Special procedural measures adopted and the observance of the human rights - romania's report -

• Author: Phd Professor Ion Neagu/Phd Professor Gheorghita Mateut/Lecturer Mircea Damaschin
• Pages: 7-37

Phd Professor Ion Neagu¹

Phd Professor Gheorghita Mateut²

Lecturer Mircea Damaschin³

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Section I Reform of legal framework: special measures with regard to prevention, investigation, and prosecution

1. Introduction

One cannot fail to notice that the recent evolution of Romanian criminal proceduredue to the emergence of grievous criminality phenomena and to the influence of globalization - has acquired new characteristics: the conciliation between the general and individual or particular interests; the adoption of new different procedural measures, according to the gravity of the committed offences; the escalating denationalization process of criminal procedure, in conformity with the pattern of other procedures. One can say that ever since 1990, when the Romanian political regime changed, our criminal procedure has been undergoing continuous transformation. In all this period many laws have been adopted with a view to alter and complete the Code of Criminal Procedure⁴. Among these law, the most important are the following ones (adopted in the last decade): Law no. 141/1996⁵, the Government Emergency Ordinance no. 207/2000⁶ partially and temporarily suspended by Government Emergency Ordinance no. 295/2000⁷ approved with modifications and adnotations by the Law 456/2001⁸, Law 296/2001⁹, subsequently repealed by Law 302/2004¹⁰, Law no. 704/2001¹¹, repealed by Law no. 302/2004, Law no. 756/2001¹², Law no. 169/2002¹³, repealed by Law no. 302/2004, Government Emergency Ordinance no. 58/2002¹⁴, approved with modifications by Law no. 161/2005¹⁵, Government Emergency Ordinance no. 93/2002¹⁶, approved by Law no. 574/2002¹⁷, Law no. 281/2003¹⁸, Government Emergency Ordinance no. 66/2003¹⁹, approved by Law no. 359/2003²⁰, Government Emergency Ordinance no. 109/2003²¹, approved, with modifications and adnotations²² by Law no. 159/2004, Government Emergency Ordinance no. 55/2004²³, approved, with modifications and adnotations, by Law no. 548/2004²⁴, Law no. 302/2004²⁵, Government Emergency Ordinance no. 72/2004²⁶, approved by Law no. 575/2004²⁷, Law no. 480/2004²⁸, Law no. 576/2004²⁹, Government Emergency Ordinance no. 190/2005³⁰, approved, with modifications and adnotations by Law no. 332/2006³¹, Law no. 356/2006³², Government Emergency Ordinance no. 60/2006³³, Law no. 79/2007³⁴, Government Emergency Ordinance no. 31/2008³⁵ and Law n r. 57/2008³⁶.

This permanent reform attests the instrumentalization of criminal procedure which is enforced by the legislative. In our country, as it happens all over the world, the fight against criminality has become a main objective in public debates and any criminal fact is regarded as a pretext for making and passing a law. Parliament reacts to every particular mediatized case

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by issuing a normative act. But, beyond this legislative proselytism, the multi-sized reform is a consequence of a profound change in Romanian criminal procedure and of a major conflict existing between two actual models, the one based on the European Convention, which relies on individual freedoms observance, and the one of particular techniques used for criminal investigations, which relies on public security. Romanian criminal procedure is traditionally inquisitorial and it gives many prerogatives to the judicial police and the prosecutor, under the partial control of the judge, who is more and more present in our country in preliminary procedures, i.e. in the stage of preliminary acts and in the preliminary stage of criminal proceedings (the stage of criminal prosecution). However, this model has been considerably modified recently, since individual freedoms protection has been reinforced and the suspect³⁷ or the accused one³⁸ has been offered more rights, in accordance with the European Convention of Human Rights. At the same time, however, a contrary direction has come into being and it hints at strengthening the investigation powers, to the detriment of individual freedom, in order to fight more efficiently against the grievous forms of criminality. This tendency manifested itself especially after 2000 and it is supported by the concern to fight more energetically against organized crime and terrorism.

2. Which are the treaties concerning human rights and humanitarian law (The Geneva Convention, for example) that are applied in the internal system of law, if there are limitations in applying these international dispositions in our country and if the citizens (those suspected of having committed an offence, those incriminated or accused, the victims of offences and witnesses) can invoke norms of these international acts within the internal judicial activities?

As to the guarantee of the human rights, Romania has ratified the most important international instruments it has adopted, as follows: Geneva Conventions relative to the protection of the victims of international armed conflicts (12.08.1949)³⁹; the international Agreement relative to the economic, social and cultural rights (16.12.1966); the international Agreement relative to the civil and political rights (16.12.1966)⁴⁰; the Convention against torture and other punishments or cruel inhuman and degrading treatment (New York, 10.12.1980)⁴¹; the European Convention for preventing torture and punishments or inhuman and degrading treatment (Strasbourg, 4.11.1987), and the...