Fiches Belges

Under the International Judicial Cooperation measure is covered by Articles 233 and 263 of the Law no. 302/2004 on international judicial cooperation in criminal matters. For Convention implementing the Schengen Agreement, Article 263 of the Law no. 302/2004 on international judicial cooperation in criminal matters is applicable. Bodily search implies the examination of the exterior of a person’s body, oral cavity, nose, ears, hair, clothing and of objects a person has with them or under their control at the moment of search. The measure as such is provided for by Article 190 of Romanian Criminal Procedure Code "Physical examination" and implies an internal and external examination of their body, as well as the harvesting of biological samples.

European Convention on Mutual Assistance in Criminal Matters, Convention established by the Council in accordance with Article 34 of the Treaty on European Union, on Mutual Assistance in Criminal Matters between the Member States of the European Union Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, Directive 2014/41/EU of 3 April 2014 regarding the European Investigation Order in criminal matters

Under the legal instruments of the Council of Europe, requests should be sent, during the investigation and prosecution stage, to the Prosecution Office of the High Court of Cassation and Justice, and during the trial stage, to the Ministry of Justice. Under the legal instruments of the European Union, direct communications between the competent judicial authorities is foreseen. In case of urgency, request may be made via EJN contact points or Eurojust. Judicial bodies or any other authority having responsibilities in ensuring public order and safety are the competent authorities to execute the measure. The Judge for Rights and Liberties shall rule upon such application for the conducting of a physical examination in chambers, through a court resolution that is not subject to any avenue of appeal.

Requests and annexed documents shall be accompanied by a translation into Romanian or into either English or French. Reciprocity may apply This is without prejudice to the provisions concerning the translation of requests or annexed documents contained in the agreements or arrangements in force or to be made between Romania and requesting state. EIO: In relation to Member States which have declared that they request the transmission of European Investigation Orders and documents annexed exclusively in the national language, the Romanian authorities may request that the European Investigation Order and the annexed documents be translated into Romanian. In cases where the issuing authority indicates that the investigative measures are urgent, the European Investigation Order and the attached documents will be accompanied by a translation into Romanian.

MLA: No legal deadlines EIO: The competent execution authority shall decide for the recognition and enforcement of the measure contained in the EIO as soon as possible within a maximum of 30 days of receipt of the EIO. If the evidence requested by the European Investigation Order is already in the possession of the Romanian authorities, the executing authority shall carry out the investigative measure within 90 days of the taking of the decision. If the competent execution authority cannot comply with the time limit, it may be prolonged by a maximum of 30 days.

The request should include: a) the full name and features of the person investigated by the Romanian authorities, identification of the traces that the offence was committed or other articles allegedly existing at the location to be searched; b) reason underlying the request for the search to be performed; c) indication of legal classification, description of the summary of facts, evidence or data revealing that the location where the search is requested to be performed harbours the person investigated by the foreign authorities or evidence may be revealed relating to the offence which was committed; d) if appropriate, indication of the evidence or data revealing a reasonable suspicion in relation to the perpetration of an offence or of articles and documents forming the object of the offence; The request is admitted, provided that the following conditions are met: a) the offence forming the object of the criminal proceedings conducted in the requesting State would have amounted, if committed in Romanian territory, an offence and its author liable to be punished. If the measure was applied for several offences, the condition shall be checked for each and every offence; b) the penalty stipulated in the Romanian law and the law of the requesting State for the offence committed by the person investigated by the requesting State is of at least one year imprisonment. The aforementioned conditions may activate the reciprocity rule. Bodily search is conducted in observance of human dignity, by a person of the same sex as the person subject to search. Prior to beginning a bodily search, a person subject to search shall be requested to surrender the searched objects voluntarily. If the searched objects are surrendered, the search shall no longer be conducted, except for situations when its conducting is deemed useful for the search of other objects or traces. Criminal investigation bodies have to request in advance the written consent of persons who are to be subject to examination. In case of persons lacking mental competence, the consent to physical examination is requested from their legal representative, and in case of those having a limited mental competence, their written consent needs to be expressed in the presence of their legal guardians. In the absence of a written consent by the person to be examined, of their legal representative or of an approval by the legal guardian, the Judge for Rights and Liberties shall order, through a court resolution, upon justified request by the prosecutor, the physical examination of a person, if such measure is necessary for establishing facts or circumstances that would ensure a proper conducting of the criminal investigation or for determining whether a specific trace or consequence of an offense can be found on or inside their body. In cases where a person subject to examination gives their consent in writing or in emergency cases, when the obtaining of an authorization from the competent judge would lead to significant delays in the investigations, to the loss, alteration or destruction of the evidence, the criminal investigation body may order, through an order, the conducting of a physical examination. The order of the criminal investigation body, as well as the report recording the activities performed on the occasion of a physical examination are forwarded immediately to the Judge for Rights and Liberties. An internal physical examination of a person’s body or the harvesting of biological samples has to be performed by a physician, nurse or by a person having a specialized medical background, by observing private life and human dignity. An internal physical examination of an underage person who did not reach the age of 14 may be performed in the presence of either parent, upon request by that parent. Harvesting of biological samples through non-invasive methods for the performance of judicial genetic expert examination may be performed also by specialized personnel of the Romanian Police.