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Law No. 369 Of 15 September 2004 (Republished)

Original Language Title:  LEGE nr. 369 din 15 septembrie 2004 (*republicată*)

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LEGE no. 369 369 of 15 September 2004 (** republished) (* updated *) on the application of the Convention on the Civil Aspects of International Child Kidnapping Adopted in The Hague on 25 October 1980, to which Romania acceded by Law no. 100/1992 ((updated on 7 October 2015 *)
ISSUER PARLIAMENT




---------- ** **) Republicated pursuant to art. III of Law no. 63/2014 to amend and supplement Law no. 369/2004 on the application of the Convention on the Civil Aspects of International Child Kidnapping Adopted in The Hague on 25 October 1980, to which Romania acceded by Law no. 100/1992 , published in the Official Gazette of Romania, Part I, no. 352 352 of 13 May 2014, giving the texts a new numbering. Law no. 369/2004 was published in the Official Gazette of Romania, Part I, no. 888 888 of 29 September 2004. + Article 1 (1) The Ministry of Justice is the central authority in Romania for carrying out the obligations established by the Convention on the Civil Aspects of International Child Kidnapping, adopted in The Hague on 25 October 1980, to which Romania acceded by Law no. 100/1992 , published in the Official Gazette of Romania, Part I, no. 243 243 of 30 September 1992, hereinafter referred to as the Convention. (2) As the Romanian central authority, the Ministry of Justice cooperates with the central authorities of the other states parties to the Convention and collaborates with the Romanian institutions and authorities with powers in the field of application of the Convention. (3) The competent Romanian institutions and authorities have the obligation to immediately grant the support of the Romanian central authority by transmitting the data held by them according to the competences, following the requests made in the application this law. + Article 2 (1) The settlement of requests addressed by the individual, the institution or the body interested in any state party to the Convention, for the return of the child on the territory of Romania as a result of an illicit movement or detour within the meaning of art. 3 of the Convention, is the jurisdiction of the court. (2) The competent court for settling the applications referred to in paragraph (1) is the General Court for minors and family Bucharest. + Article 3 If the natural person, the institution or the interested body or the central authority of the state party to the Convention addresses the request-type of the Romanian central authority, it shall verify the fulfilment of the conditions provided in 8 8 para. 2 of the Convention and, as the case may be, within 10 days of receipt of the application will require its completion or the supporting documents. If the application does not meet the conditions laid down in art. 4 of the Convention, the Romanian central authority will return the request. + Article 4 The individual, the institution or the body concerned whose application meets the conditions laid down in art. 8 8 para. 2 of the Convention benefits from free judicial assistance in the settlement of the return request, independent of its material state. Provisions art. 6 and 8 ^ 1 of Government Emergency Ordinance no. 51/2008 on civil judicial aid in civil matters, approved with amendments and additions by Law no. 193/2008 , with subsequent amendments and additions, as well as the Law no. 51/1995 for the organization and exercise of the profession of lawyer, republished, as amended, shall apply accordingly. + Article 5 ((1) At the request of the natural person, institution or body concerned or of the central authority of the requesting state, the Romanian central authority will facilitate the granting of free judicial assistance by a lawyer. For this purpose, the Romanian central authority will immediately submit the entire documentation submitted according to art. 3 the dean of the bar in the constituency of the competent court to settle the request for return. ((2) Pursuant to art. 8 ^ 1 of Government Emergency Ordinance no. 51/2008 , approved with amendments and additions by Law no. 193/2008 , with subsequent amendments and completions, the dean of the bar designates, within 3 days, by decision, for the person with the usual residence abroad who made the request for return, mandatory, ex officio, a lawyer for the referral court, representation and assistance in the first instance, in ordinary and extraordinary remedies, and the initiation of enforcement measures. (3) The lawyer designated according to para. ((2) introduce the request for return to the competent court, within 7 days from the date of receipt of the notification of its designation. (4) The designated lawyer shall benefit, for each procedural stage, from the fee provided for in the Protocol between the Ministry of Justice and the National Union of Bars of Romania regarding the establishment of lawyers ' fees under the aid system judicial public. (5) Within 48 hours from the date of termination of the mandate of the lawyer designated according to par. (2), it will return to the Romanian central authority the entire documentation submitted according to par. (1), as well as the court documents, communicated on the occasion of the handling of the return request. + Article 6 If the Romanian central authority has indications that the minor whose return is requested is in the territory of another State party to the Convention, it will transmit the request directly and without delay to the central authority of that state, informing about it the requesting central authority or, where applicable, the complainant. + Article 7 Art. 4 and 5 do not exclude the possibility that the individual, the institution or the body interested in notifying the competent court, either personally or through an elected lawyer. If the representation is made by elected lawyer, and the Romanian central authority was initially notified according to art. 3 3, it shall make available to the lawyer the application-type completed and all the supporting documents transmitted by the competent authorities of the requesting State. The Romanian central authority will continue to exercise the other powers incumbent on it according to art. 7 of the Convention. + Article 8 The refusal of the Romanian central authority to accept the handling of the return request, according to art. 27 of the Convention, does not prevent the individual, the institution or the body interested in referring directly to the competent court. + Article 9 (1) Causes having as object the settlement of applications for the return of a child on the territory of Romania under the conditions of art. 3 of the Convention is resolved urgently and in particular, with the short-term citation of the parties. (2) Participation of the prosecutor is mandatory (3) The resolution of the application will be made in contradiction with the person who is claimed to have moved or detained the minor in Romania. ((4) Intampination is not mandatory. (5) The terms of judgment may not be more than two weeks. (6) If the presence of an interpreter is necessary, the court will order all necessary measures until the court term, according to the provisions Law no. 304/2004 on judicial organization, republished, with subsequent amendments and completions. + Article 10 The applicant from abroad is obliged to indicate the domicile chosen in Romania where all the communications on the process are to be made. In the absence of an elected domicile, the communication of the acts is carried out through the Romanian central authority and the central authority of the state in which the applicant is resident + Article 11 (. Before the court, the parties may submit any documents and briefings related to the case. The documents emanating from the competent public authorities of the requesting state are valid before the court without any other legalization or similar formality, according to art. 23 of the Convention. (2) The court will proceed to the resolution of the case expeditiously. In this regard, the court will administer the evidence with documents and, to the extent that this means of proof is not sufficient or the circumstances of the case require it, other evidence may be administered. ((3) The court may take into account the law and the relevant foreign judicial or administrative decisions, without having to resort to specific procedures for the recognition of foreign judgment. The court will also be able to ask the complainant to present a judgment or other document emanating from the authorities of the state in which the child has his habitual residence, stating, if the law of that state allows it, the fact that the movement of the child from the territory of that state or the detention took place in violation of a right of entrustment, attributed according to the law ((4) Listening to the child who has reached the age of 10 years is mandatory. The child who has not reached the age of 10 will be able to be heard if the court considers it necessary. (5) In all situations, a psychologist from the general directorates of social assistance and child protection at the level of the sectors of Bucharest will participate in the hearing, which will draft, at the request of the court, a report psychologically. + Article 12 The court may cooperate with the authorities of the state in which the child was habitually resident, either directly or through the Romanian central authority. + Article 13 (1) For the entire duration of the trial, the court may, by conclusion not subject to any appeal, take any of the child protection measures provided for by the legislation in force. (2) If there are reasons to justify the fear that the minor could be moved outside Romania's borders to be removed from the open return procedure according to the Convention and the present law, the court, notified with the settlement of the request return, will order, by conclusion not subject to any remedy, the lifting of the child's passport or other travel document, as the case may be. The measure of removal of the passport or other travel document shall be ordered for a fixed duration or until the end of the reasons that have justified it. A copy of the judgment shall be communicated to the Romanian authority that issued the passport or other travel document, as the case may be, to the General Directorate of Passports or the General Inspectorate for Immigration, under the Ministry of Internal Affairs. + Article 14 (1) If the court finds that the child's movement or detention on the territory of Romania is illicit within the meaning of 3 of the Convention, will order the return of the child to the country where he has his usual residence. (2) The court shall fix, in the judgment, a term for the execution of the obligation of return of the child, which will not be more than two weeks after the communication of the decision. The deadline is set under the sanction of a civil fine in favour of the Romanian state, ranging from 2,500 lei to 12,500 lei. (3) With the return judgment, the court will be able to order one of the following measures: a) handing over the passport to the minor or travel document, as the case may be, by the defendant to the complaining party; b) the obligation of the defendant to give his contest for the issuance of a travel document in the name of the minor or the replenishment of his agreement in this regard. At the same time, in the same judgment, the court may authorise the applicant to take over the personal minor or, as the case may be, by the representative, in the event of the refusal of voluntary execution of the return obligation within the prescribed period (4) The support of the expenses for the return of the minor is established according to art. 26 last paragraph of the Convention. (5) By exception to the provisions of par. (1), the court may order any other measure provided for in art. 12 and 13 of the Convention. + Article 15 (1) The judgment of the first court ordering the return of the minor is enforceable. (2) The pronouncement of the decision of the first court may be postponed by no more than 24 hours, and the drafting of the decision shall be made no later than 7 days after the ruling. (3) The decision shall be communicated to the parties and to the central authority within 48 hours of the drafting. (4) The decision is subject to appeal to the Bucharest Court of Appeal, Section for minors and family, within 10 days of communication. The appeal suspends the execution of the ruling in the first instance The case will be submitted to the Bucharest Court of Appeal, within 5 days from the expiry of the appeal deadline. (5) The appeal by the court of appeal may be postponed by no more than 24 hours, and the drafting of the decision of the court of appeal shall be made no later than 7 days after the ruling. A copy of it will be communicated, ex officio, to the Romanian central authority, within 48 hours of writing. + Article 16 (1) The Romanian central authority, for the duration of the deadline set by the court, according to 14 14 para. (2), will follow if the obligation of return of the child is respected by the person obliged to it. To this end, it has the right to request information from the institutions and authorities involved. (2) If the child's return obligation is not willingly executed within the time limit set by the court, the Romanian central authority shall inform the court of the non-execution. The court shall immediately communicate a copy of the enforceable title to the tax authorities for the execution of the fine. ---------- Alin. ((2) art. 16 16 has been amended by RECTIFICATION no. 369 369 of 20 September 2004 , published in MONITORUL OFFICIAL no. 750 750 of 7 October 2015. + Article 17 (1) If the court order for the return of the child in the state where he has the habitual residence is not voluntarily executed, within the period set by the court, the forced execution shall be carried out, according to the Code of Civil Procedure. Art. 888 of the Code of Civil Procedure shall apply accordingly. (2) The lawyer designated according to art 5 calls for the granting of judicial public aid in the form of payment of the bailiff Provisions art. 26 of Government Emergency Ordinance no. 51/2008 , approved with amendments and additions by Law no. 193/2008 , as amended and supplemented, shall apply accordingly. (3) The court grants judicial public aid under the conditions art. 8 ^ 1 of Government Emergency Ordinance no. 51/2008 , approved with amendments and additions by Law no. 193/2008 , with subsequent amendments and completions. ((4) The lawyer submits the application for enforcement, accompanied by the enforceable title, to the designated bailiff art. 26 of Government Emergency Ordinance no. 51/2008 , approved with amendments and additions by Law no. 193/2008 , with subsequent amendments and completions, within 7 days from the date of receipt of the notification of the appointment by the president of the territorial chamber of bailiffs. (5) The execution will be carried out in the presence of a representative of the general direction of social assistance and protection of the territorial competent child. The bailiff can request the contest of police bodies, who are obliged to give him priority support. (6) Following the forced execution, the minor will be taken over by the creditor abroad or by a person empowered for this purpose. + Article 18 The Romanian central authority shall inform the central authority of the requesting state that it represents the waiver of the request for return if the natural person, institution or body concerned from abroad that has formulated it: a) does not respond, within 60 days, to the requests of the Romanian central authority; b) does not give its contest in order to take over the minor in the framework of the forced execution procedure. + Article 19 (1) In application of art. 15 of the Convention, at the request of a judicial or administrative authority of a state party to the Convention, the Romanian court can pronounce a decision confirming whether, according to the Romanian legislation, the movement or detention of the child having the habitual residence in Romania, on the territory of that state, was done in violation of any right of entrustment. (2) In the settlement of the application the court will be able to attest, a) the rights holder with regard to the child b) the content and limits of rights regarding the child, according to the Romanian law; c) if, in relation to the mentioned elements, within the meaning of the Romanian law, the movement of the child from the territory of Romania or his detention outside this territory respected the rights regarding the custody of the child entrusted the child had the right to approve or oppose the movement of the child outside the territory of Romania or to his detention outside this territory; d) any other determining aspect in order to determine whether the movement or detention of the child outside the territory of Romania is illicit within the meaning of art. 3 of the Convention. (3) The application is received by the Romanian central authority and shall be submitted by it to the competent court according to art. 2 2 para. ((2). (4) The judgment is given without citing the parties, in the council chamber, on the basis of the judicial decisions rendered on the child, as well as any other documents submitted by the competent authority of the requesting state, according to art. 30 of the Convention. The provisions of the Code of Civil Procedure on the non-contentious procedure shall apply accordingly. (5) The judgment is not subject to any appeal and shall be communicated to the requesting judicial or administrative authority, through the Romanian central authority. Art. 15 para. ((2) is applicable. + Article 20 (1) In accordance with art. 11 11 para. ((6) of Commission Implementing Regulation (EU) No 2.201/2003 of the Council of 27 November 2003 on jurisdiction, recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility, repealing Regulation (EC) No 1.347/2000 , hereinafter referred to as the Regulation, the non-return decision rendered by the Romanian court under the Convention and the Regulation shall be communicated to the Romanian central authority, within 48 hours of writing, together with a copy of the documents Pertinent to the judgment. ((2) Transmission of documents to the requesting central authority, in application of art. 11 11 para. (6) of the Regulation, is carried out by the Romanian central authority + Article 21 (1) The decision by which a foreign court rejected the request for return made on the basis of the Convention and the relevant Regulation and documents received by the Romanian central authority on the basis of art. 11 11 para. (6) of the Regulation shall be translated into Romanian by this and shall be submitted as soon as possible to the territorial competent court at the place of the usual residence held by the child immediately before the movement or wrongful detention. (2) After receiving the documentation from the Romanian central authority, unless the Romanian court has already been notified, the judge will address to the minor's parents a notification, which will contain: 1. Formulation " In accordance with art. 11 11 para. ((7) of the Regulation " and 2. Informing the parents about the possibility to notify the Romanian court, within a period of 3 months from the date of notification, with a request regarding the exercise of the parental authority regarding the minor in question. (. The court shall be deemed to be seised on the date of transmission of the application for appeal (4) Upon expiry of the term, the court informs the Romanian central authority and communicates to the Romanian central authority the result of the ((2). + Article 22 In application of art. 1 lit. b) and art. 21 of the Convention, the natural person, the institution or the body concerned from any state party to the Convention may request the Romanian central authority to provide assistance for the organization or protection of the exercise of the right of visitation residing on the territory of Romania. + Article 23 (1) The Romanian central authority shall contact the person who exercises the parental authority over the minor and to whom he has established his/her dwelling and will try, directly or through specialists, the amicable settlement of the application for the exercise of visitation It will draw the attention of the person who exercises the parental authority over the minor and to which he has established his dwelling on the sanctions that can be applied according to the present law, in case of refusal to allow willingly exercising the right to visit. (2) The Romanian Central Authority will be able to request the participation of the tutelary authority, other authorities or institutions whose cooperation it considers necessary to organize the exercise of the right of visitation. + Article 24 (1) If the child to whom the application relates to the organization or protection of the exercise of the right of visitation constantly refuses contact with one of the parents or manifests feelings of aversion to him, the court may order, in Depending on the age of the child, to follow a psychological counseling program, for a duration that cannot exceed 3 months. (2) The request for appeal may be made at any time, after the complaint of the Romanian central authority with a request for the organization or protection of the exercise of the right of visitation Art. 4 4, 5 and 7 shall apply accordingly. (3) The request for a summons shall be settled by conclusion, in the council chamber, with the summoning of the parents, of the person to whom the child is, as the case may be, as well as of the general direction of social assistance and child protection in whose radius the territorial is the child. Art. 11 11 para. ((4) shall apply accordingly. The conclusion is not subject to any remedy. (4) The conclusion will be communicated by the court to the competent authorities to implement it and to the Romanian central authority, within 5 days from the drafting. (5) Within 10 days of communication, the psychologist appointed by the court will determine the duration and content of the psychological counseling program, after an initial psychological evaluation of the child. The psychologist will immediately communicate to the court the duration of the psychological counseling program, as well as, if necessary, to modify it. (6) After completing the program, the psychologist will draw up a report on the final psychological evaluation and will communicate it to the court. (7) The court shall communicate the report to the Romanian central authority within 5 days of the communication. + Article 25 (1) If it is requested that the exercise of the right of visitation be made by moving the minor outside the territory of Romania, the provisions of 4, 5, 7, 9, 10 and 17 shall apply accordingly. (2) The court will be able to approve the exercise of the right of visitation by moving the child outside the territory of Romania only if, from the evidence administered, it follows that there are guarantees to ensure the voluntary return of the child to Romania. The court will be able to compel the individual, the institution or the body interested in the beneficiary of the right of visitation (3) If the exercise of the right of visit is subject to the lodging of a bail, the court will order, in the same judgment, on the time limit within which the bail must be filed, as well as at the time of its return. Art. 1.056-1.063 of the Code of Civil Procedure shall apply accordingly. (4) The decision will be ordered to bear the expenses occasioned by the exercise of the right of visitation, in accordance with art. 26 the final paragraph of the Convention. + Article 26 Depending on the circumstances, the Romanian central authority can request either the central authority of the state where the minor is to be located during the visit, or the embassy or consulate of Romania in that state, to provide assistance and cooperation for verification of the conditions under which the visit takes place and to ensure the return of the child to the country at the end of the visit + Article 27 In fulfilling its obligations, the Romanian central authority may, as the case may a) to notify or request the cooperation of the police bodies, the gendarmerie, the local council or any competent authorities for the location of the child about which he has indications that he was brought or detained illicitly on the territory of Romania; b) to notify the competent authorities with attributions in the field of child protection to take, if necessary, the necessary measures to protect the child brought or wrongfully detained on the territory of Romania; c) to attempt the amicable settlement of the ivit conflict or to propose to the parties to seek mediation; d) to initiate and establish forms of collaboration with lawyers specialized in the matter regulated by the Convention and by this law, as well as with psychologists specialized in child psychology; e) to cooperate, within the limits of competences, with the court for the resolution as soon as possible of the requests addressed to the Romanian authorities under the Convention; f) take any other steps to implement the provisions of the Convention. In order to monitor the application of the Convention, the Romanian central authority will be able to request explanatory reports from all persons and authorities involved in the implementation of the Convention provisions. + Article 28 (1) All requests made for the purpose of implementing the provisions of the Convention and of this Law shall be exempt from taxes. (2) The expenses for the fulfilment by the Romanian central authority of the obligations resulting from the Convention and the present law shall be borne by the budget of the Ministry + Article 29 The provisions of this Law shall be supplemented by those of the Civil Procedure Code + Article 30 (1) The modality of exercising the powers of the Ministry of Justice, as central authority, in accordance with the requirements of art. 7 of the Convention, is established by regulation, approved by order of the Minister of Justice within 3 months *) from the date of entry into force of this Law. Note
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* *) See Order of Justice Minister no. 509 509 /C/2005 for the approval of the Regulation on the modalities of exercising the powers of the Ministry of Justice, in its capacity as central authority, designated by Law no. 100/1992 for the accession of Romania to the Hague Convention of 25 October 1980 on the civil aspects of international child abduction, published in the Official Gazette of Romania, Part I, no. 349 349 of 25 April 2005.
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(2) Until the establishment of the Tribunal for minors and family Bucharest the applications provided in art. 2 2 para. (1) will be solved by the specialized departments of the Bucharest Tribunal.
+ Article 31 This law shall enter into force 3 months after the date of publication in the Official Gazette of Romania, Part I. * *) Note
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** **) Law no. 369/2004 was published in the Official Gazette of Romania, Part I, no. 888 888 of 29 September 2004.
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Note
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NOTE:
We reproduce below the provisions art. II of Law no. 63/2014 which have not been incorporated into the republished form of Law no. 369/2004 and which continue to apply as its own provisions:
"" Art. II. -Trials under trial, as well as foreclosures begun under the old law, remain subject to that law. "
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