Did you know one of the most important subjects in law school is criminal law procedure? Find out more about it, below!

What is Criminal Procedure?

Criminal procedure, or procedural criminal law, is an independent branch of Romanian law that includes the set of legal norms regulating the conduct of criminal proceedings.

Although it is an independent branch of law, procedural criminal law/criminal procedure has close ties to criminal law, civil law, civil procedural law, constitutional law, etc.

Of all these connections, the closest and most significant link is with criminal law. On one hand, criminal law defines what constitutes a crime if all legal conditions are met, outlines criminal liability, applicable sanctions for law violations, and the concept of legal and judicial rehabilitation. On the other hand, procedural criminal law regulates how the state, through its authorities, holds offenders accountable and protects the innocent, along with the activities and competencies of these authorities.

Phases of Criminal Proceedings

Regarding the phases of criminal proceedings, there is no doctrinal consensus. Some experts argue that there are four distinct phases, while others believe there are three. The phases of criminal proceedings are as follows:

• Criminal Investigation: This phase involves gathering the necessary evidence to identify the criminal act and the perpetrator. It is carried out by criminal investigation authorities under the prosecutor’s supervision. The investigation always begins concerning the act itself, and if sufficient evidence emerges pointing to a particular individual, the investigation proceeds against that person, designating them as a suspect.

If evidence indicates the suspect committed the crime, the prosecutor initiates criminal action, giving the suspect the status of a defendant. In this case, serious evidence exists concerning the crime, and preventive detention can be ordered.

If the evidence suggests otherwise, depending on the criminal proceedings, the investigative authorities forward the case to the prosecutor with a proposal for dismissal, waiver of prosecution or sending the case to trial. The prosecutor may order, through a ruling: the return of the case for further investigation, dismissal, waiver of prosecution, or referral for trial.

• Preliminary Chamber: Although its status as a distinct phase of the criminal process is debated, the preliminary chamber plays an essential role as a bridge between the investigation and trial phases. Here, the preliminary chamber judge verifies the court’s jurisdiction, the legality of the referral, the admissibility of evidence (excluding any unlawfully obtained evidence), and the legality of other acts from the investigation phase. The judge may either return the case to the prosecutor’s office or initiate trial proceedings.
• Trial: In this phase, the individual is judged and either convicted or acquitted through a first-instance judgment (non-final), meaning the presumption of innocence still applies. A judgment becomes final if confirmed on appeal or if the first-instance decision is not appealed within the legal timeframe. The trial is divided into four distinct stages:

1. • Judicial Investigation: Evidence can be presented or new evidence proposed.
   • Debates: During this stage, conclusions on the merits of the case are presented orally or in writing. The presiding judge of the trial panel gives the defendant the opportunity to speak again.
   • Deliberations: The court discusses legal aspects like the existence of the crime, the defendant’s guilt, legal classification, penalties, and civil matters. Decisions are made unanimously or by majority, with minority opinions requiring justification.
   • Ruling: The court may issue a decision of conviction, waiver, postponement of punishment, acquittal, or termination of criminal proceedings.

• Enforcement of the Judicial Decision: If the conviction becomes final, the judicial decision is enforced by the court of first instance.

Participants in Criminal Proceedings

• • Judicial Authorities:

1. • Criminal Investigation Authorities: These are part of the criminal investigation group alongside the prosecutor. Within these authorities, there are criminal investigation bodies of the judicial police and special criminal investigation bodies. Their role is limited to conducting the criminal investigation by gathering and administering evidence, conducting searches, on-site investigations, etc. The criminal investigation authorities carry out their activities under the guidance and supervision of the prosecutor.
   • Prosecutor: The prosecutor, alongside the criminal investigation authorities, is part of the criminal investigation group. Operating within the prosecution office and as part of the Public Ministry, the prosecutor supervises or conducts the criminal investigation, refers cases to the judge for rights and liberties or to the court, initiates criminal and civil actions, concludes plea agreements, files and pursues legal appeals against court decisions, and performs other duties provided by law.
   • Judge for Rights and Liberties: This judge, within the court, as determined by their jurisdiction, resolves requests, proposals, complaints, appeals, or other legal matters related to preventive, protective, and provisional measures, acts of the prosecutor, approval of searches, use of special surveillance or investigation techniques, or other evidentiary procedures under „the law, as well as anticipatory hearings and other situations expressly provided by law.
   • Preliminary Chamber Judge: This judge, within the court, verifies the legality of the prosecution ordered by the prosecutor, the legality of evidence administration, and procedural acts performed by the criminal investigation authorities. They also resolve complaints against non-prosecution or non-indictment decisions and other matters provided by law.
   • Judicial Courts: Justice is administered by the High Court of Cassation and Justice, courts of appeal, tribunals, and district courts. Judges within these courts operate as part of judicial panels and play a central role in resolving cases. Their activity is not limited to the trial phase but also extends to the criminal investigation phase and the enforcement of judicial decisions.

• Lawyer: Represents or assists the parties or procedural subjects under the conditions provided by law.
• Parties: These are the individuals who either exercise or are subjected to criminal or civil actions. The parties in criminal proceedings are: the defendant, the civil party and the civilly liable party.
• Main Procedural Subjects: These individuals enjoy the same rights and obligations as the parties, except for those exclusively granted to the parties by law. The main procedural subjects are: the suspect and the injured party.

It should be noted that, not being parties in the criminal proceedings, no legal action (criminal or civil) can be exercised by or against them.

• Other Procedural Subjects: These include witnesses, experts, interpreters, procedural agents, special investigative bodies, and any other individuals or entities designated by law with specific rights, obligations, or responsibilities in criminal proceedings.

Sorin-Cosmin Ioniță

Legal intern R&R Partners