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Obtaining EVIDENCE from Romania

OBTAINING EVIDENCE THROUGH MUTUAL LEGAL ASSISTANCE:

WHEN?
Evidence can be requested both before and after a person is charged with an offence. During the investigation phase, a Letter of Request (LoR) can be issued even prior to any suspect being arrested.

Types of assistance that can be provided under an LOR include a request:
• To take witness statements;
• To search and/or seize property;
• To formally interview suspects;
• For banking evidence;
• For telecommunications data;
• To allow UK personnel to travel to the overseas state in question in order to conduct enquiries;
• To conduct covert deployments;

The UK Central Authority for Mutual Legal Assistance (UKCA-MLA) is located in the Home Office (see Resources: useful contacts in the UK). The Home Office acts as both the UKCA- MLA and the territorial authority for England and Wales. In its role as UKCA-MLA, it acts as the first point of contact for general queries relating to mutual legal assistance. It acts as authority for the whole UK where treaties and other arrangements require all requests to be routed through a single authority, or where a request involves execution in more than one jurisdiction.

It is always recommended to engage early via the channels of police cooperation to ascertain the availability of the evidence required, identify and locate victims/witnesses etc. and prepare the ground for the process of judicial cooperation.

There are different procedures, as well as different Romanian authorities dealing with the LoR based on the stage of the criminal process (investigation/prosecution, during trail or if the suspect is imprisoned in Romania for other offences) and type of criminality involved (organised crime or common criminality):
1. If the LoR is sent throughout the investigation/ prosecution phase and the request deals with organised criminality, including human trafficking, the Romanian authority where the request has to be sent is the Directorate for Prosecution of the Organised Crime and Terrorism (see Resources: useful contacts in Romania). However, if the request concerns other types of criminality, prior to court, the LoR has to be sent to the Public Ministry (see Resources: useful contacts in Romania).
2.  If the LoR is sent throughout the court phase, irrespective of the stage (trial/appeal) and the type of criminality involved, it has to be addressed to the Ministry of Justice (see Resources: useful contacts in Romania), which will instruct the competent court to carry out the activities requested. Similarly, if the offender /suspect is serving a sentence, the competent authority is the Ministry of Justice.

RESOURCES:

Interception and recording of conversations and communications

ARTICLE 184 of LAW No. 302 of 28 June 2004 Amended and Republished, on international judicial cooperation in criminal matters:
1. In view of solving a criminal case, the judicial authorities of the requesting State or the competent authorities thus designated by the requesting State may make a request to the Romanian authorities for judicial assistance relating to the interception of telecommunications and their immediate transmission to the requesting State or to the interception of the recording and of the subsequent transmission of the recording of telecommunications to the requesting State, where the prosecuted person:
(a) is in the territory of the requesting State and the latter needs technical assistance to intercept communications from the target;
(b) is on Romanian territory, in the event that the communications from the target can be intercepted by Romania;
(c) is on the territory of a third State, which has been informed and if the requesting State needs technical assistance for intercepting communications from the target.
2. Requests made under this Article must meet the following conditions:
(a) specify and confirm the issuing of an order or a warrant for interception and recording, within the framework of criminal proceedings;
(b) contain information that would allow the target of the interception to be identified;
(c) specify the criminal acts that are the object of the criminal investigation;
(d) mention the duration of interception;
(e) if possible, contain sufficient technical data, in particular the number for connecting to the network, in order to allow the processing of the request.
3. Where the request is made under paragraph (1) (b), it must contain also a description of the facts.
The Romanian judicial authorities may require any other additional information needed for establishing whether the requested measure would have been taken in a similar national case.

ARTICLE 178 OF LAW NO. 302 OF 28 JUNE 2004 AMENDED AND REPUBLISHED, ON INTERNATIONAL JUDICIAL COOPERATION IN CRIMINAL MATTERS:
1. If a person is in Romanian territory and has to be heard as a witness or expert by the judicial authorities of a foreign State, the latter may, where it is not desirable or possible for the person to be heard to appear in its territory in person, request that the hearing take place by video conference, as provided for in the following paragraphs.
2. Such a request may be accepted by Romania provided that it is not contrary to fundamental principles of its law and on condition that it has the technical means to carry out the hearing by video-conference.
3. Requests for a hearing by video conference shall contain, in addition to the information referred to in Article 172, the reason why it is not desirable or possible for the witness or expert to attend in person, the name of the judicial authority and of the persons who will be conducting the hearing.
4. The witness or expert shall be summoned according to Romanian law.

The judicial authorities competent to execute the requests submitted by the authorities of other States shall be the courts of appeals, during court proceedings, respectively the prosecutor’s offices attached to courts of appeal, during criminal prosecution.

1.With reference to hearing by video conference, the following rules shall apply:
– the competent Romanian judge or prosecutor shall be present during the hearing, where necessary assisted by an interpreter, and shall also be responsible for ensuring both the identification of the person to be heard and respect for the fundamental principles of Romanian law. If he is of the view that during the hearing the fundamental principles of Romanian law are being infringed, the judge or prosecutor shall immediately take the necessary measures to ensure that the hearing continues in accordance with the Romanian law;
– measures for the protection of the witness or expert shall be agreed, where necessary, between the competent Romanian authorities and those of the requested State;
– the hearing shall be conducted directly by, or under the direction of, the judicial authority of the requesting State in accordance with its own law;
– the witness or expert may be assisted, where appropriate, by an interpreter, under Romanian law;
– the witness or expert may claim the right not to testify which would accrue to him or her under the law of either Romania or the requesting State
2. Without prejudice to any measures agreed for the protection of witnesses, the Romanian judicial authority shall draw up minutes indicating the date and place of the hearing, the identity of the person heard, any oaths taken and the technical conditions under which the hearing took place.
3. The minutes shall be forwarded to the competent authority of the requesting State.
4. The provisions of the Code of Penal Procedure shall apply accordingly
5. This Article may also apply for the hearing of accused or defendants, where the person concerned consents and there is an agreement in this respect between the Romanian judicial authorities and those of the requesting State.
6. Costs relating to establishing a video link, those related to the making available of this link in the requested State, the remuneration of interpreters and the indemnities paid to witnesses and experts, as well as travelling expenses shall be reimbursed by the foreign requesting State to Romania, unless the latter expressly waived the reimbursement of all or part of such costs.

  College of Policing: MUTUAL LEGAL ASSISTANCE

  HOME OFFICE: Guidance on Mutual legal assistance requests

IF YOU KNOW OF ANYONE WHO IS SUFFERING
IN MODERN SLAVERY PLEASE CALL

In the UK: The Modern Slavery helpline
 0800 0121 700

In Romania: VICTIM HELPLINE
 +4021 313 3100