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Law No. 247 Of 5 December 2016 For The Modification And Completion Of The Law #. 290/2004 Concerning Criminal Records

Original Language Title: LEGE nr. 247 din 5 decembrie 2016 pentru modificarea şi completarea Legii nr. 290/2004 privind cazierul judiciar

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LEGE no. 247 247 of 5 December 2016 to amend and supplement Law no. 290/2004 on the criminal record
ISSUER PARLIAMENT
Published in OFFICIAL MONITOR no. 983 983 of 7 December 2016



The Romanian Parliament adopts this law + Article I Law no. 290/2004 on the criminal record, republished in the Official Gazette of Romania, Part I, no. 777 of 13 November 2009, as amended and supplemented, shall be amended and supplemented as follows: 1. After Article 3 a new article is inserted, Article 3 ^ 1, with the following contents: "" Art. 3 3 ^ 1. -Within the meaning of this law, the following expressions have the following meaning: a) the criminal record certificate-the document issued to persons, certifying their judicial situation; b) the extract from the criminal record-the document issued on the occasion of the exchange of information from criminal records, carried out with the Member States of the European Union and third States; c) the extract from the criminal record-the document issued to public institutions and to the specialized bodies of the public administration on the basis of the express consent of the person for whom specific checks are carried out; d) the copy of the criminal record-the document issued to the competent Romanian authorities; e) European Criminal Records Information System (ECRIS)-the decentralised information technology system set up by Decision 2009 /316/JHA of the Council of 6 April 2009 establishing the European Criminal Records Information System (ECRIS) in application of Article 11 of the Framework Decision 2009 /315/JHA ,, consisting of: ((i) an interconnection software, consisting in accordance with a common set of protocols, which allows the exchange of information between databases on criminal records in the Member States of the European Union, and ((ii) a common communication infrastructure, which provides an encrypted network, as provided for in art. 3 3 para. ((1) of the Decision; f) Member State-Member State of the European Union; g) third country-the state that is not a member of the European Union. " 2. Article 5 is amended and shall read as follows: "" Art. 5. -(1) The computerized record of the criminal record and the computerized dactyloscopic record is organized and operated within the Romanian Police, which also ensures the coordination of the activities carried out in these fields. (2) The activity regarding the criminal record is led, at the central level, by the Criminal Records Directorate, statistical and operative records of the General Inspectorate of the Romanian Police. (3) The General Inspectorate of the Romanian Police, through the Criminal Records Directorate, statistical and operative records, is the central authority designated for the transmission of notifications on convictions and exchange of data registered in the criminal record with Member States of the European Union, in Framework Decision 2009 /315/JHA of 26 February 2009 on the organisation and content of the exchange of information extracted from criminal records between Member States, published in the Official Journal of the European Union, L series, no. 93 93 of 7 April 2009. (4) The criminal record, statistical and operative records directorate shall notify, by a declaration submitted to the General Secretariat of the Council, the official languages which it accepts in the exchange of information. (5) The Ministry of Justice, through the competent structure, under Decision 2009 /316/JHA ,, provide the General Secretariat of the Council and regularly update information on: a) the list of domestic law offences in each category listed in the table of offences in Annex A to Decision 2009 /316/JHA . This list includes the name or legal classification of the offence as well as the reference to the applicable legal provision. The list may also include a brief description of the constituent elements of the offence; b) the list of types of penalties, possible complementary penalties and safety measures, as well as possible subsequent decisions to amend the execution of the sentence, as provided for in national law, of each category mentioned in the table with penalties and measures in Annex B to the Decision 2009 /316/JHA . This may also include a brief description of the sentence or measure. (6) The General Inspectorate of the Romanian Police is the central authority designated for informing and consulting, within the Council of the European Union, on the implementation, use and functioning of the European Information System on criminal records (ECRIS), as provided for in art. 6 6 of Decision 2009 /316/JHA . ((7) The transmission and obtaining of judgments of conviction, as well as of information on the measures taken subsequently shall be carried out according to the provisions of Law no. 302/2004 on international judicial cooperation in criminal matters, republished, with subsequent amendments and completions. " 3. In Article 6, paragraph 2 shall be amended and shall read as follows: " (2) In the central criminal record shall also be held and the records of persons of Romanian citizenship received by the central authorities from the central authorities of the other Member States of the European Union and of the competent authorities of third countries. '; 4. in Article 6, after paragraph 2, a new paragraph (3) is inserted, with the following contents: " (3) Any modification or deletion of the information transmitted in accordance with the provisions of par. ((2) attract identical changes or deletions to the extent, in so far as these judgments have not been recognized by the competent Romanian bodies. " 5. In Article 8, paragraph 1 shall be amended and shall read as follows: "" Art. 8. -(1) The registration in the criminal record shall be made nominally, by registering personal data for individuals, respectively the identification data for legal entities, as well as the judicial data provided in par. ((1 ^ 1)-(1 ^ 3). " 6. In Article 8, after paragraph (1), three new paragraphs (1 ^ 1)-(1 ^ 3) are inserted, with the following contents: " (1 ^ 1) For the registration in the records of the criminal record of natural persons, the following personal data are processed: personal numerical code, name, surname, parents ' first name, date and place of birth, name previously worn, domicile, serial number and ID number, gender, nationality. ((1 ^ 2) In the case of legal entities the following identification data are processed: the unique identification code, the name of the legal person, the tax code, the order number in the trade register-in the case of companies regulated by Company law no. 31/1990 , republished, with subsequent amendments and completions-, the seat, as well as the personal data of the legal representative. ((1 ^ 3) The data recorded in the criminal record concern: the amount of the sentence/sanction applied, the waiver of the sentence, the postponement of the sentence, the payment or termination of the criminal proceedings, the name of the crime, the criminal ordered, the legal classification, the number and the date of the order for the setting in motion of the criminal action, the number of the order of classification or waiver of the prosecution, the number of criminal sentence, the criminal decision, the number of the criminal case, the complete the judicial body, the date of final stay, the method of execution/extinguishing of sentence, date of arrest, date of release, remaining sentence remaining to be executed. " 7. Article 11 is amended and shall read as follows: "" Art. 11. -In the records of the criminal record organized at the police units provided in art. 6 and 7 are provisionally noted, pending the final settlement of the case, when data on individuals or legal persons against whom the criminal action was set in motion or against which the criminal action was taken is deleted. one of the preventive measures provided by the Code of Criminal Procedure. " 8. in Article 14, after paragraph 4, two new paragraphs are inserted, paragraphs 5 and 6, with the following contents: " (5) Extrases, communications and other acts provided for in art. 12 and 13 shall be entered in the records of the criminal record no later than 30 days after the date of communication. (6) The communication of making in the records transmitted according to art. 6 6 para. ((2) by the central authorities of the other Member States of the European Union or by the competent bodies of third States shall be entered in the records of the criminal record no later than 30 days after the date of the communication. " 9. in Article 15, after paragraph 2, a new paragraph (3) is inserted, with the following contents: " (3) The removal from the record of the mentions stored for retransmission, according to art. 6 6 para. (2), shall be made after the expiry of the deadlines stipulated in the communications of the state of conviction, in so far as these decisions have not been recognized by the competent Romanian bodies. " 10. Article 17 is amended and shall read as follows: "" Art. 17. -In the criminal record certificate, the criminal sanctions of the final judicial decisions that produce legal effects shall be entered. " 11. In Article 18 (1), after letter b) a new letter, letter c) is inserted, with the following contents: "c) the data on persons against whom the criminal action was ordered to be set in motion or against which one of the preventive measures provided for by the Code of Criminal Procedure was taken;" 12. in Article 18, after paragraph 1, a new paragraph (2) is inserted, with the following contents: " (2) By exception to the provisions of par. ((1) lit. c), if the criminal record certificate is issued for registration in the Register of intra-Community operators, according to the provisions art. 329 329 of Law no. 227/2015 on the Fiscal Code, with subsequent amendments and completions, on the criminal record certificate shall be entered and given provisionally noted on individuals or legal persons to whom the action was ordered criminal. " 13. In Chapter V, the title of Section 1 is amended and shall read as follows: "" SECTION 1 The manner and conditions required for obtaining the copy and the extract from the criminal record " 14. Article 20 is amended and shall read as follows: "" Art. 20. -(1) The prosecution bodies or courts may request, whenever necessary, a copy of the criminal record of the person in the course of prosecution or trial. ((2) The institutions of the defence, public order, national security and justice system may also require a copy of the criminal record of the person for whom specific checks are carried out. ((3) If the competent Romanian authorities request information from the national criminal record of a Member State, the Criminal Records Directorate, statistical and operative records of the General Inspectorate of the Romanian Police, as central authority, shall submit to the central authority of the requested State a request for extracts from the criminal record and information relating thereto. ((. Where the central authorities of the Member States of the European Union require additional information to identify the person to whom the request of the competent Romanian authorities referred to in paragraph 1 refers. (3), the General Inspectorate of the Romanian Police, through the Criminal Records Directorate, statistical and operative records, immediately requests this information to the Romanian authorities that formulated the initial request. (5) The criminal record department, statistics and operative records of the General Inspectorate of the Romanian Police shall transmit the response to the requests provided in par. ((3) and (4), no later than 3 working days from the date of its receipt. (6) The competent Romanian authorities shall transmit the response to requests for additional information referred to in paragraph ((4) no later than 10 working days from the date of receipt of the request. " 15. In Article 21, after paragraph 2, a new paragraph (2 ^ 1) is inserted, with the following contents: "(2 ^ 1) In the extract from the criminal record, the data entered in the criminal record shall be passed." 16. Article 22 is amended and shall read as follows: "" Art. 22. -(1) The application for obtaining the children from the criminal record and the extracts from the criminal record must be motivated and include: a) for the natural person: the personal data provided in art. 8 8 para. ((1 ^ 1); b) for the legal person: the identification data provided in art. 8 8 para. ((1 ^ 2). (2) The application is addressed to the police unit in whose administrative-territorial area the natural person was born or has his legal entity for which the copy of the criminal record is requested or the extract from the criminal record, and, in the cases provided in art. 6, General Inspectorate of the Romanian Police. (3) Police units provided in par. (2) immediately send the copy from the criminal record of the individual to whom the prosecution for flagrant crimes or the measure of preventive arrest was ordered to begin. In the other cases, the copy shall be sent no later than 3 working days after receipt of the request. (4) The application-type for obtaining children and extracts from the criminal record can be submitted electronically under the conditions provided in art. 34 34 para. ((2) and is exempt from taxes. " 17. In Article 23, after paragraph 2, two new paragraphs are inserted, paragraphs 3 and 4, with the following contents: " (3) Without prejudice to the provisions of par. ((1) and (2), the personal data provided by the competent authorities of the other Member States may be used by the Romanian authorities in order to prevent an immediate and serious threat to public security. (4) Personal data received from another Member State of the European Union may be retransmitted to a third State for the purposes of criminal proceedings, unless the third State provides sufficient guarantees relating to the processing of data of a nature staff only for the purpose for which they were requested and within the limits specified by the Member State which provided the said data. '; 18. Article 24 is amended and shall read as follows: "" Art. 24. -(1) The sending abroad of the extracts from the criminal record is made according to the international agreements to which Romania is a party. (2) In the states to which Romania has no commitments resulting from the international agreements to which it is a party, the communication of extracts from the criminal record is made, on the basis of reciprocity, by the Ministry of Internal Affairs, through To the Ministry of Foreign Affairs, at the request of these states, transmitted diplomatically or through other competent institutions. " 19. Article 25 is amended and shall read as follows: "" Art. 25. -(1) The General Inspectorate of the Romanian Police, through the Criminal Records Directorate, statistical and operative records, receives requests for extracts from the criminal record and information regarding it, for the purpose of a criminal procedure and other purposes than a criminal procedure, transmitted by the central authorities of the Member States of the European Union. (. The national central authority shall receive requests for extracts from the criminal record and information relating thereto, for the purpose of a criminal procedure laid down by third States. (3) The response to the requests provided in par. ((1) shall be transmitted within 10 working days from the date of receipt of the request. ((4) If further information is required to identify the person to whom the request referred to in paragraph refers. (1), the General Inspectorate of the Romanian Police, through the Criminal Records Directorate, statistical and operative records, shall immediately request this information from the authority that transmitted the request. (5) In the case provided in par. ((4), the response time shall begin to run from the date of receipt of the information necessary to identify the person to whom the request relates (6) In the case of the criminal record of the criminal record requested by the central authorities of the other Member States, the updated information on communication of evidence transmitted by the central authorities of the other Member States shall also be attached. the competent authorities of third States. ' 20. Article 26 is amended and shall read as follows: "" Art. 26. -(1) The criminal record, statistical and operational records directorate shall transmit as soon as possible to the central authorities of the other Member States information on the convictions rendered and, without delay, any changes against the citizens the latter, as introduced in the criminal record. ((. Where the convicted person holds the nationality of several Member States, the relevant information shall be transmitted to each of the Member States concerned, even where the convicted person is also a Romanian citizen. ((. At the request of the central authorities of the other Member States, in individual cases, the Ministry of Justice shall transmit copies of the judgments of conviction and the measures subsequently taken, as well as any other relevant information concerned. (. At the request of the competent authorities of third countries, the convictions transmitted by another Member State and by third States may be attached within the limits set out in paragraph 1. ((3). (5) At the request of the central authorities of the other Member States other than those of nationality, the Criminal Records Directorate, statistical and operative records shall transmit the information on: against citizens of third countries, as well as against stateless persons, if they are registered in their criminal record, under the conditions of art. 13 of the European Convention on Mutual Assistance in Criminal Matters, ratified by Law no. 236/1998 ,, as amended. ((6) The communications, requests, replies and other relevant information shall be transmitted to the central authorities of the other Member States through the European Criminal Records Information System (ECRIS), respecting the modalities organizing and facilitating the exchange of information provided in accordance with the provisions of the Framework Decision 2009 /315/JHA and ale Decision 2009 /316/JHA .. " 21. In Chapter V, the title of section 2 is amended and shall read as follows: "" SECTION 2 The conditions required and the manner of obtaining the criminal record certificate and the extract from the criminal record by the natural or legal persons " 22. Article 27 is amended and shall read as follows: "" Art. 27. -(1) Natural or legal persons may obtain their own certificate of criminal record or extracted from the criminal record under the conditions established in art. 28-31. (2) The criminal record certificates issued by the authorities referred to in art. 6 and 7 are valid for 6 months from the date of issue. (3) If the extracts from the criminal record issued by the authorities of some foreign states have not provided for a term of validity, it shall be 6 months from the date of issue, when used before the Romanian authorities. " 23. In Article 28, paragraph 1 shall be amended and shall read as follows: "" Art. 28. -(1) The request-type, with the personal data completed and motivated, shall be submitted by the individual electronic or personal, to any unit or subunit of police in which the counter-issuance of the criminal record certificates works. " 24. Article 30 is amended and shall read as follows: "" Art. 30. -(1) In order to obtain an extract from the criminal record of another Member State, the individual addresses a request in this regard to one of the police units designated to issue certificates of criminal record, which, within 3 days, a forward to the criminal record, statistical and operative records department of the General Inspectorate of the Romanian Police. (2) In order to obtain the requested data, the Criminal Records Directorate, statistics and operative records of the General Inspectorate of the Romanian Police address, under the conditions of art. 26 26 para. ((6), to the central authority of the Member State from which a request for extract from the criminal record is requested to be issued. (. When the person requests information on his or her own criminal record to the central authority of a Member State other than the Member State of nationality, the central authority of the Member State in which the application is lodged shall make an application for extract from the criminal record and the central authority of the Member State of nationality, in order to be able to include such information in the extract to be issued to the person concerned. (4) The application referred to in paragraph ((1) may be made by persons who are or have been residents or nationals of the Romanian state or of the Member State from which the criminal record is requested. (5) In case of applications submitted under the conditions provided in par. ((1), the extract from the criminal record transmitted by the Member State shall be issued to the applicant no later than 10 days after the date of receipt thereof. " 25. In Article 34, paragraph 2 shall be amended and shall read as follows: " (2) In order to use the records of the criminal record, all police units and subunits, other structures and institutions of the defense system, public order, national security and justice will be connected to the computerized system, public institutions and specialized bodies of the public administration, as well as the competent structures of the Ministry of Foreign Affairs. " 26. In Article 34, after paragraph 2, a new paragraph (2 ^ 1) is inserted, with the following contents: "(2 ^ 1) The National System of Informatized Records of the Criminal Record ensures the exchange of data with information systems of the European Union for the exchange of information extracted from criminal records between Member States." 27. In Article 36, paragraph 1 shall be amended and shall read as follows: "" Art. 36. -(1) Communications on the data to be entered in the records of the criminal record or provisionally noted in the records of the police units, requests for obtaining the documents provided by this law, as well as the answers to the they will be drafted on the form-type, according to the model established by Government decision, under the conditions provided in art. 34 34 para. ((3). ' + Article II Throughout the whole Law no. 290/2004 on the criminal record, republished, with subsequent amendments and completions, as well as with the amendments and additions made by this law, the phrase "Member State of the European Union" is replaced by the phrase "Member State". + Article III Within 6 months from the date of entry into force of this Law, Government Decision no. 345/2010 for the approval of the models of the forms-type used in the criminal record activity, published in the Official Gazette of Romania, Part I, no. 314 of 13 May 2010, shall be amended and supplemented accordingly to the provisions of this Law. + Article IV On the date of entry into force of this Law, the provisions art. II of Law no. 172/2009 on approval Government Emergency Ordinance no. 216/2008 to amend and supplement Law no. 290/2004 on the criminal record. + Article V Law no. 290/2004 on the criminal record, republished in the Official Gazette of Romania, Part I, no. 777 of November 13, 2009, with subsequent amendments and completions, as well as with the amendments and completions brought by this law, will be republished in the Official Gazette of Romania, Part I, giving the texts a new numbering. * This law transposes the provisions Framework Decision 2009 /315/JHA of 26 February 2009 on the organisation and content of the exchange of information extracted from criminal records between Member States, published in the Official Journal of the European Union L series, no. 93 of 7 April 2009, and creates the legal framework for the application Decision 2009 /316/JHA of the Council of 6 April 2009 establishing the European Criminal Records Information System (ECRIS) in application of Article 11 of the Framework Decision 2009 /315/JHA ,, published in the Official Journal of the European Union, L series, no. 93, dated 7 April 2009. This law was adopted by the Romanian Parliament, in compliance with the provisions of art. 75 75 and art. 76 76 para. (2) of the Romanian Constitution, republished.
CHAMBER OF DEPUTIES PRESIDENT
FLORIN IORDACHE
SENATE PRESIDENT
CĂLIN-CONSTANTIN-ANTON POPESCU-TARICEANU Bucharest, December 5, 2016. No. 247. -------