7 March 2011
Draft Questionnaire for Consultative Council of European Prosecutors (CCPE)
Answers of the Prosecutor's Office attached to the High Court of
Cassation and Justice
What are the Prosecution Service’s powers regarding prison matters and in terms of deprivation of liberty?
According to Article 63 (j) of the Law No. 304/2004 on the judicial organization, republished, with the subsequent amendments and completions, the Public Ministry, through its public prosecutors, has the responsibility to check the observance of the law in preventive detention facilities. (See also the answer to Question 4.)
According to the provisions of the Criminal Procedure Code, public prosecutors may decide to take the accused or the defendant into custody for maximum 24 hours (Article 143); He/she must also prepare a grounded proposal for the preventive detention of the accused for a period not exceeding 10 days (Article 146) or of the defendant for a period not exceeding 30 days (Article 1491) ordered by the judge, and may make grounded proposals for the extension, by the judge, of the duration of the preventive detention during the criminal investigation for periods not exceeding 30 days (Article 156), for a maximum total of 180 days.
Also, according to the provisions of Article 243 (3) and Article (245 (3) of the Criminal Procedure Code, when the abating of the criminal action concerns an accused or a defendant who is in preventive detention, the public prosecutor must decide the abating of the criminal action on the same day he has received the proposal for such abatement from the criminal investigation authority, the result being the discontinuance by right of the preventive detention and the immediate release of the accused or defendant; the same procedure applies in case the prosecutor decides to exempt the accused or defendant kept in administrative detention from the criminal investigation (Article 249 (2), Criminal Procedure Code).
In States where prosecutors do not have full authority in prison matters, what are nevertheless their means of action used as regards prisons?
When dealing with crimes committed by employees from within the prison system of the kind provided by the Criminal Code and by special laws, the public prosecutors may, as the case may be, carry out the criminal investigation or supervise the criminal investigations carried out by judicial police officers, in order to establish the criminal responsibility of the culprits.
Mention should be made of the fact that, with the Law No. 19 of October 9, 1990, Romania joined the UN Convention against Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment adopted in New York on December 10, 1984, Romanian public prosecutors carrying out their activity in full compliance with the principles promoted by the said Convention.
If prosecutors have general powers as regards prisons and detention, what kind of means have been provided to the Prosecution Service to allow its effective and fast action towards protecting human rights in matters of prison administration?
Prosecutors do not have general powers as regards prisons and detention.
According to the provisions of the Law No. 275/2006 on enforcing punishments and the implementation of the measures decided by the judicial authority during the criminal trial, such powers correspond to the judge designated to enforce custodial punishments and the judge designated to the department dealing with the enforcement of criminal sentences in each enforcing court (Article 6).
What are the positive and decisive elements of the prosecutor’s role in terms of protecting human rights compared to other mechanisms of legal protection?
According to the provisions of Article 131 (1) of the Romanian Constitution: “In carrying out its judicial activity, the Public Ministry represents the general interests of the society and defends the rule of law and the citizens’ rights and freedoms.”
The Constitutional provisions are also stipulated by the Law No. 304/2004 on the judicial organization, Article 62 (3) providing that “Prosecutors carry out their functions in compliance with the law, respecting and protecting human dignity and defending individual rights.”
According to the provisions of Article 63 (j) of the Law No. 304/2004 – referred to under Question 2 – prosecutors are currently checking the observance of the law in pre-trial detention facilities.
What could be the improvements to this system of protection?
Due to the limited powers of the Public Ministry concerning the theme under consideration, any specific legislative improvements should be brought forward by the Ministry of Justice, the authority holding the legal power to advance legal proposals.
Do prosecutors have jurisdiction to examine whether the rights (human rights, especially procedural rights) of the persons in criminal or administrative detention (for example as regards enforcement of custodial sentences or pre-trial detention) are observed at the detention center?
Yes, as regards pre-trial detention facilities.
Can the prisoner meet with a prosecutor in private to determine whether he/she had been subjected to torture or any other kind of inhuman or degrading treatment or punishment?
The prosecutor designated to check the observance of the law in pre-trial detention facilities can meet in private with the individual in custodial arrest to determine if his/her rights have been violated.
Also, once informed that a criminal act has been committed, the prosecutor can meet in private with the individual in custodial arrest in the course of the criminal investigation.
Do prosecutors examine - and, if so, how often – whether the accommodation provided to prisoners meets the Council of Europe recommendations (namely of the European Committee for the Prevention of Torture/CPT)? Can prosecutors make proposals in this direction to influence the relevant budget?
Yes, during the regular checks concerning the observance of the law in pre-trial detention facilities, ex officio or following notification from detained persons.
Prosecutors can make proposals in this respect, the Ministry of Administration and Interior having the authority to solve them.
What kind of means exist for prosecutors to deal with the authorities or officers/employees who have not fully or properly enforced the decisions of the court or of the prosecution service relating to custodial punishments and/or measures? If a prosecutor detects such negligence is he/she entitled to give binding instructions for the immediate termination of such breach of the law? Can he/she institute criminal or disciplinary procedures, actions for damages or any other type of impeachment? What other prosecutorial instruments are available to the prosecutor?
The administrative or criminal detention cases deemed unlawful by the prosecutor are clarified and solved during when checking the observance of the law in the custodial detention facilities of the Ministry of Administration and Interior.
Such cases are determined only after careful examination by the prosecutor of the cases under investigation or, as the case may be, pending in court, followed by their submission to the management of the competent police authority and prior information of the first prosecutor of the prosecutor’s office that will deliver the final solution in each and every case.
After carrying out the checking action, the prosecutor prepares an information note presenting the breaches discovered accompanied by actual examples, the guilty persons and the measures required to reinstate legality. This information note is submitted to the first prosecutor of the prosecutor’s office who notifies the management of the police authority and, if necessary, brings to administrative or disciplinary account the persons found guilty.
If the cases of illegality found by the prosecutor during his/her checking are of a criminal nature, he/she institutes ex officio legal proceedings, preparing a criminal file concerning the illegalities found.
How often do prosecutors carry out monitoring visits of the criminal and administrative detention institutions? Are there concrete follow-ups after these visits?
Prosecutors check the observance of the law in the detention facilities within the Ministry of Administration and Interior on a weekly basis but they also pay unannounced monitoring visits whenever necessary, preparing information notes presenting the breaches found accompanied by actual examples, the guilty persons and the measures required to reinstate legality.
These information notes are submitted to the head of the prosecutor’s office who notifies the management of the police authority and, if necessary, brings to administrative or disciplinary account the persons found guilty. (See also the Answer to Question 10.)
Within the framework of their monitoring duties, do prosecutors have the power to take action at any time of the day (even at night) in the institutions of criminal and administrative detention?
May prosecutors commission experts to assist them in their supervision and control duties?
No, such duties are the exclusive responsibility of the prosecutor.
Are complaints and/or denunciations regarding the criminal or administrative detention subject to prosecutorial inquiry, independently of any relevant authority or employees/officers? Is it a prosecutor’s duty to complete the investigations himself/herself or is he/she allowed to forward the complaints for investigation to the officers/employees who are the subject of the respective complaints?
The complaints or the denunciations regarding the detention conditions are investigated by prosecutors.
When they regard a crime that can only be investigated by a prosecutor [Article 209 (3) of the Criminal Procedure Code], the case is investigated by a prosecutor.
Criminal cases concerning other types of offences are investigated by police authorities under the direct supervision of the prosecutor (Article 216 and the next of the Criminal Procedure Code).
The officers/employees against whom the complaint or the denunciation is filed are by no means involved in carrying out the criminal investigation activities.
In case of sudden death, accident or criminal offence committed against a prisoner or in case a prisoner commits a crime against another prisoner or against a prison staff member, is the investigation conducted by a prosecutor acting as an independent judicial authority or is it simply supervised by a prosecutor? Do prosecutors have a role in investigations?
According to the provisions of Article 209 (3) of the Criminal Procedure Code, in case of illegal arrest and abusive investigation (Article 266, Criminal Code), subjection to ill-treatment (Article 267, Criminal Code), torture (Article 2671, Criminal Code), and unjust repression (Article 268, Criminal Code), the criminal investigation must be conducted by a prosecutor; These provisions are also applicable in case of crimes against a person’s life (Article 174 – 176, and Article 179, Criminal Code) as well as in case of labor protection crimes followed or not by an accident resulting in the injury or death of the victim.
In case other crimes than the ones referred to under Article 209 (3) of the Criminal Procedure Code are committed, prosecutors conduct and control directly the criminal investigation activity carried out by the judicial police and order procedural solutions.
Are prosecutors entitled to take action in procedures concerning the adoption/revocation of special measures for high- risk prisoners or prisoners who are subject to special restrictions related to their role and position in active criminal organizations? If so, how?
However, it should be pointed out that the detention facility employees prepare information sheets on each prisoner.
In order to be free from any kind of influence, are prosecutors independent or are they subordinated to other colleagues when monitoring the detention legality?
According to the provisions of Article 65 of the Law No. 304/2004, prosecutors in prosecutor’s offices are subordinated to the head of the respective prosecutor’s office, whose binding decisions and issued in writing, according to the legal provisions.
Are prosecutors involved in granting a person’s pardon, amnesty or release, especially when the punishment produces negative effects? Do prosecutors supervise criminal records?
According to Article 135 (1) of the Criminal Code, convicts can be rehabilitated upon request by the court after certain periods of time stipulated by the law.
Are special qualifications and training required of prosecutors with responsibilities in criminal and administrative detention matters? Please specify.
According to Article 36 of the Law No. 303/2004 on the status of judges and prosecutors, republished, with the subsequent amendments and completions, “the responsibility for the continuous professional training of judges and prosecutors lies with the National Institute of the Magistracy, the heads of the courts or prosecutor’s offices where they carry out their activity, as well as with every judge and prosecutor through his/her individual training.
The National Institute of the Magistracy prepares the annual continuous training program for judges and prosecutors and submits it for approval to the Superior Council of the Magistracy.
Depending on the actual situation, this program also includes such training courses.
What acts (present conclusions, attend hearings, appeal court decisions) are prosecutors entitled to carry out during proceedings before judges competent to enforce sentences/surveillance judges (“juges de l’application des peines”) in the states where such judges exist?
In the states where such judges do not exist, what acts (release on probation, subsequent alteration of the detention execution scheme, further restriction of a prisoner’s rights, placement in solitary confinement, disciplinary punishment, a.s.o.) are prosecutors entitled to carry out as regards court decisions?
According to the provisions of Article 6 of the Law No. 275/2006 on the execution of sentences and of the measures ordered by the judicial authorities during the criminal trial, custodial sentences are enforced under the supervision, control and authority of the judge designated for the enforcement of custodial sentences, while non-custodial sentences are enforced under the supervision and control of the judge designated to the department for the enforcement of criminal sentences in each enforcing court.
The legal provisions do not grant the prosecutor the power to supervise and control the legality of the enforcement of these categories of punishments.
According to the provisions of the Criminal Procedure Code (Article 447 - 450), alterations in the enforcement of convictions may legally occur. They are decided by the court, the prosecutor being directly involved in the process because the law empowers him/her to notify the court competent to solve the issue, to attend the trial sessions, and to file appeal (for example, Article 447 – Revocation or cancellation of the stay of execution, Article 448 – Replacing the life detention sentence, Article 450 – Release on probation).
When monitoring the enforcement of punishments, do prosecutors interact with the Ombudsman or any other organization linked with or charged with controlling the enforcement of punishments? If so, what type of interactions are they? Can you name such organizations, be they institutional or not, and explain briefly their roles?
According to the provisions of Article 59 of the Romanian Constitution, the Ombudsman exerts its functions ex officio or upon request by the persons whose rights and freedoms have been violated, within legal limits, and the public authorities must grant the Ombudsman the support needed to carry out its duties.
In compliance with the Constitutional norms and according to Article 17 (1) of the Law No. 35/1997 on the organization and functioning of the Ombudsman, republished: “The management of penitentiaries, of the juvenile rehabilitation centers, of penitentiary hospitals, of the Public Ministry, and of the police authorities shall allow, without any restrictions, persons serving prison sentences or, as the case may be, persons in criminal or administrative detention, as well as juveniles in rehabilitation centers, address, in any way, the Ombudsman concerning the violation of their rights and freedoms, except the legal restraints.”
If the Ombudsman finds that the power to solve the request addressed to it lies with the judicial authorities, it may address, as the case may be, the Ministry of Justice, the Superior Council of the Magistracy, the Public Ministry or the president of the court, who are obliged to communicate the measures taken (Article 18 of the same law).
Pursuant to the powers granted to it by law, the Public Ministry must examine the notifications concerning criminal acts committed in relation with the enforcement of punishments, interacting for this purpose with the relevant NGOs.
Could you give other useful information to the preparation of the Opinion draft (relevant questions to be added, documents, etc.)?
The legislation in force covers in our opinion all the issues mentioned in this Questionnaire.