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
SUMMARY

The study will 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 the Netherlands. Due attention will be granted to the provisions of the current Criminal Procedure Code, which entered into force on the 1st of February 2014, as this piece of... (see full summary)

 
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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

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