Law No. 369 15 September 2004

Original Language Title:  LEGE nr. 369 din 15 septembrie 2004

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LAW no. 369 of 15 September 2004 (republished ** **) (* updated *)
on the implementation of the Convention on the Civil Aspects of International Child Abduction, adopted in The Hague on 25 October 1980, to which Romania adhered by the Law no.
100/1992 (updated on October 7, 2015 *)
Issued



PARLIAMENT **
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) Republished under art. III of Law no. 63/2014 amending and supplementing Law no. 369/2004 on the application of the Convention on the Civil Aspects of International Child Abduction, adopted in The Hague on 25 October 1980, to which Romania adhered by the Law no. 100/1992 published in the Official Gazette of Romania, Part I, no. 352 of 13 May 2014 texts shall be renumbered.
Law. 369/2004 was published in the Official Gazette of Romania, Part I, no. 888 of 29 September 2004.

Article 1


(1) The Ministry of Justice is the central authority of Romania for the fulfillment of obligations under the Convention on the Civil Aspects of International Child Abduction, adopted in The Hague on 25 October 1980, to which Romania adhered by the Law no. 100/1992 published in the Official Gazette of Romania, Part I, no. 243 of September 30, 1992, hereinafter Convention.


(2) as the central authority Romanian Ministry of Justice cooperates with the central authorities of other States Parties to the Convention and cooperate with Romanian authorities and institutions with responsibilities in the implementation of the Convention.


(3) the competent Romanian authorities and institutions are obliged to pay as soon support Romanian central authority by sending data held by them according to their competence, in response to requests made under this Act.


Article 2


(1) of requests submitted by the individual, institution or body concerned of any State Party to the Convention for the return of the child in Romania as a result of wrongful removal or retention within the meaning of art. 3 of the Convention, it is for the court.


(2) The competent court for settling claims in para. (1) Juvenile and Family Court is Bucharest.


Article 3


If the individual, institution or body concerned or the central authority of the state party to the Convention addresses the application form Romanian central authority, it verifies that the conditions of art. 8 paragraph. 2 of the Convention and, where appropriate, within 10 days of receipt of the request will require supplementing or certifying documents. If the application does not meet the provisions of art. 4 of the Convention, the Romanian central authority will refund request.

Article 4


Natural person, institution or body concerned whose application meets the requirements of Art. 8 paragraph. 2 of the Convention benefit from free legal assistance in resolving the demand for return, regardless of its material condition. Art. 6 and 8 ^ 1 from the Emergency Government Ordinance no. 51/2008 on legal aid in civil matters, approved with amendments by Law no. 193/2008, as amended and supplemented, and the Law. 51/1995 on the organization and the profession of lawyer, republished, as amended, shall apply accordingly.

Article 5


(1) At the request of the individual, institution or body concerned or of the central authority of the requesting State, Romanian central authority will facilitate legal aid by a lawyer. To this end, the central Romanian authority shall submit, without delay, all documentation submitted according to art. 3 Bar Association in the district court's jurisdiction to hear the application for return.


(2) Pursuant to art. 8 ^ 1 from the Emergency Government Ordinance no. 51/2008, approved with amendments by Law no. 193/2008, as amended and supplemented, the Bar Association shall, within three days by decision for the person with habitual residence abroad which issued the request for return, mandatory default, a lawyer for notification of the court, representation and assist in the first instance, in ordinary and extraordinary appeals, and the initiation of enforcement measures.


(3) The lawyer appointed under par. (2) the application for a return to the competent court within seven days of receipt of notification of his appointment.



(4) appointed counsel receive for each stage of proceedings, the fee provided for in the Protocol between the Ministry of Justice and the National Union of Bars of Romania on the establishment of lawyers' fees in the legal aid system.


(5) Within 48 hours of leaving the mandate lawyer appointed under par. (2), it will return all documentation submitted Romanian central authority par. (1), as well as court documents, disclosed during the application process such backwardness.


Article 6


If the central Romanian authority has evidence that the child whose return is sought is in the territory of another State Party will forward the application directly and without delay to the central authority of that State, informing the requesting Central Authority or, where appropriate, applicant.

Article 7


Provisions of art. 4 and 5 do not exclude the possibility that the person, institution or body concerned to notify the competent court either personally or through a lawyer of his choice. Where representation is made by the lawyer of his choice and Romanian central authority was originally addressed as art. 3, it will provide the lawyer completed application form and all supporting documents submitted by the competent authorities of the requesting State. Romanian central authority will still exercise other tasks conferred under Art. 7 of the Convention.

Article 8


Refusal to accept the Romanian central authority handling the request for return, according to art. 27 of the Convention does not prevent the individual, institution or body concerned to apply directly to the competent court.

Article 9


(1) cases concerning settlement of claims for return of a child in Romania under art. 3 of the Convention be settled urgently and with priority, in the short term by summoning the parties.


(2) The prosecutor's participation is mandatory.


(3) The decision shall be made in contradiction to that person which allegedly removed or retained the child in Romania.


(4) Candlemas is not mandatory.


(5) The court terms can not be more than two weeks.


(6) If you need an interpreter, the court shall order all necessary measures to limit the costs, according to Law no. 304/2004 on judicial organization, republished, as amended and supplemented.


Article 10


Foreign applicant must indicate an address in Romania where they will have to do all communications regarding the process. If no address particular documents is done through the Romanian central authority and the central authority of the state where the applicant resides.

Article 11


(1) In court, the parties may present any documents and information related to the case. The documents emanating from the competent public authorities of the requesting state are valid in court without further legalization or similar formality, according to art. 23 of the Convention.


(2) The court shall proceed in resolving the case expeditiously. In this regard, the court will administer the documentary evidence and, to the extent that this is not enough evidence or circumstances of the case require, they may be given other evidence.


(3) The court may take into account the law and the relevant decisions of foreign judicial or administrative, without having to resort to specific procedures for recognition of the foreign judgment. The court also may require the applicant presenting a judgment or other document issued by the authorities of the child's habitual residence, stating whether the state law that allows it, that removal of the child in that State or detention took place in breach of rights of custody attributed under the law of the foreign state.


(4) Listening to a child reaches the age of 10 is required. The child who has not attained the age of 10 will be heard if the court deems appropriate.


(5) In all cases, the hearing child psychologist will attend the general directorates of social assistance and child protection at the Bucharest sectors, which shall upon request of the court, a psychological report.


Article 12


Court may cooperate with state authorities where the child was habitually resident, either directly or through the central Romanian.

Article 13



(1) Throughout the trial, the court may, by concluding not subject to appeal any of the measures for child protection under the laws in force.


(2) If there are grounds to justify the fear that the child might be moved outside Romania to be distracted by the return procedure opened under the Convention and this law, the court seised of the request for return, will have by concluding not subject to appeal, raising child passport or other travel document, if applicable. The measure lifting the passport or other travel document ordering a fixed period or until the termination of reasons justifying it. A copy of the decision is communicated to Romanian authority which issued the passport or other travel document, if applicable, the Directorate General of Passports and Immigration Inspectorate General of Ministry of Internal Affairs.


Article 14


(1) If the court finds that the child's removal or retention Romania is unlawful under Article. 3 of the Convention, will return of the child to the country where he has his habitual residence.


(2) The court shall determine, in its judgment, a deadline for the obligation to return the child, which can not be more than two weeks after the judgment. The term is fixed under the penalty of a civil fine in favor of the Romanian state, between 2,500 lei and 12,500 lei.


(3) With the return judgment, the court may order one of the following:


A) teaching minor passport or travel document, where appropriate, by the respondent of the appellant;


B) an order that the respondent parent to give their contest for issuing a travel document on behalf of the minor or fill his agreement in this regard.


However, in its same judgment, the court may authorize the applicant to take the minor in person or, where appropriate, by proxy, in case of refusal of voluntary enforcement of the obligation to return within the deadline.

(4) Covering the costs for returning the minor is determined by art. 26 last paragraph of the Convention.


(5) Notwithstanding the provisions of para. (1) The court may order any other measure referred to in art. 12 and 13 of the Convention.


Article 15


(1) first instance judgment ordering the return of the minor is enforceable.


(2) pronouncement of the judgment of first instance may be delayed more than 24 hours and drafting decision is made within 7 days of delivery.


(3) The decision will be communicated to the parties and the central authority, within 48 hours of editing.


(4) The decision is subject to appeal to the Court of Appeal, Department for minors and family, within 10 days from notice. The appeal suspends enforcement of the judgment at first instance. The file will be submitted to the Court of Appeal within 5 days from the expiry of the appeal.


(5) The pronouncement by the court of appeal may be delayed more than 24 hours and drafting court of appeal decision is made within 7 days of delivery. A copy thereof shall be communicated ex officio Romanian central authority, within 48 hours of editing.


Article 16


(1) The Romanian Central Authority for the duration of the term set by the court, according to Art. 14 para. (2) will track the return of the child if the obligation is respected by the person liable for it. To this end, it has the right to request information from the institutions and authorities concerned.


(2) If the obligation to return the child is not executed voluntarily by the deadline set by the court, the central Romanian authority informs the court about the non-enforcement. The court shall, without delay, a copy of the writ of execution by the tax authorities to enforce the fine.


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Alin. (2) art. 16 amended rectification no. 369 of 20 September 2004 published in the Official Gazette no. 750 of 7 October 2015.

Article 17


(1) If the judgment return of the child is habitually resident in the State is not executed voluntarily by the deadline set by the court, proceed to enforcement, according to the Code of Civil Procedure. Art. 888 of the Code of Civil Procedure shall apply accordingly.



(2) A lawyer appointed under art. 5 applying for legal aid in the form of fee payment bailiff. The provisions of art. 26 of Government Emergency Ordinance no. 51/2008, approved with amendments by Law no. 193/2008, as amended and supplemented, shall apply accordingly.


(3) The court granted legal aid under Art. 8 ^ 1 from the Emergency Government Ordinance no. 51/2008, approved with amendments by Law no. 193/2008, as amended and supplemented.


(4) A lawyer applies for enforcement, accompanied by enforcement order, the bailiff appointed under art. 26 of Government Emergency Ordinance no. 51/2008, approved with amendments by Law no. 193/2008, as amended and supplemented, within 7 days of receipt of notice of designation by President territorial chamber of bailiffs.


(5) The execution will be carried out in the presence of a representative of the directorate for social assistance and child protection jurisdiction. The bailiff may request the competition police, who are obliged to give priority support.


(6) Following foreclosure, the minor will be taken over by foreign creditor or by a person authorized for this purpose.


Article 18


Romanian central authority will inform the central authority of the requesting state that represents waiver request for the return if the individual, institution or body concerned abroad who formulated it:

A) does not respond within 60 days to requests Romanian central authority;


B) does not give competition to take over the minor in enforcement proceedings.


Article 19


(1) In application of art. 15 of the Convention, at the request of a judicial or administrative authority of a State Party, the Romanian court may issue a decision that would confirm if the legislation Romanian, movement or retention of the child habitually resident in Romania, in its territory, has violated any rights of custody.


(2) The court may settle the claim stating, where appropriate:


A) the holder of rights to the child;


B) the content and limits on child rights, according to Romanian law;


C) if, in relation to those elements within the meaning of Romanian law, the child's removal or retention of Romania's outside that territory respected the rights of custody of the child or if the person to whom custody was entitled to approve or to oppose the child's removal or retention outside Romania's outside that territory;


D) any other aspect vital to determine whether the child's removal or retention outside Romania is unlawful under Article. 3 of the Convention.


(3) The application receives Romanian central authority and submitted to the competent court according to Art. 2 para. (2).


(4) the judgment is given without summoning the parties in the council chamber, based on judgments about the child and any other documents submitted by the competent authority of the requesting state, according to art. 30 of the Convention. The Code of Civil Procedure on non-contentious procedure shall apply accordingly.


(5) The decision is subject to appeal and the judicial authorities are demanding administrative or via the Romanian central authority. Art. 15 para. (2) is applicable.


Article 20


(1) In accordance with art. 11 para. (6) of Regulation (EC) No. 2.201 / 2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, repealing Regulation (EC) No. 1,347 / 2000, hereinafter referred to as Regulation judgment of non-return delivered by the Romanian court under the Convention and the Regulation shall be communicated to the central authority Romanian, within 48 hours of writing, with a copy of relevant documents that were the basis judgment.


(2) Documents are sent to the requesting Central Authority, pursuant to art. 11 para. (6) of the Regulation is achieved by Romanian central authority.


Article 21



(1) The decision by which a foreign court rejected the request for return made under the Convention and the Regulation and relevant documents received from the central Romanian authority under Art. 11 para. (6) of Regulation translated into Romanian by it and shall be submitted soon territorially competent court of the place of habitual residence of the child taken immediately before the removal or detention unlawful.


(2) After receiving documentation from the Romanian central authority, unless the Romanian court has already been seized, the court will notify the minor's parents' address, which will include:


1. The wording "In accordance with art. 11 par. (7) of Regulation" and

2. Informing parents about the possibility of Romanian to court, within 3 months of notification with a request for the exercise of parental authority on the minor concerned.

(3) The court shall be considered before the date of submission of the request for summons.


(4) Upon expiry, the court informs the Romanian central authority and communicate the result notification to the Romanian central authority par. (2).


Article 22


In application of art. 1 letter b) and art. 21 of the Convention, the individual, institution or body concerned of any State Party may request assistance Romanian central authority for organizing or securing the exercise of rights of access of a minor residing in Romania.

Article 23


(1) The Romanian Central Authority will contact the person exercising parental authority over the minor and that he has established home and try, directly or through specialists amicable settlement demand on the exercise of rights of access . It will advise the person exercising parental authority over the minor and that he has established dwelling on penalties that can be applied according to this law, the refusal to allow voluntary exercise of rights of access.


(2) Romanian central authority may request the participation of the guardianship authority, other authorities or institutions whose cooperation it considers necessary for organizing the exercise of rights of access.


Article 24


(1) Where the child referred the application for organizing or securing the exercise of rights of access consistently denied contact with a parent or manifest feelings of aversion to it, the court may, depending on the age of the child, it to follow a counseling program for a period not exceeding three months.


(2) The application for summons may be made at any time after notification Romanian central authority with a request for organizing or securing the exercise of rights of access. The provisions of art. 4, 5 and 7 shall apply accordingly.


(3) The application for summons is settled by the council chamber, summoning the parents of the person to whom the child as appropriate, and the general direction of social assistance and child protection which jurisdiction over the child. The provisions of art. 11 para. (4) shall apply accordingly. The conclusion is not subject to appeal.


(4) The court shall be communicated by the competent authorities to implement and Romanian central authority, within 5 days of the draft.


(5) Within 10 days from notification, court-appointed psychologist will determine the duration and content of the program of psychological counseling after an initial psychological evaluation of the child. The psychologist will communicate immediately the court during the program of psychological counseling and, if necessary, amend it.


(6) After completing the program, the psychologist will prepare a final report on the psychological assessment and will communicate the court.


(7) The court shall communicate Romanian central authority report, within 5 days of notification.


Article 25


(1) If required the exercise of rights of access to be made by moving the minor outside Romania, the provisions of art. 4, 5, 7, 9, 10 and 17 shall apply accordingly.


(2) The court may approve the exercise of rights of access by moving the child outside Romania only if, from the evidence, that there are guarantees to return voluntarily to children in Romania. The court may oblige the individual, institution or body concerned beneficiary of rights of access to deposit bail.



(3) If the exercise of access rights is conditional upon the lodging of security, the court will, in its same judgment, on the deadline for bail filed and at the time of its restitution. Art. 1056-1063 Code of Civil Procedure shall apply accordingly.


(4) decision will have on bearing the cost occasioned by the exercise of rights of access in accordance with art. 26 The final paragraph of the Convention.


Article 26


Depending on the circumstances, the central Romanian authority may either ask the central authority of the state to be minor during the visit either the embassy or consulate of Romania in that country, provide support and cooperation to verify the conditions in which the visit the child and to ensure restoration of the country at the end of the visit.

Article 27


In fulfilling its obligations, the central Romanian authority may, where appropriate:

A) to notify or seek the cooperation of the police, gendarmerie, local council or any competent authority to locate any evidence that child which has been or wrongfully retained in Romania;


B) to notify the competent authorities with responsibility for child protection to take, if any, steps to protect the child brought or wrongfully retained in Romania;


C) seek amicable settlement of the conflict arose or propose the parties to resort to mediation;


D) initiate and establish forms of collaboration with lawyers specializing in matters governed by the Convention and by this law, as well as psychologists specializing in child psychology;


E) to cooperate in spheres of competence, with the court for settling as soon as possible to requests to the Romanian authorities under the Convention;


F) take any other steps towards implementation of the Convention. In order to monitor the application of the Convention, the Romanian central authority may require explanatory reports from all persons and authorities involved in implementing the Convention's provisions.


Article 28


(1) All requests for the purpose of implementing the provisions of the Convention and the present law are exempt.


(2) Expenses for fulfillment by Romanian central authority of the Convention and the obligations resulting from this law are covered from the budget of the Ministry of Justice.


Article 29


Provisions of this law are supplemented by those of the Code of Civil Procedure.

Article 30


(1) How to exercise the powers of the Ministry of Justice as the central authority in accordance with the requirements of Art. 7 of the Convention shall be determined by regulations approved by the Minister of Justice within 3 months *) the date of entry into force of this law.


Note



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*) See Order of the Minister of Justice no. 509 / C / 2005 approving the Regulation on procedures for exercising the duties incumbent upon the Ministry of Justice as the central authority designated by Law no. 100/1992 for the accession 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 of 25 April 2005.

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(2) Until the establishment of juvenile and family Bucharest Tribunal claims referred to in art. 2 para. (1) shall be resolved by specialized sections of the Bucharest Court.


Article 31


This law comes into force three months after its 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 of 29 September 2004.

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Note



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NOTE:

Below the provisions of art. II of Law no. 63/2014 that were not incorporated in the republished Law no. 369/2004 and shall continue to apply the provisions of its own:

"Art. II. - Trials on trial and foreclosures begun under the old law remain subject to that law."

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