Romania

NOTE: In Romania, there is a New Criminal Code which is expected to enter into force started with 2012. In this New Criminal Code there are substantial changes related to the noncustodial sanctions, to the types of probation measures and obligations and, generally, to the role of probation within the justice system.

1) Judgements and, where applicable, probation decisions entering into the scope of this Framework Decision (Article 2)

a) Member States are asked to describe the judgments and, where applicable, probation decisions, as defined in Article 2, which have to be recognised by a Member State.

In this regard, Member States are asked to make a separated table for each judgement and each probation decision, entering into the scope of the Framework Decision and indicate for each one the following information.

Suspension of the sentence's execution under supervision

Name of the judgement or the probation decision

Suspension of the sentence' execution under supervision
Suspendarea executarii pedepsei sub supraveghere

Classification of this judgement or the probation decision

Suspended sentence.

Legal basis of this judgement or the probation decision

Art. 861 Criminal Code.

Definition of this judgement or the probation decision

Suspension of the sentence' execution under supervision is an alternative to execution of a custodial sentence. The person is convicted with the sentence of prison, but the execution of the sentence is suspended by imposing 4 probation measures and, if necessary one or more obligations in order to be complied under the supervision of a probation service. The court estimates that the purpose of the punishment could be achieved in the community.

The duration of the probationary period is decided by the judge and can run from 2 till 5 years added to the duration of the sentenced pronounced.

Within this period, if the sentenced person commits new offences or violates the probation conditions, the sentence may still be executed. At the end of a successful probationary period, the execution of the sentence can no longer be enforced.

Legal Conditions of this judgement or the probation decision

The legal conditions for taking such judgment are provided by the Penal Code:
a. the sentence pronounced is a prison sentence which does not exceed 4 years;
b. the person concerned hasn't been earlier convicted to a prison sentence of more than 1 year;
c. taking into account the characteristics of the convicted person, the behavior after the current offence/s, the judge estimates that the convicted person wouldn't committed another offence.

Type of probation measures

The persons under supervision should receive certain measures and/or obligations.

Measures are suitable for adults, are imposed all together and are mandatory in the situation of suspended sentence under supervision of probation service. These measures are:
a. to be present at the probation service at certain dates settled down by the probation officer or by the court;
b. to previously announce any change of living place and any departure which exceeded 8 days as well as the return;
c. to communicate and justify the change of the working place;
d. to communicate information of nature to control his living means.

Obligations are alternative for adults and complete the measures mentioned above. Obligations for adults are:
a. to carry out an activity, an educational course or a training for qualification;
b. not to change his/her current domicile or residence or not to cross the established territorial limit, except for conditions set by the court;
c. not to frequent certain established locations;
d. not to contact certain persons;
e. not to drive any vehicle or certain vehicles considered by the court;
f. to comply with control, treatment or care measures, especially for the purpose of detoxification.

Combination of sanctions or measures

See liberty under supervision.

Authority responsible for taking such a decision

The court (all jurisdictions of judgments)

Authority responsible for supervising

Probation services (administrative authority) which are subordinated to the Probation Department of the Ministry of Justice.

The probation service is designated on the basis of the residence of the supervised person at the time the judicial decision is considered as a final decision.

Probation services ensure the control of the way in which the convicted person complies with measures and obligations imposed by the court and assist the person in order to support his rehabilitation.

In that regard, the probation officer is writing a report at the end of supervision and, if necessary, also during the supervision. The report includes a state of play of the execution of the probation measures and the eventual problems during the execution. It aims at supervising the respect of the conditions that are imposed.

Authority responsible in case of infringement

- The Probation Service - to communicate with the court regarding the infringement
- The criminal jurisdiction that imposed the sanction - to decide regarding the probation service request.

There will be a legally revocation of the suspension of the sentence' execution under supervision when the person commits, during the probationary period, a new criminal offence.

The suspended sentence is also revoked when the person does not complies with the civil obligations (financial penalty) established in the same judgement, except when he/she can prove he/she hasn't the possibility to comply with this obligation.

The suspended sentence can also be revoked when the person intentionally violates the probation terms.

The Probation Service reports to the court on the reasons for revocation of the suspended sentence. The judge can decide:
- the revocation of the suspended sentence and the execution of the prison sentence
- the continuation of the supervision with the same probation terms or with some new terms (only if a new criminal offence was committed by fault.

Liberty under supervision

Name of the judgement or the probation decision

Liberty under surveillance (only for minors).
Libertate supravegheata

Classification of this judgement or the probation decision

Alternative sanction.

Legal basis of this judgement or the probation decision

Art. 103 Criminal Code.

Definition of this judgement or the probation decision

The measure of liberty under supervision consists in leaving the minor one year of liberty, under special supervision. The supervision can be established, depending on the case, into the responsibility of minor's parents, to the foster parents or to the tutor. If they cannot ensure satisfactory supervision, the court may request temporary supervision from a reliable person, preferably to a close relative, upon this relative's request, or to an institution legally appointed for juveniles' supervision. The court estimates that the purpose of the punishment could be achieved in the community.

Liberty under supervision is a sentence itself, an alternative to a custodial measure for minor. The period of supervision is one year.
During this period, the judge can impose for minor to comply one or more obligations (see below).

When the judge decides to impose the obligations, the minor is supervised by the probation service.

Within this period, if the sentenced person commits new offences or violates the probation measures, or he/she has inappropriate behaviour the judge can revoke the sentence and impose a custodial measure or sanction.

Legal Conditions of this judgement or the probation decision

There are no special conditions of the judgement. In order to impose this measure, the minor must be subject to penal responsibility and the judge has to take into consideration the level of social threat of the offence, the physical condition, the moral and intellectual development, the behavior of the juvenile and the raising conditions and any other elements characterizing the juvenile.

Type of probation measures

The judge can impose one or more obligations. These are:
a) not to frequent certain established locations;
b) not to contact certain persons;
c) to perform a non paid activity in a certain established public institution for a period between 50 and 200 hours of maximum 3 hours per day, after the school programme, during the non working days and holidays.

Combination of sanctions or measures

It is possible for the judge to decide to impose the obligations mentioned above (a-c) for one year, till the juvenile reaches the age of 18 and the measures and/or obligations specific for suspended sanction for the next period, after 18. In this case, it is a mix between these two sanctions.

Authority responsible for taking such a decision

The court (all jurisdictions of judgements)

Authority responsible for supervising

Probation services (administrative authority) which are subordinated to the Probation Department of the Ministry of Justice are responsible for supervising the execution of the obligations.

The probation service is designated on the basis of the residence of the supervised person at the time the judicial decision is considered as a final decision.

Probation services also assist the juvenile in order to support his rehabilitation.

The probation officer is writing a report at the end of supervision and, if necessary, also during the supervision. The report includes a state of compliance of the execution of the obligations and the eventual problems during the execution.

Authority responsible in case of infringement

- The Probation Service - to communicate with the court regarding the infringement
- The criminal jurisdiction that imposed the measure - to decide regarding the probation service request.

There will be a legally revocation of the liberty under surveillance when the juvenile commits, during the probation period, a new criminal offence.

If, within the supervision period, the juvenile eludes the supervision or if he/she has a bad behavior, the judge also revokes the measure and imposes a custodial measure.

The Probation Service reports to the court on the reasons for revocation of the suspended sentence. The judge can decide:
- the revocation of the liberty under supervision and the execution of a custodial measure;
- the continuation of the supervision with the same probation terms and for the same period established at the beginning (there is no possibility to establish a period which exceeds one year).

2) Probation measures and alternative sanctions (Article 4)

In Article 4 of the Framework Decision types of probation measures and alternative sanctions are stated. Member States are asked to describe the probation measures and alternative sanctions attached to those judgements and probation decisions:

a) In the table below please describe how probation measures and alternative sanctions set out in Article 4.1 are reflected in your domestic law and please give a description of each of them.

Probation measures / alternative sanctions

Explanation

Obligation for the sentenced person to inform a specific authority of any change of residence or working place

The content of the obligation in Romanian national law:
- to previously announce any change of living place and any departure which exceeded 8 days as well as the return;
- to communicate and justify the change of the working place;

The announcement should be handed in written to the probation officer responsible of the case or by telephone in exceptional cases.
The working place must be proved by a written document.
In order to ensure the supervision of these measures, the probation officer asks for information and evidences regarding his situation.
There are no specific conditions related to these obligations. The judge must impose this obligation in all cases of suspended sentences.

Obligation not to enter certain localities, places or defined areas in the issuing or executing State

The content of the obligation in Romanian national law:
- not to frequent certain established locations

There are no specific conditions related to this obligation. The judge has the possibility to impose this obligation in all cases of suspended sentences, taking into account the need to prevent recidivism, the specific needs of the sentenced person and the interests of the victim.
In order to supervise this obligation, the probation service works together with the local Police.

Obligation containing limitations on leaving the territory of the executing State

The content of the obligation in Romanian national law:
- not to change his current domicile or residence or not to cross the established territorial limit, except for conditions set by the court;

There are no specific conditions related to this obligation.
The judge has the possibility to impose this obligation in all cases of suspended sentences, taking into account the need to prevent recidivism, the specific needs of the sentenced person and the interests of the victim.
In order to supervise this obligation, the probation service works together with the local Police. The probation officer also collaborates with individuals or public institutions and makes unannounced visits at the living place of convicted person and other places.
In Romanian law there are also two obligations: 1.not to leave the city and 2. not to leave the territory of the country, but these are not obligations related to the probation period. They are pre-trial measures and only the Police is responsible for supervising them.

Instructions relating to behaviour, residence, education and training, leisure activities, or containing limitations on or modalities of carrying out a professional activity

The possible content of the obligation in Romanian national law:
- to carry out an activity, an educational course or a training for qualification;
- not to drive any vehicle or certain vehicles considered by the court;

There are no specific conditions related to this obligation.
The judge has the possibility to impose this obligation in all cases of suspended sentences, taking into account the need to prevent recidivism, the specific needs of the sentenced person and the interests of the victim.
A specific interpretation of the condition concerning the nature of the employment and leisure activities is often not included, so the probation officer and the sentenced person can agree upon a relevant interpretation.
In order to supervise this obligation, the probation service works together with the local Police.

Obligation to report at specified times to a specific authority

The content of the obligation in Romanian national law:
-to be present at the probation service at certain dates settled down by the probation officer or by the court;

There are no specific conditions related to this obligation. The judge must impose this obligation in all cases of suspended sentences.
When the judge did not establish the frequency of the meetings, taking into account the need to prevent recidivism, the specific needs of the sentenced person, the probation officer is deciding how often he is going to meet the person. For this last situation, the frequency can be modified during the probation period, according to the evolution of the supervised person.

Obligation to avoid contact with specific persons

The content of the obligation in Romanian national law:
- not to contact certain persons;

There are no specific conditions related to this obligation.
The judge has the possibility to impose this obligation in all cases of suspended sentences, taking into account the need to prevent recidivism, the specific needs of the sentenced person and the interests of the victim.
This obligation is optional and is available both for minors and adults.
In order to ensure the supervision of this measure the probation officer collaborates with Police, individuals or public institutions and makes unannounced visits at the living place of convicted person and other places.

Obligation to avoid contact with specific objects, which have been used or are likely to be used by the sentenced person with a view to committing a criminal offence

The possible content of the obligation in Romanian national law:
- not to drive any vehicle or certain vehicles considered by the court;

In the law, there are no specific conditions related to this obligation.
The judge has the possibility to impose this obligation in all cases of suspended sentences, taking into account a case by case analyze. Usually this obligation is imposed when the vehicle was used for committing the offence.
In order to supervise this obligation, the probation service collaborates with the local Police.

Obligation to compensate financially for the prejudice caused by the offence and/or an obligation to provide proof of compliance with such an obligation

In Romanian law, this is not a specific obligation to be supervised by the probation officer. It is rather a general obligation in all cases in which the judge settle down a financial compensation for the prejudice caused by the offence.

As mentioned above, when the person does not comply with this obligation, the judge can revoke the suspension and decide the execution of the sentence, except for when custodial the person can prove he/she hasn't the possibility to comply with the obligation.

Obligation to carry out community service

The content of the obligation in Romanian national law:
- to perform an activity (it is usually considered, in practice, as a possibility to impose an obligation to carry out community service);
- (only for minors) to perform a non paid activity in a certain established public institution for a period between 50 and 200 hours of maximum 3 hours per day, after the school programme, during the non working days and holidays.

It is express provided only for minors even the adults could carry out such obligation by interpretation of the obligation to carry out an activity, an educational course or training for qualification. In most of the cases the court settles down the number of hours, the place (institution) in which the unpaid work must be completed and the probation service responsible with supervision. In other cases the court will give the possibility to the probation service to establish the institution where the community service will be executed.
The activity is planned based on a cooperation protocol signed by probation service and the institution appointed by the court and provides certain obligations to both parts. When the service is completed, the probation officer is writing a report.

Obligation to cooperate with a probation officer or with a representative of a social service having responsibilities in respect of sentenced persons

Even there is not a specific provision in Romanian law, the obligation to cooperate with a probation officer is to be understood.

As mentioned above, the convicted person has to be present at the probation service at certain dates settled down by the probation officer or by the court; he/she has to provide information about the way he/she is complying the measures and obligations and any other significant information related to risk of reoffending, risk for the public or risk of harm is necessary.

Obligation to undergo therapeutic treatment or treatment for addiction

The content of the obligation in Romanian national law:
- to comply with control, treatment or care measures, especially for the purpose of detoxification;

In the law, there are no specific conditions related to this obligation, but the judge is imposing this obligation when the offence was committed in relation to alcohol or drug addiction. The judge is not asking for the prior consent of the sentenced person before imposing the obligation.
In such situations probation officer collaborates with private or public institutions and has to sign a cooperation protocol with specialists, medical institutions or organizations in order to set up a concrete procedure for supervising this obligation.

b) In your domestic law are there any probation measures and alternative sanctions which are not covered by Article 4.1?

No.

c) Does your domestic law provide for a specific treatment regarding any category of offences (e.g. sexual offences, domestic violence)?

Yes, for domestic violence and drug addicts.

3) Electronic monitoring

Does your national law provide for the possibility to use Electronic Monitoring?

For now, there is no possibility to use Electronic Monitoring for any categories of sanctions that go under the FD.

If no, do you intend to provide Electronic Monitoring in the future?

Yes, but most probably it is going to be an obligation to be supervised by Police.

Is Electronic Monitoring considered a way of applying a probation measure or as a probation measure in itself?

It is going to be a way of supervising the probation measures.

What are the technical means provided for in your Member State that enables the use of the Electronic Monitoring (e.g. GPS)?

For now, there are no technical means provided for.

4) Formalities

Member States are invited to sum up the documents that the national competent authorities need in order to take at national level a judgement and, where applicable, a probation decision (e.g. criminal record, social inquiries, medical expertise).

In order to render a judgment, the court needs documents with evidence value.

The means of evidence that lead to the factual elements that may serve as evidence are: the testimonies of the defendant, the testimonies of the victim, of the civil party or of the party who bears the civil responsibility, the testimonies of the witnesses, the writings, the audio or video recordings, the photos, the probative material means, the technical-scientific findings, the medical-legal findings and the expertise.

Other documents used by the court are: criminal record, presentence report (mandatory for all minors and optional for adults) and any other kind of document that are considered in any specific case.

 

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