1. Regulatory solutions and practical application of the Criminal Procedure Code of Romania Daniel NIŢU Faculty of LAW Babeş-Bolyai University, Cluj-Napoca

2. 2 I. Level of Courts Law no 304/2004 regarding the judicial organisation Hierarchy of the courts:  High Court of Cassation and Justice (HCCJ - the Supreme Court);  Courts of Appeal;  Tribunals (county courts);  District Courts.

3. 3 I. Level of Courts Additionally:  specialised tribunals with the same status as tribunals, but dealing with specialized matters (e.g. for family matters and juveniles, special commercial issues);  military courts (4 Military Tribunals in Bucharest, Cluj, Timişoara and Iaşi and one Military Court of Appeal in Bucharest).

4. 4 A. HCCJ Criminal Division (Chamber)  panels composed of one or three judges;  panel with 5 judges (when acting as appellate court against a judgment rendered by the panel with 3 judges as first instance court). - Apart from the Criminal Division, there are two special panels which are solely competent for judging proceedings in the case of an appeal in the interest of the law and preliminary ruling to settle legal issues.

5. 5 A. HCCJ  deals with appeals (in criminal matters) against judgments rendered by lower courts (Courts of Appeal usually) and cassation appeal (only Courts of Appeal);  jurisdiction in the case of an appeal in the interest of the law and preliminary ruling to settle legal issues;  exceptionally, it acts as a first instance court in criminal matters, in the case of a number of crimes (e.g., high treason offenses) or offenses committed by certain persons (Senators, Deputies, the president etc.).

6. 6 B. Courts of Appeal  15 courts of appeal;  under their jurisdiction: tribunals and specialized tribunals;  examine only important cases in first instance (e.g., national security offences; crimes committed by prosecutors, judges, lawyers etc.);  in general, rule on appeals against judgments rendered by lower courts (tribunals or district courts).

7. 7 C. Tribunals  the level of each county and in Bucharest and have its premises in the county residence city;  cases of serious crimes (corruption, tax fraud, murder, organized crime);  interlocutory appeals against judgments of district courts on measures that restrict freedom, property etc.

8. 8 D. District Courts  usually first instance courts;  established in almost every important town;  in criminal matters, district courts have a so-called general jurisdiction, examining all offenses in first instance, except for those assigned by law under the jurisdiction of other courts.

9. 9 E. Constitutional Court  Articles 142-147 Constitution;  Law no 47/1992 on the organization and operation of the Constitutional Court;  NOT part of the judiciary;  independent of any other public authority.

10. 10 E. Constitutional Court  decides on objections as to the unconstitutionality of laws and ordinances, brought up before courts of law or of commercial arbitration;  consists of nine judges appointed for a nine- year term of office that cannot be either extended or renewed;  three are appointed by the Chamber of Deputies, three by the Senate, and three by the President of Romania.

11. 11 II. Presence of the accused at trial  the right to be present at trial;  obligation on the court to summon ex officio the accused;  if the accused fails to appear before the court without a good cause (flee justice, change their address without giving notice to the court), the trial may be carried out in his/her absence;  apprehension order – when the court wants to examine the accused;  2014 CCP: the accused (even if in detention) may request to be tried without their presence.

12. 12 III. Judgement in absence of the accused  Extraordinary remedy - reopening criminal proceedings in case of an in absentia trial of the convicted person (CCP, Article 466);  only at the request of the convicted (no later than 1 month since the day they were informed, by an official notification, that a final judgment has been delivered; in case of EAW – the term starts after its execution);  a trial is conducted in absentia and, consequently, it constitutes a ground for retrial only when:

13. 13 III. Judgement in absence of the accused  the accused was not summoned by the trial court and he/she has not been informed thereof in any other official manner;  the accused was aware of the criminal proceedings, but he/she absented upon well-grounded reasons and was unable to inform the court thereupon.

14. 14 IV. Burden of proof  The 1969 CCP provided that the burden of proof is a duty of both the investigative authorities and the courts;  The 2014 CCP - the burden of proof is the prosecutor’s duty only (CCP, Article 99);  compensation claim: the civil party or, as applicable, the prosecutor (when the victim is underage or lacks legal capacity).

15. 15 IV. Burden of proof  Restraining the court’s involvement in the evidential stage  Transforms the judge from an inquisitor into a guarantor of the due process;  The right of the trial court to order additional evidence - a subsidiary manner in relation to the parties’ right to present evidence (CCP, Article 100 paragraph 2).

16. 16 V. Court records. A/V recording  Art. 110 CCP – recording of statements: During the criminal investigation, the hearing of a suspect or defendant shall be recorded with audio or audio-video devices. When such recording is not possible, this fact shall be mentioned in the statement of the suspect or defendant, indicating the actual reason why such recording was not possible

17. 17 V. Court records. A/V recording  Art. 111 CCP - hearing of the victim (…) recorded with audio or audio-video devices, when criminal investigation bodies deem this necessary or when the victim requests this specifically, and such recording is possible.  Art. 123 CCP - Recording of testimony of the witness if criminal investigation bodies deem this necessary or if the witness request this specifically and such recording is possible

18. 18 V. Court records. A/V recording Article 369 CCP - Note-taking during the court hearing The court hearing shall be recorded using the audio technical means. REPLACEMENT of paper-based data recordings -See PORTALUL INSTANTELOR -SEE CURTEA DE APEL CLUJ

19. 19 A. PORTALUL INSTANTELOR

20. 20 B. CURTEA DE APEL CLUJ

21. 21 VI. Appeal proceedings  the only ordinary legal remedy;  all judgments delivered by the trial court can be appealed on the basis of alleged errors of facts or errors of law – TERM of 10 DAYS since the communication;  the prosecutor and the victim have an unlimited right to appeal against acquittals. The penalty and the determination of the compensation claim can also be appealed.  NO ‘leave to appeal’.

22. 22 VI. Appeal proceedings  NO initial determination of whether the appeal is admissible - directly to its full determination;  the appeal is always heard by the appellate court in an adversary hearing with all the parties having the right to attend and to argue the appeal;  the rules of procedure applicable during the trial are also applicable during the appeal.

23. 23 VI. Appeal proceedings  jurisdiction to review the case both as to the facts and to the law;  full assessment of the issue of guilt or innocence;  wide powers of review - quash any judgment deemed not lawful or just;  when the appeal is accepted, the appellate court quashes the judgment of the trial court and has three complementary options:

24. 24 VI. Appeal proceedings 1. a new verdict or to amend the penalty – directly, by the appeal court; 2. in case of absolute nullity triggered by breach of rules regarding jurisdiction orders the retrial of the case by the competent court. 3. Order the retrial of the case by the first instance court when: a)one of the parties was not lawfully summoned and did not attend the trial; b)one of the lawfully summoned parties could not attend the trial and was hindered to notice the court; c)when the appellate court finds that the judgment is affected by an absolute nullity.

25. 25 VI. Appeal proceedings FUNDAMENTAL RULES OF APPEAL 1. Appeal submitted only in favour of the accused persons the judgment cannot be modified in their detriment (e.g., if the accused was sentenced to 7 years of imprisonment and has appealed the penalty, the appellate court, reviewing the whole case, has no right to impose a penalty of 8 years of imprisonment). However, if a second appeal was also submitted, this time in the detriment of the accused (these two appeals are tried at the same time), the appellate court has the right to modify the judgment in the detriment of the accused

26. 26 VI. Appeal proceedings 2. If the appeal of a co-defendant is granted and the appellate court finds that the grounds of appeal are also applicable to another co- defendant who did not submit an appeal, it has to deliver on its own motion a ruling regarding also the latter co-defendant.

27. 27 VII. Extraordinary legal remedies First review – the appeal Since 2010 – no second review (recourse) After the appeal – only extraordinary legal remedies  the appeal for annulment (contestaia în anulare);  the review (revizuire);  the cassation appeal (recurs în casaie).

28. 28 A. Appeal for annulment - under the jurisdiction of the court which delivered the appealed judgment (the trial court or the appellate court); - The grounds of an appeal for annulment are the following (CCP, Article 426):

29. 29 A. Appeal for annulment a) the appeal was heard in the absence of a unlawfully summoned party or if the lawfully summoned party could not attend the hearing and was hindered to notice the court; b) when the defendant was convicted, although an Article 16 procedural bar existed; c) when the verdict was not rendered by the judge or the judges which heard the closing speeches; d) when the panel was unlawful composed or a judge who should have been disqualified took part at the court proceedings; e) when the court proceedings took place without the participation of the prosecutor or of the defendant, if their presence was mandatory; f) when the defendants were not assisted by a counsel and their legal assistance was mandatory; g) the trial was not conducted in public sessions, except for the cases expressly provided by the law; h) when the court did not examine the defendant, if the examination was lawfully possible; i) when two final judgments were rendered against the same person and for the same charges.

30. 30 B. The review -under the jurisdiction of the first instance court (the trial court). The grounds are the following (CCP, Article 453): a) new evidence was discovered and it indicates that the verdict was wrongly decided; b) the verdict relies on the statement of a witness or interpreter, or on the opinion of an expert who was later found guilty of perjury, if such influenced the determination of the case; c) the verdict relies on a document which was later declared false, if such influenced the determination of the case;

31. 31 B. The review d) a judge, a prosecutor or a police officer committed an offence related to the case, if such influenced the determination of the case; e) when two or more final judgments cannot be reconciled (in this case, all the concerned judgments are to be reviewed) (e.g., when the court decided the separation of cases and afterwards a co-defendant is acquitted and another one convicted for the commission of the same offence and in the same circumstances); f) the verdict relies on a statutory norm which was declared unconstitutional after the verdict became final

32. 32 C. The cassation appeal  under the sole jurisdiction of the HCCJ;  it can be submitted only against the final verdicts delivered by the courts of appeal as appellate courts (when the first instance court was a district court or a tribunal);  verdicts delivered in a shortened trial (when a plea agreement was submitted to the trial court or when the defendant has admitted the facts alleged in the indictment) cannot be appealed to the HCCJ.

33. 33 C. The cassation appeal Grounds provided by the law (CCP, Article 438): a) when the absolute nullity is triggered because the rules regarding jurisdiction were violated; b) the defendant was convicted for facts which do not constitute a criminal offence; c) the end of the trial due to a procedural bar was wrongfully ordered; d) pardon was not granted or it was wrongfully considered that the punishment was pardoned; e) the sentence was determined by disregarding the penalty ranges provided by the law.