court issues the

defendant with a warning.

In the French legal system, the public prosecutor decides if it is appropriate to

initiate prosecution, or to implement alternative proceedings to a prosecution, or to

close the case without taking any further action. A victim informed of the decision

may lodge an appeal to the general prosecutor or initiate a prosecution by a

complaint with civil party petition, which seises the investigating judge, or by

directly summoning the defendant to the hearing. Where seised, the investigating

judge is compelled to investigate and if he/she comes to the conclusion that the

evidence against the person under judicial examination is insufficient, he/she

issues an order ruling that there is no cause to prosecute.71

3. Multilateral Disposal of the Case (Including Negotiated Justice, Diversion

and Remedy Against it)

The current Romanian CCP also provides a diversionary measure for the

criminal trial that allows the prosecutor to negotiate justice with the defendant.

Thus, the current CCP stipulates a new discretionary investigation system through

the opportunity principle, which operates together with the mandatory

investigation system. This innovative solution ensures the solving of cases within a

predictable and optimal period of time.

In this regard, CCP, Article 478 stipulates that during the criminal

investigation, after the criminal action is set in motion, the defendant and the

prosecutor can conclude an agreement as a result of the defendant pleading guilty.

The effects of the guilty plea are subject to approval by the hierarchically superior

prosecutor. The guilty plea can be initiated by both the prosecutor and the

defendant. The limits of the guilty plea are set by prior written agreement from the

hierarchically superior prosecutor. The object of the guilty plea is admission to

have committed the offence and accepting the charges on which criminal action

has been set in motion, and regards the type and amount of punishment, as well as

71 See Tricot (n 12) 250, 251.

Presentation of Romanian National Systems of Investigation… 95

how the punishment shall be served and the type of educational measure or, as the

case may be, waiving punishment or postponing punishment.72

CCP, Article 480 stipulates the conditions for concluding a guilty plea; thus, a

guilty plea can only be concluded concerning the offences for which the law

requires a penalty of a fine or no more than 15 years of imprisonment. A guilty

plea can be concluded when the gathered evidence provides sufficient information

that the offence for which the criminal action has been set in motion exists and that

the defendant is the author of that offence. The defendant benefits from the

reduction by one third of the penalty limits provided for by the law in the case of

imprisonment and by a one-fourth reduction in the penalty limits provided for by

law in the event of the fine.

For minor offenders, these aspects will be taken into account when choosing

the educational measure; in the case of educational measures depriving of liberty,

the limits of the periods for which such measures are provided, shall be reduced by

one third (CCP, Article 480 para 4).

The court, considering the agreement, pronounces one of the following

solutions: a) admits the agreement on the recognition of guilt and pronounces the

solution on which the agreement has been reached, if all legal conditions are met;

b) rejects the agreement on the recognition of guilt and sends the prosecutor's file

for further prosecution, if the legal conditions are not met or if it considers that the

solution reached between the prosecutor and the defendant is unlawful or

unjustifiably gentle in relation to the gravity of the offence or the danger of the

offender.

In the French criminal procedure, there are three forms of negotiation between

the parties which may end or modify the ordinary course of proceedings. The first

category is based on the philosophy of the third way, which is a compromise

between dropping a case and initiating prosecution and is referred to as

conditional drop, the second is the conditional suspension, a procedure applicable

to misdemeanours and connected petty offences with low penalty and the third is

the procedure of appearance on prior admission of guilt, where the person admits

the matters of which he/she is accused.73

4. Reopening of the Case Closed on Different Grounds

CCP, Article 335 stipulates the situations in which the reopening of the

criminal investigation is possible. Thus, if the prosecutor who is hierarchically

superior to the one having closed a case finds afterwards that the circumstances

that warranted closing the case did not exist, they nullify the order to close the case

72 The guilty plea could not be concluded under the former CCP (the 1968 CCP); it was

introduced by Romania’s new CCP (the 2010 CCP).

73 See Tricot (n 12) 251, 252.

96 ANCA AUGUSTA LAZĂR

and have the criminal investigation reopened. Also, when new facts or

circumstances have emerged that show that the circumstance that warranted

closing a case has disappeared, the prosecutor rescinds the ordinance and issues a

new order to resume the criminal investigation. When the prosecutor finds that the

suspect or the defendant has failed, in ill-faith, to comply with their obligations,

they rescind the ordinance and order the reopening of the criminal prosecution.

Reopening of the criminal investigation is subject to confirmation by the

preliminary chamber judge, within no more than 3 days, under penalty of

nullification (CCP, Article 335 para 4). The judge rules on the lawfulness and

legitimacy of the order to resume the criminal investigation.

When a case has been closed, reopening of the criminal investigation can also

take place when the preliminary chamber judge sustains the complaint against the

prosecutor’s order and sends the case back to the prosecutor for a supplement to

the criminal investigation. The preliminary chamber judge’s orders are mandatory

for the criminal prosecution body. Thus, the reopening of the criminal

investigation is also possible if the victim or any other person who has a legitimate

interest files a complaint against the prosecutor's ordinance deciding the closing of

the case, according to CCP, Articles 339-341.

Reopening of the criminal prosecution can be ordered by the hierarchically

superior prosecutor, who is competent to settle the complaint against the

prosecutor's acts. In case the complaint for the reopening of the case is rejected by

the hierarchically superior prosecutor, the victim or any other person whose

legitimate interests were harmed can address, within 20 days, the competent judge

to solve the case in first instance.

In the French criminal system, the reopening of the case depends on the

grounds on which the case was closed and on the judicial body which closed the

case, either the public prosecutor or the investigating judge. However, it is for the

public prosecutor alone to decide whether there is a case for the reopening of the

investigation on new charges.74

5. Committing to Trial and Presenting the Case in Court

When the prosecutor finds that the legal requirements have been met, that

guarantee discovery of the truth, that the criminal investigation is complete and

the necessary evidence is in place and has been legally produced, the prosecutor

either returns an indictment whereby the case shall be prosecuted, if the criminal

investigation shows the offence exists, was committed by the defendant and that

the defendant has criminal liability, or returns an order to close the case or drop

charges, as under the law (CCP, Article 327).

74 See Tricot (n 12) 252.

Presentation of Romanian National Systems of Investigation… 97

The prosecutor, as the representative of the Public Ministry, is the only one

who can initiate the criminal action. After the prosecutor sends the criminal case to

court, by indictment, he is obliged to take part in the court sessions, where he can

file motions, raise objections and make final arguments, according to CCP, Article

363 para 3. The prosecutor has an active role in the judicial investigation, in order

to establish the truth and to ensure compliance with the legal provisions. The

prosecutor is free to present the conclusions he considers justified, under the law,

taking into account the evidence produced. Nevertheless, reasons must be

submitted for the motions and the arguments of the prosecutor. When considering

that there is a cause preventing exercise of criminal action, the prosecutor argues,

as the case may be, for acquittal or the end of criminal proceedings (CCP, Article

363 para 4).

The participation of the prosecutor during the trial and in the appeal trial is

mandatory according to CCP, Articles 363 para 1 and 420 para 3. The prosecutor is

obliged to take an active part in the criminal trial, being the only person powered

by law to represent the prosecution and to support the indictment, acting as a

representative of the public interest, and protecting the order of law and the rights

and liberties of the citizens (CCP, Article 363). There are no specialised bodies that

can replace the judicial attributions of the prosecutors before the court of law.75

In the French criminal procedure, in a judicial investigation, the investigating

judge may either issue a closing order ruling that there is no cause to prosecute,

referring the case to the competent court, or, in the case of a felony (crime), an

indictment before the assize court. In any other case, the public prosecutor is

responsible, concurrently with the victim (who may summon directly the offender

before the trial jurisdiction), of committing the case to trial. Once the trial

jurisdiction is seised, the public prosecutor has the exclusive and mandatory

competence to request that the law be enforced by the trial court.76

D. EVIDENCE

1. Status of Illegally or Improperly Obtained Evidence

The Romanian CCP stipulates express sanctions for illegally or improperly

obtained evidence in Article 102. Thus, according to CCP, Article 102, illegally

obtained evidence may not be used in the criminal trial and is, therefore, excluded

from the case file. As for 'illegally obtained', the specialised literature and the

judicial practice refer to the mandatory legal provisions which stipulate the way

this evidence is produced. Also, according to CCP, Article 101, it is prohibited to

use violence, threats or other coercion means, as well as promises or inducements

for the purpose of obtaining evidence.

75 Lazar et alii (n 2) 611.

76 See Tricot (n 12) 252, 253.

98 ANCA AUGUSTA LAZĂR

Also, hearing methods or techniques affecting the capacity of persons to

remember and tell conscientiously and voluntarily facts representing the object of

the taking of evidence may not be used. Such prohibition applies even if a person

subject to such hearing gives their consent in relation to the use of such hearing

methods and techniques.

Furthermore, criminal judicial bodies or other persons acting on their behalf

are prohibited from entrapping a person into committing or continuing

commission of a criminal act for the purpose of obtaining evidence (CCP, Article

101 para 3).

The theory of the fruit of the poisonous tree has its counterpart in Romanian

criminal procedure legislation. CCP stipulates at Article 102, entitled 'dismissal of

illegally obtained evidence', the fact that this evidence may not be used within the

criminal trial (CCP, Article 102 para 2). Derived evidence is excluded if it was

procured directly from illegally obtained evidence and could not have been found

in any other way (para 4).

Also, according to CCP, Article 102 para 3, the nullity of a document ordering

or authorizing the production of evidence or based on which such evidence was

produced triggers exclusion of that evidence. Noteworthy is the fact that in the

field of probation, a governing principle is that of the free assessment of evidence.

After being notified with an objection of the unconstitutionality against the

provisions of Article 102 para 3 CCP, the Romanian Constitutional Court allowed

the objection and found that the above-mentioned legal provisions are

constitutional in so far as the term 'exclusion of evidence' also means the removal

of the evidence in the case file.77 The specialised literature was of the opinion that

the Romanian Constitutional Court consecrated a double dimension of the notion

of excluding illegally or improperly obtained evidence, on the one hand, the

material exclusion of evidence, and, on the other hand, the judicial exclusion of

evidence.78

In the French legal system, admissibility of evidence is poorly regulated by the

CCP, most of the rules on evidence being based on case law, either national or

European. The French CCP addresses the issue of illegally or improperly obtained

evidence through nullities. Evidence tainted by nullity must be withdrawn from

the case file.79

2. Admissibility of Written Reports

Writings can serve as evidence, provided that their content shows facts or

circumstances which could contribute to finding the truth. Consequently, the

77 Decision no 22/2018, Constitutional Court (Jurisprudenţa.com).

78 See Udroiu (n 11) 972.

79 See Tricot (n 12) 253.

Presentation of Romanian National Systems of Investigation… 99

Romanian legislation acknowledges written reports in due form of law as

evidence. According to CCP, Article 198 para 2, a report including personal

findings of the criminal prosecution body or of the court represents evidence.

Minutes prepared by the fact-finding bodies specified by CCP, Article 61 para 1

(bodies of state inspections, of other state bodies, as well as of public authorities,

public institutions or of other public-law legal entities, etc.) constitute documents

notifying the criminal prosecution bodies and do not have the value of specialized

findings in criminal proceedings.

Written reports are means by which an authorised person ascertains directly

(ex propriis sensibus) facts and circumstances which can serve in finding out the

truth in a criminal case. They are drafted in due form of law.

The following categories can pass a report regarding a crime or the

circumstances of its occurrence: criminal investigation agencies and prosecutors

(CCP, Articles 198, 161, 195, 289 para 6); the court and its president (CCP, Articles

198, 360); determination agencies as stipulated at CCP, Articles 61, 62; the staff of

other state agencies with attributions in the field of homeland security, as well as

undercover agents (CCP, Article 148 para 5). 80

In the French criminal procedure, official records and reports establishing the

existence of felonies and misdemeanours only have the value of simple

information, provided that they are formally regular, their drafter acted in the

performance of their duties and reported what they personally saw, heard or

found on a subject matter within their jurisdiction. However, in many cases, proof

of the contrary may only be brought in writing or through witnesses.81

3. Status of Evidence Obtained in Other Member States

Departing from the principle of territoriality in what concerns the criminal

procedure rules, a procedural act performed in a Member State according to the

law of that country, is valid before the Romanian authorities.

Law no 302/2004 on international judicial cooperation in the criminal field has

brought the regulation at the level convened through the international conventions

to which Romania adhered. The request for undertaking criminal procedures

addressed to the Romanian judicial authorities is solved, in the case of a criminal

investigation, by the prosecutor's office attached to the court of appeal in the

constituency of which the investigated person resides or has been identified. In the

case of a trial, the request is solved by the criminal department of the same court of

appeal. The court rules and its decision is laid down in an appealable writ within

80 There was a similar regulation under the previous CCP (the 1968 CCP), see Lazar et alii (n 2)

612.

81 See Tricot (n 12) 254, 255.

100 ANCA AUGUSTA LAZĂR

five days after the ruling, which can decide the admission of the transfer and the

continuation of the trial according to the Romanian criminal procedure.

Foreign decisions recognised in Romania on the basis of a request for

recognition before the court of appeal in the range of which the convicted person

resides or has been identified, produce the same effects as the decisions rendered

by the Romanian courts. Procedural acts requested through international rogatory

letter and performed according to the applicable law of the Member State are also

valid before the Romanian authorities.82

As to the French criminal procedure, the status of evidence obtained in foreign

legal systems, including other Member States of the EU, varies depending on

whether evidence was collected within the framework of international

cooperation, upon request of a French judicial authority, or otherwise.83

BIBLIOGRAPHY

•Delmas-Marty, Mireille, Corpus juris portant dispositions pénales pour la

protection des intérêts financiers de l’Union européenne (Paris, Economica Publishing

House, 1997);

•Dongoroz, Vintilă, Tratat de procedură penală, vol 3 (Bucharest, All Beck

Publishing House, 2003);

•Ligeti, Katalin (editor), Toward a Prosecutor for the European Union, Volume 1, A

Comparative Analysis, Series Modern Studies in European Law (Oxford, Hart

Publishing House, 2013);

•Predescu, Ovidiu, Drept penal al afacerilor (Bucharest, Continent XXI

Publishing House, 2000);

•Predescu, Ovidiu, Udroiu, Mihail, Protec

ţ

ia europeană a drepturilor omului şi

procesul penal român (Bucharest, CH Beck Publishing House, 2008);

•Udroiu, Mihail, Procedură penală. Partea generală, 5th edn (Bucharest, CH Beck

Publishing House, 2018);

•Udroiu, Mihail, Procedură penală. Partea specială, 5th edn (Bucharest, CH Beck

Publishing House, 2018);

•Vervaele, John A.E. (editor), European Evidence Warrant. Transnational Judicial

Inquiries in the EU (Antwerpen-Oxford, Intersentia, 2005);

•Vervaele, John A.E., Gless, Sabine, Editorial Law Should Guvern: Aspiring

General Principles for Transnational Criminal Justice (Utrecht Law Review, vol. 9, nr.

4, 2013);

82 Lazar et alii (n 2) 612, 613.

83 See Tricot (n 12) 255.

Presentation of Romanian National Systems of Investigation… 101

•Vervaele, John A.E., Delmas-Marty, Mireille (editors), La mise en oeuvre du

Corpus Juris dans les Etats Membres, vol. I-IV (Antwerp-Groningen-Oxford,

Intersentia, 2000);

•Volonciu, Nicolae, Uzlău, Andreea Simona (coordinators), Moroşanu, Raluca,

Voicu, Corina, Văduva, Victor, Tudor, Georgiana, Atasiei, Daniel, Gheorghe,

Teodor-Viorel, Chiriţă, Cătălin Mihai, Ghigheci, Cristinel, Manea, Teodor, Codul de

procedură penală comentat, 3rd edn (Bucharest, Hamangiu Publishing House, 2017).

Author	Anca Augusta Lazar
Position	Prosecutor within the Prosecutor's Office Attached to the Cluj Court of Appeal
Pages	44-101

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