Criminal Procedure Code - R

8/11/2019 Criminal Procedure Code - R

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CRIMINAL PROCEDURE CODE

THE GENERAL PART

TITLE I

BASIC RULES AND ACTIONS IN THE CRIMINAL TRIAL

Chapter l

AIM AND BASIC RULES OF THE CRIMINAL TRIAL

The aim of the

criminal trial

iArt !- The aim of the criminal trial is to acknowledge in due time

and completely the deeds that represent offences, so that any person

who has perpetrated an offence is punished according to his/her guilt,

and no innocent person is held criminally responsible.

The criminal trial must contribute to the defence of the rule of law, to

the defence of the persons rights and liberties, to the pre!ention of

offences as well as to the citi"ens# education in the spirit of law.The le"al an# official

character of the

criminal trial

Art$ - The criminal trial takes place both during the criminal

in!estigation and the trial itself, according to the pro!isions of the law.

The papers necessary for the criminal trial are drawn up e$ officio, if

the law does not stipulate otherwise.

The #i%clo%&re of

tr&th

Art ' - The criminal trial must lead to the disclosure of the truth

regarding the deeds and circumstances of the case, as well as those

regarding the perpetrator.

The acti(e role Art) * Criminal in!estigation bodies and courts must take acti!e part

in the criminal trial.

The "&arantee of the+er%on,% li-ert.

ii

Art/ * The persons liberty is guaranteed all throughout the criminaltrial.

%o person may be retained, arrested or depri!ed of liberty in any way

or sub&ected to any form of liberty restraint, e$cept for the cases and

circumstances stipulated by the law.

If the person sub&ected to pre!enti!e arrest or hospitali"ation or any

measure of liberty restraint considers such measures illegal, he/she has

the right, during the trial, to bring the matter to the attention of the

competent court, under the law.

'ny person who was, during the criminal trial, depri!ed of liberty, or

whose liberty was restrained, illegally or un&ustly, is entitled to

reparation of the damages, in the conditions stipulated by the law.(uring the criminal trial, the accused person or the defendant who is

pre!enti!ely arrested may re)uire temporary release, under &udicial

super!ision or on bail.

The re%+ect of iiiArt /!* 'ny person sub&ected to criminal in!estigation or to criminal

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

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

*3, *5.*


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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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of amne%t.9

+re%cri+tion or

1ith#ra1al of

+reliminar.

com+laint or

e6i%tence of

moti(ation fornon*+&ni%hment

for non-punishment, the accused person or the defendant may re)uire

the resumption of the criminal trial.

If one of the cases stipulated in art. *5 letters a> - e> is acknowledged,

the prosecutor orders e$emption from criminal in!estigation, and the

court decides the ac)uittal.

If none of the cases stipulated in art. *5 letters a> - e> is acknowledged,

the prosecutor orders the cessation of the criminal in!estigation, withthe e$ception of cases pro!ided under art. *5 let. i> and i *>, and the

court orders the cessation of the criminal trial.

Section II

Civil Action

The o-5ect an#

e6ertion of the

ci(il action

iArt !) * The ob&ect of the ci!il action is to impose ci!il responsibility

on the defendant and on the party that bears the ci!il responsibility.

Ci!il action may be &oined with criminal action within the criminal

trial, if the in&ured person claims for damages as a ci!il party.

The damages will be paid for according to the pro!isions of the ci!illaw=

a> in kind, by returning the goodAs>, by re-establishing the situation

anterior to the perpetration of the offence, by partial or total annulment

of a document and by any other means of repair8

b> by paying a pecuniary compensation, in case restitution in kind is

not possible.

Binancial compensations are also granted for the use of which the ci!il

party has been depri!ed.

The ci!il action may ha!e as its ob&ect to impose ci!il responsibility for

reparation of moral pre&udice, according to the ci!il law.

Con%tit&tion a%

ci(il +art.

Art!/ * The in&ured person may constitute ci!il party against the

accused person or the defendant and against the party that bears ci!il

responsibility.

The constitution as ci!il party may be done during criminal

in!estigation, as well as in court, before the summons act is read out.

The )uality of ci!il party does not impede the person who has suffered

harm by offence to participate as harmed party in the same case.

Ci!il action is e$empted from stamp ta$.

The +art.

1ho -ear% ci(il

re%+on%i-ilit.

Art !0 - The introduction in the criminal trial of the person who bears

the ci!il responsibility may be done upon re)uest or e$ officio, either

during the criminal in!estigation or in court, before the summons act isread out.

The person who bears the ci!il responsibility may inter!ene in the

criminal trial only until the &udicial in!estigation ends in the first court,

the procedure being assumed in the state in which it is at the moment

of inter!ention.

The party who bears the ci!il responsibility has, as far as the ci!il

action is concerned, all the rights stipulated by the law for the accused

i'rt. * par. was introduced 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

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

the first court has passed the criminal decision.

The e6ertion of ci(il

action to or to1ar#

%&cce%%or%

iArt $! * Ci!il action remains part of the criminal court competence in

case the death of one party occurs, his/her successors being brought to

the case.

If one of the parties is a legal person, in case it is reorgani"ed, the

successor institution as far as the rights are concerned is brought to thecase, and in case it is abolished or dissol!ed, the li)uidators are brought

to the case.

The a&thorit.

of the criminal

#eci%ion

in the ci(il matter

an# the effect%

of the ci(il #eci%ion

in the criminal

matter

Art $$ * The final decision of the criminal court has authority of tried

matter in the ci!il court that tries the ci!il action, as far as the e$istence

of the deed, of the person who committed it and of his/her guilt are

concerned.

The final decision of the ci!il court that resol!ed the ci!il action does

not ha!e authority of tried matter in front of the criminal in!estigation

body and of the criminal court, as far as the e$istence of the criminal

deed, of the person who committed it and of his/her guilt are

concerned.

Section III

The parties in the criminal trial

The #efen#ant Art $' * The person against whom criminal action has been initiated is

part of the criminal trial and is called defendant.

Other +artie% in

the criminal trial

'rt. + - The person who, as a result of the criminal deed, has suffered a

physical, moral or material harm, if he/she takes part in the criminal trial,

is called !ictim.

The in&ured person that carries out the ci!il action within the criminal trialis called plaintiff.

The person called in the criminal trial to answer, according to the ci!il

law, for the damage done as a result of the deed committed by the

defendant is called the party who bears the ci!il responsibility.

TITLE II

COMPETENCE

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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

i'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 by

the 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.

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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 ofthe 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

iArt $3$- 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

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 territorial

military 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 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.ii'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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prosecutor#s offices attached to these courts8

g> 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 'ppeal8c> 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

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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instance court, it is tried by the Court of Birst Instance of sector +, and in the

other cases, by the competent court, according to the matter and )uality of

the person, of @ucharest, in case the law does not stipulate otherwise.

The offence committed on a ship falls under the competence of the court in

whose territorial area the first 2omanian port where the ship anchors is

located, in case the law does not stipulate otherwise.

The offence committed on an airship falls under the competence of the courtin whose territorial area the first landing place on 2omanian territory is

located.

If the ship does not anchor in a 2omanian port or the airship does not land

on 2omanian territory, the competence is that stipulated by paragraph *, in

case the law does not stipulate otherwise.

Section III

Competence in case of indivisibility and connexit

Re&nion

of ca%e%

Art '$ * In case of indi!isibility or connexit, the trial at first instance is

&udged by the same court if it takes place at the same time for all deeds andall perpetrators.

Ca%e% of

in#i(i%i-ilit.

Art '' * The following cases are considered indi!isibility=

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 place8

b> when two or more offences are committed at different times and indifferent 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 competence

according to the nature of the deeds or to the )uality of he persons belongs tocourts 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

i'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.**


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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 militarycourt.

S+ecial ca%e% iArt '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!eranceof 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 the

criminal 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

iiArt )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 of

competence, e$cept for the offences perpetrated by persons pro!ided at art.

+ par. *.

Com+etence inca%e of chan"e

of the 5&ri#ical

framin" or

:&alification

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

i'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"etteof 2omania no. +6 of %o!ember *, *7.ii'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.*+


13/89

Declination

of com+etence

iArt )$- 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 themeasures ordered are kept.

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

Com+etence

conflict

iiArt )'- ?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, it

is 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

conflicts, by the court who last declined its competence.

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

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 competence

conflict 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.

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


14/89

Pro(i%ion%

a++lie#

for criminal

+&r%&it

iArt )/ * 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 criminal

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

C;'

her o+inion

iiiArt )2 * The &udge who took part in the resolution of a case cannot take

part in the resolution of the same case before a superior court or in the trial

of the case after the dissolution of the decision sent to appeal or after

cassation sent to recourse.

'lso, the &udge who has pre!iously e$pressed his/ her opinion regarding

the possible solution for a case cannot take part in the trial of that case.

Other ca&%e% of

incom+ati-ilit.

i(Art )3- The &udge is also incompatible to try if, in the respecti!e case=

a> he/ she initiated the criminal action, or ordered sending to court, or

passed conclusions as prosecutor in court, or issued the arrest warrant

during criminal prosecution8

b> he/she has been representati!e or defender of one of the parties8i'rt. par. **and *+were introduced by the Law no. +6*/+55, published in the 0fficial 1a"ette of 2omania no. 76

of 4uly *, +55. The term territorial areaD, from art. par. , was replaced with the due time circumscriptionD, by art.II of the Law no. +6*/+55.ii'rt. 7 is reproduced as it was implicitly modified by the Law no. /**, published in the 0fficial 1a"ette of2omania no. *+ of 4uly **, **, which dissol!ed the institution of assessors. 'rt. * from this law pro!ides that courts

&udge as panels made up only of &udges.iii'rt. 3 par. * is reproduced as it was modified by the Law no. /*, published in the 0fficial 1a"ette of 2omania

no. *3 of 4uly *, *.i!'rt. 6 is reproduced as it was implicitly modified by the Law no. /**, published in the 0fficial 1a"ette of

2omania no. *+ of 4uly **, **, which dissol!ed the institution of assessors. 'rt. * from this law pro!ides that courts&udge as panels made up only of &udges. 'rt. 6 let. a> 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.*


15/89

c> he/ she has been e$pert or witness8

d> there are circumstances which pro!e that the spouse or a close relati!e

are in any way interested.

Incom+ati-ilit.

of +ro%ec&tor9

of criminal

in(e%ti"ation-o#.9

of a%%i%tant

ma"i%trate an#

of %e%%ion cler=

iArt )7 * The pro!isions of art. 7 are applied for the prosecutor and for

the assistant magistrate or, if the case, for the session clerk, when there is

incompatibility between them or between one of them and one of the panel

members.The pro!isions regarding the incompatibility cases stipulated in art. 6

letters b> - d> are applied for the prosecutor, for the person who performs

the criminal in!estigation, for the assistant magistrate and for the session

clerk.

The prosecutor who took part as &udge in the resolution of the case in first

instance cannot pass conclusions when the case is tried in appeal or

recourse.

The person who performed the criminal in!estigation is incompatible for

its completion or reconstruction, when the completion and reconstruction

is ordered by the court.

A-%tention Art /8 * The incompatible person must declare, according to the case, tothe president of the court, to the prosecutor who super!ises the criminal

in!estigation or to the hierarchically superior prosecutor that he refrains

from taking part in the criminal trial, showing the incompatibility case that

is the reason for abstention.

The declaration of abstention is made as soon as the person obliged to it

has acknowledged the incompatibility case.

Challen"e Art /! * In case the incompatible person did not make the declaration of

abstention, he/she may be challenged both during the criminal

in!estigation and during the trial, by any of the parties, as soon as the party

disco!ers the incompatibility case.

The challenge is formulated orally or in writing, showing the

incompatibility case that is the reason for challenge.

Proce#&re for

%ol&tion #&rin"

5"ment

iiArt /$ * 'bstention or challenge of the &udge, of the prosecutor, of the

assistant- magistrate or of the session clerk are resol!ed by another panel,

in secret session, without the attendance of the person who declares his/her

abstention or who is challenged.

The abstention declaration or the challenge re)uest are e$amined

immediately, by hearing the prosecutor when he/she is present in the court,

and, if necessary, the parties, as well as the person who refrains or whose

challenge is demanded.

?hen the abstention or challenge regard the case stipulated in art. 7 and paragraph *, the court, by appro!ing the challenge, decides which of the

iThe marginal name and par. *-+ of art. are reproduced as they were modified by the Law no. +6*/+55, publishedin the 0fficial 1a"ette of 2omania no. 76 of 4uly *, +55.


16/89

persons specified in the mentioned te$ts will not take part in the trial of the

case.

In case the abstention or challenge is appro!ed, it remains to be established

to what e$tent the drawn papers or the measures taken shall be maintained.

The abstention or challenge which regard the whole court must include the

concrete mention of the incompatibility case for each &udge and are

resol!ed by the hierarchically superior court. The latter, when it finds theabstention or the challenge substantiated, appoints a court e)ual in rank

with the court in front of which the abstention or challenge ha!e appeared

to try the case.

In cases in which the defendants are under pre!enti!e arrest, when the

whole court is challenged, the hierarchically superior court competent to

sol!e the challenge re)uest, before deciding on the challenge, disposes

relati!e to pre!enti!e arrest in the conditions of the law.

The closing that appro!ed or re&ected the abstention, as well as the closing

that appro!ed the challenge, are not sub&ect to any ways of attack.

The closing through which the challenge was re&ected may be attacked

only in recourse, in 6 hours due time from the passing of the decision, andthe file is immediately submitted to the recourse court. The recourse is

tried in 6 hours due time from the reception of the file, in the council

room, with the participation of the parties.

Proce#&re for

%ol&tion #&rin"

criminal

in(e%ti"ation

iArt /' * (uring the criminal in!estigation, the prosecutor who super!ises

the criminal in!estigation or the hierarchically superior prosecutor decides

on the abstention or challenge of the person who performs the criminal

in!estigation or of the prosecutor.

The challenge re)uest regarding the person who performs the criminal

in!estigation is addressed either to that person, or to the prosecutor. In case

the re)uest is addressed to the person who performs the criminal

in!estigation, the latter must forward it, together with the necessary

clarifications, within + hours, to the prosecutor, without interrupting the

course of the criminal in!estigation.

The prosecutor must resol!e the re)uest within ma$imum days, by

ordinance.

The challenge re)uest regarding the prosecutor is resol!ed within the same

due time and in the same conditions by the hierarchically superior

prosecutor.

'bstention is sol!ed according to the pro!isions of paragraphs and ,

enforced accordingly.

Incom+ati-ilit.of the e6+ert an#

of the

inter+reter

Art /) - The pro!isions of art. 6, 5, *, + and are enforcedaccordingly to the e$pert and the interpreter.

The )uality of e$pert is incompatible with that of witness in the same case.

The )uality of witness comes first.


17/89

Removal of the criminal case trial

The rea%on

for remo(al

Art //- The Fupreme Court of 4ustice remo!es the trial of a case from the

competent instance to another instance e)ual in rank, when, considering the

seriousness of the reasons for the remo!al, it appreciates that the remo!al

would ensure a normal unfolding of the trial.

The remo!al may be re)uested by the interested party, by the prosecutor orthe minister of &ustice.

The re:&e%t

an# it% effect%

iArt /0- The remo!al re)uest is addressed to the Fupreme Court of 4ustice

and must be moti!ated. The writings supporting the re)uest are attached to it

when the party who re)uests the remo!al has them.

In the re)uest it shall be mentioned whether there are arrested persons in the

case.

The suspension of the trial may be ordered by the president of the Fupreme

Court of 4ustice upon reception of the re)uest, or by the Fupreme Court of

4ustice after it has been gi!en the appropriate authority.

The re)uest drawn up by the general prosecutor of the


18/89

in the meantime tried it, the decision passed is dissol!ed by the appro!al of

the remo!al re)uest.

Reiteration

of the re:&e%t

Art 0!- The remo!al of the case cannot be demanded again, unless the new

re)uest is based on circumstances unknown to the Fupreme Court of 4ustice

at the resolution of the pre!ious re)uest or that appeared after that.

TITLE IIIE4IDENCE AND MEANS OF E4IDENCE

C;'


19/89

of e(i#ence The re)uest for administration of a piece of e!idence cannot be re&ected,

if the respecti!e piece of e!idence is conclusi!e and useful.

'ppro!al or re&ection of re)uests shall be moti!ated.

Inter#iction

of mean%

of con%traint

Art 03- It is forbidden to use !iolence, threats or any other constraints,

as well as promises or encouragement with the purpose of obtaining

e!idence.

'lso, it is forbidden to force a person to commit or to continuecommitting an offence with the purpose of obtaining e!idence.

C;'


20/89

e!idence that he/she considers fit to propose.

Re"i%terin"

of #eclaration%

iArt 2' * The statements of the accused person or defendant are written

down. Each declaration will also include a mention of the hour of the

beginning and ending of the hearing of the accused person or defendant.

The written statement is read to the accused person or defendant and, if he/

she asks, he/she is handed the statement to read it. ?hen he/she agrees

with its content, signs on e!ery page and at the end.?hen the accused person or defendant cannot or refuses to sign the

statement, this will be mentioned in the written statement.

The written statement is also signed by the criminal in!estigation body that

has heard the accused person or defendant or by the president of the panel

and by the clerk, as well as by the interpreter, when the declaration has

been gi!en through an interpreter.

If the accused person or defendant changes his/her mind about one of his

statements or wants to make adding, corrections or specifications, these are

written down and signed under the conditions shown in the present article.

Hearin" of the

acc&%e# +er%onor #efen#ant

1here he>%he i%

iiArt 2)- ?hene!er the accused person or defendant finds himself/ herself

in the impossibility to come for a hearing, the criminal in!estigation bodyor the court hear him at the place where he/she is, unless it is pro!ided

otherwise by the law.

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 circumstancesresulting from all the e!idence in the case.

Preliminar.

e6+lanation%

iiiArt 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 partybearing the ci!il responsibility is conducted according to the pro!isions

regarding the hearing of the accused person or defendant, enforced

accordingly.

Section III

i'rt. 3 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.ii'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.iii'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.+5


21/89

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%on

o-li"e#to =ee+ the

+rofe%%ional

%ecret

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

as witness in relation to facts and circumstances that he/she learned about

while e$erting his/her profession, without the appro!al of the person orinstitution 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&(enile

a% 1itne%%

Art 3!: The &u!enile may be heard as witness. 9p to * years old, his/her

hearing will be conducted in front of one of his parents or of his/her tutoror 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.

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

iiArt 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 religiouscreed of the witness.

Bor the witness of other religion than Christian, the pro!isions of par. + are

not 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

iThe 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.ii'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.+*


22/89

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 witnesshearing.

Protection

of #ata

for 1itne%%

i#entification

iArt 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

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 performed

or 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

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

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 circumstancesresulted 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. *, willbe 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. .

ideo and audio tapes, on which the witness# statement was recorded, as

an original, sealed with the prosecutor#s office seal or, according to the

case, to that of the court in front of which the statement was made, are kept

in the conditions pro!ided at art. . The !ideo and audio tapes recorded

during the criminal in!estigation shall be handed, at the ending of the

criminal in!estigation, to the competent court, together with the case file,

and shall be kept in the same conditions.

The pro!isions of art. 36, 6 and of art. 67 par. * and + shall be applied

accordingly.Chec=in"

the mean%

for hearin"

iiArt 30'@ The court may admit, upon re)uest from the prosecutor, from

the parties or e$ officio, the carrying out of a technical e$pertise regarding

the means for hearing the witnesses, in the conditions pro!ided under art.

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

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

+55.+


24/89

the 1itne%%e% 67+.

Hearin"

1itne%%e% &n#er

!0 .ear% ol# in

certain ca%e%

iArt 30): In the cases regarding !iolence offences between the members

of the same family, the court may dispose the witness under *7 years old

shall not be heard in the courtroom, allowing the presentation of a

pre!iously performed, as audio-!ideo recordings, in the conditions

pro!ided under art. 67+par. +, , and 3.

The +rotectionof 1itne%%,

#i%+lacement%

iiArt 30/ @ The prosecutor who performs or super!ises the criminalin!estigation or, according to the case, the court may dispose that the

police units super!ise the witness# domicile or residence or to ensure for

the latter a temporary super!ised residence, as well as to accompany

him/her to the prosecutor#s office or to court and back to the place of

residence or domicile.

The measures pro!ided at art. * will be eliminated by the prosecutor or,

according to the case, by the court, when they decide that the danger which

imposed them has disappeared.

Section IV

Confrontation

The o-5ect of

confrontation

Art 32 * ?hen there are contradictions between the declarations of the

persons heard in the same case, the respecti!e persons are confronted, if this

is necessary for the clarification of the case.

The

confrontation

+roce#&re

Art 33 @ The persons confronted are heard on the deeds and circumstances

in relation to which the pre!ious declarations contradict each other.

The criminal in!estigation body or the court may appro!e that the

confronted persons ask one another )uestions.

The declarations made by the confronted persons are written down in an

official report.

Section V

!ritings

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.

iiiArt 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 officialre+ort

a% mean%

i(Art 78 * The official reports drawn up by the criminal in!estigation body orby the court are means of e!idence.

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

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

+55.

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

+55.i!'rt. 5 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.+


25/89

of e(i#ence 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.

iSection 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 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.+


26/89

&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 or

communications is done through moti!ated closing, which shall

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


27/89

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 in

this sense. The con!ersations or communications that contain statesecrets 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.

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 same

institution with the body performing the procedural act may not be assistant

witnesses.

E%ta-li%hin"

the i#entit.

of a%%i%tant

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

+3


28/89

1itne%%e% 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 wellas 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 the

copy.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

corre%+on#ence

an# o-5ect%

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

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

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 othercorrespondence or ob&ects to which par. * makes reference may be

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

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.+6


29/89

-. force

of o-5ect%

or 1ritin"%

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 well

as whene!er the search is necessary in order to disco!er and gathere!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 thecriminal 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 timefor ma=in"

the %earch

iii

Art !8' * Confiscation of ob&ects and writings, as well as domiciliarysearch 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.

The %earch

+roce#&re

i(Art !8) * The &udicial body that will perform the search must pro!e its

identity and, in the cases stipulated by the law, present the authori"ation

gi!en by the prosecutor.

The taking away of ob&ects and writings, as well as domiciliary search

are performed in the presence of the person from whom the ob&ects or the

writings are taken away, or whose place is searched and, when the person

i'rt. *55 is reproduced as it was modified by the Emergency 0rdinance no. *5/+55, published in the 0fficial 1a"etteof 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.i!'rt. *5 par. * is reproduced as it was modified by the Emergency 0rdinance no. *5/+55, published in the 0fficial1a"ette of 2omania no. 36 of 0ctober +7, +55. 'rt. *5 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.+


30/89

is absent, in the presence of a representati!e, of a member of the family

or of a neighbour, ha!ing e$ertion ability.

These operations are performed by the criminal in!estigation body in the

presence of assistant witnesses.

?hen the person whose place is searched is held or arrested, he/she will

be brought to the search. In case he/she cannot be brought, the taking

away of ob&ects and writings, as well as domiciliary search, areperformed in the presence of a representati!e or a member of the family,

and, in their absence, in the presence of a neighbour ha!ing e$ertion

ability.

Performin"

#omiciliar. %earch

Art !8/- The &udicial body that performs the search has the right to

open the rooms or other means of enclosing where the ob&ects or the

writings wanted may be found, if the person entitled to open them

refuses to do so. The &udicial body must limit itself to confiscation of

ob&ects and writings connected to the deed committed8 ob&ects and

writings whose circulation and possession are forbidden are always taken

away.

The &udicial body must take measures so that facts and circumstances inthe personal life of the person whose place is searched which are not

connected with the case are not made public.

Performin"

cor+oral %earch

Art !80 * Corporal search is performed by the &udicial body that ordered

it, following the pro!isions of art. *5 paragraph *, or by the person

appointed by this body.

Corporal search is performed only by a person of the same gender with

the person being searched.

I#entif.in" an#

=ee+in" o-5ect%

Art !82 * 0b&ects and writings are shown to the person from whom they

are taken away and to those who assist, in order to be recogni"ed and

marked by them in order not to be changed, after which they are labelled

and sealed.

The ob&ects that cannot be marked, labelled or sealed are wrapped up or

closed, together if possible, after which they are sealed.

The ob&ects that cannot be taken away are attached and left to be kept,

either by the person who has them or by a custodian.

Tests for analysis are taken at least twice and are sealed. 0ne test is left

with the person from whom they are taken or, in his/her absence, with

one of the persons mentioned in art. *56, final paragraph.

Official re+ort for

%earch an#

confi%cationof o-5ect%

an# 1ritin"%

Art !83 * 'n official report is drawn up mentioning the performance of

the search and confiscation of ob&ects and writings.

The official report must include, besides the specifications stipulated inart. *, the following= place, date and circumstances in which the

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

5


31/89

taken away, with the representati!e, a member of the family, the persons

he 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 therecord.

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 they

belong. 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 mustkeep 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 staff8

d> 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!idencemight disappear or some states of facts might change, and the

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

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 partand 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.*


32/89

which the criminal in!estigation body belongs. It may also be

performed 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 criminalin!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 forensicacknowledgment 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$ officioor upon re)uest, an e$pertise.

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 necessary

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.+


33/89

period. 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 appoint

Documents

Criminal Procedure Code - R