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Law No. 32 Of 16 November 1990 For The Modification And Completion Of Some Provisions Of The Code Of Criminal Procedure

Original Language Title:  LEGEA nr. 32 din 16 noiembrie 1990 pentru modificarea şi completarea unor dispoziţii ale Codului de procedura penală

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LAW no. 32 32 of 16 November 1990 amending and supplementing certain provisions of the Code of Criminal Procedure
ISSUER PARLIAMENT
Published in OFFICIAL MONITOR no. 128 128 of 17 November 1990



The Romanian Parliament adopts this law The Code of Criminal Procedure shall be amended and supplemented as follows: 1. Article 5 shall read as follows: " Guaranteeing freedom of person Article 5. -The freedom of the person is guaranteed throughout the criminal proceedings. No person can be detained or arrested, nor can he be subject to any form of restriction of freedom except in the cases and under the conditions provided by law. If the one against whom the measure of preventive arrest was taken or a measure to restrict freedom considers that it is illegal, it has the right, throughout the course of the process, to apply to the competent court, according to the law. Any person against whom a preventive measure has been illegally taken has the right to repair the damage suffered, under the conditions provided by law. Throughout the criminal proceedings, the accused or the defendant arrested preemptively may ask for provisional release, under judicial control or on bail. " 2. Article 5 shall be inserted after Article 5, with the following contents: " Respect for human dignity Art. 5 ^ 1. -Any person who is in the process of prosecution or trial must be treated in compliance with human dignity. Its submission to torture or cruel, inhuman or degrading treatment is punishable by law. " 3. Article 6 shall read as follows: " Guaranteeing the right of defence Article 6. -The right of defence is guaranteed to the accused, the defendant and the other parties throughout the criminal proceedings. In the course of the criminal proceedings, judicial bodies are obliged to ensure the full exercise of procedural rights under the conditions provided by law and to administer the necessary evidence in defence. The judicial bodies have the obligation to incuse the accused or the defendant about the act for which he is accused, his legal classification and to ensure the possibility of preparing and exercising the defense. Any party has the right to be assisted by the defender throughout the criminal proceedings. The judicial bodies have the obligation to incuse the accused or defendant, before the first statement is taken, about the right to be assisted by a defender, recording this in the minutes of obedience. Under the conditions and in the cases provided by law, judicial bodies are obliged to take measures to ensure the legal assistance of the accused or defendant, if he does not have an elected defender. " 4. In Article 136, a final paragraph is inserted, with the following contents: " When the preventive arrest of the accused or defendant is ordered, the prosecutor or the court of law incunostintates about it, within 24 hours, a member of his family or another person whom he designates his accused. the defendant, recording this in a minutes. " 5. Article 140 (1) shall be inserted after Article 140, with the following contents: " Complaint against preventive measures taken by the prosecutor Art. 140 ^ 1. -Against the preventive arrest order or the obligation to not leave the locality can be made a complaint to the court to which the jurisdiction would return to judge the case in substance. The complaint together with the case file will be sent to the court provided in par. 1, within 24 hours, and the accused or the arrested defendant will be brought before the court and will be assisted by the defender. The complaint will be investigated in the council chamber. The court rules on the same day, by final conclusion, on the legality of the measure, after hearing the accused or the defendant. The prosecutor's participation is mandatory When he considers that the preventive measure taken is illegal, the court orders the revocation of the arrest and release of the accused or the defendant or, as the case may be, the revocation of the mandatory measure not to leave the locality. " 6. Article 155 shall read as follows: " Extension of the defendant's arrest duration by the prosecutor Article 155. -The duration of the defendant's arrest can be extended in case of necessity and only motivated. The extension of the duration of the defendant's arrest may be ordered by the chief prosecutor of the prosecutor's office where the prosecutor who exercises the supervision of criminal investigation or who carries out the prosecution The extension can be ordered only once, by no more than 30 days. If the arrest warrant was issued by the chief prosecutor of the prosecutor's office where the supervision of the criminal investigation is exercised, the extension provided in the previous paragraph shall be ordered by the chief prosecutor of the hierarchical unit superior. If the arrest warrant was issued by a prosecutor from the Prosecutor General's Office, the extension provided in par. 2 is ordered by the superior hierarchical prosecutor. " 7 158 (1) and (2) shall read as follows: " If the duration of the preventive arrest was extended, the prosecutor who ordered the extension, receiving the proposal prepared according to art. 156, at least 8 days before the expiry of the duration of the arrest, if he considers that it is not the case that the defendant is released, notifies, at least 5 days before the expiry of the extension, the court to which the jurisdiction would return to judge cause after all. If the extension was ordered by the prosecutor from the hierarchical prosecutor's office lower than the one corresponding to the competent court to judge the case in substance, he, if he considers that it is not the case for the defendant to be released, forward the proposal, within 24 hours, to the prosecutor of the higher hierarchical unit, who, if he counts it, notifies the court. " 8. Article 159 shall read as follows: " Procedure for extension of arrest by the court Article 159. -The court seised shall fix the term of appearance before the term of office expires. The trial panel will be chaired by the president of the court or a judge appointed by him, and the participation of the prosecutor is mandatory. The case file will be filed by the prosecutor at least 2 days before the deadline and will be able to be consulted by the defender at his request. The defendant is brought before the court and will be assisted by the defender. If the court grants the extension, it will not be able to exceed 30 days. The conclusion by which the extension has been decided shall not be subject to appeal. The measure is communicated to the administration of the holding place, which is obliged to inform the defendant. The court can also grant other extensions, each unable to exceed 30 days. The provisions of the preceding paragraphs and art. 158 158 shall apply accordingly. '; 9. Article 160 shall read as follows: " Procedure in cases with several defendants arrested Article 160. -When in the same case there are several defendants arrested, for which the duration of the extension of the arrest expires on different dates, the chief prosecutor or, as the case may be, the superior hierarchical prosecutor, who notifies the court 158 for one of the defendants, he will also refer the other defendants to the court. " 10. After Article 160, a new section, Section V, is inserted, with the following contents: "" Section V Provisional release under judicial review and provisional release on bail Modalities of provisional release Art. 160 ^ 1. -Throughout the course of the criminal trial, the defendant remanded in custody may seek his release at provisional liberty, under judicial control or on bail. amp; 1. Provisional release under judicial review Conditions of release Art. 160 ^ 2. -The provisional release under judicial control may be granted in the case of crimes committed at fault, as well as of intentional crimes for which the law provides for the prison sentence not exceeding 7 years. Provisional release under judicial review is not granted if the defendant is a repeat offender or there is data that justifies the fear that he will savor another crime. The judicial body shall order, during the provisional release, the defendant to comply with one or more of the following obligations: a) not to exceed the territorial limit fixed only under the conditions established by the judicial body; b) to communicate to the judicial body any change of domicile or residence; c) not to go to specific places; d) to appear at the prosecuting body or, as the case may be, at the court or whenever he is called; e) not to get in touch with certain determined persons; f) do not drive any motor vehicle or certain motor vehicles; g) not to exercise a profession of the nature of that which was used in the enjoyment of the act. Lifting judicial review Art. 160 ^ 3. -The judicial review established by the prosecutor or the court can be raised either, in whole or in part, for thorough reasons. amp; 2. Provisional release on bail Conditions of release Art. 160 ^ 4. -The provisional release on bail can be granted, upon request, when the damage caused by the crime is ensured and the bail established by the competent judicial body has been filed. During the provisional release, the defendant is obliged to appear at the call of judicial bodies and to communicate any change of domicile or residence. The provisional release on bail is not granted in the case of the enjoyment of intentional crimes for which the law provides for the prison sentence of more than 7 years or when the defendant is a repeat offender or there is data that justifies the fear that he will savor another offense. Bail Art. 160 ^ 5. -The bail guarantees the defendant's compliance with his obligations during the provisional release. The amount of bail is from 10,000 to 100,000 lei. The recording of the bail shall be made in the name of the defendant and at the disposal of the body which established its amount Bail is returned when: a) the provisional release for the case provided for in art. 160 ^ 10 para. 1 lit. a); b) it is found, by the prosecutor by the ordinance, and by the court by conclusion, that there are no longer the grounds that justified the measure of preventive arrest; c) it is ordered to remove from prosecution, stop the prosecution, acquit or terminate the criminal proceedings; d) the sentence of the fine or the sentence of the prison with the conditional suspension of the execution or the execution by correctional work e) the prison sentence is ordered. Bail shall not be returned, in the case referred to in lett. e), when the provisional release was revoked according to the provisions of art. 160 ^ 10 para. 1 lit. b). Bail is made to the state budget at the final stay of the sentencing decision. In the cases provided in lett. b)-e) the end of the provisional release state is also ordered. Request for interim release and the competent body to resolve it Art. 160 ^ 6. -The request for provisional release can be made during the criminal investigation, as well as in the course of the judgment, until the end of the judicial investigation at the first instance, by the defendant, his husband, the close relatives. The request may also be made if the court of appeal for the administration of new evidence was ordered to retry the case or when it was ordered to retry the case by the court whose decision was scrapped. The application must contain the name, surname, domicile and quality of the person who makes it, as well as the mention of the provisions of the law on cases of revocation of provisional release. In the case of provisional release on bail, the application must also include the obligation to submit bail and the mention of the provisions of the law on cases of non-dismissal of bail. The competence to resolve the application returns, during the criminal investigation, as the case may be, to the prosecutor who carries out the prosecution or the prosecutor who exercises the supervision of the criminal investigation, and in the course of the judgment, to the court The application submitted to the criminal investigation body or to the administration of the holding place shall be submitted, within 24 hours, to the prosecutor or the competent court, as the case is under criminal or trial prosecution. Measures prior to the examination Art. 160 ^ 7. -The prosecutor or court shall verify that the request for provisional release includes the particulars provided for in art. 160 ^ 6 para. 3 3 and 4 and, if applicable, shall take measures to supplement it. When the application is filed with the court before the trial period, these obligations shall be returned to the president of the court, who shall also incuse the petition of the petitioner about the term of the application. When the request is made by a person other than the defendant, from those shown in art. 160 ^ 6 para. 1, the competent body to solve it asks the defendant if he appropriates his request, and his declaration is recorded on request. Examination and admission of application Art. 160 ^ 8. -The prosecutor or the court urgently examines the request, verifying whether the conditions provided by law for its admissibility are met. In the case of the application for bail, if the prosecutor or the court finds that the conditions provided by law are met, it establishes the amount of bail and incunostinteaza about this person who made the request. After submitting the proof of consigning of the bail, the prosecutor settles the request, and the court fixes the term for trial. The settlement of the request by the court is made after hearing the defendant and the conclusions of his defender, as well as the prosecutor's. If it finds that the conditions provided by law and the application are fulfilled, the prosecutor or the court shall admit the application and order the provisional release of the defendant. The resolution of the request is made by the prosecutor, by order, and by the court by conclusion. The conclusion of the court is not subject to appeal. By order of the prosecutor or the conclusion of the court, in case of admission of the application for provisional release under judicial control, the obligations to be respected by the defendant are also established. Copy of the ordinance or on the device of the conclusion, or an extract thereof, shall be sent to the administration of the holding place, as well as to the police body in whose territorial area the defendant lives. People interested in the knowledge. The administration of the place of possession is obliged to take measures for the immediate release of the defendant. Rejection of the application for interim release Art. 160 ^ 9. -If the conditions laid down by law are not met, when the application is unfounded or when it was made by another person and has not been appropriated by the defendant, the prosecutor or the court rejects the request. Against the prosecutor's order you can make a complaint to the court to which the jurisdiction would return to judge the case. Art. 160 160 ^ 8 shall apply accordingly. Revocation of release Art. 160 ^ 10. -The provisional release may be revoked if: a) are discovered facts or circumstances that were not known at the time of admission of the request for provisional release and justifying the arrest of the defendant; b) the defendant does not fulfill, in bad faith, his obligations according to art. 160 ^ 2 para. 2 2 and art. 160 ^ 4 para. 2 or attempts to thwart the finding of truth or savor again, with intent, a crime for which he is pursued or judged. The revocation of the provisional release is ordered by the prosecutor by order, and by the court by conclusion, with the hearing of the defendant assisted by the defender. The revocation is also ordered in the absence of the defendant, when he, without thorough reasons, does not show up to the call made. In case of revocation of provisional release, the prosecutor or court orders the defendant's pre-trial detention and issues a new arrest warrant. Art. 160 ^ 9 para. 2 2 and 3 are applicable. " 11. Article 171, paragraphs 1 and 2 shall read as follows: " The accused or the defendant has the right to be assisted by the defender throughout the prosecution and trial, and the judicial bodies are obliged to inform him of this right. Legal assistance is mandatory when the accused or defendant is a minor, military in term, military with reduced term, concentrated reservist, student of a military educational institution, hospitalized in a special school of re-education and work or when is arrested, even in another case. " 12. Article 172 shall read as follows: " Defender's rights Article 172. -In the course of the prosecution, the defender of the accused or defendant has the right to assist in carrying out any act of prosecution and may make requests and file memoirs. The lack of the defender does not prevent the prosecution act, if there is proof that the defender was incunostintat by the date and time of the act. When legal assistance is mandatory, the prosecution body will ensure the presence of the defender when listening to the defendant. If the defender of the accused or the defendant is present at the performance of a criminal prosecution act, the mention is made about it, and the act is also signed by the defender. The arrested defendant has the right to make contact with the defender. Exceptionally, when the interest of the prosecution requires, the prosecutor, ex officio or at the proposal of the criminal investigation body, can order, by reasoned order, the prohibition of the arrest of the defendant arrested with the defender, only once, on a duration of not more than 5 days. Contact with the defender may not be prohibited from the extension of the duration of the arrest by the court, and at the presentation of the prosecution material it is mandatory. The defender has the right to complain, according to art. 275, if his requests were not accepted. In the course of the judgment the defender has the right to assist the defendant, to exercise his procedural rights, and in the case when the defendant is arrested, to make contact with him. " 13. Article 201 shall read as follows: " Prosecution bodies Article 201. -The prosecution is carried out by prosecutors and criminal investigation bodies. The criminal investigation bodies are: a) the police research bodies; b) special research bodies. As police research bodies operate the specific operational workers appointed from the Ministry of the Interior. " 14. In Article 245 (1), the following shall be inserted after point d), with the following contents: "e) the refund of bail in the cases provided by law." 15. In Article 350, after paragraph 6, a new paragraph is inserted, with the following contents: " When in the course of the prosecution or the judgment, the accused or the defendant was provisionally released on bail, the court will order the refund of the amount deposited as bail, in the cases provided by law. Art. 160 ^ 5 para. 5 5 shall apply accordingly. '; 16. Chapter IV of Title IV of the Special Part shall read as follows: "REPAIRING THE DAMAGE IN THE EVENT OF CONVICTION OR TAKING A PREVENTIVE MEASURE UNJUSTLY" 17. Article 504 (2) shall read as follows: "It has the right to repair the damage and the person against whom a preventive measure was taken, and subsequently, for the reasons shown in the previous paragraph, it was removed from the prosecution or was paid." 18. The term of the militia or militia organ of the Code of Criminal Procedure or other special laws is replaced by the term of the police or police body. This law was passed by the Assembly of Deputies at its meeting on 12 November 1990. PRESIDENT OF THE ASSEMBLY MARTIAN DAN This law was passed by the Senate at its meeting on November 12, 1990. SENATE PRESIDENT academician ALEXANDRU BIRLADEANU Pursuant to art. 82 lit. m) of Decree-Law no. 92/1990 for the election of the Romanian Parliament and President, promulgam the Law on modification and completion of some provisions of the Code of Criminal Procedure and we have its publication in the Official Gazette of Romania. ROMANIAN PRESIDENT ION ILIESCU ------------------