Criminal Procedure Code2 (2)

8/12/2019 Criminal Procedure Code2 (2)

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h&man #i"nit. trail must be treated with respect for human dignity. Torture and cruel,

inhuman or degrading treatment are punished under the law.

Pre%&m+tion of

innocence

iArt /$- 'ny person shall be presumed innocent till found guilty by a

final decision of the court.

The "&arantee of the

ri"ht to #efence

iiArt0 * The right to defence is guaranteed to the accused person, to

the defendant and to the other parties all throughout the criminal trial.

(uring the criminal trial, the &udicial bodies must ensure the partiesfull e$ertion of their procedural rights, under the circumstances

stipulated by the law and must administrate the e!idence necessary for

defence.

The &udicial bodies must inform the accused person or the defendant,

immediately and before hearing, of the deed of which he is held

responsible and of its &udicial status, and must ensure the preparation

and e$ertion of his/ her defence.

'ny party is entitled to assistance by defender during the criminal trial.

The &udicial bodies must inform the accused person or the defendant,

before his/ her first statement, on his/ her right to be assisted by a

defender8 this will be recorded in the official report of the hearing.9nder the circumstances and in the cases stipulated by the law, the

&udicial bodies must pro!ide &udicial assistance for the defendant, if the

latter has not chosen a defender.

The lan"&a"e in

1hich the criminal

trial i% con#&cte#

iiiArt 2: The &udicial procedure of the criminal trial is conducted in

2omanian.

In front of the &udicial bodies, the parties and other persons summoned

to trial are ensured the use of their nati!e tongue, the procedure

documents being drawn in 2omanian.

The &%e of the

official lan"&a"ethro&"h an

inter+reter

i(Art3 - The parties who do not speak or do not understand the

2omanian language, or who cannot e$press themsel!es, are gi!en thepossibility, free of charge, to get ac)uainted with the record, to speak

in court and pass conclusions, through an interpreter.

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has already been initiated, in the following cases=

a> the deed does not e$ist8

b> the deed is not stipulated by the criminal law8

b*> the deed does not present the degree of social danger of an offence8

c> the deed was not been committed by the accused person or

defendant8

d> the deed lacks one of the constituti!e elements of an offence8e> one of the cases that annul the criminal nature of the deed is present8

f> the preliminary complaint of the in&ured person, the authori"ation or

notification of the competent body, or any other condition stipulated by

the law, necessary for the initiation of the criminal action, is missing8

g> amnesty, prescription or death of the perpetrator ha!e occurred8

h> the preliminary complaint has been withdrawn or the parties ha!e

reconciled, in the case of offences where criminal responsibility is

annulled by the withdrawal of the complaint or the reconciliation of the

parties8

i> replacement of criminal responsibility has been ordered8

i*> there is moti!ation for non-punishment, pro!ided by the law.&> there is authority of tried matter. The pre!ention has conse)uences

e!en if the finally tried deed were assigned to another &udicial category.

In the situation stipulated at letter f>, ulterior criminal action may be

initiated under the law.

Clo%in"9 e6em+tion

from criminal

in(e%ti"ation9

ce%%ation of criminal

in(e%ti"ation9

ac:&ittal an#

ce%%ation of the

criminal trial

iArt !! * ?hen the e$istence of one of the cases stipulated under art.

*5 is acknowledged=

*. (uring the criminal in!estigation, at the proposal of the criminal

in!estigation body or e$ officio, the prosecutor orders=

a> closing, when there is no accused person8

b> e$emption from criminal in!estigation, in the cases stipulated under

art. *5 letters a> - e>, when the accused person or defendant e$ist8

c> cessation of criminal in!estigation, in the cases stipulated in art. *5

letters f> - &>, when the accused person or defendant e$ist8

+. (uring the trial, the court decides=

a> ac)uittal, in the cases stipulated in art. *5, letters a> - e>8

b> cessation of the criminal trial, in the cases stipulated in art. *5 letters

f> - &>.

Notification of other

-o#ie% than the

5icial one%

Art!$ * In the cases mentioned under art. *5 letters b>, d> or e>, the

prosecutor who orders closing or e$emption from criminal

in!estigation, or the court that decides the ac)uittal, inform the

competent body if they consider that the deed in )uestion may entailmeasures or sanctions other than those stipulated by criminal law,

notify the competent body.

Re%&m+tion of

criminal trial in ca%e

iiArt !' - In case of amnesty, prescription or withdrawal of the

preliminary complaint, as well as in the case of e$istence of moti!ation

!'rt. *5 par. * let. b*> was modified by the Law no. 3/*, published in the 0fficial @ulletin no. of 'pril 7, *3.

'rt. *5 par. * let. i*> was introduced by the Law no. +6*/+55, published in the 0fficial 1a"ette of 2omania no. 76 of

4uly *, +55.i'rt. ** par. * let. c is reproduced as it was modified by the Law no. **/*7, published in the 0fficial 1a"ette of

2omania no. +6 of %o!ember *, *7.iiThe marginal name and par. * and of art. * are reproduced as they were modified by the Law no. +6*/+55,

published in the 0fficial 1a"ette of 2omania no. 76 of 4uly *, +55.


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person or the defendant.

The e6ertion

e6 officio of the

ci(il action

iArt !2 * Ci!il action is also initiated and carried on e$ officio, when

the in&ured person lacks or has limited e$ertion ability.

Bor this purpose, the criminal in!estigation body or the court will ask

the in&ured person that, through his/ her legal representati!e, or,

according to the case, through the person who agrees upon his/ her

acts, to present a report on the si"e of the damage and of the moralpre&udice, as well as data regarding the acts by which the damage was

done.

The court must decide e$ officio on the reparation of damages and of

moral pre&udice, e!en if the in&ured person does not constitute ci!il

party.

The %&++ort of the

ci(il action -. the

+ro%ec&tor

iiArt !3 * The prosecutor may support in court the ci!il action initiated

by the in&ured person.

?hen the in&ured person is a person lacking or ha!ing limited e$ertion

ability, the prosecutor, when taking part in the trial, is obliged to

defend the person#s ci!il interests, e!en if he/she does not constitute

ci!il party.The action

a##re%%e#

to ci(il co&rt

iiiArt !7 * The in&ured person who did not sue for ci!il in&ury in the

criminal trial may initiate in the ci!il court action for repairing the

damages and the moral pre&udice caused by the offence.

The ci!il trial is postponed until a final decision is passed in the

criminal case.

Ci!il action may also be initiated in ci!il court by the in&ured person

who can sue for ci!il in&ury or for whom ci!il action has been initiated

e$ officio within the criminal trial, but the criminal trial was

suspended. In case the criminal trial is resumed, the action initiated in

the ci!il court is suspended.

The in&ured person who initiated action in the ci!il court may lea!e this

court and address the criminal in!estigation body or the court, if the

criminal action was initiated afterwards or the criminal trial was

resumed after suspension. The person may not lea!e the ci!il court if

the latter has passed a decision, e!en if not final.

S+ecial ca%e% of

%ol(in" the ci(il

action

i(Art $8 * The in&ured person who can sue for ci!il in&ury in the

criminal trial may initiate action in the ci!il court if the criminal court,

by its final decision, has not sol!ed the ci!il action.

In case the ci!il action was carried on e$ officio, if new e!idence

shows that the damage and moral pre&udice ha!e not been entirely

repaired, the difference may be claimed by way of an action in the ci!ilcourt.

'lso, the in&ured person may initiate action in the ci!il court for

repairing the damages and moral pre&udice appeared or disco!ered after

i'rt. *3 is reproduced as it was modified by the Law no. +6*/+55, published in the 0fficial 1a"ette of 2omania no.76 of 4uly *, +55.ii'rt. *6 par. + is reproduced as it was modified by the Law no. +6*/+55, published in the 0fficial 1a"ette of 2omania

no. 76 of 4uly *, +55.iii'rt. * par. * is reproduced as it was modified by the Law no. +6*/+55, published in the 0fficial 1a"ette of 2omania

no. 76 of 4uly *, +55.i!'rt. +5 par. + and are reproduced as they were modified by the Law no. +6*/+55, published in the 0fficial 1a"ette

of 2omania no. 76 of 4uly *, +55.


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Com+etence

of the militar.

tri-&nal

iArt $0 * The military tribunal=

*. tries as first instance=

a> the offences pro!ided under art. *3-*33 of the the offences pro!ided by the the offences pro!ided by the offences committed on purpose, which resulted in death of a person8c> offences regarding the national security of 2omania, stipulated by

special laws8

d> the offence of money laundering, as well as offences regarding

trafficking and illicit consumption of drugs8

e> the offence of fraudulent bankruptcy, if the offence regards the

banking system8

f> other infractions falling under its competence, under the law=

+. as appeal court, tries the appeals against the criminal decisions passed

by &udges at first instance, e$cept for those regarding the offences

mentioned in art. +3 paragraph + letter a>8

. as recourse court, tries the recourses against criminal decisions passed

by first instance courts for the offences mentioned in art. +3 paragraph +

letter a>, as well as for other cases stipulated by the law8

. resol!es the competence conflicts that appear between the first

instance courts within its territorial area, as well other cases stipulated by

the law.

Com+etence of the

territorial militar.

co&rt

iiiArt $3 * The territorial military court=

*. tries as first instance=

a> the offences mentioned in art +3 par. * letters a> - e>, committed in

relation to office duties, by officers up to and including the rank of

colonel8i'rt. +7 is reproduced as it was modified by the Law no. +6*/+55, published in the 0fficial 1a"ette of 2omania no.76 of 4uly *, +55.ii'rt. +3 par. * let. c> was abrogated by the Law no. 3/*3, published in the 0fficial @ulletin no. of 'pril 7, *3.'rt. +3 was completely modified by the Law no. /*, published in the 0fficial 1a"ette of 2omania no. *3 of 4uly

*, *, by reintroducing let. c> under par. * and adding par. . 'rt. +3 par. * let. a> is reproduced as it was modified bythe Emergency 0rdinance no. *5/+55, published in the 0fficial 1a"ette of 2omania no. 36 of 0ctober +7, +55. 'rt.

+3 par. * let. d> is reproduced as it was modified by the Law no. 7/+55*, published in the 0fficial 1a"ette of 2omania

no. *5 of 4uly +, +55*. 'rt. +3 par. is reproduced as it was modified by the Law no. +6*/+55, published in the0fficial 1a"ette of 2omania no. 76 of 4uly *, +55.

iii'rt. +6 is reproduced as it was modified by the Law no. +6*/+55, published in the 0fficial 1a"ette of 2omania no.

76 of 4uly *, +55.3


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b> other offences falling under its competence, under the law=

+. as appeal court, tries the appeals against the decisions passed at first

instance by the military tribunals, e$cept for the offences mentioned in

art. +3 paragraph + letter a> and for the offences against the military

order and discipline, sanctioned with ma$imum + years imprisonment,

under the law8

. as recourse court, tries the recourses against the military tribunals forthe offences mentioned in art. +3 paragraph + letter a> and the offences

against the military order and discipline, sanctioned with ma$imum +

years imprisonment, under the law, as well as for other cases stipulated

by the law8

. resol!es the competence conflicts that appear between the military

tribunals in its territorial area, as well as other cases stipulated by the

law.

Com+etence

of the Co&rt

of A++eal

iArt $3!- The Court of 'ppeal=

*. tries at first instance=

a> the offences stipulated in the the offences committed by &udges of first instance courts and tribunals,by prosecutors of the prosecutor#s offices attached to these courts, as

well as by public notaries8

c> the offences committed by &udges, prosecutors and financial

controllers in the regional chambers of accounts, as well as by financial

controllers of the Court of 'ccounts8

d> other offences falling under its competence under the law8

+. as appeal court, tries the appeals against the criminal decisions passed

at first instance by the tribunals8

. as recourse court, tries the recourses against the criminal decisions

passed by the tribunals in appeal, as well as in other cases stipulated by

the law8

. resol!es the competence conflicts that appear between tribunals or

between &udges and tribunals in its territorial area, or between &udges

from the circumscription of different tribunals in the territorial area of

the Court, as well as in other cases stipulated by the law8

. sol!es the re)uests by which the e$tradition or transfer abroad of

con!icted persons were solicited.

Com+etence

of the Militar.

Co&rt of A++eal

iiArt $3$- The ilitary Court of 'ppeal=

*. &udges at first instance=

a> the offences stipulated by the offences committed by the &udges of military tribunals and of

territorial military courts, as well as by the military prosecutors in the

military prosecutor#s offices attached to these courts8

i'rt. +6*was introduced by the Law no. /*, published in the 0fficial 1a"ette of 2omania no. *3 of 4uly *, *

and modified by the Law no. **/*7, published in the 0fficial 1a"ette of 2omania no. +6 of %o!ember *, *78Law no. +7/+55*, published in the 0fficial 1a"ette of 2omania no. + of 4anuary , +55+.

'rt. +6*par. * let. c> and par. are reproduced as they were modified by the Law no. +6*/+55, published in

the 0fficial 1a"ette of 2omania no. 76 of 4uly *, +55. 'lso, through the Law no. +6*/+55, art. +6 *par. * let. e> andf> were abrogated, and art. +6*par. was introduced.ii'rt. +6+was introduced by the Law no. /*, published in the 0fficial 1a"ette of 2omania no. *3 of 4uly *, *.

'rt. +6+par. * let. a> and par. are reproduced as they were modified by the Law no. +6*/+55, published in the

0fficial 1a"ette of 2omania no. 76 of 4uly *, +55.6


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c> other offences falling under its competence, under the law8

+. as appeal court, tries the appeals against the decisions passed at first

instance by the territorial military courts8

. as recourse court, tries the recourses against the decisions passed by

the territorial military courts in appeal, as well as in other cases

stipulated by the law8

. resol!es the competence conflicts that appear between the territorialmilitary courts, or between the military tribunals and the territorial

military courts, or between the military tribunals in the competence area

of different territorial military courts, as well as other cases specially

stipulated by the law.

Com+etence

of the S&+reme

Co&rt of the offences committed by senators and deputies8

b> the offences committed by members of the 1o!ernment8

c> the offences committed by &udges of the Constitutional Court,

members, &udges, prosecutors and financial controllers of the Court of

'ccounts, by the president of the Legislati!e Council and by the other cases falling under its competence, under the law8

+. as recourse court, tries=

a> recourses against the criminal decisions passed, at first instance, by the

courts of appeal and by the ilitary Court of 'ppeal8

b> recourses against the criminal decisions passed, as appeal courts, by

the courts of appeal and by the ilitary Court of 'ppeal8

c> recourses against the criminal decisions passed, at first instance, by the

criminal section of the Fupreme Court of 4ustice, as well as in other case

pro!ided by the law8

. tries the recourses in the interest of the law8

. tries the actions for cancellation8

. resol!es=a> the competence conflicts in cases when the Fupreme Court of 4ustice

is the common superior court8

b> the cases in which the course of &ustice is interrupted8

c> the remo!al re)uests8

d> other cases specially pro!ided by the law.

Section II

i'rt. + as a whole was modified by the Law no. /*, published in the 0fficial 1a"ette of 2omania no. *3 of 4uly

*, *. 'rt. + par. * let. c>, d> and f>, as well as par. + let. c>, are reproduced as they were modified by the Law no.

+6*/+55, published in the 0fficial 1a"ette of 2omania no. 76 of 4uly *, +55. 'rt. + par. let. d> was introduced by

the Law no. +6*/+55.


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Territorial Competence

Com+etence

for the offence%

+er+etrate#

1ithin the

co&ntr.

iArt '8 * The competence according to territory is determined by=

a> the place where the offence was perpetrated8

b> the place where the perpetrator has been caught=

c> the place where the perpetrator li!es8

d> the place where the !ictim li!es.The case is tried by the competent court under paragraph *, in whose

territorial area the criminal in!estigation was performed.

?hen the criminal in!estigation is performed by the 1eneral


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in#i(i%i-ilit. a> when more persons were in!ol!ed in committing an offence8

b> when two or more offences were committed through the same act=

c> cases of continued offence or any other cases in which two or more

material acts make up one offence.

Ca%e% of

connexit

Art ') * The following cases are considered connexit=

a> when two or more offences are committed through different acts, by one

or more persons together, at the same time and in the same place8b> when two or more offences are committed at different times and in

different places, as a result of a prior understanding between the perpetrators8

c> when an offence is committed in order to prepare, facilitate or hide the

perpetration of another offence, or in order to facilitate or ensure a!oidance

of criminal responsibility by the perpetrator of another offence8

d> when there is a connection between two or more offences and the cases

must be &oined for a better &ustice.

Com+etence in

ca%e% of

in#i(i%i-ilit.

or connexit

iArt '/ * In case of indi!isibility or connexit, if the competence regarding

the different perpetrators or the different deeds belongs, under the law, to

!arious courts, e)ual in rank, the competence of trying all the deeds and all

the perpetrators belongs to the court first summoned, and if the competenceaccording to the nature of the deeds or to the )uality of he persons belongs to

courts different in rank, the competence of trying all the &oint cases belongs

to the hierarchically superior court.

If one of the courts is ci!il and the other is military, the competence belongs

to the military court.

If the ci!il court is superior in rank, the competence belongs to the military

court e)ual in rank with the ci!il court.

The competence to try the &oint cases is kept by the court it was granted to,

e!en if the closing of the criminal trial or the ac)uittal were passed for the

deed or the perpetrator who determined the competence of this court.

;iding or fa!ouring the perpetrator, or not denouncing an offence fall under

the competence of the court that tries the offence related to them.

Co&rt

com+etent

to #eci#e

the 5oinin"

of ca%e%

Art '0 * ?hether the cases are &oined or not is decided by the court which

has trying competence, according to the pro!isions of art. .

In the case stipulated in art. paragraph , the &oining of the cases is

decided by the ci!il court which sends the record to the competent military

court.

S+ecial ca%e% iiArt '2 * In the indi!isibility cases stipulated at art. letters a> and b>, as

well as in the connexitcases, the cases are &oined if they are before the first

instance, e!en after the annulment of the decision sent by the appeal court or

after the cassation sent by the recourse court.The cases are also &oined at the appeal courts, as well as at the recourse

courts e)ual in rank, it they are at the same stage of the trial.

In the indi!isibility case stipulated at art. letter c>, the cases must always

be &oined.

Se(erance Art '3 * In the indi!isibility case stipulated in art. letter a>, as well as in

all connexitcases, the court may order, for the sake of a fair trial, se!erance

i'rt. par. is reproduced as it was modified by the Law no. +6*/+55, published in the 0fficial 1a"ette of 2omaniano. 76 of 4uly *, +55.ii'rt. 3 par. * and + were modified by the Law no. /*, published in the 0fficial 1a"ette of 2omania no. *3 of

4uly *, *. 'rt. 3 par. * is reproduced as it was modified by the Law no. **/*7, published in the 0fficial 1a"ette

of 2omania no. +6 of %o!ember *, *7.**


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of the cases, so that the trial of some perpetrators or offences is done

separately.

Section IV

Common provisions

E6ce+tion% of

incom+etence

Art '7 - The e$ception of material incompetence or of incompetence

according to the )uality of the person may be raised all throughout thecriminal trial, until the final decision is passed.

The e$ception of territorial incompetence may be raised only until the

notification act is read out in front of the first instance.

The e$ceptions of incompetence may be raised by the prosecutor, by any of

the parties or be open to discussion by the parties e$ officio.

Com+etence

in ca%e of

chan"e of the

:&alit. of the

#efen#ant

iArt )8- ?hen the competence of the court is determined by the )uality of

the defendant, the court keeps its competence to try e!en if the defendant,

after committing the offence, no longer has that )uality, for the cases when=

a> the deed is connected to the defendant#s work duties8

b> a decision was passed at first instance.

'c)uiring a )uality after committing an offence does not lead to a change ofcompetence, e$cept for the offences perpetrated by persons pro!ided at art.

+ par. *.

Com+etence in

ca%e of chan"e

of the 5&ri#ical

framin" or

:&alification

Art )!- The court summoned to try an offence keeps its competence to try

it e!en if it finds out, as a result of &udicial in!estigations, that the offence

falls under the competence of an inferior court.

' change in the framing of the offence dictated by a new law, issued during

the trial of a case, does not entail the incompetence of the court, unless that

law stipulates otherwise.

Declination

of com+etence

iiArt )$- The court which declines its competence sends the record to the

court shown as competent by the declination decision.If the declination was determined by the material competence or by the

competence according to the )uality of the person, the court to whom the

case was sent may use the already drawn papers and may keep the measures

ordered by the de-summoned court.

In case of declination for territorial incompetence, the papers drawn or the

measures ordered are kept.

The competence declination decision is not sub&ect to appeal or recourse.

Com+etence

conflict

iiiArt )'- ?hen two or more courts declare themsel!es competent to try the

same case or decline their competence, the positi!e or negati!e competence

conflict is sol!ed by the common hierarchically superior court.

?hen the competence conflict appears between a ci!il and a military court, itis sol!ed by the Fupreme Court of 4ustice.

The common hierarchically superior court is summoned, for positi!e

conflicts, by the court which last declared itself competent and, for negati!e

i'rt. 5 par. * is reproduced as it was modified by the Law no. +6*/+55, published in the 0fficial 1a"ette of 2omaniano. 76 of 4uly *, +55. 'rt. 5 par. + is reproduced as it was modified by the Emergency 0rdinance no. *5/+55,

published in the 0fficial 1a"ette of 2omania no. 36 of 0ctober +7, +55.ii'rt. + par. is reproduced as it was modified by the Law no. /*, published in the 0fficial 1a"ette of 2omaniano. *3 of 4uly *, *.iiiThe term Fupreme TribunalD was replaced with the term Fupreme Court of 4usticeD, according to art. II of the Law

no. /*, published in the 0fficial 1a"ette of 2omania no. *3 of 4uly *, *. 'rt. par. 6 was modified by the

Law no. /*, published in the 0fficial 1a"ette of 2omania no. *3 of 4uly *, *.*+


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conflicts, by the court who last declined its competence.

In all cases the court may also be summoned by the prosecutor or by the

parties.

The trial is suspended until the positi!e competence conflict is sol!ed.

The court which declined its competence or last declared itself competent

adopts the measures and carries out the urgent acts.

The common hierarchically superior court decides on the competenceconflict and summons the parties.

?hen the court summoned to resol!e the competence conflict disco!ers that

the respecti!e case falls under the competence of a court different from those

in conflict and with regard to which there is no common superior court, it

sends the record to the common superior court.

The court to which the case was sent by competence-establishing decision

cannot declare itself incompetent, unless, following a new situation resulting

from a completion of the &udicial in!estigation, it is established that the deed

is an offence which, legally, falls under the competence of another court.

The court to which the case was distributed shall enforce the pro!isions of

art. + paragraph + accordingly.Prior matter% Art )) * The criminal court has the competence to try any prior matter on

which the resolution of the case depends, e!en if, by its nature, that matter

falls under the competence of another court.

The prior matter is tried by the criminal court according to the rules and

probati!e means regarding the field to which the matter belongs.

The final decision of the ci!il court on a circumstance that represents prior

matter in the criminal trial has authority of tried matter in front of the

criminal court.

Pro(i%ion%

a++lie#

for criminal

+&r%&it

iiArt )/ * The pro!isions of art. 5-7, 6, 5, + and shall be applied

accordingly during the criminal in!estigation as well.

The pro!isions of art. par. are not applied in case the elimination or the

ceasing of the criminal pursuit was disposed by a military prosecutor.

The declination of competence is disposed through ordinance.

?hen none of the places specified in art. 5 paragraph * is known, the

competence belongs to the criminal in!estigation body first summoned.

In case of simultaneous summons, the priority is settled according to the

listing at art. 5 paragraph *.

If according to one of the criteria specified in art. 5 paragraph *, more

criminal in!estigation bodies are competent, the competence belongs to the

body first summoned. The criminal in!estigation of the offences committed

in the conditions stipulated in art. * is performed by the criminalin!estigation body in the territorial area of the court competent to try the

case.

The competence conflict between two or se!eral prosecutors is sol!ed by the

common superior prosecutor. ?hen the conflict appears between two or

se!eral criminal in!estigation bodies, the competence is settled by the

prosecutor who super!ises the criminal in!estigation acti!ity of these bodies.

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INCOMPATIBILIT; AND REMO4AL

Section I

Incompatibility

The =in%hi+

-et1een 5"e%

iArt )0- The &udges who are spouses or close relati!es cannot be part of

the same panel. is reproduced as it was modified by the Emergency 0rdinanceno. *5/+55, published in the 0fficial 1a"ette of 2omania no. 36 of 0ctober +7, +55.i!The marginal name and par. *-+ of art. are reproduced as they were modified by the Law no. +6*/+55, published

in the 0fficial 1a"ette of 2omania no. 76 of 4uly *, +55.


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Mean% of e(i#ence iArt0) * The means of e!idence that lead to the factual elements which

may ser!e as e!idence are= the testimonies of the accused person or the

defendant, the testimonies of the !ictim, of the ci!il party or of the party

who bears the ci!il responsibility, the testimonies of the witnesses, the

writings, the audio or !ideo recordings, the photos, the probati!e

material means, the technical-scientific findings, the forensic findings

and the e$pertise.


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Section II

Statements of the victim, the civil party and the party bearing the civil responsibility

Statement% of

the

other +artie%

in the trial

Art 2/- The statements gi!en during the trial by the !ictim, by the ci!il

party and by the party bearing the ci!il responsibility may lead to the truth

only to the e$tent to which they are corroborated with facts or circumstances

resulting from all the e!idence in the case.Preliminar.

e6+lanation%

iArt 20- The criminal in!estigation body or the court must call, in order to

be heard, the person harmed by offence, as well as the person bearing the

ci!il responsibility.

@efore being heard, the in&ured person is informed that he/she may take part

in the trial as !ictim and, in case he/she suffered material damage, that

he/she may constitute himself/herself as a ci!il party. The !ictim is also

informed that the statement of taking part in the trial as !ictim or of suing

for ci!il in&ury may be gi!en all throughout the criminal in!estigation, until

the summons act is read.

Mo#alit.

of hearin"

Art 22 - The hearing of the !ictim, of the ci!il party and of the party

bearing the ci!il responsibility is conducted according to the pro!isionsregarding the hearing of the accused person or defendant, enforced

accordingly.

Section III

Statements of the itnesses

The 1itne%% Art 23 * The person who knows of any fact or circumstance that may lead

to finding the truth in the criminal trial may be heard as witness.

Hearin"

the +er%ono-li"e#

to =ee+ the

+rofe%%ional

%ecret

iiArt 27- The person obliged to keep a professional secret cannot be heard

as witness in relation to facts and circumstances that he/she learned aboutwhile e$erting his/her profession, without the appro!al of the person or

institution towards which he/she has the obligation of keeping the secret.

The )uality of witness comes before that of defender, in relation with the

facts and circumstances that a person learned about before becoming

defender or representati!e of one of the parties.

Hearin"

the %+o&%e

an# clo%e

relati(e%

Art 38 * The accused person or defendants spouse and close relati!es are

not obliged to testify as witnesses.

The &udicial bodies will inform the persons mentioned in the abo!e

paragraph about this as soon as the pro!isions of art. 6 paragraph ha!e

been satisfied.

The 5&(enilea% 1itne%%

Art 3!: The &u!enile may be heard as witness. 9p to * years old, his/herhearing will be conducted in front of one of his parents or of his/her tutor

or of the person to whom he/she has been gi!en for upbringing and

education.

The in5&re#

+er%on

Art 3$ * The in&ured person may be heard as witness, if he/she does not

constitute himself/herself as a ci!il party and will not take part in the trial

as !ictim.

i'rt. 37 par. + is reproduced as it was modified by the Law no. +6*/+55, published in the 0fficial 1a"ette of 2omania

no. 76 of 4uly *, +55.iiThe term institutionD from art. 3, par. * was replaced with the term unitD, according to art. II of the Law no.

**/*7, published in the 0fficial 1a"ette of 2omania no. +6 of %o!ember *, *7.+5


21/89

The o-li"ation

to a++ear

Art 3' * The person summoned as witness must come at the place and on

the day and hour mentioned in the summons and has the duty to declare

e!erything he/she knows in relation to the deeds of the case.

Preliminar.

:&e%tion%

Art 3) * The witness is first asked about his name, surname, age, address

and occupation.

In case of doubt o!er the witness identity, this will be established by any

means of e!idence.The witness will then be asked whether he/she is spouse or relati!e of any

of the parties and about his/her relations with the latter, as well as whether

he/she has suffered any damage as a result of the offence.

The 1itne%%,

oath

iArt 3/- @efore being heard, the witness will take the following oath= I

swear to tell the truth and not to hide anything that I know. Fo help me

1odGD

?hile taking the oath, the witness will keep his/her hand on the cross or on

the @ible.

The reference to di!inity in the oath is changed according to the religious

creed of the witness.

Bor the witness of other religion than Christian, the pro!isions of par. + arenot enforceable. The irreligious witness shall take the following oath= I

swear on my honour and conscience to tell the truth and not to hide

anything that I know.H

The witnesses who, from reasons of conscience or religion, do not take the

oath, will utter the following formulation in front of the court= HI oblige

myself to tell the truth and not to hide anything that I know.H

The situations mentioned in paragraphs , and are acknowledged by the

&udicial body on the basis of the statements gi!en by the witness.

'fter taking the oath or uttering the formulation stipulated in paragraph ,

the witness will be informed that, by not telling the truth, he commits the

offence of false testimony.

'll these will be mentioned in the written statement.

The &u!enile under * years does not take oath8 howe!er, he is asked to tell

the truth.

Mo#alit.

an# limit%

of hearin"

the 1itne%%

Art 30 * The witness is informed about the ob&ect of the case and the

deeds and circumstances for whose proof he/she was proposed as witness,

being asked to declare e!erything he/she knows in relation to them.

'fter the witness has gi!en his statement, he may be asked )uestions

connected to the deeds and circumstances that need to be acknowledged in

the case, related to the parties person, as well as to the way in which he

learnt about the things declared.The pro!isions of art. 3*-3 are enforced accordingly to the witness

hearing.

Protection

of #ata

for 1itne%%

i#entification

iiArt 30!: If there is e!idence or solid indications that by declaring the

real identity of the witness or his/her place of domicile or residence the

life, corporal integrity or freedom of the latter or of another person might

be endangered, the witness may be gi!en permission not to declare this

i'rt. 6 is modified by the Law no. /*, published in the 0fficial 1a"ette of 2omania no. *3 of 4uly *, *. 'rt.6 par. 7 and 3 are reproduced as they were modified by the Law no. **/*7, published in the 0fficial 1a"ette of

2omania no. +6 of %o!ember *, *7.ii'rt. 67*was introduced by the Law no. +6*/+55, published in the 0fficial 1a"ette of 2omania no. 76 of 4uly *,

+55.+*


22/89

information, being attributed a different identity under which to appear in

front of the &udicial body.

This measure may be disposed by the prosecutor during criminal

prosecution and by the court during trial, upon moti!ated re)uest from the

prosecutor, witness or any other entitled person.

The information about the real identity of the witness is mentioned in an

official report that will be kept at the prosecutor#s office which performedor super!ised the performing of the criminal in!estigation or, according to

the case, at the court, in a special place, in a sealed en!elope, in conditions

of ma$im security. The official report will be signed by the person who

handed the re)uest, as well as by the one who disposed the measure.

The documents concerning the real identity of the witness shall be

presented to the prosecutor or, according to the case, to the panel of &udges,

in conditions of strict confidentiality.

In all cases, the documents regarding the real identity of the witness will be

introduced in the criminal file only after the prosecutor, by ordinance, or,

according to the case, the court, by closing, established that the danger

which determined taking measures for witness protection has disappeared.The statements of witnesses who were attributed another identity,

reproduced in the prosecutor#s report, according to art. 67+par. , as well

as the witness# statement, recorded during trial and signed by the

prosecutor present at the witness# hearing and by the president of the panel,

according to art. 67+par. 7, thesis I, may ser!e to finding out the truth only

to the e$tent to which they are corroborated with facts and circumstances

resulted from all the e!idence in the case.

0ther persons who may be heard as witnesses that were attributed another

identity are underco!er in!estigators.

(ispositions pro!ided by par. *-7 are also applied to e$perts.

S+ecial

mo#alitie%

of hearin"

the 1itne%%

iArt 30$@ In the situations pro!ided by art. 67*, if there are appropriate

technical means, the prosecutor or, according to the case, the court may

allow the witness to be heard without actually being present at the place

where the criminal in!estigation body is or in the room where the

&udgment takes place, through technical means pro!ided in the following

paragraphs.

2ecording the witness# statement, in the conditions described at par. *, will

be performed in the presence of the prosecutor.

The witness may be heard through a tele!ision network, with the image

and !oice distorted so as not to be recognised.

The statement of the witness heard, in the conditions stated at par. * and +,are recorded through technical !ideo and audio means and are rendered

entirely in written form.

(uring the criminal in!estigation, a report is made in which the witness#

statement is accurately rendered and which is signed by the prosecutor

present at the witness# hearing and by the criminal in!estigation body and

kept with the case file. The witness# statement, transcribed, shall be signed

also by the latter and kept in the file set down at the court, in the conditions

pro!ided under par. .

i'rt. 67+was introduced by the Law no. +6*/+55, published in the 0fficial 1a"ette of 2omania no. 76 of 4uly *,

+55.++


23/89


24/89

ritten

mean% of

e(i#ence

Art 37 * (ocuments may ser!e as means of e!idence if they contain reference

of deeds or circumstances that may contribute to re!ealing the truth.

iArt 37!: The forms in which any statement is to be recorded, at the stage of

criminal prosecution, shall be recorded and numbered beforehand, as forms

with a special status, and after filling in, will be introduced in the case file.The official

re+ort

a% mean%

of e(i#ence

iiArt 78 * The official reports drawn up by the criminal in!estigation body or

by the court are means of e!idence.

The official reports and acknowledgment papers drawn up by other bodies are

also means of e!idence, if the law stipulates so.

The content%

an# form of

the official

re+ort

Art 7! * The official report must include= a> the date and the place where it is

drawn up8 b> the name, surname and position of the person who draws it up8 c>

the names, surnames, occupations and addresses of the assistant witnesses,

when they e$ist8 d> a detailed description of the things found out, as well as of

the measures taken8 e> the names, surnames occupations and addresses of the

persons referred to in the official report, their ob&ections and e$planations8 f>

the specifications stipulated by the law for special cases.The official report must be signed on e!ery page and at the end by the person

who draws it up, as well as by the persons mentioned at letters c> and e>. If one

of these persons cannot or refuses to sign, this will be mentioned in the official

report.

iiiSection V1

Audio or video interceptions and recordings

Con#ition%

an# ca%e%of interce+tion

an# recor#in"

of con(er%ation% or

comm&nication%

Art 7!!@ The interceptions and recordings on magnetic tape or on any

other type of material of certain con!ersations or communications shallbe performed with moti!ated authori"ation from the court, upon

prosecutor#s re)uest, in the cases and under the conditions stipulated by

the law, if there are substantial data or indications regarding the

preparation or commitment of an offence that is in!estigated e$ officio,

and the interception and recording are mandatory for re!ealing the truth.

The authori"ation is gi!en by the president of the court that would be

competent to &udge the case at first instance, in the council room. The

interception and recording of con!ersations are mandatory for re!ealing

the truth, when the establishment of the situation de facto or the

identification of the perpetrator cannot be accomplished on the basis of

other e!idence.The interception and recording of con!ersations or communications may

be authori"ed in the case of offences against national security pro!ided

by the


25/89

of other !alues, in the case of offences pro!ided by the Law no. 36/+555

for the pre!ention, detection and sanctioning of corruption deeds or of

other serious offences, which cannot be disco!ered or whose perpetrators

cannot be identified through other means, or in the case of offences

perpetrated through means of telephone communication or through other

means of telecommunications.

The authori"ation is gi!en for the duration necessary for the recording,up to ma$imum 5 days. The authori"ation may be e$tended under the

same conditions, for fully &ustified reasons, each e$tension being of

ma$imum 5 days. The ma$im duration for authori"ed recordings is

months.

easures disposed by the court shall be annulled before the e$piration of

the due time for which they were authori"ed, as soon as the reasons that

&ustified them ha!e ceased.

The recordings stipulated in paragraph * may also be done at the &ustified

re)uest of the !ictim, regarding the communications addressed to

him/her, ha!ing the authori"ation of the court.

The authori"ation of interception and recording of con!ersations orcommunications is done through moti!ated closing, which shall

comprise= concrete indications and facts that &ustify the measure8 reasons

why the measure is mandatory for disco!ering the truth8 the person, the

means of communication or the place sub&ect to super!ision8 the period

for which the interception and recording are authori"ed.

The -o#ie%

+erformin"

interce+tion

an# recor#in"

Art 7!$: The prosecutor proceeds personally to the interceptions and

recordings pro!ided under art. ** or may dispose that these are

performed by the criminal in!estigation body. The persons called to

technically support the interceptions and recordings are obliged to keep

the secret of the operation performed, the !iolation of this obligation

being punished according to the


26/89

if known, the date and time of each con!ersation and the number of the

magnetic tape or of any other material on which the recording was made.

The recorded con!ersations are entirely transcribed in writing and

attached to the official report, with certificate for authenticity from the

criminal in!estigation body, checked and countersigned by the

prosecutor who performs or super!ises the respecti!e criminal

in!estigation. In case the prosecutor proceeds to interceptions andrecordings, the certification for authenticity is made by the latter, and the

checking and countersigning, by the hierarchically superior prosecutor.

Correspondence in other language than 2omanian is transcribed in

2omanian, through an interpreter. The magnetic tape or other material

containing the recorded con!ersation, sealed with the seal of the criminal

in!estigation body is attached to the official report.

The magnetic tape or any other type of material containing the recording

of the con!ersation, its written transcription and the official report are

handed to the court which, after hearing the prosecutor and the parties,

decides which of the gathered information is of interest for the

in!estigation and solution of the case, drawing up an official report inthis sense. The con!ersations or communications that contain state

secrets or professional secrets shall not be mentioned in the official

report. If the perpetration of offences takes place through con!ersations

or communications which contain state secrets, they are mentioned in

separate official reports, and the dispositions of art. 3 par. are applied

accordingly.

The magnetic tape or any other type of material, together with the entire

transcription and copies of official reports, are kept at the court clerk#s

office, in special places, in sealed en!elope.

The court may appro!e, upon moti!ated re)uest from the defendant,

from the ci!il party or their defender, the consultation of parties in the

recording and entire transcription, transmitted at the court clerk#s office,

which are not included in the official report.

The court disposes through closing the destruction of recordings which

were not used as means of e!idence in the case. The other recordings

shall be kept until the file is archi!ed.

The recording of con!ersations between the defender and the defendant

may not be used as a means of e!idence.

Other recor#in"% Art 7!): The conditions and modalities for making the interceptions

and recordings pro!ided at art. **: *are applicable, accordingly, also

in the case of con!ersations through other means of telecommunication,authori"ed in the conditions of the law.

Ima"e recor#in"% Art 7!/- The pro!isions of art. **and *+are also enforceable in the

case of image recording, and the certification procedure is the one

stipulated in art. *, e$cept for the transcription, according to the case.

Chec=in"

the mean%

of e(i#ence

Art 7!0- The means of e!idence stipulated in the present section may be

technically e$amined at the re)uest of the prosecutor, of the parties or e$

officio.

The recordings stipulated in the present section, presented by the parties,

may ser!e as means of e!idence, if they are not forbidden by the law.

+7


27/89

Section VI

Assistant itnesses

Pre%ence

of a%%i%tant

1itne%%e%

Art 7$ * ?hen the law stipulates that assistant witnesses should be present

when performing a procedural act, the number of the assistant witnesses is of

at least two.

4u!eniles under *, persons interested in the case and persons from the sameinstitution with the body performing the procedural act may not be assistant

witnesses.

E%ta-li%hin"

the i#entit.

of a%%i%tant

1itne%%e%

Art 7' * The body that performs a procedural act in the presence of assistant

witnesses must acknowledge and mention in the official report drawn data

regarding the identity of assistant witnesses, including the obser!ations the

latter were in!ited to make in connection with the facts acknowledged and to

the operations that they assist.

Section VII

"aterial probative evidence

O-5ect% a%

mean%

of e(i#ence

Art 7) * The ob&ects that contain or bear a trace of the deed committed, as well

as any other ob&ects that may ser!e to re!eal the truth may ser!e as material

means of e!idence.

Material

e(i#ence

Art 7/ * The ob&ects that were used or destined to be used for committing an

offence, as well as ob&ects that are the result of an offence are also material

means of e!idence.

Section VII

Confiscation of ob#ects and ritings$

%erformance of searches

Confi%cation

of o-5ect%

an# 1ritin"%

Art 70 * The criminal in!estigation body or the court must take away the

ob&ects or writings that may ser!e as means of e!idence in the criminal

trial.

Deli(er.

of o-5ect%

an# 1ritin"%

iArt 72 * 'ny natural person or legal person who possesses an ob&ect or

a piece of writing that may ser!e as means of e!idence must appear and

hand it, and take a proof for this, to the criminal in!estigation body or to

the court, at their re)uest.

If the criminal in!estigation body or the court considers that e!en a copy

of a piece of writing may ser!e as a means of e!idence, it keeps only thecopy.

If the ob&ect or the writing has a secret or confidential character, the

presentation or the deli!ery is done in circumstances that would ensure

keeping the secret or confidentiality.

Retainin" an#

han#in" o(er of

iiArt 73 * The court, with the prosecutors proposal, during the criminal

in!estigation or e$ officio, may order that any post or transport office

i'rt. 3 par. * and are reproduced as they were modified by the Law no. +6*/+55, published in the 0fficial 1a"ette

of 2omania no. 76 of 4uly *, +55.ii'rt. 6 par. * is reproduced as it was modified by the Law no. +6*/+55, published in the 0fficial 1a"ette of 2omania

no. 76 of 4uly *, +55. 'rt. 3 par. **and *+were introduced by the Law no. +6*/+55.+3


28/89

corre%+on#ence

an# o-5ect%

retain and deli!er the letters, telegrams or any other correspondence, or

the ob&ects sent by the accused person or defendant, or addressed to

him/her, either directly or indirectly.

The measure pro!ided at par. * is disposed if the conditions shown in art.

**par. * are met and according to the procedure pro!ided there.

The retaining and handing o!er of letters, telegrams or any other

correspondence or ob&ects to which par. * makes reference may bedisposed, in writing, in urgent and fully &ustified cases , by the prosecutor

as well, who is obliged to immediately inform the court about this.

2etained correspondence and ob&ects that ha!e nothing to do with the

case are returned to the addressee.

Confi%cation

-. force

of o-5ect%

or 1ritin"%

Art 77 @ If the ob&ect or writing re)uired is not deli!ered !oluntarily, the

criminal in!estigation body or the court order confiscation by force.

(uring the trial, the order of confiscation by force of ob&ects or writings

is communicated to the prosecutor, who takes enforcement measures

through the criminal in!estigation body.

The %earch iArt !88 * ?hen the person asked to deli!er one of the ob&ects or

writings mentioned in art. 6 denies their e$istence or possession, as wellas whene!er the search is necessary in order to disco!er and gather

e!idence, a search may be ordered.

The search may be domiciliary or corporal.

(omiciliary search may be disposed only by the &udge, through

moti!ated closing, during criminal prosecution, upon prosecutor#s

re)uest, or during trial.

(omiciliary search is disposed during criminal prosecution in the council

room, without summoning of the parties. The participation of the

prosecutor is mandatory.

Corporal search may be disposed, according to the case, by the criminal

in!estigation body, by the prosecutor or by the &udge.

(omiciliary search may not be disposed before the beginning of the

criminal in!estigation.

Domiciliar. %earch

#&rin"

criminal

in(e%ti"ation

iiArt !8! * The search ordered during criminal in!estigation, according

to art. *55, is performed by the prosecutor or by the criminal

in!estigation body, accompanied, according to the case, by operational

workers.

Domiciliar. %earch

#&rin" trial

Art !8$ * The court may perform a search on the occasion of a local

in!estigation.

In the other cases, the courts order to perform a search is communicated

to the prosecutor, in order to proceed with the search.The time

for ma=in"

the %earch

iiiArt !8' * Confiscation of ob&ects and writings, as well as domiciliary

search may be performed between 7 a.m. - 6 p.m., and at other times

only in case offlagrante delicto, or when the search is to be performed in

a public place. The search begun between 7 a.m. - 6 p.m. may continue

during the night.

i'rt. *55 is reproduced as it was modified by the Emergency 0rdinance no. *5/+55, published in the 0fficial 1a"ette

of 2omania no. 36 of 0ctober +7, +55.iiThe marginal name and content of art. *5* are reproduced as they were modified by the Law no. +6*/+55, published

in the 0fficial 1a"ette of 2omania no. 76 of 4uly *, +55.iii'rt. *5 is reproduced as it was modified by the Law no. +6*/+55, published in the 0fficial 1a"ette of 2omania no.

76 of 4uly *, +55.+6


29/89


30/89

an# 1ritin"% writings and the ob&ects ha!e been found and taken away, a list and

detailed description of these, in order to be recogni"ed.

The ob&ects that ha!e not been taken away, as well as those left for

keeping are also mentioned in the official report.

' copy of the official report is left with the person to whom the search

has been performed or from whom the ob&ects or writings ha!e been

taken away, with the representati!e, a member of the family, the personshe li!es with or a neighbour and, if such is the case, with the custodian.

Mea%&re%

re"ar#in"

confi%cate# o-5ect%

Art !87 * The criminal in!estigation body or the court order that the

ob&ects or writings taken away, that represent means of e!idence are,

according to case, attached to the record or kept in another way.

The taken away ob&ects and writings that are not attached to the file may

be photographed. In this case, the photos are stamped and attached to the

record.

9ntil the case is finally resol!ed, material means of e!idence are kept by

the criminal in!estigation body or by the court where the record is.

0b&ects and writings deli!ered or taken away during the search which are

not connected with the case are returned to the person to whom theybelong. Confiscated ob&ects are not returned.

The ob&ects that ser!e as means of e!idence, if they are not sub&ect to

confiscation, may be returned to the person to whom they belong, e!en

before the trial is finally resol!ed, unless the return might impede the

re!ealing of the truth. The criminal in!estigation body or the court

informs the person to whom the ob&ects were returned that he/she must

keep them until the case is finally resol!ed.

Con%er(ation or

&%e of confi%cate#

o-5ect%

Art !!8 * The ob&ects that ser!e as means of e!idence, if they are among

those mentioned in art. *7 paragraph + and if they are not to be returned

are kept or used according to the pro!isions of that article.

S+ecial +ro(i%ion%

re"ar#in" +&-lic

&nit% an# other

le"al +er%on%

iArt !!! * The pro!isions in the present section are also enforced

accordingly when the procedural acts are performed at a unit among

those referred to in art. * in the the &udicial body pro!es its identity and, according to the case, shows

to the representati!e of the public unit or to another legal person the

authori"ation gi!en8

b> the confiscation of ob&ects and writings, as well as the search, are

performed in the presence of the representati!e of the unit8

c> when the presence of assistant witnesses is obligatory, they may be

part of the unit staff8d> a copy of the official report is left with the representati!e of the unit.

Section IX

Technical&scientific and legal&medical ac'noledgments

The &%e of

%+eciali%t%

Art !!$ - ?hen there is the danger that some means of e!idence

might disappear or some states of facts might change, and the

iThe term institutionD from art. *** was replaced with the term unitD, according to art. II of the Law no. **/*7,

published in the 0fficial 1a"ette of 2omania no. +6 of %o!ember *, *7. The marginal name and introductory part

and let. a> of art. *** are reproduced as they were modified by the Law no. +6*/+55, published in the 0fficial 1a"ette

of 2omania no. 76 of 4uly *, +55.5


31/89

immediate clarification of deeds and circumstances related to the case

is necessary, the criminal in!estigation body may resort to the

knowledge of a specialist or technician, ordering e$ officio or upon

re)uest a technical-scientific acknowledgment.

The technical-scientific acknowledgment is usually performed by

specialists or technicians working for or affiliated to the institution to

which the criminal in!estigation body belongs. It may also beperformed by specialists or technicians working for other bodies.

The o-5ect an#

material of

technical*%cientific

ac=no1le#"ement

Art !!' * The criminal in!estigation body that orders the technical-

scientific acknowledgment decides upon its ob&ect, formulates the

)uestions that must be answered and settles the due time for their work.

The technical-scientific acknowledgment is performed in connection

with the materials and data pro!ided or indicated by the criminal

in!estigation body. The person who performs the acknowledgment

cannot be granted and cannot assume attributions specific for a

criminal in!estigation body or control body.

The specialist or technician who performs the acknowledgment, if

he/she considers the materials pro!ided or data indicated insufficient,communicates this to the criminal in!estigation body, for their

completion.

Foren%ic

ac=no1le#"ement

Art !!) * In case of !iolent death, of death by unknown or suspect

cause, or when a corporal e$amination of the defendant or the in&ured

person is needed in order to see the traces of the offence on their

bodies, the criminal in!estigation body orders a forensic

acknowledgment and asks the forensic body who has the appropriate

competence under the law to perform this acknowledgment.

E$humation in order to find out the causes of death is done only with

the prosecutors appro!al.

The re+ort of

technical*%cientific

or foren%ic

ac=no1le#"ement

Art !!/ * The operations and conclusions of the technical-scientific

and forensic acknowledgment are written down in an official report.

The criminal in!estigation body or the court, e$ officio or at the re)uest

of any of the parties, if they consider that the technical-scientific or

forensic report is not complete or that its conclusions are not accurate,

has it redone or orders an e$pertise.

?hen redoing or completion of the technical-scientific or forensic

acknowledgment is ordered by the court, the report is sent to the

prosecutor, in order for the latter to take measures for its completion or

redoing.

Section X

(xpertise

Or#erin"

an e6+erti%e

Art !!0 * ?hen, for the clarification of certain deeds and circumstances

of the case, in order to find out the truth, the knowledge of an e$pert is

necessary, the criminal in!estigation body or the court order, e$ officio

or upon re)uest, an e$pertise.

*


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O-li"ator.

e6+erti%e

iArt !!2 * ' psychiatric e$pertise is obligatory in case of the offence of

e$tremely serious murder, as well as when the criminal in!estigation

body or the court has doubts about the defendants mental health.

In such cases, the e$pertise is performed in speciali"ed sanitary

institutions. In order to make the e$pertise, the criminal in!estigation

body, with the appro!al of the prosecutor or the court, orders

hospitali"ation of the accused person or defendant for the necessaryperiod. This measure is e$ecutory and is enforced, in case of opposition,

by the police bodies.

'lso, an e$pertise is obligatory in order to clarify the causes of death, if a

forensic report has not been drawn up.

The e6+erti%e

+roce#&re

Art !!3 * The e$pertise is performed in accordance with the pro!isions

of the present code, if the law does not stipulate otherwise. The

pro!isions of art. ** are enforced accordingly.

The e$pert is appointed by the criminal in!estigation body or by the

court, e$cept for the e$pertise stipulated in art. ** paragraph +.

Each party is entitled to re)uest that an e$pert recommended by it take

part in the e$pertise.Official e6+ert% Art !!7 * If there are forensic e$perts or official e$perts in the

respecti!e specialty, another person may not be appointed e$pert, e$cept

when special circumstances would demand it.

?hen the e$pertise is to be performed by a forensic ser!ice, by a

criminological e$pertise laboratory or by any speciali"ed institute, the

criminal in!estigation body or the court ask them to perform the

e$pertise.

?hen the forensic ser!ice, the criminological e$pertise laboratory or the

speciali"ed institute consider necessary that specialists from other

institutions should take part or pass their opinion on the e$pertise, it may

use their assistance or their ad!ice.

E6+lanation%

"i(en to the e6+ert

an# +artie%

iiArt!$8 *The criminal in!estigation body or the court, when they order

an e$pertise, settle a date when the parties, as well as the e$pert, are

summoned, if the latter was appointed by the criminal in!estigation body

or the court.

't the settled date, the ob&ect of the e$pertise and the )uestions that the

e$pert has to answer are communicated to the parties and to the e$pert

and they are informed that they ha!e the right to make obser!ations

regarding these )uestions and that they may re)uire their modification

and completion.

The parties are also informed that they ha!e the right to ask theappointment of an e$pert recommended by each of them, who will take

part in the e$pertise.

'fter the e$amination of ob&ections and claims of the parties and the

e$pert, the criminal in!estigation body or the court notifies the e$pert on

the due time of the e$pertise, as well as inform him/her whether the

parties are going to attend the e$pertise.

The e6+ert,% ri"ht% Art !$! * The e$pert is entitled to familiari"e himself/herself with the

iThe term militia bodyD was replaced with the term police bodyD in par. + of art. **3, on account of the Law no.

+/*5, published in the 0fficial 1a"ette of 2omania no. *+6 of %o!ember *3, *5.ii'rt. *+5 par. was abrogated by the Law no. +6*/+55, published in the 0fficial 1a"ette of 2omania no. 76 of 4uly

*. +55.+


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material of the record necessary for the e$pertise. (uring the criminal

in!estigation, the record is consulted with the appro!al of the

in!estigation body.

The e$pert may re)uire clarifications from the criminal in!estigation

body or the court regarding certain deeds or circumstances of the case.

The parties, with the appro!al and in the conditions settled by the

criminal in!estigation body or the court, may offer the e$pert thenecessary clarifications.

The e6+erti%e

re+ort

Art !$$ * 'fter the e$pertise, the e$pert draws up a written report.

?hen there are se!eral e$perts, only one e$pertise report is drawn up. If

there are different opinions, they are mentioned in the report or in an

anne$.

The e$pertise report is submitted to the criminal in!estigation body or to

the court that ordered the e$pertise.

The content

of the re+ort

An !$' *The e$pertise report includes=

a> the introduction, which states the criminal in!estigation body or the

court that ordered the e$pertise, the date when it was ordered, the name

and surname of the e$pert, the date and place of e$pertise, the date whenthe report was drawn up, its ob&ect and the )uestions that the e$pert had

to answer, the material on which the e$pertise was based and whether the

attending parties offerede$planations during the e$pertise8

b> a detailed description of the e$pertise operations, the ob&ections or

e$planations gi!en by the parties, as well as the analysis of these

ob&ections or e$planations based on the facts disco!ered by the e$pert8

c> the conclusions, including the answers to the )uestions and the e$perts

opinion on the ob&ect of the e$pertise.

S&++lementar.

e6+erti%e

Art!$) * ?hen the criminal in!estigation body or the instance disco!er,

e$ officio or upon re)uest, that the e$pertise is not complete, it orders an

e$pertise supplement, either to the same e$pert or to another.

'lso, when it is considered necessary, the e$pert is asked for

supplementary written e$planations or is called to gi!e !erbal

e$planations in relation with the e$pertise report.

In this case, the hearing is conducted according to the pro!isions

regarding the witnesses hearing.

Fupplementary written clarifications may also be re)uested from the

forensic ser!ice, the criminological e$pertise laboratory or the

speciali"ed institute that completed the e$pertise.

Ma=in" a ne1

e6+erti%e

Art !$/ * If the criminal in!estigation body or the court has doubts

about the accuracy of the e$pertise report conclusions, they order a newe$pertise.

Clarification%

re:&ire# from the

i%%&in" in%tit&te

Art !$0- In cases of forgery of money or other !alues, the criminal

in!estigation body or the court may re)uire clarifications from the

issuing institute.

Pre%entation

of %cri+t%

of com+ari%on

Art !$2- In relation with offences of false in writings, the criminal

In!estigation body or the instance may re)uire that scripts of comparison

to be presented.

If the scripts are found in public deposits, the lawful authorities must

pro!ide them.

If the scripts are found at a pri!ate person who is neither spouse nor close


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relati!e of the accused person or defendant, the criminal in!estigation

body or the court informs him/her that he/she must pro!ide them.

The scripts of comparison must be acknowledged by the criminal

in!estigation body or the by the president of the panel, and signed by the

person who pro!ides them.

The criminal in!estigation body or the instance may order that the

defendant pro!ide something handwritten by himself/ herself or write bydictation.

If the defendant refuses, this will be mentioned in the official report.

Section XI

The use of interpreters

Ca%e% an#

+roce#&re

for the &%e of

inter+reter%

iArt !$3 * ?hen one of the parties or other person that is to be heard cannot

understand or speak 2omanian, and the criminal in!estigation body or the

court cannot communicate with him/her, they pro!ide an interpreter, free of

charge. The interpreter may be appointed or chosen by the parties8 in this

case, it must be an authori"ed interpreter, according to the law.The pro!isions of the pre!ious paragraph are also enforced accordingly in

case some of the writings in the case record or presented in court are in

another language than 2omanian.

The pro!isions of art. 6, 6 and 6 are enforced accordingly on the

interpreter as well.

Section XII

)ield investigation and reconstruction

Fiel#in(e%ti"ation Art !$7 * Bield in!estigation is done when it is necessary to establish thesituation of the place where the offence was committed to find out and

settle the traces of the offence, to establish the position and condition of

the material means of e!idence, and the circumstances of the offence.

The criminal in!estigation body performs the abo!e mentioned

in!estigation in the presence of assistant witnesses, e$cept for the case

when this is impossible. The in!estigation is performed in the presence of

the parties, when this is necessary. The parties failure to come after

ha!ing been informed does not impede the in!estigation.

The accused person or defendant who is held or arrested, if he/she cannot

be brought to the in!estigation place, is informed by the criminal

in!estigation body that he/she has the right to be represented and isensured, if he/she re)uires it, representation.

The court performs the field in!estigation after summoning the parties, in

the presence of the prosecutor, when the latters attendance in the trial is

obligatory.

The criminal in!estigation body or the court may forbid the persons who

are present or come to the place of in!estigation to communicate between

them or with other persons, or to lea!e before the in!estigation is o!er.

i'rt. *+6 par. * is reproduced as it was modified by the Law no. +6*/+55, published in the 0fficial 1a"ette of

2omania no. 76 of 4uly *. +55.


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Recon%tr&ction Art !'8 * The criminal in!estigation body or the court, if they find it

necessary for checking on and clarification of some data, may perform a

total or partial field reconstruction of the way and conditions in which the

deed was committed.

The reconstruction is done in the presence of the accused person or

defendant. The pro!isions of art. *+ paragraph + are enforced

accordingly.Official re+ort

of the fiel#

in(e%ti"ation

Art !'! * 'n official report is drawn up on the field in!estigation, that

must include, besides the specifications shown in art. *, a detailed

description of the situation of the place, of the traces found, of the ob&ects

e$amined or taken away, of the position and condition of the other

material means of e!idence, so that these are rendered accurately and, as

much as possible, with the respecti!e dimensions.

In case of reconstruction of the way in which the deed was committed, a

detailed description of the reconstruction is also included.

In all cases, sketches, drawings, photos or other such things may be done,

which will be acknowledged and placed as anne$es in the official report.

Section XIII

Rogatory commission and delegation

Con#ition% for

#i%+o%in"

the ro"ator.

commi%%ion

Art !'$ * ?hen a criminal in!estigation body or the court cannot hear a

witness, perform a field in!estigation, take away ob&ects or perform any

other procedural act, they may address another criminal in!estigation body

or another court, who ha!e the possibility to perform them.

Initiating the criminal action, taking pre!enti!e measures, appro!ing the

e!idence gathering procedure, as well as ordering the other procedural acts

or measures are not the ob&ect of the rogatory commission.

The rogatory commission may only address a body or a court that are e)ual

in rank.

The content

of the ro"ator.

commi%%ion

Art !'' * The cancellation or closing by which the rogatory commission

was instituted must include all clarifications on the performance of the act

that makes its ob&ect, and in case a person is to be heard, the )uestions that

he/she will be asked are also included.

The criminal in!estigation body or the court that form the rogatory

commission may ask other )uestions too, if their necessity results during

the hearing.

The ri"ht%

of the +artie%in ca%e of

ro"ator.

commi%%ion

Art !') * ?hen the rogatory commission was ordered by the court, the

parties may ask )uestions that will be communicated to the court which isto form the rogatory commission.

't the same time, any of the parties may ask to be summoned when the

rogatory commission is formed.

?hen the defendant is under arrest, the court that will form the rogatory

commission appoints an e$ officio defender who will represent the

defendant.

Dele"ation Art !'/- The criminal in!estigation body or the court may order, under

the conditions mentioned in art.*+, the performance of a procedural act by

delegation as well. 0nly a hierarchically inferior body or court may be

delegated.


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The dispositions regarding the rogatory commission are enforced

accordingly in the case of delegation.

TITLE I4

PRE4ENTI4E MEASURES AND OTHER PROCEDURAL MEASURES

C;'


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+re(enti(e mea%&re%

an# on the -lame

informed of his/her blame as soon as possible, in the presence of a

lawyer.

?hen pre!enti!e arrest of the accused person or defendant is

ordered, the &udge communicates it, within + hours, to a member of

his/her family or to other person appointed by the accused person or

defendant, which will be mentioned in an official report.

The person held may demand that a family member or one of thepersons mentioned at par. + is informed on the measure taken. @oth

the re)uest of the person held and the notification are written down

in an official report. E$ceptionally, if the criminal in!estigation body

considers that this would affect the criminal in!estigation, it informs

the prosecutor, who will decide on the held person#s re)uest.

Informin"

the +ro%ec&tor

in or#er to ta=e

+re(enti(e mea%&re%

iArt !'3 * ?hen the criminal in!estigation body thinks it

appropriate to take one of the measures stipulated in art. *7

paragraph * letters b> - d>, it draws a &ustified report that it submits

to the prosecutor.

In the case of measures pro!ided at art. *7 par. * let. b> and c>, the

prosecutor must take a decision within + hours.In the case of the measure stipulated in art. *7, paragraph *, letter

d>, the prosecutor, if he appreciates the conditions pro!ided by the

law are met, proceeds, as it is the case, according to art. *7 or * *.

The re+lacement

or re(ocation of

+re(enti(e mea%&re%

iArt !'7- The pre!enti!e measure taken is replaced with another

pre!enti!e measure when the reasons that determined the first

measure ha!e changed.

?hen there is no longer a reason to &ustify the maintenance of the

pre!enti!e measure, it must be re!oked e$ officio or upon re)uest.

In case the pre!enti!e measure was taken, during criminal

in!estigation, by the court or by the prosecutor, the criminal

in!estigation body must immediately inform the prosecutor of the

change or cessation of the reasons moti!ating the respecti!e

measure.

In case the pre!enti!e measure was taken, during criminal

in!estigation, by the prosecutor or by the court, if the prosecutor

considers that the information recei!ed from the criminal

in!estigation body &ustify the replacement or re!ocation of the

measure, he/she orders this or, according to the case, informs the

court.

The prosecutor must inform the court e$ officio as well, for the

replacement or re!ocation of the pre!enti!e measure taken by thelatter, when he realises that the reason which &ustified taking the

measure no loner e$ists.

'lso, the pre!enti!e measure is cancelled e$ officio when it was

taken by !iolation of the legal pro!isions, disposing, in the case of

confinement and pre!enti!e arrest, the immediate release of the

i'rt. *6 is reproduced as it was modified by the Law no. +6*/+55, published in the 0fficial 1a"ette no. 76 of 4uly *,

+55.

iThe Law no. /*, published in the 0fficial 1a"ette no. *3 of 4uly *, *, modified par. of art. * and

introduced par. *: . The Emergency 0rdinance no.*5/+55, published in the 0fficial 1a"ette no. 36 of 0ctober

+7, +55, modified par. of art. *.3


38/89

accused person or defendant, unless he/ she is arrested in another

case.

'lso, if the court establishes, based on forensic e$pertise, that the

person under pre!enti!e arrest suffers from a disease which cannot

be treated within the network of the 1eneral (irection of

and c>.

The pro!isions of the pre!ious paragraphs are enforced e!en if the

&udicial body is to decline its competence.

The la1f&l

ce%%ation

of +re(enti(e

mea%&re%

iArt !)8 * The pre!enti!e measures lawfully stop in the following

cases=

a> e$piration of the due times stipulated by the law or settled by the

&udicial bodies8

b> e$emption from in!estigation, cessation of criminal in!estigation,

closing of the criminal trial or ac)uittal.

The pre!enti!e arrest measure lawfully ceases when, before passinga con!iction decision in first instance, the duration of the arrest has

reached half of the ma$imum punishment stipulated by the law for

the respecti!e offence, without e$ceeding, during criminal

in!estigation, the ma$im pro!ided at art. * par. *, as well as in

the other cases especially stipulated by the law.

In the cases shown at paragraph * and +, the court, e$ officio or

upon notification from the prosecutor, or the prosecutor, in the case

of confinement, e$ officio or, as a result of informing the

in!estigation body, must order the immediate release of the person

held or arrested. 'lso, they must send to the administration of the

detention place a copy of the ordinance or disposition, or an e$tract

including the following specifications= the data necessary to identify

the accused person or defendant, the number of the arrest warrant,

the number and date of the ordinance, of the closing or decision by

which the release was ordered, as well as the legal &ustification for

release.

Com+laint a"ain%t

the or#inance

of the +ro%ec&tor

or criminal

in(e%ti"ation -o#.re"ar#in"

the mea%&re

of confinement

iiArt!)8! @ Complaint may be made against the ordinance of

pre!enti!e arrest issued by the criminal in!estigation body, before

the e$piry of the + hours from taking the measure, at the prosecutor

who super!ises the criminal in!estigation. Complaint may be made

against the ordinance issued by prosecutor for taking this measure,before the e$piry of + hours, at the prime- prosecutor of the

prosecutor#s office or, according to the case, to the hierarchically

superior prosecutor, in the conditions of art. +36 par. * and +.

The prosecutor decides through ordinance before the e$piry of the

+ hours from taking the measure of confinement.

If he/she considers the measure of confinement illegal or not

i'rt. *5 par. + is reproduced as it was modified by the Law no. +6*/+55, published in the 0fficial 1a"ette no. 76 of4uly *, +55.


39/89


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the accused person or defendant, unless he/she is arrested in another

case.

The e$ecution of the recourse against closing which disposed taking

the measure of pre!enti!e arrest or which established the lawful

cessation of this measure may not be suspended.

The file is returned to the court whose closing was attacked within

+ hours from the solution of the recourse.The 1a. of attac=

a"ain%t clo%in"

+a%%e# -. the co&rt

#&rin" trial9

re"ar#in" +re(enti(e

mea%&re%

iArt !)! * The closing in first instance and in recourse, by which

taking, re!ocation, replacement, cessation or maintaining of a

pre!enti!e measure is ordered or by which the lawful cessation of

pre!enti!e arrest is established, may be attacked separately by

recourse, by the prosecutor or by the defendant. The recourse due

time is of + hours and is calculated from decision passing, for those

present and from decision communication, for those absent.

The file is transmitted to the recourse court within + hours and the

recourse is &udged within days. The recourse court is to return the

file to the first instance within + hours from the recourse solution.

The e$ecution of the recourse declared against closing by whichtaking or maintaining a pre!enti!e measure was ordered, or by

which the lawful cessation of the pre!enti!e arrest was established,

may not be suspended.

Se+arate

confinement of

certain cate"orie%

of #elin:&ent%

Art !)$ * (uring confinement or arrest, the &u!eniles are kept

separately from adults, and women separately from men.

Section II

Confinement

i'rt. ** is reproduced as it was modified by the Law no. +6*/+55, published in the 0fficial 1a"ette no. 76 of 4uly *,

+55.

5


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Confinement

con#ition%

iArt !)' * The confinement measure may be taken by the criminal

in!estigation body against the accused person if there are pieces of e!idence

or strong signs that he/she committed a deed stipulated by the criminal law.

The criminal in!estigation body must immediately inform the prosecutor

about taking the measure of confinement.

The criminal in!estigation body will inform the accused person of his right

to appoint a defender. 'lso, he/she is informed of his/her right not to makeany statement, and on the fact that anything he/she declares may be used

against him/her as well.

The confinement measure may be taken also by the prosecutor, in the

conditions of par. * and **, in which case the head of the prosecutor#s office

where he/she functions is informed.

The confinement measure is taken in the cases stipulated by art. *6,

regardless of the limits of the imprisonment punishment stipulated by the

law for the deed committed.

The e$istence of strong signs means that the data on the case lead to the

presupposition that the person criminally in!estigated committed the deed.

Confinement#&ration

iiArt !))- The confinement measure may only be enforced for ma$imum+ hours. Brom the duration of the confinement measure is deduced the

period when the person was depri!ed of liberty as a result of the

administrati!e measure of being taken to the police office, pro!ided at ar

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Criminal Procedure Code2 (2)

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