Criminal Law – Defending Rights in Romania
|August 24, 2011||Posted by admin under Criminal Law, Legal Publications & Articles||
Current legislation in the criminal law area include the Penal Code, the Code on Criminal Procedure and special laws that define specific crimes. The Penal Code is of modern nature, in accordance with the general principles of comparative law as to criminal responsibility, the protection of the youth and sentencing. The old 1968 Code on Criminal Procedure continues to be a mixture of crime control type principles in its substance, though much of it has been ammended to comply with due process and human rights protection standards.
Stage 1: The Criminal Investigation
Criminal investigation is conducted by special units within the police, under the direct control of a prosecutor. Prosecutors are organized in panels next to each level court of law and form an hierarchical structure under the Office of the General Prosecutor of Romania. They are part of the executive branch, acting under the supervision of the Ministry of Justice and the General Prosecutor. While prosecutors are defined as magistrates, they hold both accusation and decision-making capacities, guarding at the same time the respect for individual rights. Much of their powers have been removed in regard to pretrial arrest and search warrants through Law 281 / 2003. Access to counsel is generally respected and you should not wave this right when under investigation. As a non-speaker of the Romanian language you also have the right to be assisted by an appointed and / or chosen interpreter. Your declarations constitute evidence in the trial and you should pay the foremost attention when issuing such statements in absence of an attorney.
Stage 2: The Trial
The prosecutor decides whether you go to trial or not. Once you are sent to trial, your position improves as all decision-making powers are now within the hands of an independent and impartial judge. At the trial stage, you benefit from an adversarial procedure in which access to counsel, individual rights, the presumption of innocence and equality of arms are generally respected. The burden of proof belongs to the public prosecutor and you are not obliged to prove your innocence. You have the right to invoke procedural irregularities in the investigation stage, to prove that accusations are not founded, to present counter-evidence, call witnesses and plead your case without any hinders. Aside the appointed interpreter, you have the right to be assisted by an interpreter nominated by yourself.
Stage 3: Appeals
If you are not satisfied with the decision in the court of first instance, you may appeal that decision. Grounds for the appeal are not limited and you will have both the facts and your guilt assesed again by a superior court formed of two judges. A second appeal is not possible, but you have the possibilty of declaring a recurs which resembles a motion to quash on limited grounds of illegality that may not relate to the merits of the case. This is the last resort decision of three judges that you can obtain. Extraordinary appeals are available on different grounds and they do not fall within the category of ordinary legal remedies.
Romania is a member of the Council of Europe, a transnational political body that numbers among its structures the European Court of Human Rights in Strasbourg. The text of the Convention is ratified by the Romanian Parliament and is part of the law applicable in Romania. If you believe that one of your Convention rights has been infringed, you should seek a legal remedy before a national court and invoke that infringement. Only after you exhaust all legal remedies in the national sphere, you may have standing before the Strasbourg Court.