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Report on Romania

  • Flaviu CiopecEmail author
  • Magdalena Roibu
Chapter
Part of the Legal Studies in International, European and Comparative Criminal Law book series (LSCL, volume 2)

Abstract

In Romanian criminal proceedings, the accused cannot claim an absolute individual right to be present at trial, which would imply considerable efforts on the part of judicial authorities to make it effective. Failure to bring the accused to trial does not lead to a stay of proceedings—as an expression of an absolute nature of such right—but allows the trial to continue if judicial authorities prove that they have performed a duty of diligence in this respect, e.g. the defendant has been lawfully summoned and the procedure has been complied with. The presence of the defendant to court, in person or through a representative or a counsel of his/her own choosing or appointed ex officio, if the latter contacted the person they represent, shall redress any irregularity related to the summoning procedure. The court proceedings may take place in the absence of the defendant, if the latter is missing, avoids proceedings or has changed his/her address without informing thereupon the judicial authorities and if his/her new address remains unknown. Court proceedings may also occur in the absence of the defendant, when, even though lawfully served the summons, the defendant provides no justification for his/her absence from the trial of the case.

The Romanian procedural law provides an extraordinary remedy by which a person who was tried in absentia and convicted by a final ruling may request the retrial of his/her case in a term of 1 month calculated from the day he/she was informed, by any official notification, that a trial had been held against him/her. Unlike the other extraordinary remedies, the application for retrial of the case does not aim at challenging the unlawful or unfounded nature of the decision ruled in absentia, but instead the defendant seeks to give effectiveness to his/her right to participate personally to trial and exert his/her right to defense.

The ECtHR case-law on in absentia trials involving Romania is very sparse. The situation looks very much alike when it comes to the case-law generated by preliminary rulings filed by Romanian judges to the European Court of Justice on the conformity of in absentia proceedings with EU law. This means that compliance with the European standards in the area of proceedings held in absentia could not take place by means of judicial practice, a situation which is not specific only to Romania. Therefore, it is necessary that harmonization may be achieved within the law-making process. Currently adopted legal instruments at the EU level aim at such ambitious endeavor.

Keywords

Romanian code of criminal procedure Participatory rights In absentia proceedings Law-making remedy Retrial of the case 

Abbreviations

APW

All ports warning

CCP

New Code of Criminal Procedure

DIICOT

Department for the Investigation of Organized Crime and Terrorism

EAW

European Arrest Warrant

ECHR

European Convention on Human Rights

ECtHR

European Court of Human Rights

(f)CCP

Former Code of Criminal Procedure

GEO

Government’s Emergency Ordinance

ICCPR

International Covenant on Civil and Political Rights

NPC

New Penal Code

RCC

Romanian Constitutional Court

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Copyright information

© Springer Nature Switzerland AG 2019

Authors and Affiliations

  1. 1.Faculty of LawWest University of TimișoaraTimișoaraRomania

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