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Custody on remand according to the new Criminal Code of Romania.

1. Introduction

The new Romanian criminal procedure Code (Law no. 135/2010 (1)) both contains regulations and to a small extent borrows a number of the provisions of the Romanian criminal procedure Code in force (since 1969) with regard to custody in remand. Accordingly, the provisions of article 223, paragraph (1), letters a), b) and c) reproduce the text of article 148, paragraph (1) letters a), b), c), d) and e) of the Criminal procedure code in force, with several essential amendments. Other than that, all the other provisions are not found in the current Romanian legislation.

The European Convention for the protection of human rights and fundamental freedoms stipulates in art. 5, paragraph 1 letter c) that a person can be arrested or taken into Police custody if there are credible reasons to suspect that the person committed a crime or if there are grounded reasons to believe that it is necessary to prevent a crime from being committed or the perpetrator from running away after committing a crime. It is worth mentioning that in the case of custody o remand, the new Romanian criminal procedure law--as well as the one in force--is more severe than the requirements of the European Convention for the protection of human rights and fundamental freedoms.

The European Court of Human Rights (E.C.H.R.) has stated on more than one occasion that although the European Convention for the protection of human rights and fundamental freedoms implicitly establishes the principle according to which no person should be randomly deprived of their freedom, protection of the individual freedom against arbitrary intrusion on the part of the authorities must not however hinder the undertakings of the criminal judicial body regarding submitting the evidence and the adequate carrying out of the trial. (2)

2. Concept and proceedings

Custody on remand is the 5th preventive measure stipulated in art. 202 of the new Criminal Procedure Code and the most severe.

A. Concept

Custody on remand is a detention measure consisting in removing the person against whom this measure was decreed from the social to the detention environment.

Custody on remand is extremely useful in terms of the goals it seeks to achieve: on the one hand, insuring the appropriate carrying out of the criminal trial and implicitly delivering criminal justice, (3) on the other hand, insuring social defense.

B. Proceedings

The new Romanian criminal procedure Code has brought custody on remand under regulation by means of a single proceeding: arrest of the defendant, i. e. arrest of the person against whom criminal proceedings were initiated.

The criminal procedure Code in force brings custody on remand under regulation by means of two proceedings: arrest of the suspect, i. e. the person facing criminal charges before criminal proceedings are initiated and arrest of the defendant, i. e. the person against, benefitting from distinct treatment.

3. Enforcement terms for custody on remand

The new law requires that the following conditions be met so that custody on remand of the defendant may be enforced:

A. Existence of evidence attesting reasonable suspicion that the defendant has committed a crime.

Unlike the current regulation, allowing enforcement of custody on remand only if there are solid clues that the defendant committed a crime, the new law requires the existence of evidence attesting the reasonable suspicion that the defendant committed a crime.

As previously stated, as far as custody on remand is concerned, the new criminal procedure law is more severe that the requirements of the European Convention for the protection of human rights and fundamental freedoms, allowing a person to be arrested or taken into Police custody if there are credible reasons to suspect that the person committed a crime or if there are grounded reasons to believe that it is necessary to prevent a crime from being committed or the perpetrator from running away after committing a crime. The European Court of Human Rights showed that the notion of "credible reasons" refers to rightful, reasonable suspicion entailing the existence of acts or information likely to convince an unbiased observer that the person in question was capable of committing the crime he/she was arrested for. However, the reasonable nature is circumstantial. (4) Article 5, paragraph 1, letter c) of the European Convention mentions "reasonable suspicion"--"raisons plausibles" and not "reasonable and honest suspicion."

Any matter of fact that turns out useful for confirming a crime has or hasn't been committed, for identifying the person who committed it and for finding out information regarding the necessary circumstances required for the case to be justly solved and that contributes to revealing the truth in the criminal trial [art. 97, paragraph (1) of the new Criminal procedure Code] is considered evidence.

Evidence in the criminal trial is acquired through the following means:

a) The suspect's or the defendant's statements;

b) The injured party's statements;

c) The plaintiff's statements or the statements of the responsible party in the civil lawsuit;

d) The witnesses' statements;

e) Documentary evidence, reports, statements of facts, photographs, material evidence;

f) Any other evidence that is not otherwise forbidden by the law [art. 97, paragraph (2) of the new criminal procedure Code].

According to the criminal procedure Code in force, solid clues are present when the existent data may trigger reasonable assumption that the person facing criminal charges has committed the crime (article 681); so, according to the law in force solid clues consist in matters of fact other than those arising from evidence such as informative reports, investigation or identification statements of facts, finding a person near the crime scene, finding objects upon the person whose origin cannot be accounted for, finding a person close to a house that was burgled in possession of tools used in burglaries and breaking and entry, etc. All these are not sufficient in view of a preventive measure, the reasonable assumption that the suspect or the defendant has committed the crime being necessary, which entails increased attention to the analysis of the data, gathered in the case, of their sources and their reliability. In practice, most prosecutors do not recommend custody on remand to the court unless there is solid incriminating evidence. There is a general opinion, also sanctioned by the institutions, that solid clues may justify a mild preventive measure: custody or interdiction to leave the locality or the country; only evidence may justify further and harsher preventive measures: arrest of the suspect or the defendant.

This idea has been embraced by the new criminal procedure Code which stipulates that solid clues may only justify mild preventive measures: custody and legal restrictions. The other harsher preventive measures (non-custodial legal restrictions, house arrest and custody on remand) are conditioned by the existence of evidence.

Apart from the evidence, reasonable suspicion that the defendant has committed a crime is also needed in order for custody in remand to apply. In agreement with the case law of the European Court of Human Rights, reasonable suspicion claims matters of fact likely to convince an unbiased observer that the defendant can have committed the crime he/she stands trial for (5). More plastically said, "reasonable suspicion" may be nothing other than a normal, moderate rational assumption that the defendant has committed a crime. It follows that the evidence should not clearly point to the defendant being guilty but only to the rational assumption that he/she has committed a crime.

The phrase "there should be evidence supporting reasonable suspicion that the defendant has committed a crime" is ambiguous and likely to lead to misunderstanding in legal proceedings.

As previously explained, evidence refers to something other than suspicion, i. e. an assumption; when a circumstance constitutes evidence, it follows that it provided certainty regarding the existence of the crime or the defendant being guilty, not merely an assumption or anything likely related to the actual existence of the crime, the law breaker or the circumstances of the case. Needless to say that evidence does not fully cover the evidentiary hearing, as other evidence are is to be considered, which tend to contradict the above mentioned. The decision that the existence of the crime has been proven will be made by the court of law upon analysis of the evidence [art. 103, paragraph (1) and (2) of the new criminal procedure Code].6

Anyway, as we will later show, the new criminal procedure law is more severe than the case law of the European Court of Human Rights and even of several deeply democratic European states (Italy, for example) since it requires evidence and not merely solid clues.

In another train of thoughts, for custody on remand to apply, the reasonable suspicion needs to refer to committing a crime and not an act stipulated in the criminal law, as stipulated in the criminal procedure Code in force and which could be the source of abuse on the part of the criminal investigation body (for example, self-defense).

According to article 15, paragraph (1) of the new Romanian Criminal Code (Law no. 286/2009, (7) crime refers to an act stipulated in the criminal law, the person committing it being guilty, accountable and having no justification for it.

B. Custody on remand applies only to a defendant, i.e. a suspect against whom the prosecutor has initiated criminal proceedings by decree.

Initiation of criminal proceedings is therefore necessary, a fact that entails the existence of a prior suspect that is a person, object of a case where prosecuting charges have been made (in rem) by the criminal prosecution body (prosecutor or criminal investigation body) by decree. Until criminal charges are made, the suspect has the status of perpetrator. Throughout the criminal investigation, the prosecutor initiates the criminal proceedings as soon as it is clear that there is evidence hence it appears that there are solid reasons to believe that the a person committed a crime and no hindrance case stipulated in article 15, paragraph (1) of the new Romanian criminal procedure Code.

C. Custody on remand applies only if it is necessary for the appropriate carrying out of the criminal trial or achievement of special prevention.

To that effect, the new criminal procedure Code stipulates that the preventive measures may be decreed if necessary to insure the appropriate carrying out of the criminal trial, to prevent the defendant from absconding or prevent another crime [article 202, paragraph (1)].

Apart from these general purposes preventive measures have, which are fully applicable to the measure we analyzed, they also have some specific, special ones, some of which are: clearing the danger to public order; the laborious process of evidence-taking. As long as the special purpose is set in relation to a specific defendant and the material circumstances of a criminal case, it is possible for custody in remand to apply in the case of a defendant and not in the case of another; furthermore, it is possible that different preventive measures may be decreed for the same crime against distinct suspects or defendants. (8)

Even though the text is ambiguous regarding prevention of another crime, we believe it refers exclusively to special prevention (preventing the defendant from committing another crime) and not to general prevention as well (preventing the community from committing another crime). Custody on remand applied to the defendant is not conceivable if it is aimed exclusively to the general prevention. Of course, general prevention may also be achieved alongside the special one, but only implicitly, indirectly, not directly, as in the case of special prevention.

D. Custody on remand must be in direct ratio to the seriousness of the accusation made against the defendant and necessary for the achievement of its set goal.

According to article 202, paragraph (3) of the new criminal procedure Code, custody on remand, as well as other preventive measures, must be in direct ratio to the seriousness of the accusation made against the defendant and necessary for the achievement of its set goal. By accusation we mean the charge against the defendant, that is, the act that set in motion the criminal proceedings and its legal classification.

As far as the notion of "accusation in a criminal matter" is concerned, the European Court of Human Rights stipulated that the important role played by a fair trial in a democratic society requires a "material" and not a "formal" approach; such a perspective "demands looking beyond appearances and analyzing the facts of the procedure of the lawsuit" (9) because all legal decrees apply to people: especially in the criminal matter, the person being accused and trialed finds him/herself before the court both when the main issue is on trial and when the person appeals against the sentence delivered, so that the whole procedure must be fair. (10)

The European court has also decreed that article 6, paragraph 1 of the European Convention for the protection of human rights and fundamental freedoms makes no distinction between acts punishable by the criminal law and acts which are not punishable by the criminal law due to the lack of social danger; it applies to any accusation in a criminal matter. (11) Also, the European Court of Human Rights decided that the notion of "solidity" (bien-fonde) from the French version of the text refers not only to the solidity of the accusation de facto but also to its solidity de jure, (12) which, in Romania, we believe refers to its lawfulness, (13) or, even better, to the legal classification of the act the defendant is accused of.

In its statute law, the European Court has tried to define the notion of "accusation" by showing that it consists in the "official notification, coming from a competent authority, regarding the incrimination of having committed a crime," which coincides with the notion of "important repercussion on the person's situation." (14)

In conditions such as these, we can say that custody on remand must be in direct ratio to the seriousness of the action that set in motion the criminal proceedings. The real seriousness of the action or the actual social danger it represents are considered and not the general social danger that the legislator considered when incriminating that action and which is highlighted by the special punishment limits stipulated by the law for that incrimination.

The manner in which the action or inaction making up the material constituent of the crime happened precisely, as well as its particular circumstances, the character and the importance of the material constituent that was injured or endangered by the crime, the character and seriousness of the immediate natural outcome (material or non-material)--the natural physical change that the defendant's action induces to the objective reality and its immediate juridical outcome--the result affecting the specific juridical object , that is the harm done to the social value protected by the criminal law (for instance murder harms human life as a social value),--the manner in which the causality report was presented, the type and degree of guilt and, in a general sense the subjective constituent of the crime (15) have to be analyzed so as to acquire knowledge of the actual seriousness of the action.

Also, observance of the proportionality principle refers to the legal classification of the action that is the operation carried out by the juridical body to set a full correspondence between the action and the special criminal regulation incriminating that action, as well as according to the applicable general criminal regulations. (16) The legal classification show the special punishment limits according to the law for the committed crime that need to be considered upon taking the preventive measure; which is why it is necessary that the legal classification of the defendant's crime should be correctly established.

Custody on remand should apply if it is appreciated as necessary in view of its purpose, that is one or several of the general purposes previously mentioned: to insure the appropriate carrying out of the criminal trial, to prevent the defendant from absconding or prevent another crime from being committed.

E. Custody on remand cannot be decreed in the case of an existent cause hindering the initiation or exercise of the criminal proceedings.

According to article 202, paragraph (2) of the new criminal procedure Code, no preventive measure can be decreed, confirmed, extended or maintained if there is a cause hindering the initiation or exercise of the criminal proceedings, from among those stipulated in art. 16, paragraph (1) of the new criminal procedure Code (the action does not exist; there is no evidence that a person committed a crime, etc.).

F. Custody on remand can be exceptionally decreed.

According to art. 9, paragraph (2) of the new criminal procedure Code, any custodial or freedom restrictive measure is exceptionally decreed and only in the cases and on the terms stipulated by the law.

4. Cases where custody on remand is applied

One of the next cases stipulated by article 223 of the new criminal procedure Code must exist so that the measure of custody on remand may be decreed, apart from the conditions previously analyzed:

A. The defendant has fled or is hiding so as to abscond from criminal investigation or has taken measures to that effect.

This case is also stipulated in article 148, paragraph (1), letter a) of the criminal procedure Code in force, but with a wider content, including evading serving the punishment on the part of the defendant.

B. The defendant tries to influence another participant in the crime, a witness or an expert or to destroy, alter, conceal or steal items of material evidence or influence another person to act in this manner.

This case has a counterpart in article 148, paragraph (1), letter b) of the criminal procedure Code in force.

C. The defendant pressures the injured party or tries to come to an unauthorized understanding with them.

This case has a counterpart in article 148, paragraph (1), letter e) of the criminal procedure Code in force.

D. The reasonable suspicion exists according to which after the initiation of criminal proceedings against the defendant, he/she deliberately committed a new crime or plans to do so.

This case has a counterpart in article 148, paragraph (1), letter c) of the criminal procedure Code in force, with several exceptions.

E. The defendant deliberately committed a crime against life, a crime that involved injury or death of a person, a crime against national security stipulated by the criminal Code and other special laws, a crime involving drugs, weapons or human trafficking, terrorism, money laundering, money counterfeiting and other types of forgery, blackmail, rape, kidnapping, tax evasion, abuse, judicial abuse, corruption, crimes committed via electronic communication devices or any other crime the law stipulates at least a 5-year imprisonment punishment for and, based on the assessment of the seriousness of the crime, of the manner and circumstances it was committed, the entourage and the environment (s)he comes from, of his/her criminal record and other circumstances regarding his/her person, custody is necessary so as to eliminate a state of danger for the public order.

Even though this case may be thought to have a counterpart in article 148, paragraph (1) letter f) of the criminal procedure Code in force, the existent differences between the two regulations lead to the opposite conclusion.

The list of crimes is an exhaustive, not a limited one because the legislator uses the expression: "or any other crime the law stipulates at least a 5-year imprisonment punishment for."

For this case to become effective it is enough for a single crime from the list to be committed. The crime may be consummated or only attempted.

On the other hand, apart from the existence of a crime from the list, an essential requirement must be met: imprisonment of the defendant is necessary s so as to eliminate a state of danger for the public order, which is deduced from the assessment of the seriousness of the crime, of the manner and circumstances it was committed, the entourage and the environment (s)he comes from, of his/her criminal record and other circumstances regarding his/her person.

By "public order" we understand the social, economic and politic order of a state that is insured by means a set of norms and measures which varies from a social structure to another and becomes effective through the normal functioning of the state apparatus, maintaining the citizens calm and respecting their rights. (17)

By "danger to the public order" we understand the situation created by a crime being committed, endangering and threatening the existence and maintenance of public order.

4. Conclusions

By the exceptions we called attention to the new criminal procedure law better brings under regulation the concept of custody on remand.

However, since the new criminal procedure law requires that custody on remand should apply upon the existence of "evidence" and not merely of "solid clues", it is more severe than the statute law of the European Court of Human Rights and even than the legislation of deepen democratic European states, such as Italy. As we are well aware, custody on remand is commonly decreed immediately after a crime is committed, "solid clues" being sufficient (18) while the evidence is gathered throughout the criminal charges, as the accusations takes better shape.

The actions leading to the "assumptions" that can make up the condition of the arrest does not have to be identical to those necessary for the justification of a conviction or foundation of an accusation. (19) If upon consideration of the preventive measure there were evidence clearly confirming the defendant's guilt, a conviction order and not a preventive measure would have to be decreed. (20) In fact, juridical practice considered that the defendant's unjustified flight after violently stealing the injured party's bag and finding the item close to the place (s)he was caught represent data leading to the assumption that the defendant committed the crime and, consequently, to the solid clues that (s)he committed robbery. (21)

In conditions such as these, we suggest de lege ferenda, that the Romanian legislator intervene and assume the view of the criminal procedure Code in force, according to which custody on remand may be decreed if there is evidence or solid clues that the suspect or the defendant committed a crime stipulated by the criminal law.

REFERENCES

(1.) Published in the Official Monitor of Romania, part I, no. 486 from July 15th 2010. The new Criminal Procedure Code of Romania will come into force at a date that will be set in the law regarding its enforcement.

(2.) E.C.H.R., Decision from August 27th 1992, in the case of Tomasi against France.

(3.) Dongoroz, V., Kahane, S., Antoniu, G., Bulai, C., Iliescu, N., Stanoiu, R. (2003), Theoretical Explanations of the Romanian Criminal Code. Generalities., Vol. II, Romanian Academy and All Besck Publishing Houses, Bucharest, 321; Ivan, Gh. (2010), Criminal Law and Criminal Proceeding. Galatzi: Galatzi University Press, 128.

(4.) E.C.H.R., Decision from October 22nd 1997 in the case of Erdagoz against Turkey, [section]51; Birsan, C., (2005), The European Convention of Human Rights. Article Commentary, Vol. I. Rights and Freedoms, Bucharest: All Beck Publishing House, 312.

(5.) E.C.H.R., Decision from August 30th 1990 in the case of Fox, Campbell and Hartlei against the UK, [section]32.

(6.) to the same effects, Antoniu, G. (2009), "Observations to the New Criminal Procedure Code (II)," Criminal Law Magazine no. 1: 20.

(7.) Published in the Official Monitor of Romania, part I, no. 510 from July 12th 2009. The new Criminal Code of Romania will come into force at a date that will be set in the law regarding its enforcement.

(8.) Neagu, I. (2006), Criminal Procedure Law. Treaty. Vol. I, General Part, Bucharest: GLOBAL LEX Publishing House, 389.

(9.) E.C.H.R., Decision from February 27th 1980, in the case of Deweer against Belgium, [section]44; E.C.H.R., Decision from March 26th 1982, in the case of Adolf against Austria, [section]30.

(10.) E.C.H.R., Decision from January 17th 1970, in the case of Delcourt against Belgium, [section]25.

(11.) E.C.H.R., Decision from March 26th 1982, in the case of Adolf against Austria, [section]33. th

(12.) E.C.H.R., Decision from January 17th 1970, in the case of Delcourt against Belgium, [section]25.

(13.) Birsan, C., the quoted work, 441-442.

(14.) E.C.H.R., Decision from March 31st 1998, in the case of Reinhardt and SlimaneKaid against France, [section]93.

(15.) Ivan, Gh. (2007), Individualisation of Punishment. Bucharest: C.H. Beck Publishing House, 129-143.

(16.) Nistoreanu, Gh., Boroi, A., Molnar, I., Dobrinoiu, V., Pascu, I., Lazar, V. (1997), Criminal Law. Vol.2. Special Part, Bucharest: Europa Nova Publishing House, 22; Ivan, Gh. (2010), Criminal Law. Vol.2. Special Part, Galatzi: Galatzi University Press, 8; High Court of Cassation and Justice, criminal department, decision no. 2901/2006.

(17.) (1998), Romanian Explanatory Dictionary (DEX), 2nd edition, Bucharest: Univers Enciclopedic Publishing House, 726.

(18.) to the same effect, Crisu, A. (2011), Criminal Procedure Law, revised and updated edition according to Law no. 202/2010, Bucharest: Hamangiu Publishing House, 286.

(19.) E.C.H.R., Decision from October 28th 1994, in the case of Murray against the UK;

(20.) The Romanian Constitutional Court, decision no. 21/2005, published in the Official Monitor of Romania, part I, no. 155 from February 22nd 2005.

(21.) Court of Appeal, Brasov, penal decision no. 141/2003.

Mari-Claudia IVAN

mariclaudia_i@yahoo. com

Titu Maiorescu University, Bucharest

Gheorghe IVAN

ivan_gheorghe_p@yahoo.com

Dunarea de Jos University, Galatzi

Andrei Radulescu Acad. Institute for

Judicial Research, Romanian Academy
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Author:Ivan, Mari-Claudia; Ivan, Gheorghe
Publication:Contemporary Readings in Law and Social Justice
Article Type:Report
Geographic Code:4EXRO
Date:Jul 1, 2012
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