ROLE OF THE PUBLIC PROSECUTION SERVICE OUTSIDE THE FIELD OF CRIMINAL JUSTICE
PART 1
Question
1. Does the prosecution service of your country have any competencies outside the field of criminal justice?
Answer
The Romanian Public Ministry does not act as a service with exclusive competencies in carrying out the criminal prosecution.
Question
2. a. If so, what are these competencies (with regard to, for example, administrative, civil, social and commercial law and/or the functioning and management of the courts)?
Answer
Within the Prosecutor’s Office attached to the High Court of Cassation and Justice shall function both operative sections (National Anticorruption Directorate, Directorate for Investigation of Organized Crime and Terrorism, Section for criminal prosecution and criminalistics) and sections in which the prosecutors carry out their activity exercising duties outside the so-called field of criminal justice:
- examine, ex officio, upon the proposal of the prosecutor’s offices
or the request of the minister of justice, the irrevocable court decisions passed in civil cases, in view to exercising the appeal in the best interest of law;
- participate in judging the civil cases according to the law;
- motivate and draw up the request for transfer of the proceedings
of the civil cases for public security (art. 38 of Criminal procedure code);
- can start the civil action whenever it deems necessary for protecting the minor’s rights and interests, the persons laid under interdictions and missing persons and can put conclusions in any civil trial if consider necessary for protecting the legal order, the citizens’ rights and freedoms (art. 45 of Criminal procedure code);
- participate in solving the exceptions of unconstitutionality in the civil cases by the Constitutional Court;
- propose promoting of the appeal in the best interest of law in cases of non-unitary enforcement of legal provisions;
- perform activities of legal analysis, studies and documentation of knowledge the cases that generate and of conditions that favour criminality, centralize and process statistics including those on protecting the minors.
Prosecutor’s offices attached to the courts of appeal and the Prosecutor’s Office attached to the Bucharest Tribunal have also in their structure, in addition to the sections for criminal prosecution, judicial sections consisting of criminal and civil judicial sections.
When the Public Ministry, following the exercising of its duties provided by its organic law, considers that the violation of persons’ legitimate rights, freedoms and interests is due to the existence of individual unilateral administrative documents of the public authorities issued with power excess, with their prior consent, he notifies the administrative contentious court from the natural person’s domicile or from the harmed legal person’s headquarters. The petitioner got the legal capacity as a complainant, who is to be summoned in this capacity.
When the Public Ministry considers that, by issuing a government administrative decree, a public legitimate interest is harmed, notifies the competent administrative contentious court from the seat of the issuing public authority.
The Public Ministry representative may participate in solving the requests in administrative contentious in any stage of the trial, whenever considers necessary for protecting the legal order, citizens’ rights and freedoms.
The prosecutor also participates in judging the brief motions, requests or challenges provided by the law on parliamentary or presidential elections.
72 prosecutors are seconded from the Public Ministry, according to the decisions of the Superior Council of Magistracy, to different institutions, such as: Ministry of Justice, Penitenciary Administration, Superior Council of Magistracy, Ministry of Foreign Affairs, National School for Clerks, National Institute of Magistracy, National Office for Prevention and Control of Money Laundering, Parliament of Romania, Chamber of Deputies, Ministry of National Defence, Eurojust, National Customs Authority within National Agency of Tax Administration.
A prosecutor is designated within every prosecutor’s office who also has, in addition to the current competencies, duties related to the organization of the magistrates’ professional training at the decentralized level.
Until the 25th of November 2007 when all the provisions of the Law no. 144/2007 on establishing, organizing and functioning of the National Agency for Integrity come into force, a prosecutor from the prosecutor’s office attached to every court of appeal takes part from the commission for investigating the assets of the officials, magistrates, public servants and persons with executive positions.
After the dated mentioned above, the prosecutor will not have any more competencies as regards the effective control procedure of the assets and the checking activity is to be performed by the integrity inspectors.
But, the prosecutor will participate, compulsorily, in the judging of the cases when the administrative and tax contentious sections of the competent courts will be notified with seizure requests of a part form the asset or a determined good (art. 46 and art. 61 point 2 of the Law no. 144/2007)
Question
b. Please indicate the background explaining their existence.
Answer
These competencies are provided by the legislation in force:
- the Constitution of Romania:
- the Law no. 304/2004, republished, on judicial organization;
- the Law nor.303/2004, republished, on status of the judges and prosecutors;
- the Civil Procedure Code;
- Minister of Justice Order no. 529/C of 21 February 2007 on approval of Regulations on internal order of the public prosecution’s offices;
- Law no. 115/1995 on the declaration and control the assets of the officials, magistrates, public servants and other persons with executive positions;
- Law no. 144/2007 on establishing, organizing and functioning of the National Agency for Integrity;
- Law. No. 554/2004 of the contentious administrative;
- Other legal provisions.
Question
c. Please indicate the role played by the public prosecutor in exercising
these competencies: advisory role – ex officio or upon request – supervisory role or decision-making role
Answer
- The transfer of the proceedings for the public security in the civil matter can be achieved both ex officio (the prosecutor initiates an inquirey in respect to the circumstances creating the assumption according to which the judgement of the trial at the competent court could make a disturbance) and upon request.
- The appeal in the best interest of law in civil matter can be initiate ex officio or upon the request of the minister of justice (art. 329 Criminal procedure code)
- The civil action for protecting the legitimate rights and interests of the minors, persons laid under interdiction and the missing persons can be started by prosecutor ex officio or upon request.
In the event that the law provides the compulsoriness for the participation of the prosecutor in judging certain civil cases, the civil trial cannot be conducted in the absence of the Public Ministry representative.
Question
d. Where public prosecutors have decision-making role, can their decisions be challenged by any legal remedy? Please indicate the legal remedies provided for.
Answer
Most of the extra criminal competencies of the prosecutors refers to his participation in judging the civil cases, therefore the Public Ministry representatives have not decision-making power.
Question
3. Please give an indication (statistics, if available) of the effective use of these competencies and the workload they entail for the prosecution service as a whole.
Answer
In 2005, 354 actions for annulment were judged in civil cases, out of which 113 were withdrawn and 121 admitted.
In 2005, at the level of the whole country, 60.044 civil cases with the participation of the prosecutor were also judged and, in 54.330 civil cases, the prosecutor checked the court decisions with a view to exercising the legal remedies.
The prosecutors declared 299 appeals out of which 135 were admitted and 34 recourses out of which 8 were admitted.
From the total mentioned above, 11.876 civil cases were judged with the participation of the prosecutors from the prosecutor’s offices attached to the courts of appeal.
In 2006, 88 actions for annulment were solved in civil cases declared by the prosecutors out of which 1 was withdrawn and 43 were admitted.
In the same year, the Public Ministry was also notified with 100 memos for declaring the appeal in the best interest of law in civil cases and declared 20 of such appeals.
In 2006, at the level of the whole country, 57.679 civil cases were judged with the participation of the prosecutor, and the prosecutors checked the court decisions with a view to exercising the legal remedies in 63.268 civil cases.
The prosecutors declared 496 appeals and recourses in civil cases.
At the level of the prosecutor’s offices attached to the courts of appeal, the prosecutors attended the judgement of 3.709 cases and checked 6.347 civil court decisions with a view to starting the legal remedies.
Question
4. Does your country envisage any reform in the above-mentioned competencies of the public prosecutor?
Answer
PART II
Question
5. Does the public prosecution service have a separate internal organisation when it acts outside the field of criminal justice? Please specify.
Answer
The public prosecution service has a separate organization for the situations in which it acts outside the field of criminal justice.
Thus, at the level of the Prosecutor’s Office attached to the High Court of Cassation and Justice the extra criminal competencies are clearly provided for other sections than those with operative character.
The civil judicial services are within the prosecutor’s offices attached to the courts of appeal and at the level of the Prosecutor’s Office attached the Bucharest Tribunal which prosecutors attend the judgement of the cases, other than the criminal ones, when the law provides the compulsoriness for the participation of a Public Ministry representative in such trials.
Question
6. Which powers does the public prosecution service enjoy when acting outside the field of criminal justice?
a. Is it vested with a specific authority or does it enjoy the same powers as the other party(ies) to the trial?
b. Are there specific rules governing the exercise of these functions? What is the basis of such rules (the law, custom or practice)?
c. Does it enjoy other rights and duties? Please specify.
Answer
a) The powers of the Public Ministry when acting outside the field of criminal justice are provided by the Constitution (art. 130), Civil Procedure Code, Law no. 303/2004 republished, on status of the judges and prosecutors, Law no. 304/2004 republished, on judicial organization and the Regulations on internal order of the public prosecution’s offices.
The Public Ministry representative may start or exercise the civil action instead of the minor or the person laid under interdiction or missing persons, may draw up the same requests as the titular of the right at which the action refers to, may give up the trial, may put conclusions in any civil trial, in any stage of it, if considers necessary for protecting the legal order, citizens’ rights and freedoms and, in certain cases provided by the law, the prosecutor’s participation and conclusions are compulsory.
The prosecutor may exercise, under the terms of law, the legal remedies against any court decisions and, in the civil cases related to the minors, persons laid under interdiction or missing persons, may request for the execution of the court decisions passed in favour of these persons.
As a rule, the Public Ministry representative who acts outside the field of criminal justice has the same powers as the other parties to the trial (the right to draw up requests, to raise exceptions, to propose evidence, put conclusions, to exercise the same legal remedies as the other parties to the civil trial).
The prosecutor does not become the defender of any of the parties but intervenes in the trial for guarding the observance of law, in the trials raising the question related to the protection of the citizens’ rights and freedoms.
(b) The specific rules that govern the exercising of these powers are according to the law and based on the constitutional principal according to which the Public Ministry represents the general interests of the society and defend the legal order as well as the citizens’ rights and freedoms.
Question
7. Regarding the role of the public prosecution service outside the field of criminal justice:
a. has the European Court of Human Rights taken decisions or handed down judgements on that matter in respect of your country? If so, please indicate the number of the application and the date of the decision or judgement.
b. in your country, has the constitutional or another court with the authority to rule on the constitutionality of laws, taken decisions or handed down judgements on the compatibility of such a role with the constitution or the basic law? If so, please indicate the references of such decisions and their main thrust.
Answer
- Decision no. 1 of 4 January 1995 of the Constitutional Court published in the Official Gazette of Romania no. 66 of 11 April 1995 by means of which was admitted the unconstitutionality exception of the provisions of art. 45 par. 1 of the Civil Procedure Code invoked by the Prosecutor’s Office attached the Timiş Tribunal.
In order to motivate the exception, such provisions were asserted to have limited the participation of the prosecution in judging all the causes brought to the trial, so that the Public Ministry cannot entirely exercise its powers for protecting the legal order, as well as the citizens’ rights and freedoms.
Court admitted the invoked exception, considering unconstitutionally the limits provided by art. 45 par. 1 of the Civil Procedure Code.
There was appreciated that although it is about the civil, private trials, the prosecutor is not the opponent of the court or any of the parties but, he intervenes in the trial for guarding the observance of law, in the trials raising the question related to the protection of the citizens’ rights and freedoms.
The prosecutor does not turn into the lawyer of any of the parties. It is also certain that in the case of the civil trials there are general interests which must be protected and in the judicial activity, the Constitution has established such defender role for the prosecutor.
The principle of availability governing the civil trial functions further, because by the prosecutor’s participation in the trial, the parties are not impeded to show their disposal right, according to the law.
Therefore, the restriction of the prosecutor’s right to participate in any civil trial, in its every stage was found to have been unconstitutional and, as such, the constitutional provisions are to be applied in respect of such power.
Thus, besides the cases in which the prosecutor is bound to participate in the civil trial according to the law, he may participate in solving any civil trial, in any stage of it, if he deems necessary for protecting the legal order or the citizens’ rights and freedoms.
But, one of the judges had a separate opinion, arguing that art. 45 par. 1 of the Civil Procedure Code provides that the prosecutor participate in the civil trials between the private persons only in two cases: when a party to the trial is the unable or where the law provides clearly the prosecutor’s participation to the trial. Only the law-maker could extend the category of the trials between the private persons to which the prosecutor is entitled and bound to participate, otherwise he is at the direct disposal of every prosecutor if he wants to participate or not in the trial and in what kind of trials he wants to participate or not.
- Decision no. 71 of 5 March 2002 of the Constitutional Court published in the Official Gazette of Romania no. 309 of 10 May 2002 by means of which was rejected the unconstitutionality exception of the provisions of art. 45 par. 1 of the Civil Procedure Code raised by the Prosecutor’s Office attached the Piteşti Court of Appeal.
Exception was invoked because the provisions of the Civil Procedure Code in its drawing up given in art. 1 point 10 of the Emergency Government Ordinance no. 138/2000 could be contrary to the provisions of art. 130 par. 1 of the Constitution because would restraint the prosecutor’s powers provided in this constitutional text.
It was also indicated that by the provisions of art. 130 par. 1 of the Constitution it was established that the Public Ministry represent the general interests of society and protects the legal order, as well as the citizens’ rights and freedoms. Consequently, it must have at hand all the legal instruments which serve to the proper exercise of such powers. That is why, the limit of the prosecutor’s right (who has the capacity as a party to the civil trial) to start the trial only in the two situations provided by art. 45 par. 1 of the Civil Procedure Code (protecting the legitimate rights and interests of some category of persons and the cases provided clearly by the law) would be unconstitutional.
The court has retained that the civil trial is by its nature a trial in which the private interests are confronted, that is why, consequently, the role of the Public Ministry is objectively lower.
The art. 130 par. 1 of the Constitution refers, generically, to the role of the prosecutor “in the judicial activity”, but does not impose clear conditions or ways to participate the prosecutor in the civil trial. It is essential that by the set of the legal rules to be assured the role of the prosecutor provided by the Constitution.
According to the art. 45 of the Civil Procedure Code, the participation of the prosecutor is achieved in the following four ways: starting of the civil action, participation in judging the civil cases, exercising the legal remedies and the request to execute the civil court decisions.
According to the constitutional provisions, the prosecutor’s prerogatives in the civil trial are achieved mainly by the participation and put conclusions within the court sessions.
The civil trial is governed, as basic rule, by the principal of availability, that is why, the starting of the civil trial must to remain an attribute of the person concerned.
If the starting of the civil trial is a private issue, once the courts of law being notified, the civil trial gets a public character.
For this reason, the participation within a civil trial already started is the principal manner for accomplishing the prosecutor’s role provided by the Constitution.
The unconstitutionality exception was rejected with separate opinion. According to this opinion, taking into account the peculiarity of the civil trial and the legal nature of the Public Ministry, there is no motivation in restraining the prosecutor’s competencies to start the civil action, beyond the limits provided by the art. 130 par. 1 of the Constitution, because the provisions of art. 45 par. 1 of the Civil Procedure Code are unconstitutional in so far as they limit the prosecutor’s rights to star the civil action, at the cases provided by this law text.
- Decision no. 184 of 20 June 2002 issued by the Constitutional Court published in the Official Gazette of Romania no. 562 of 31 July 2002 by means of which was rejected the unconstitutionality exception raised in a case having as an object the annulment of an act issued by the General Bank of Credit and Promotion.
In order to motivate the unconstitutionality exception there was indicated that the provisions of art. 45 par. 1 of the Civil Procedure Code break the right of a person to address himself to the justice for defending his rights and, on the other hand, the prosecutor, exercising his powers under the authority of the Public Ministry, is not impartial when he starts the civil action, that contravenes to the constitutional provisions.
The court rejected the exception indicated that “although the prosecutors carry out their activity according to the principle of lawfulness, impartiality and hierarchical control under the authority of the minister of justice and the orders of the hierarchically superior prosecutor are compulsory for the prosecutors under his subordination, in the court the prosecutor is free to presents his conclusion he deems well-founded, according to the law, taking into account the evidence adduced in the case. Moreover, according to the constitutional provisions, the prosecutors do not fulfil justice, but participate, specifically, by their powers to fulfil justice by the courts of law.”
The court also retained that the law-maker is not obliged to regulate the prosecutor’s right to start the civil trial, being his exclusive competence that, taking into account certain determinant circumstances, to find out the possibility of other persons or bodies, apart from the person who pretends to be the titular of the right, to notify the courts of law.
- Decision no. 65 of January 25th 2007 issued by the Constitutional Court and published in the Official Monitor no. 107 of February 13th 2007.
The exception of unconstitutionality was raised by the Public Ministry, the Prosecutor’s Office attached to the High Court of Cassation and Justice.
In motivating the exception they showed that the previous legal regulations on the administrative contentious allowed the participation of the prosecutor in such cases, whereas the provisions of art. 1 par. 9 first thesis of the Law on administrative contentious no. 554/2004 expressly stipulates that the requests in administrative contentious be solved without the participation of the representative of the Public Ministry.
This prohibitive regulation violates the provisions of both art. 131 par. 1 of the Constitution, according to which, in the judicial activity, the Public Ministry represents the general interests of the society, as well as the rights and liberties of the citizens, and also of art. 45 par. 3 of the Civil Procedure Code.
The Court admitted the exception of unconstitutionality taking into account the following:
The provisions of art. 1 par. 9 first thesis of the Law on administrative contentious no. 554/2004, as altered by the provisions of art. IV of the Government Emergency Ordinance no. 190/2005, enshrines the legislative solution according to which the request in administrative contentious are solved without the participation of the representative of the Public Ministry. It is a legal regulation of prohibitive nature, which does not allow the prosecutor to participate in solving the requests on administrative contentious even if they considered it necessary for the defense of the legal order, as well as of the rights and liberties of the citizens.
Taking into account that the constitutional role of the Public Ministry is to represent the general interests of the society, to defend the legal order as well as the rights and liberties of citizens, one can draw the conclusion that the collection of legal provisions must guarantee and ensure the right of the Public Ministry to exert this role.
In the judicial activity, especially in the field of administrative contentious, where one of the parties involved in the trial is always a public authority, the premise for fulfilling the constitutional role of the Public Ministry means its representative’s participating in the court session. Thus, through the participation of the representative of the Public Ministry an additional guarantee is imposed both with concern for the legal order, the general interests of the society, and for the idea of defending the rights and liberties of the citizens, whereas the possibility for the Public Ministry to fully exert its constitutional role is guaranteed.
Also the Court considers that, as the possibility of the prosecutor to participate in solving the requests in administrative contentious lacks, a forbidden restraint of his/her constitutional role occurs, and as you cannot restrain the sphere of applicability of a constitutional text by means of a law, the unconstitutionality of the provisions in art. 1 par. 9 first thesis of the Law on administrative contentious no. 554/2004 is obvious.
The provisions in art. 1 par. 9 first thesis of Law no. 554/2004 appear all the more unconstitutional as, according to the provisions of art. 45 par. 3 of the Civil Procedure Code, the prosecutor may order conclusions in any civil trial, in any of its phases, if he/she considers it is necessary for the defense of the legal order, of the rights and liberties of citizens.
Thus, the Court notes that it is inadmissible to recognize the possibility of the prosecutor to participate in civil litigations under special circumstances, whereas in those dealing with administrative contentious, where the Public Ministry might efficiently take action for fulfilling its competences stipulated in art. 131 par. 1 of the Constitution, his/her role be limited only to strict hypotheses mentioned by art. 1 par. 4 and 5 of the Law no. 554/2004.
Question:
8. Amongst the competences of the public prosecution service acting outside the system of criminal justice which are, in your view, the most important for the reinforcement of rule of law and protection of human rights?
Answer:
A hierarchization of the competences of the public prosecution service acting outside the system of criminal justice is hard to accomplish taking into account that the exertion of these attributions defends the legal order, the rights and liberties of citizens, the general interests of the society, values of utmost importance.
The attempts to restrain the participation of the prosecutor in civil litigations proved to be unconstitutional, and the provisions that allowed the participation of the prosecutor in such cases had to be reintroduced in the normative system.
ALTERNATIVES TO PROSECUTION IN THE MEMBER STATES OF THE EUROPEAN COUNCIL
QUESTIONNAIRE
IV. QUESTIONNAIRE
Question:
1. Concerning the legal framework: does your country follow a system of mandatory or discretionary prosecution? Has the situation changed during the last two years or is a change envisaged? In your country, what is the percentage of criminal law responses to offences perpetrated by identified offenders in the years 2005 and 2006? Amongst those, what is the proportion of alternative to prosecution responses?
Answer:
Romania’s legal framework imposes, as a principle, an system of mandatory prosecution, so that any person who perpetrated a crime be punished according to the guilt and that no innocent individual be prosecuted.
The situation has not changed during the last two years, and from this point of view no essential change is expected.
According to art. 228 of the Romanian Criminal Procedure Code, the prosecution bodies notified with reference to the perpetration of a crime have the obligation to order the beginning of the prosecution.
Otherwise, except for the situations in which the law stipulates that for starting the prosecution, the prior complaint of the injured party or the authorization of the bodies stipulated in the law is necessary, prosecution is always initiated.
Question:
2. In the event of an offence, are your judicial authorities able to choose between criminal law measures and other responses? If so, please specify which. Is that choice definitive or can it be challenged?
Answer:
In the criminal cases dealing with crimes for which, according to the law, withdrawal of the prior complaint or reconciliation of parties eliminates the criminal liability, the perpetrator and the injured party can resort to the alternative procedure of criminal mediation instead of classical prosecution.
The judicial authorities can not constrain the parties to accept either of the alternative paths, the choice being up to the parties.
If the non-contentious procedure of mediation ended with a settlement, the judicial authorities will accept the result of the mediation and, as a consequence, will renounce the prosecution.
If, on the contrary, a settlement was not reached between the parties and the case was re-sent to court or the attempt to implement such a settlement failed or the procedure of mediation surpasses a reasonable time interval, the competent authorities must adopt a decision regarding the future evolution of the case.
Thus, the mediator is compelled to send to the judicial body a copy of the minutes of the mediation procedure.
According to art. 90 and the following articles of the Criminal Code, the court may order the replacement of criminal liability with liability that entails an administrative sanction, if the following conditions are met:
- punishment stipulated by the law for the perpetrated crime is imprisonment of up to one year or a fine if crimes such as theft, breach of trust, fraud, embezzlement, destruction, destruction by negligence are committed, and the value of the damage does not exceed 10 lei, or malpractice if the value of the damage does not exceed 50 lei;
- the deed, in its concrete content and the circumstances in which it was perpetrated, presents a low degree of social danger and did not produce serious consequences;
- the damage caused as a result of the crime was integrally recovered before the decision of the court;
- one can infer from the attitude of the perpetrator after the perpetration of the crime the he/she regrets having committed it;
- there is sufficient data that the perpetrator can be reclaimed without the application of a sanction.
Replacement of criminal liability can not be ordered if the perpetrator had been convicted previously or if he/she had already had two administrative sanctions.
Sanctions that apply in the case of replacement of criminal liability are: reprimand, reprimand with a warning and fine from 10 to 1000 lei.
Administrative sanctions in cases of criminal liability are ordered by the court by means of decisions that are not definitive and are subject to legal remedies.
Question:
3. Who decides on this choice? What is the specific role of the prosecutor?
Answer:
a) The prosecutor does not have attributions in the alternative procedure for solving the litigations of criminal nature. However, the prosecutor may announce the parties that they also have at their disposal a legal alternative of putting an end to the legal conflict, but he/she can not make them use it.
b) In cases of replacement of criminal liability, the prosecutor may only request to the court to resort to the application of a administrative sanction and may use the legal remedies stipulated by the law if the court decision is unlawful or not grounded.
Question:
4. Are there criteria for abandoning the criminal prosecution approach?
Answer:
The judicial authorities renounce the prosecution or are not able to start it if it has not already been ordered in the following cases:
- the deed does not exist;
- the deed is not stipulated by the criminal law;
- the deed was not perpetrated by the accused or the defendant;
- the deed lacks one of the constitutive elements of the crime;
- there is one of the causes that eliminates the criminal character of the deed;
- the prior complaint of the injured person, the authorization or notification of the competent body or any other condition stipulated by the law, necessary to the initiation of the prosecution is absent;
- amnesty, prescription or death of the perpetrator occurred or, according to the case, erasure of the judicial person when it has the quality of perpetrator;
- the prior complaint was withdrawn or the parties reconciled, for the cases in which the withdrawal of the complaint or the reconcilement of parties eliminate the criminal liability or the parties solved the conflict by themselves through mediation;
- replacement of criminal liability was ordered;
- there is a case of non – punishment stipulated by the law;
- there is authority of res judicata. Hindering entails effects even if the deed for which a final decision was pronounced was given another legal appreciation;
Question:
5. Could it happen that a serious offense escapes any prosecution because of alternative measures?
Answer:
Serious offenses are not subject to criminal mediation, therefore it can not happen that a serious offense eludes prosecution as a result of this procedure.
Also replacement of criminal liability can not be ordered in cases of serious crimes or which resulted in serious damages.
Question:
6. Are the victims informed beforehand, consulted, and can they challenge the decision in the case when criminal prosecution was dropped, and how are their rights preserved?
7. Given that the response chosen gives rise to obligations in respect of the persons subjected to it – such as the reparation of damage – are they able to lodge an appeal with an impartial authority (for example, for validation by a judge of a restraining order or an obligation to undergo training proposed by way of settlement)?
Answer:
According to art. 228 of the Criminal Procedure Code, a copy of the resolution by which the prosecutor confirmed the proposition of the police not to initiate the prosecution is sent to the person who made the notification, as well as to, according to the case, the person for whom the precursory steps were taken.
According to art. 246 of the Criminal Procedure Code, a copy of the ordinance or of the resolution by which the prosecutor orders the cessation of the prosecution is sent to the person who made the notification and, according to the case, to other interested persons.
The victims may file a complaint against all the measures taken or against the actions carried out by the prosecutor or according to the orders he/she issued, complaint which is solved by the first prosecutor of the prosecutor’s office or, according to the case, by the general prosecutor of the prosecutor’s office attached to the court of appeal or by the prosecutor in chief of section of the Prosecutor’s Office attached to the High Court of Cassation and Justice.
The complaint against the resolutions not to initiate prosecution or against the ordinance or the resolution of dismissal, of exemption from criminal prosecution or of cessation of prosecution is pronounced within 20 days from the communication of the copy of the ordinance or of the resolution.
The decisions pronounced subsequent to the evaluation of the complaints mentioned above are communicated to the person who filed the complaint or to the other persons interested.
After the rejection of the complaint filed against the resolutions or the ordinances of non-indictment ordered by the prosecutor, the injured person as well as other persons whose legitimate interests are damaged, may file a complaint within 20 days from the day of the communication by the prosecutor of the manner in which it was determined, to the judge from the court that, according to the law, has the competence to judge the case in first instance.
The complaint can also be made against the order of non-indictment described in the indictment acts.
Question:
8. Can you give specific examples of alternatives to prosecution which you see as particularly well suited to the prevention of re-offending by the perpetrator and consideration of victim’s interests?
Answer:
Alternatives to prosecution, at least in the cases of less serious offenses can be considered criminal mediation, as well as replacement of criminal liability.
However, at present, the Criminal Procedure Code is not corroborated with the special provisions on mediation in the criminal cases mentioned in Law no. 192/2006 on mediation and organization of the profession of mediator.
This law is not complete, as it does not specify what the criminal mediation really consists of, if the victim can solicit only money compensations for the suffered damages or if he/she may claim the acceptance by the criminal of a possibly extra-criminal sanction, such as community work for a specific number of hours or a fine.
Question:
9. Is there a method in your country for assessing the effectiveness of alternatives to prosecution and what is it?
10. Can you provide the contact details (with their consent) of someone clearly identified as a specialist on these questions and supply examples of their work to back up your choice?
Answer:
The Mediation Centre from Craiova – http://www.mediere.ro/
Tel.: 0251/419.980
Question:
11. Other comments
Answer:
Although stipulated in the legislation in force, criminal mediation has not been implemented in Romania yet.
Thus, the majority of mediations are accomplished in civil cases (requests, vindications, decisions of councils, obligations to do), domestic relations (divorce, partition, child custody), commercial cases or dealing with the employment law.