Study on the compulsory bringing of persons in front of the judicial authorities in criminal matters

• Author: Radu - Florin Geam?nu
• Position: Legal Adviser, Romanian Ministry of Justice; Ph D Candidate, Faculty of Law, 'Nicolae Titulescu' University of Bucharest (e-mail: radurfg@yahoo.com).
• Pages: 70-95

LESIJ NO. XXI, VOL. 2/2014

STUDY ON THE COMPULSORY BRINGING OF PERSONS IN

FRONT OF THE JUDICIAL AUTHORITIES IN CRIMINAL

MATTERS1

Radu - Florin GEAMĂNU*

Abstract

The study wil l try to perform an in-depth analysis of the measure of compulsory bringing, assessing

both the national legislation and the legislation of some European countries, namely: Austria,

Bulgaria, Poland and th e Netherlands. Due attention will be granted to the provisions of the current

Criminal Procedure Code, which entered into force on th e 1st of February 2014, as this piece of

legislation brings some important changes regarding the compulsory bringing, some of them being the

consequence of the convictions of Romania in front of the Strasbourg Court. Also, the paper will focus

on case-law established by the European Court of Human Rights regarding articles 3 and 5 relating to

the compulsory bringing.To close with, the study will give some conclusions regarding th e conformity

of the current Criminal Procedure Cod e of Romania with th e standards imposed by the European

Convention for the Protection of Human Rights and Fundamental Freedoms and by the case-law of the

European Court of Human Rights..

Keywords: Compulsory bringing, ECHR, case-law, Criminal Procedure Code, trial, pre -trial,

Romania, police

I. Introduction

1

***

Over the last years , Romania has

undergone a structural legisl ative reform,

the essential pieces of legislatio n (the

Codes) in criminal mat ters being drafted

and adopted .

The adoptio n of t he new criminal

Codes repre sented for Romania a necessity

and a consequence impose d by the

evolution of t he Romanian society an d

economy during the more than two decades

that ha ve passed s ince the Dece mber 1 989

1

This paper is based on the expert report presented at the Compulsory bringing of persons to judicial authorities

Workshop on 24th – 26th of October 2013, in Sofia (Bulgaria), as part of the “Capacity building of General

Directorate Security staff in line with international standards to achieve a more effective judicial system” Project,

General Directorate “Security”, Ministry of Justice (Bulgaria), implemented under the Norwegian financial

mechanism (NFM 2009-2014), Program area 14 Judicial capacity building and Cooperation, in a partnership with

the Directorate General I – Human Rights and Rule of Law of the Council of Europe.

* Legal Adviser, Romanian Ministry of Justice; Ph D Candidate, Faculty of Law, “Nicolae Titulescu” University of

Bucharest (e-mail: radurfg@yahoo.com).

Revolution. Furthermore, the evolution of

the Roma nian socie ty was significantl y

influenced by the accession to a number of

internationa l o rganisations, especially the

Council of Europe and the European Union.

As a result new Codes entered into

force on the 1st of February 2014, replacing

the ol d ones (in force since 1969), namel y

the new Criminal Code (Law No. 286/2009)

Radu - Florin GEAMĂNU 71

LESIJ NO. XXI, VOL. 2/2014

– N.Cr.C.

2

and the new Criminal Procedure

Code (Law No. 135/2010) – N.Cr.P.C

3

.

The package that made up the reform

in cr iminal matters also required the

elaboration and adoption of 5 new pieces of

legislation, alongside with the new Criminal

Code and the new Criminal Procedure Code,

which were meant to facilitate the

implementation of the two codes, but also

covered aspects concerning the enforcement

of custodial and non-custodial sanctions or

measures and last, but not least, the

organization of the probation system.

The following laws were elaborated

and came into force on the 1st of February

2014:

- Law No. 187/2012 on enforcing the

application of the new Criminal Code

4

;

- Law No. 252/20 13 regarding the

organization of the probation services

5

;

- Law No. 253/2013 on the execution

of penalties and educative measures

implying deprivation of liberty

6

;

- Law No. 254/2013 on the execution

of penalties, educative measures and other

measures ordered by the judicial body

during the criminal trial, which do not imply

deprivation of liberty

7

;

2

Published in the Official Journal of Romania, Part I, No. 510 of 24th of July 2009, as subsequently amended and

completed.

3

Published in the Official Journal of Romania, Part I, No. 486 of 15th of July 2010, as subsequently amended and

completed, which abolished Law no. 29/1968 regarding the Criminal Procedure Code (Cr.P.C.), republished in the

Official Journal of Romania, Part I, No. 786 of 30th of April 1997, as subsequently amended and completed.

4

Published in the Official Journal of Romania, Part I, No. 757 of 12th of November 2012, as subsequently amended

and completed.

5

Published in the Official Journal of Romania, Part I, No. 512 of 14th of August 2013.

6

Published in the Official Journal of Romania, Part I, No. 513 of 14th of August 2013.

7

Published in the Official Journal of Romania, Part I, No. 514 of 14th of August 2013.

8

Published in the Official Journal of Romania, Part I, No. 515 of 14th of August 2013.

9

Also named “warrant to appear”.

The terminology i s not unitary. “Order of appearance” is used in the ECtHR Case of Ghiurău v. Romania, 20

November 2012, final: 29.04.2013, p. 17, while the “warrant to appear” is used in the ECtHR Case of Creangă v.

Romania. Grand Chamber, 23 February 2012, final, p. 9.

10

Convention for the Protection of Human Rights and Fundamental Freedoms, adopted in Rome on November 4,

1950, as amended by Protocol n o. 11, together with Protocols no. 1, 4, 6, 7, 12 and 13, were ratified by Romania

through Law no. 30/1994, published in the Official Journal of Romania, Part I, no. 135 of May 31, 1994.

11

Republished in the Official Journal of Romania, Part I, No. 767 of 31th of October 2003.

- Law No. 255/2013 on enforcing the

application of the new Criminal Procedure

Code

8

.

A presentation of the existing

legislation in Romania, a brief analysis of

the legislation of certain European states and

an overview of the European Court of

Human Rights (ECtHR) case-law will help

us to asses s more accurately the current

situation regarding the order of appearance

(compulsory bringing)

9

and the enforcement

of such order, consequently allowing us to

look at the whole picture, having all the

elements, thus drawing the best fitting

solutions regarding the order of app earance

(compulsory bringing), in full compliance

with the European Convention for the

Protection of Human Rights and

Fundamental Freedoms

10

(ECHR)

standards.

I. National lega l framework regarding

compulsory bringing of persons in front

of the judicial authorities in Romania

1. The fundamental law of the

Romanian state, the Constitution

11

, contains

certain provisions which refer to the

limitation of the individual freedom by

stipulating, in art. 23, the principle according