Defendants (criminal proceedings)

A. If I am a foreign national, does this have any impact on the survey?

Parties and procedural subjects who do not speak or understand Romanian or are unable to express themselves shall be given the opportunity, free of charge, to take cognisance of the parts of the file, to speak and to draw conclusions from the courts through an interpreter. In cases where legal assistance is mandatory, the suspect or accused person shall be given free of charge the opportunity to communicate, through the interpreter, with the lawyer in preparation for the hearing, the lodging of an appeal or any other request relating to the outcome of the case.

B. What are the steps in the investigation?

I. Evidence collection stage/Competence of investigators

In order to achieve the purpose of the criminal prosecution, the criminal investigation bodies are required, after referral, to search for and collect data or information on the existence of the criminal offences and to identify the persons who have committed the offences, to take measures to limit their consequences, and to collect and collect evidence. Once the criminal investigation has started, the criminal investigation authorities collect and administer evidence, both in favour of and to the detriment of the suspect or accused person.

The prosecutor supervises the activity of the criminal investigation bodies, so that any offence is discovered and anyone who has committed a crime is held criminally liable. The public prosecutor also supervises the activity of the investigating bodies in such a way that no suspect or accused person is detained except in the cases and under the conditions laid down by law.

II. Police custody

The investigating body or the public prosecutor may order the detention of the suspect or accused person if there is evidence or reasonable suspicion that he or she has committed a criminal offence and if the measure is necessary to ensure the proper conduct of the criminal proceedings, to prevent the suspect or accused person from absconding from prosecution or trial or to prevent the commission of another offence.

If it is considered necessary for the accused person to be arrested after being detained, the prosecutor shall refer the matter to the rights and freedoms judge from the competent court with a view to taking the measure of pre-trial detention at least 6 hours before the expiry of the period of detention. In this case, the time limit for dealing with the proposal for pre-trial detention must be fixed before the expiry of the period of detention.

III. Questioning

In the course of the criminal investigation, prior to the first hearing of the suspect or accused person, he is made aware of the rights and obligations provided for by law (the obligation to appear at the summons of the judicial bodies, drawing his attention to the fact that, in the event of failure to comply with that obligation, a warrant for bringing proceedings may be issued against him or her and, in the event of absconding, the judge may order his or her pre-trial detention; the obligation to communicate any change of address in writing within 3 days, drawing his attention to the fact that, in the event of failure to do so, the summons and any other documents served at the first address remain valid and shall be deemed to have been acquainted with them).

These rights and obligations are also communicated in writing, duly signed, and in case of inability or refusal to sign, a report will be made.

At the beginning of the first hearing, the judicial body addresses questions to the suspect or the defendant regarding their surname, first name, nickname, date and place of birth, personal numeric code, first and last names of the parents, citizenship, marital status, military situation, studies, profession or occupation, place of work, domicile and the address where they actually live. They are also asked for the address to which they wish to be sent any procedural documents and criminal records or whether another criminal case is being brought against them, whether an interpreter is requested if they do not speak or understand the Romanian language or cannot express themselves, and any other information to establish their personal situation.

The statements of the suspect or the defendant are recorded in writing. The statement shall record the questions put during the hearing, stating who formulated them, and state each time the opening and closing times of the hearing.

If the suspect or defendant agrees with the content of the written statement, he or she signs it. If the suspect or the defendant has any additions, corrections or clarifications to make, these are indicated at the end of the statement, followed by the signature of the suspect or defendant.

When the suspect or defendant cannot or refuses to sign, the judicial body records this in the written statement.

IV. Pre-trial detention

The measure of pre-trial detention may be taken by the rights and freedoms judge, during the criminal prosecution, by the pre-trial chamber judge, or by the court before which the case is pending, in the course of the trial, only if the evidence reveals a reasonable suspicion that the accused has committed a criminal offence and one of the following situations exists:

1. the accused has fled or concealed, in order to evade prosecution or trial, or made preparations of any kind for such acts;
2. the accused attempts to influence another participant in the commission of the offence, a witness or expert, or to destroy, alter, conceal or evade evidence or cause another person to engage in such conduct;
3. the defendant exerts pressure on the injured party or attempts to reach a fraudulent settlement with him;
4. there is a reasonable suspicion that, after the indictment against him, the accused has intentionally committed a new offence or prepares the commission of a new offence.

The measure of pre-trial detention of the accused may also be taken if evidence reveals a reasonable suspicion that he or she has committed an intentional crime against life, an offence resulting in bodily injury or death of a person, an offence against national security provided for in the Criminal Code and other special laws, a drug trafficking offence, an offence under the doping regime, illegal operations involving precursors or other products likely to have psychoactive effects, an offence of non-compliance with the regime of weapons, munitions, nuclear materials, explosives and restricted explosives precursors, trafficking and exploitation of vulnerable persons, acts of terrorism, money laundering, counterfeiting of currencies, stamps or other valuables, blackmail, rape, unlawful deprivation of liberty, tax evasion, inversion of the judiciary, corruption offence, an offence committed by means of information systems or electronic communication, or another offence for which the law provides for imprisonment of 5 years or more; and, on the basis of the assessment of the seriousness of the act, the manner and circumstances in which it was committed, its entourage and its environment, his criminal history and other circumstances concerning his person, it is established that his deprivation of liberty is necessary in order to eliminate a state of danger to public policy.

The judge may order your arrest after being heard in the presence of a lawyer. You may be arrested for a maximum of 30 days. This period may be extended by the court. Each extension is limited to 30 days and the total period of pre-trial detention may not exceed 180 days during the criminal prosecution.

C. What rights do I have during the investigation?

I. Can I receive the services of an interpreter/translator?

If you do not speak Romanian, you will be provided with an interpreter free of charge.

II. What are my rights to information and access to the case-file?

Once the investigation has been completed, you have the right to consult the entire case file, which contains all the evidence against or in favour of you.

Access to evidence shall be allowed in all cases unless, during the criminal prosecution, the public prosecutor restricts the inspection of the file on a reasoned basis if this undermines the proper conduct of the criminal prosecution. After indictment, the restriction may be ordered for a maximum of 10 days.

III. What is my right of access to a lawyer and to have a third party informed of my situation?

Before making the first declaration, you must be informed of your right to be assisted by a lawyer of your choice or appointed ex officio to represent you.

Immediately after the detention, you have the right to inform yourself or ask the judicial body that ordered the measure to inform a member of your family or another person about the taking of the detention measure and the place where you are detained.

If you are not a Romanian citizen, you have the right to know or request notification to the diplomatic mission or consular post of the State of which you are a national.

IV. What is my right to legal aid?

If you are accused of having committed a criminal offence in criminal proceedings, you have the right to be assisted by one or more lawyers throughout the criminal investigation, preliminary chamber proceedings and trial. Legal aid shall be deemed ensured when at least one of the lawyers is present.

In principle, legal aid is optional, which means that you are free to use the services of a lawyer or not to receive legal aid.

However, the legal assistance of the suspect or accused person is mandatory in the following cases:

• when the suspect or defendant is a minor, detained in a detention centre or educational centre;
• when the suspect or accused person is detained or arrested, even in another case;
• when the medical accommodation security measure has been ordered against him, even in another case;
• where the judicial body considers that the suspect or accused person has not been able to make his/her own defence;
• during preliminary chamber proceedings and in cases where the law provides for life imprisonment or imprisonment of more than 5 years for the offence committed;
• in other cases provided by law.

v. What is important to know about:

a. Presumption of innocence

You benefit from the presumption of innocence and you are not required to prove your innocence. However, you have the right to adduce evidence and request the gathering of evidence. The request for the gathering of evidence may not be rejected if the evidence in question is conclusive and useful. If there is evidence that criminalises you, you have the right to try to prove that the evidence in question is unfounded.

Once all evidence has been taken, any doubt as to the conviction of the judicial bodies shall be interpreted in favour of the suspect or accused person.

b. Right to remain silent and not to incriminate oneself

The defendant has the right not to make any statement in the course of the criminal proceedings, drawing his attention to the fact that if he refuses to make statements he will not suffer any adverse consequences, and if he gives such statements, he or she may be used as evidence against him.

c. Burden of proof

In criminal proceedings, the burden of proof lies primarily with the public prosecutor, and in the civil action, on the civil party or, as the case may be, on the public prosecutor exercising the civil action if the injured party is deprived of or has limited capacity to act.

VI. What are the specific safeguards for children?

The Code of Criminal Procedure provides that detention and pre-trial detention may, exceptionally, be ordered against a minor only if the effects that deprivation of liberty would have on his personality and development are not disproportionate to the aim pursued by the measure.

In determining the length of time for which the measure of pre-trial detention is to be taken, account shall be taken of the age of the accused from the date on which it is ordered to take, extend or maintain that measure.

VII. What are the specific safeguards for vulnerable suspects?

If you suffer from a serious illness that prevents you from participating in the criminal proceedings, you have the right to request that the prosecutor suspend the prosecution, but the investigating authorities continue to carry out all acts the performance of which is not impeded by this situation, while respecting the rights of defence of the parties or the parties to the proceedings.

D. What are the legal deadlines in the investigation?

Judicial bodies must carry out the pre-trial and trial proceedings by respecting the procedural guarantees and the rights of parties and litigants, ensuring that the acts classified as offences are ascertained in due time and to their full extent, that no innocent person is held liable under the criminal law and that any person who committed an offence is to be punished under the law, within a reasonable time-limit.

E. What are the pre-trial preparations, including alternatives to pre-trial detention and the possibilities for transfer to the Member State of origin (European Supervision Order)?

If a pre-trial detention measure has been ordered against you, you are entitled to request the revocation or replacement of the pre-trial detention by another easier preventive measure: house arrest, judicial review or judicial review on bail.

House arrest may be ordered under conditions similar to those laid down for pre-trial detention and consists of deprivation of liberty, the execution of which is carried out not in a place of detention but in the defendant’s home.

During the criminal investigation, the public prosecutor may order judicial review of the defendant, if such preventive measure is necessary in order to ensure the proper conduct of the criminal proceedings, to prevent the accused from being prevented from prosecution or trial or to prevent the commission of another offence.

Judicial supervision on bail may be ordered if the conditions for pre-trial detention are met, that measure being considered sufficient to ensure the proper conduct of the criminal proceedings, to prevent the accused from absconding or from trial or to prevent the commission of criminal offences, and consists of the lodging of a security the amount of which is determined by the judicial body.

The procedure for transferring sentenced persons on the basis of Framework Decision 2009/909/JAI is regulated in Law No 302/2004 on international judicial cooperation in criminal matters (Articles 153 to 182).