Romania

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I. Background Information

Romania is a country located at the intersection of Central and Southeastern Europe. It transitioned from a Communist System to a Partial multi-party Democratic System after the Romanian Revolution of 1989. It is currently a semi-presidential parliamentary representative democratic republic. The Prime Minister is head of government while the President exercises functions of head of state


II. Type of system

Romania has a civil law system based on Roman law and the Napoleonic Code. The Judicial system is an inquisitorial system, where the courts are actively involved in investigating the facts of a case. As opposed to the adversarial system where the judge acts as an independent referee who hears the case from both parties before coming to a decision. The Judiciary is independent, judges appointed by the president and are not removable. Judges of Supreme Court are appointed for 6 year terms and may serve consecutive terms. Proceedings are public unless special circumstances provided for in law.

There are 5 types of courts. Namely the Constitutional Courts, High Court of Cassation and Justice (Supreme Court), Courts of Appeal, County Courts and Local Courts.

III. Sources of Defendants’ Rights

The Constitution of Romania is the main source of Defendants' Rights and was adopted on 21 November 1991 and amended on 2003.

The Constitution lays out the rights of the citizen with regards to fundamental rights, freedoms and duties. Of note is that the death penalty is prohibited in Romania. With regards to personal freedom and liberty, detention on suspicion of a crime may not last beyond 24 hours. The right to defence is guaranteed and throughout trial, parties have the right to be assisted by a lawyer of their choosing, or appointed by the government.

IV. Rights of the accused at the different stages of the proceedings

Pre-trial phase

Arrest:

Person detained or arrested will be informed promptly in a language he/she understands of the grounds of his/her detention and notified of the charges against him/her as soon as possible.

Searches and seizure and protection of privacy

Rules applying to pre-trial detention:

Detention should not extend beyond 24 hours. There is a right to a lawyer and the government will provide one if the detainee is unable to afford one.

Interrogation at the pre-trial phase:

Detainees have a right to remain silent. There is no law requiring the authorities to state these to the detainee at the time of arrest.

Court procedures

Investigation phase:

There is no Haebus Corpus (writ requiring that person be brought before a court to determine if they have been lawfully detained). A person’s domicile and residence are inviolable (Article 27 of the Constitution) without a court-issued warrant. Privacy of letters, telegrams and other postal communications, telephone conversations and other legal means of communication are inviolable (Article 27 of the Constitution of Romania) without a court-issued warrant. Evidence cannot be obtained with the use of violence, threats, or other constraints. Court-issued warrants are necessary for phone-tapping and mail interception, or to conduct the search of a location where consent is not given by a person in control of the object or property to be searched. While a domiciliary (i.e. home, car) search can be authorized only by the court after an investigation is initiated, a corporal (i.e. body) search may be authorized by the police investigator, the prosecutor or the judge. Domiciliary searches and removal of items of evidence can take place only in the presence of the suspect or defendant, a family member, or a neighbor who will act as a witness. Evidence illegally obtained may not be used in the course of the criminal trial. The defendant benefits from the presumption of innocence and is not obliged to prove his/her innocence

Interrogation:

Items submitted as evidence may include testimonies of the suspect or the defendant, testimonies of the victim or the civil party in the trial, testimonies of the witnesses, documents, audio or video recordings, photos, physical evidence, forensic findings and conclusions of the expert witnesses. The defendant has the right to attempt to prove the inconsistency of the evidence presented by the prosecution. During the criminal trial, the parties may enter additional items of evidence. The request to enter evidence cannot be rejected if the item is conclusive and useful. The approval or rejection of such a request must be decided and explained by the judge.

Post-conviction

Appeals:

The Romanian law provides for two consecutive phases of appeal that can be filed against a sentence or court decision. The first appeal can be brought for factual grounds (based on or restricted to facts) or legal grounds (motives related to legal provisions). The court decision pronounced in this first appeal can also be subject to a second appeal, but only for a limited number of legal grounds as provided by article 3859 of the Romanian Criminal Procedure Code. The appeal must be filed within 10 days, counted from the date when the convicted party was informed of the sentence, either by being present in court when the judge read the verdict or by receiving a copy of the sentence. The appeal hearing must be scheduled within three days of filing. The court of appeals has the discretion to retry the case in its entirety or remand the case to the lower court for retrial. If the accused is again found guilty, the sentencing takes place immediately.