Gheorghe Buta and Mădălin Enache of Muşat & Asociaţii in Bucharest look at Romania’s new codes surrounding criminal procedure
On February 1 2014, both the New Criminal Code (NCC) and the New Criminal Procedure Code (NCPC) have entered into force, Romania thus updating and substantially revamping its criminal legislation, in the biggest change since 1968.
These fundamental pieces of legislation maintain several of the traditional institutions that were provided by the former Codes, some in a revised form, while adding new institutions which were never mentioned in the Romanian criminal law system before. Thus, they assure the essential principles of legality, the presumption of innocence, of finding out the truth, ne bis in idem, the right to a proper defence, liberty and security, as well as the equitable character and reasonable duration of criminal proceedings, all within the frame established by the European Court of Human Rights.
The new Codes do not apply strictly to the criminal procedures (investigations and trials) that start after their entry into force, but as the provisions of article 15, paragraph 2 of the Romanian Constitution state, “The law provides only for the future, with the exception of the more favourable criminal or civil law”. As a result, the provisions of the NCC can apply to criminal deeds perpetrated before it became applicable, but tried after the new legislation came into force.
One of the main differences which have been brought upon by the NCC is the change of the punishment system, the new form tending to lower the sanctions for first-time offenders, while increasing the sanctions imposed against repeated offenders (or multiple crimes perpetrated).
Further changes within the NCC include, among others: a new definition of the term “crime” (removing the social jeopardy characteristic), a new system of applying fines (day-fine system), including in the NCC a series of crimes which had previously been provided by special laws (in the attempt to better unify the criminal legislation), eliminating the possibility to impose criminal sanctions against a minor, a possibility to reduce the punishment by a third in case of mitigating circumstances, an extension of the term “public official”, a series of new crimes (e.g., abuse by defrauding creditors, fixing public auctions, insurance fraud) and a more unitary sanctioning system for corruption crimes.
Where the author of a crime is a legal entity, the NCC provides a new array of sanctions ranging from displaying or publishing the ruling to a temporary ban on participating in public tenders (1 to 3 years), or even dissolution.
In the same line, in order to provide a more lenient sanctioning system towards first-time offenders, the NCC provides multiple means whereby prison sentences can be served or considered as such: in a penitentiary, suspension under supervision, waiving the enforcement of punishment (for a sentence of up to five years) and the possibility to postpone the enforcement of punishment.
The NCPC has undergone several major changes as well, including by the addition of a new phase to the criminal trial, new types of judges and new means by which to challenge rulings of the court.
Thus, the criminal trial now starts with a written pre-trial phase - the preliminary chamber procedure, in which it is verified (by the especially appointed judge) the legality of the criminal investigation phase (of the investigations performed, of the evidence obtained and of the Indictment Act). Furthermore, the NCPC institutes another new type of judge - the judge of rights and liberties, whose competence is only that of deciding on preventive measures (taking, extending, replacing or revoking them), as well as on seizure measures or other specific matters.
Once a criminal complaint is registered or the criminal investigation authorities initiate proceedings ex officio in respect of a criminal deed, the criminal investigation phase starts in rem (in relation to the deed) and it can continue in personam only after the person who is presumed to be the author of the crime has been identified with relevant evidence by the criminal investigation authorities.
If the crime committed is punished by up to seven years’ imprisonment, the case prosecutor can decide, depending on the crime committed and upon specific circumstances, to drop the criminal investigation, if there is no public interest in investigating the crime (the opportunity principle), and provided that the defendant fulfills certain obligations.
In addition, the NCPC now provides the possibility to strike a plea bargain in the criminal investigation phase (with the prosecutor, if accepted by a judge) for the crimes sanctioned by up to seven years’ imprisonment.
The defence has new rights and obligations: the attorney has the right to attend any hearing during the criminal trial and can access the criminal file at any time. All the testimonies and statements should now be recorded by audio and/or video means, in order to ensure a proper verification of the way in which they were performed.
The person investigated is designated as “suspect” during the criminal investigation phase, whereas from the moment when the criminal trial beings he becomes a “defendant”.
As regards the preventive measures, the NCPC provides new institutions: judicial control, judicial control on bail and house arrest, along with the already traditional preventive arrest.
Moreover, the trial procedure is now comprised of only two phases, first court and appeal. The second-appeal, as well as the other extraordinary means of challenging a final court sentence, have been reduced to legality grounds only (and will become rather rare).
In conclusion, the new Criminal and Criminal Procedure Codes contain a unique mix of both traditional and modern institutions and represent a true landmark in the Romanian legal system, which will ensure a better application of the State criminal policy, in accordance with the European principles of law.
Deputy managing partner
Muşat & Asociaţii
Bucharest
About the author
Gheorghe Buta, PhD, heads the litigation and arbitration practice, being one of the most well-known and respected experts in commercial, civil and criminal disputes in Romania. In his outstanding career spanning over three decades, he has gathered extensive trial experience, as prosecutor and judge in courts of all levels, including with the High Court of Cassation and Justice for 6 years. In addition, he has held the position of chairperson of Bistrita Nasaud Court and of Cluj Court of Appeal, and towards the end of his career as magistrate, he was esteemed President of the High Court of Cassation and Justice – Commercial Division. Further, Gheorghe Buta is arbitrator on the panel of International Commercial Arbitration Court attached to the Chamber of Commerce and Industry of Romania.
Partner
Muşat & Asociaţii
Bucharest
About the author
Mădălin Enache is Partner at Muşat & Asociaţii and is recognised as one of the “rising star” practitioners in criminal law (particularly white collar crimes), representing multinational companies or business men in various criminal law cases, in areas such as IT and telecoms, banking & finance, pharma, capital markets, energy and public utilities, etc. Madalin has been directly involved as lead legal counsel in criminal files having as object white-collar crime, infringements of special laws, IT crime or corruption cases, as well as legal consultancy to private companies in criminal law or administrative matters, as well as financial and fiscal fraud, corporate miss-administration, shareholder disputes and business litigations.