Romania: Updated – Criminal Law: Review of the main measures provided by the state of emergency decree

The state of emergency initially instituted in Romania until 14 April has been extended for an additional 30 days as of 15 April 2020. Some additional measures have also been included regarding the criminal proceedings and we have listed below an updated review of their impact:

1. Criminal investigation activity has been slightly relaxed and although it can be particularly performed regarding the cases indicated in the decree and the cases considered urgent by the prosecutor, there is not anymore provided a specific restriction regarding the other cases. Essentially, the criminal investigation activity will be focused on:

• cases in which preventive measures were ordered or proposed, cases regarding the protection of victims and witnesses, cases for applying medical safety measures and cases in which the victims are minors;
• criminal investigation activities and evidence related activities the delay of which would endanger obtaining of evidence or catching the suspect/defendant and preliminary hearing activities, as well as imposing precautionary measures;
• cases which are urgent given the purpose of the national state of emergency, cases regarding offences against human life, as well as urgent cases considered as such by the prosecutor and cases concerning flagrant offenses, cases in which preventive measures have been ordered, cases regarding appeals against enforcement of punishment, cases concerning appeals against precautionary measures, cases regarding international judicial cooperation in criminal matters, cases which include measures to protect victims and witnesses, cases regarding medical security measures, cases regarding crimes against national security, cases regarding acts of terrorism or money laundering
• solving the cases in which the criminal investigation was completed before the institution of the state of emergency, verifying the resolutions by the hierarchical superior prosecutor and solving the complaints against criminal investigation measures and activities.

The competent courts can be notified with an indictment or with an agreement of guilt plea only regarding cases mentioned al let. b above.

During criminal investigation phase, the Judge of freedoms and wrights will rule on the requests, proposals, complaints, appeals and any other notifications regarding the cases mentioned al let. a-d above.

2. The activity in the preliminary chamber and court trial shall be suspended during the state of emergency, except for:

• cases in which the urgency is justified by the purpose of instituting the national state of emergency
• urgent cases considered as such by the judge of the preliminary chamber or by the court, as well as
• cases indicated in the decree (flagrant offenses, preventive measures, appeals against enforcement of punishment, appeals against assets seizure measures, international judicial cooperation, measures regarding the protection of victims and witnesses, medical security measures, offenses against national security, terrorism or money laundering).

During the state of emergency, in the cases mentioned above and given the specific circumstances, the courts can set short hearing terms, including from one day to another or even on the same day. Criminal liability statute of limitations is suspended during the state of emergency:

• in the cases where criminal investigation is not performed and
• in the cases where criminal proceedings are suspended.

Suspension operates legally, without the need to issue an ordinance or a ruling for this purpose

3. The consent for communication of procedural documents in criminal cases by electronic mail is presumed and, if needed, the judicial bodies will urgently request by telephone the e-mail addresses for communication of documents.

4. Time limits for communication of ordinances, for submitting a complaint and ruling regarding such complaints (other than those provided at point 1 above) are interrupted. Time limits for submitting appeals in criminal cases (except for the cases tired in accordance with the Decree) are interrupted. Once the state of emergency ends, a new time limit of the same duration will commence.

5. The hearing of individuals deprived of their liberty shall be made through videoconference.

6. If there are available means, the hearing of other persons shall be made through videoconference as well, if they agree.

7. Public tenders for sale of the movable assets seized in the criminal proceedings are suspended, except for the ones performed through electronic means

8. During the state of emergency, the assets in respect of which precautionary measures have been imposed may be commandeered, according to the Law no. 132/1997 if they are necessary to prevent and combat the spread of COVID-19 infections. Criminal investigation and criminal trial are performed according to the Criminal Procedure Code, with the possibility, if necessary and depending on the evolution of the situations generated by the state of emergency or its effects, to establish special rules regarding the procedure for the investigation and trial of the crimes committed during the state of emergency. or taking advantage of this condition, as well as in the case of flagrant offenses.

9. The defendants under a preventive measure such as judicial supervision or on bail shall not present themselves before the supervision body or judicial body which ruled the measure. For the supervision of the defendant, the designated body will go to the defendant`s domicile according to the supervision plan or whenever it is considered necessary.

10. Within 10 days as of the end of the state of emergency, the judge / court will take measures for setting the hearing dates and for performing procedural activities.

The Decree also provides measures regarding the Prosecutor`s Offices and courts` activity in the case when these units are prevented to function. In this respect it is provided that some of the cases pending before these judicial bodies might be investigated/tried by an equal Prosecutor`s Office or court.

There are provided measures regarding the enforcement of the punishments and deprivation and non-deprivation of liberty measures, some activities related to their enforcement being suspended during the state of emergency. Also, exercising certain rights of the incarcerated or arrested individuals was suspended, while the time for telephone and online conversations was correspondingly increased.