Romania: The International Comparative Legal Guide To: Business Crime 2012 - A Practical Cross-Border Insight Into Business Crime (Romania)

GENERAL CRIMINAL LAW ENFORCEMENT

1.1. What authorities can prosecute business crimes, and are there different enforcement authorities at the national and regional levels?

The Romanian prosecuting authority is the "Public Ministry" organised under the authority of the Minister of Justice and consisting of prosecutors (procurori). The Minister of Justice may not interfere with the activity of the prosecutors, (e.g. influence a criminal investigation).

The prosecutors are responsible for the investigation and prosecution of crimes (including business crimes). The police and other criminal investigation bodies are entitled to carry out investigation activities only under the supervision of the competent prosecutor.

Specific corruption crimes are prosecuted by the National Anticorruption Directorate, an autonomous body within the Public Ministry. Specific economic and financial crimes are prosecuted by the Directorate for Investigating Organised Crime and Terrorism, which is another structure of the Public Ministry.

There are no different enforcement authorities at national and regional level.

1.2. If there are more than one set of enforcement agencies, please describe how decisions on which body will investigate and prosecute a matter are made.

The organisation of the Public Ministry corresponds to the organisation of the courts (for each court there is a corresponding prosecutors' office (parchet)). The activity of all the prosecutors' offices is coordinated by the prosecutors' office corresponding to the High Court of Cassation and Justice.

The prosecutors conduct criminal investigations, perform specific criminal investigation activities in the criminal investigations conducted by police officers and coordinate and supervise the criminal investigation conducted by police officers. Excepting the crimes for which only the prosecutor is competent to conduct the criminal investigation (e.g. murder), the police officers have the competence to conduct most of the criminal investigation activities under the supervision of the prosecutor; however, even in such criminal investigations specific criminal investigation activities can be conducted only by the prosecutor (e.g. ordering the cessation of the criminal investigation against a suspect when the evidences prove that the crime was not committed by the respective suspect).

The National Anticorruption Directorate prosecute: (a) the corruption crimes (i) committed by the members of public authorities or public institutions (e.g. members of Parliament, mayors, police officers, customs employees), (ii) causing a prejudice higher than EUR 200,000 or a particularly serious perturbation to the activity of a public authority/institution or the value of the goods subject of the crime is higher than EUR 10,000; (b) the crimes against the financial interests of the European Union; and (c) specific crimes provided by the Romanian Criminal Code, the Customs Code and the law on preventing and combating tax evasion where a prejudice higher than EUR 1,000,000 is caused.

The Directorate for Investigating Organised Crime and Terrorism prosecutes, among others, crimes set out by the capital markets law and the law on preventing and punishing money laundering, as well as crimes provided by the Customs Code.

1.3. Is there any civil or administrative enforcement against business crimes? If so, what agencies enforce the laws civilly and which crimes do they combat?

At the request of the person injured by a crime or ex officio, the prosecutor or the criminal court may decide to preliminarily secure assets in order to ensure the repair of the damages caused by a crime, the execution of the fine penalty or the implementation of the confiscation sanction.

In case of non-payment of the fine penalty by the convicted, the respective fine will be enforced by the fiscal authorities following the procedure provided by the Fiscal Procedure Code.

When a body entitled to acknowledge and sanction administrative offences notices that a certain act meets the characteristics of a crime, it will suspend the investigation and announce the competent criminal investigation body. The officers of the National Environmental Guard will immediately announce the competent criminal investigation body and cooperate with the respective body in the investigation activities if specific elements of a crime are identified. The fiscal bodies within the National Authority for Fiscal Administration have the competence to acknowledge and sanction not only administrative offences, but also crimes set out under the Fiscal Code.

2. ORGANISATION OF THE COURTS

2.1. How are the criminal courts in Romania structured? Are there specialised criminal courts for particular crimes?

The criminal courts system comprises the following courts:

  1. the courts of first instance (judecatorii) have a general competence in ruling on criminal offences, except for the criminal offences given by law in the competence of other courts;
  2. the tribunals (tribunale) are organised at county level and in Bucharest and hear, as first instance courts, crimes such as money laundering, fraudulent bankruptcy, fiscal evasion and crimes relating to intellectual and industrial property rights;
  3. the courts of appeal (curti de apel) have in their jurisdiction several tribunals and hear, as first instance courts, among others, crimes committed by judges of the courts of first instance and tribunals, prosecutors of the prosecutors' offices corresponding to these courts, as well as by lawyers, notaries, court enforcement officer and financial controllers of the Court of Accounts; and
  4. the High Court of Cassation and Justice (Inalta Curte de Casatie si Justitie) hears, as a first instance court, among others, crimes committed by members of the Parliament, members of the European Parliament and of the Government, judges of the Constitutional Court, members of the Superior Council of Magistracy, judges of the High Court of Cassation and Justice, prosecutors of the prosecutors' office corresponding to the High Court of Cassation and Justice, marshals, admirals, generals and quaestors.

The military courts are specialised criminal courts in hearing crimes committed by members of the army.

As a general rule, the ruling of a court is subject to appeal (apel) to the immediate superior court and the decision rendered in appeal is subject to the second appeal (recurs).

The crimes heard in first instance by the courts of first instance, tribunals and court of appeals are decided upon by a single judge, the appeals are heard by panels of two judges and the second appeals are heard by panels of three judges. The panel of five judges of the High Court of Cassation and Justice hears the second appeals (recursurile) against the decisions in first instance of the panel of three judges of the criminal section of the High Court of Cassation and Justice – such rulings are subject to one judicial review only (the second appeal).

The corruption crimes are heard in first instance by specialised judges / panels.

2.2. Is there a right to a jury in business-crime trials?

No. There is no jury in business crime trials.

3. PARTICULAR STATUTUES AND CRIMES

3.1. Please describe any statutes that are commonly used in Romania to prosecute business crimes, including the elements of the crimes and the requisite mental state of the accused:

  • Fraud and misrepresentation in connection with sales of securities

    Generally, the fraud is incriminated under Romanian Criminal Code as deceiving a person by presenting a false fact as being true or a true fact as being false in order to obtain unjust material benefit for oneself or for another and if a prejudice was created. The crime can be committed only intentionally.

    Particularly, Law no. 297/2004 on the capital market prohibits the market manipulation activities such as the dissemination of information by whatever means giving false or misleading signals as to financial instruments, including the dissemination of rumours and false news where the person who made the dissemination knew, or ought to have known, that the information was false or misleading. For instance, the law expressly qualifies as market manipulation the sale of financial instruments at the close of the market with the effect of misleading investors acting on the basis of closing prices.
  • Accounting fraud

    Under Law no. 82/1991 on accountancy, the intentional registration of inaccurate records and the intentional omission to register into the accounting records, having as a result the distortion of revenues, expenditures, financial results and the assets and liabilities reflected in the balance sheet, is qualified and punished as the crime of forgery (fals intelectual).
  • Insider trading

    Law no. 297/2004 on the capital market prohibits the owner of privileged information – executives or shareholders of a company or any other persons that lawfully or unlawfully become aware of privileged information – from using that information in view to acquire or dispose of financial instruments to which that information relates, for his own account or the account of a third party, either directly or indirectly. The privileged information means information which has not been made public, relating directly or indirectly to issuer(s)/financial instrument(s) and which, if it was made public, would be likely to have a significant effect on the price(s) of this/those financial instrument(s).

    The Romanian Criminal Code generally incriminates as "disclosing of economical secret" the disclosure of data and information that are not meant for publishing by the person who is aware of them due to his/her duties or by any other person, regardless of the manner in which he/she obtained such data or information, if the disclosure is likely to create a prejudice.

    Both crimes are perpetrated with intention.
  • Embezzlement

    Under the Romanian Criminal Code, the officer (functionarul) which appropriates, uses or deals in (traffics in), in its own interest or in the interest of another person, money, values or other goods which he/she manages or administrates is criminally liable. The mental state required is intent.
  • Bribery of government officials

    The Romanian Criminal Code and Law no. 78/2000 on preventing, discovering and sanctioning corruption acts incriminates the following active corruption crimes:

    1. Active bribery

      This crime consists of the act of promising, offering or giving money or other benefits to an official in order to perform or not to perform or to delay the performance of an act with regard to its service duties or in order to perform an act that is contrary to these duties. The term "official" refers to any person exercising an assignment of any nature in the service of a public authority (e.g. central or local public administration), a public institution (e.g. schools, hospitals), an institution or other legal persons of public interest (e.g. associations) and/or any entities performing a service of public interest. It also includes employees exercising an assignment in the service of a private legal entity. The bribery may be committed directly or through an intermediate.
    2. "Influence trafficking"

      This crime consists of the promising, offering or giving of money, gifts or other benefits, either directly or indirectly, to a person who has influence or who creates the belief that has influence over an official in order to persuade him to perform or not to perform an act within his duties. Unlike the active bribery, the promising, offering or giving of money or other benefits is not made towards the competent official to perform the respective act but towards a person who has influence or who creates the belief that he/she has influence over the relevant official.
    3. Active bribery of foreign officials

      The promising, offering or giving of money or other benefits, either directly or indirectly, to the official of a foreign state or a public international organisation in order to perform, or not to perform, an act with regard to the official's service duties, in order to obtain undue advantage in international economic operations, shall be punished.
    4. Non-disclosure of corruption crimes

      Any "person having control competences" has the following two obligations:

      • to inform the prosecution authorities in relation to any data out of which are resulting indications (clues or other information) that a corruption crime has been committed; and
      • during the performance of control activities, to ensure and preserve the traces of the crime, of the results of the crime and of any evidence related thereto.

      The persons who, irrespective of their position, provide, control or grant specialised assistance, to the extent to which they participate in the decision-making process or can influence it, with regard to operations that involve capital circulation, banking, currency exchange or credit operations, investment operations in stock exchanges, in insurances, in mutual investment or regarding bank accounts or those which may be considered similar to them, domestic and international transactions and are aware of operations which involve circulation of capital or any other activities concerning amounts of money, goods or any other valuables assumed to have resulted from corruption crimes or assimilated thereto or from crimes related thereto, are bound to notify the prosecution authorities or any control authorities empowered by law.

    The above listed crimes may be perpetrated only with intent.
  • Criminal anti-competition

    Under the Romanian law, the abuse of a dominant position and the unlawful agreements do not qualify as crimes but are sanctioned as administrative offences. However, the participation of a natural person with fraudulent intent and in a determining manner in the planning, organisation or realisation of unlawful agreements between companies which affect the competition on the Romanian market or a part thereof (such as the participation with rigged offers in tender procedures) constitutes a criminal offence. The crime can be perpetrated only with intent. The court may decide to publish the conviction decision in mass media.
  • Tax crimes

    The tax evasion, in its various ways of perpetration (e.g. failure to declare the income, avoidance of tax checks, providing false data in the tax documents, alteration of accounting documents) is punishable under the Romanian law. The intent to evade the taxes has to characterise the mental state of the taxpayer in order to be criminally liable.
  • Government-contracting fraud

    The Romanian Criminal Code does not contain a specific provision dealing with such specific criminal offence. However, under the public procurement legislation, the breach of the rules concerning the awarding of public procurement contracts is sanctioned as an administrative offence.
  • Negligence in the performance of work duties

    Any officer who, out of negligence, breaches any of its work obligations, either by non-performance or by defective performance, and by this, among others, causes an important damage to the legal interests of any person is criminally liable.
  • Non-denunciation of certain crimes

    Any person learning about the perpetration of certain crimes (such as murder, robbery, embezzlement, destruction of goods) has the obligation to denounce them to the competent authorities. The criminal offence of non-denunciation may be perpetrated intentionally or by negligence.

3.2. Is there liability for inchoate crimes in Romania? Can a person be liable for attempting to commit a crime, whether or not the attempted crime is completed?

The attempt to commit a crime is punished under Romanian law only when the law provides it expressly (for the serious crimes). The sanction for the attempted crime is a penalty between half of the minimum and half of the maximum provided in the law for the perpetrated crime.

The attempt is punishable as soon as the decision to commit the crime is realised but the realisation was interrupted or did not take effect, irrespective of whether the crime attempted is completed or not.

The preparation acts for the perpetration of a crime are punishable only in specific cases provided by the law, either as attempt or as autonomous crimes.

4. CORPORATE CRIMINAL LIABILITY

4.1. Is there entity liability for criminal offences? If so, under what circumstances will an employee's conduct be imputed to the entity?

Since 2006, the Romanian Criminal Code expressly provides the criminal liability of the legal entities.

A legal person is criminally liable for the crimes committed in the process of fulfilling its object of activity, in its interest or in its name, if the act was committed with the form of guilt provided by the law.

The criminal liability of the company shall be engaged regardless of whether the act was committed by its bodies, by its representatives, by its employees or by persons acting under its authority or whose acts the legal entity benefited from.

However, crimes perpetrated by employees who only took advantage of the judicial or material framework of the company in order to commit crimes in their personal interest do not imply criminal liability on behalf of the company.

4.2. Is there personal liability for managers, officers, and directors if the entity becomes liable for a crime?

Under the Romanian Criminal Code, the criminal liability of the legal entity does not exclude any criminal liability of the person who has contributed, in any way, to the perpetration of the crime. Therefore, the managers, officers, directors or any other employees of a company could be held criminally liable independently from the respective company if the conditions for their liability are met.

4.3. Where there is entity liability and personal liability, do the authorities have a policy or preference as to when to pursue an entity, when to pursue an individual, or both?

The criminal liability of the legal entities has been regulated by the Romanian law only since 2006. There is no settled case law as to what extent the liability of natural persons or of legal entities is preferred by the authorities. However, concerning the patrimonial liability resulting from the criminal liability, it may be argued that there is a preference for pursuing natural persons together with the entities in order to increase the chances to recover the prejudice. From a criminal liability perspective, both individual and legal entities must be prosecuted if they both contributed to, or are responsible for, the same crime in any

5. STATUTES OF LIMITATIONS

5.1. How are enforcement-limitations periods calculated, and when does a limitations period begin running?

The limitations period for enforcement of criminal liability depends on the punishment provided by the law for each crime. For instance, when the punishment provided by the law for a crime committed by a natural person is higher than 5 years and up to 10 years of imprisonment, the limitations period is 8 years. When the law sanctions the crime committed by a natural person by at most 10 years of imprisonment or a fine penalty, the limitations period for a legal person is 5 years. The limitations period starts running on the date the crime was perpetrated.

The law regulates also the limitations period for the enforcement of punishment. Such limitations periods depend on the punishment applied by court. For instance, the period of limitations is 3 years for the fine penalties applied to natural persons and 5 years for the fine penalties applied to legal persons. These limitations periods begin to run on the date the conviction judgment becomes definitive.

In addition, there is a limitations period of 3 years for civil claims proceedings resulting from crimes that starts running from the day the injured party knew or should have known the damage and the liable party.

5.2. Can crimes occurring outside the limitations period be prosecuted if they are part of a pattern or practice, or ongoing conspiracy?

For the so-called "continued crimes" (infractiuni continuate) (i.e. the perpetration by the same person, from time to time, of several actions/omissions that each forms the content of the same crime, based on the same resolution), the limitations period is calculated from the date of the perpetration of the last action/omission.

Additionally, the limitations period for the so-called "custom crimes" (infractiuni de obicei) (i.e. such crimes are completed only when the unlawful act is repeated enough times as to prove a habitude) starts running on the date of the last act was performed.

5.3. Can the limitations period be tolled? If so, how?

Yes. The limitations period for enforcement of criminal liability shall be interrupted by the performance of any procedural act that according to the law has to be communicated to the offender during the criminal proceedings (e.g. the prosecution material). After each interruption, a new limitations period begins. However, irrespective of the number of interruptions, criminal liability is excluded when one and a half times the limitations period provided by the law has elapsed.

As long as a legal provision or an unforeseeable or irremovable circumstance impedes the initiation or the continuation of the criminal proceeding, the limitations period for enforcement of criminal liability is suspended and it will resume on the day the cause of suspension ceases to exist.

The limitations period for the enforcement of a punishment shall be interrupted by the commencement of the execution of the sentence or by the perpetration of a new crime. The act of eluding the execution of the sentence after its commencement shall entail the beginning of a new limitations period, from the date of elusion.

The statute of limitations for civil claims can be interrupted by the submission of a criminal complaint by the injured party or if the offender accepts the claim.

6. INITIATION OF INVERSTIGATIONS

6.1. How are investigations initiated? Are there any rules or guidelines governing the government's initiation of any investigation? If so, please describe them

As a rule, when there is reason to believe that a crime was committed, the investigation bodies have a duty to initiate a formal criminal proceeding. Any person who has learned about the perpetration of a crime may inform the investigation bodies about it. The investigation bodies may also initiate investigations ex officio when acknowledging directly the perpetration of a crime.

For specific crimes, the criminal investigation may be initiated only at the discretion of the injured party (e.g. for intellectual property crimes, breach of trust, fraudulent management). Additionally, the initiation of criminal investigation is sometimes conditional upon the authorisation from the competent body (e.g. for specific crimes, only the General Prosecutor from the Prosecutors' office corresponding to the High Court of Cassation and Justice may authorise the carrying out of criminal investigations).

6.2. Do the criminal authorities have formal and/or informal mechanisms for cooperating with foreign prosecutors? Do they cooperate with foreign prosecutors?

The cooperation between the Romanian and the foreign criminal authorities refers mainly to extradition, judicial assistance, recognition and execution of court decisions or transfer of convicted persons.

Due to the particular cooperation in criminal matters within the European Union, the Romanian criminal authorities have close links with the criminal authorities from the other European Union countries. The efficiency of such cooperation is ensured also by EU bodies, such as Europol, Eurojust or the European Judicial Network.

7. PROCEDURES FOR GATHERING INFORMATION FROM A COMPANY

7.1. What powers does the government have generally to gather information when investigating business crimes?

In order to gather information about the perpetration of a business crime, the prosecutors and/or the police officers have powers, such as:

  • examination of witnesses or suspects, including confrontation of the persons contradicting in declarations;
  • seizure of objects or writings that might serve as evidence;
  • subject to prior authorisation of the judge, any postal or transport company can be ordered to retain and deliver the letters and the correspondence sent by or addressed to the suspect; in emergency and grounded cases, the prosecutor is entitled to take such measures without any prior authorisation, provided that he/she informs immediately the competent judge;
  • subject to prior authorisation of the judge, interception and recording of telecommunications (e.g. corruption crimes); in emergency cases, the prosecutor may proceed to the interception and recording of telecommunications for at most 48 hours, subject to obtaining the subsequent confirmation of the judge; and
  • corporal searches and, subject to the prior authorisation of the judge, domicile searches.

Document Gathering

7.2. Under what circumstances can the government demand that a company under investigation produce documents to the government, and under what circumstances can the government raid a company under investigation and seize documents?

Every person or company who is in possession of an object or of a document that may serve as evidence has the duty to hand it to the investigation body, at the request of that body. If the object or document requested is not delivered voluntarily, the investigation body may decide to enforce its obtaining.

The premises search may be carried out only after the criminal investigation has been formally initiated. The law entitles the investigation bodies to raid a company when it denies the existence or the possession of the objects/documents that the investigation body has requested to the company to deliver, as well as whenever there are reasonable grounds to assume that the carrying out of the search is needed in order to discover and gather evidence. The premises searches and the seizure of objects/documents may be conducted only based on the prior authorisation rendered by the court of law to the investigation body and in the presence of the company's representative.

7.3. Are there any protections against production or seizure that the company can asset for any types of documents? For example, does Romania recognise any privileges protecting documents prepared by attorneys or communications with attorneys? Do Romania's labour laws protect personal documents or employees, even if located in company files?

In order to protect the professional secret of the lawyer, the acts in possession of the lawyer or held in his/her office are intangible and any professional communication or correspondence between the company and its lawyer(s), irrespective of its form, is confidential and may not be used as evidence in a judicial proceeding. However, the records of the calls between the lawyer and the client can be used as evidence when they contain relevant data regarding the perpetration or preparation of perpetration by the lawyer of a crime for which interception or record of telecommunications is allowed by the law.

The investigation bodies shall ensure that the production or seizure of documents containing business secrets or other confidential information is made in circumstances that would ensure their secret or confidential nature. The investigation body has the obligation to ensure that the personal information of the persons object of the search who are not related to the crime do not become public.

The Romanian labour law does not provide special protection for the production and seizure of personal documents of the employees.

7.4. Under what circumstances can the government demand that a company employee produce documents to the government, or raid the home or office of a third person and seize documents?

The general rules, as indicated in the answer to question 7.2 above, apply accordingly.

7.5. Under what circumstances can the government demand that a third person produce documents to the government, or raid the home or office of a third person and seize documents?

The general rules, as indicated in the answer to question 7.2 above, apply accordingly.

Questioning of Individuals:

7.6. Under what circumstances can the government demand that an employee, officer or director of a company under investigation submit to questioning? In what forum can the questioning take place?

As a rule, any person that could provide relevant information in relation to the perpetration of a crime could be questioned by the criminal investigation bodies.

The employees, the officers and the directors of a company under investigation could be questioned either as witnesses or suspects and either in their capacity as representatives of the company or as individuals.

As a general rule, the questioning takes place at the premises of the criminal investigation body. When the person called in front of the investigation bodies finds that it is impossible for them to appear (e.g. because of illness), the investigation body will question the person at his/her place.

7.7. Under what circumstances can the government demand that a third person submit to questioning? In what forum can the questioning take place?

The questioning of a third party takes place in the same circumstances applicable to the questioning of the employees, of the officers and of the directors of a company under investigation. The injured party may be heard following a special procedure in order to ensure their security.

7.8. What protections can a person being questioned by the government asset? Is there a right to refuse to answer the government's questions? Is there a right to be represented by an attorney during questioning?

The defendant is entitled to be informed as soon as possible about the ongoing criminal proceeding carried out against him/her. Additionally, the defendant has the right to be assisted or represented by a lawyer and to refuse to make any declaration. In the case the defendant decides to make a declaration, the investigation body has to inform the defendant that everything he/she will declare can be used against him/her.

The persons bound by the professional secret and the injured party cannot be heard as witnesses. The husband/wife and the relatives of the defendant could be heard as witnesses only if they agree. The witness has the duty to appear before the investigation body and to declare everything he/she knows about the factual elements of the cause. The investigation body may take particular measures in order to ensure the security of the witness when estimating that such measures are needed (e.g. concealing of the real identity of the witness).

8. INITIATION OF PROSECUTIONS / DEFERRED PROSECUTION/ CIVIL DISPOSITIONS

8.1. How are criminal cases initiated?

After the initiation of the criminal investigation by the investigation bodies ex officio or following a complaint or a denunciation submitted by any person, the investigation bodies collect data and evidence in relation to the potential perpetration of a crime.

At the end of the investigations, the investigation body will present the investigation material to the defendant. If during the investigation it has been established that a crime was perpetrated by the defendant/accused who is criminally liable, the prosecutor will prepare an indictment against the defendant and will submit it to his/her superior. The latter will check the legality and consistency (temeinicia) of the indictment and if no objections are raised, the prosecutor files the indictment to the court. On the contrary, if the allegation of perpetration of a crime is not found to be grounded, the investigations are ceased (without any indictment).

8.2. Are there any rules or guidelines governing the government's decision to charge an entity or individual with a crime? If so, please describe them.

The prosecutor has the discretion to assess the facts based on the data and evidence collected during the investigation and, in strict compliance with the relevant legislation, to decide to charge a person with a crime or not.

8.3. Can a defendant and the government agree to resolve a criminal investigation through pretrail diversion or an agreement to defer prosecution? If so, please describe any rules or guidelines governing whether pretrial diversion or deferred prosecution are available to dispose of criminal investigations.

Under the Romanian law, a criminal investigation cannot be solved by an agreement between the investigation bodies and the defendant. Only if the initiation of the criminal proceedings depends upon the complaint of the injured person, the injured party may, during the investigation or the trial, withdraw his/her complaint or come to an agreement with the defendant, by which they settle all the aspects of the case, including the civil claims.

The prosecutor is only entitled to replace the criminal liability by a liability that entails an administrative sanction (i.e. reprimand, reprimand with warning, or a fine of up to RON 1,000 – approx. EUR 230) when the acts are of small importance, meaning they do not have the degree of social danger to be qualified as crimes.

8.4. In addition to or instead of any criminal disposition to an investigation, can a defendant be subject to any civil penalties or remedies? If so, please describe the circumstances under which civil penalties or remedies are appropriate.

When the perpetration of a crime created a prejudice, the prejudiced party is entitled to obtain the full reparation of the prejudices by the defendant. Therefore, it can exercise the civil action (as a civil party) either within the criminal proceeding or separately. In most of the cases, the civil action is exercised within the criminal proceedings.

The defendant has the obligation (i) either to return the good(s), restate the situation which existed before the crime or to implement similar remedies, or (ii) in case these measures are not possible, to pay compensation covering the prejudice suffered by the injured party.

9. BURDEN OR PROOF

9.1. For each element of the business crimes identified above, which party has the burden of proof? Which party has the burden of proof with respect to any affirmative defences?

As an application of the presumption of innocence principle, the defendant is not obliged to prove his/her innocence. The prosecutor has the burden of proof with respect to all elements of the crime, collecting evidence both against and in favour of the defendant.

In case there is evidence of his/her guilt, the defendant has the right to prove to the contrary. Based on rule euis incubit probatio qui dicit, non qui negat, the defendant has the burden of proof with respect to any affirmative defences.

In order to establish the truth, the court may order the administration of proof other than those produced by the parties.

9.2. What is the standard of proof that the party with the burden must satisfy?

The prosecutor will turn down the presumption of innocence only when proving all the elements of the crime beyond a reasonable doubt. The standard of proof of the defendant is lower since any doubt regarding the guilt of the defendant resulted after the administration of all proofs shall be held in favour of the defendant according to the rule in dubio pro reo.

9.3. In a criminal trial, who is the arbiter of fact? Who determines whether the party has satisfied its burden of proof?

The court (the judge(s)) is the arbiter of fact. Its opinion is based on all the proofs produced by parties or ordered by it for clarification of the the case in all its details and to determine the truth.

10. CONSPIRACY / AIDING AND ABETTING

10.1. Can a person who conspires with or assists another to commit a crime be liable? If so, what is the nature of the liability and what are the elements of the offence?

An instigator is someone who intentionally encourages another person to commit a crime. An accomplice is the person who intentionally facilitates or helps in any way in the commission of crime or who promises, either before or during the perpetration of the crime, to conceal the proceeds emerging from it or to favour the perpetrator, even if after perpetration of the crime the promise is not kept.

The instigators and the accomplices are criminally liable and shall be sanctioned within the limits of the penalty provided by the law for the author of the crime, taking into consideration their contribution to the perpetration of the crime. Moreover, the instigator is criminally liable even when the author has not committed the crime despite the convincing work of the instigator, subject to meeting specific conditions provided by the law.

11. COMMON DEFENCES

11.1. Is it a defence to a criminal charge that the defendant did not have the requisite intent to commit the crime? If so, who has the burden of proof with respect to intent?

Yes.

Under the Romanian Criminal Code, the guilt may take the form of intent. A crime is committed intentionally when the offender foresees the outcome of his/her act and intends for this outcome to take place by the perpetration of that act (the direct intent) or when the offender, despite not intending the outcome of his/her act, accepts the possibility for it to take place (the indirect intent). A crime is committed out of negligence when the offender either foresees the outcome of his/her act but did not accept it because he/she unfoundedly deemed it unlikely to take place or he/she did not foresee the outcome of his/her act, although he/she ought or would have been able to.

Most business crimes require intent as a mental state of the offender. In such cases, negligence is not sufficient to meet all the elements of the crime.

The burden of proof is with the prosecutor. The mental element is difficult to prove. It can be deducted from the objective circumstances. Any doubt regarding the required intent favours the defendant.

11.2. Is it a defence to a criminal charge that the defendant was ignorant of the law i.e. that he did not know that his conduct was unlawful? If so, what are the elements of this defence, and who has the burden of proof with respect to the defendant's knowledge of the law?

Since the Romanian law is governed by the rule nemo censetur ignorare legem (everybody is deemed to know the law), generally the ignorance or the improper knowledge of the criminal law cannot be used as defence to a criminal charge.

11.3. Is it a defence to a criminal charge that the defendant was ignorant of the facts i,e. that he did not know that he had engaged in conduct that he knew was unlawful? If so, what are the elements of this defence, and who has the burden of proof with respect to the defendant's knowledge of the facts?

The defendant is not criminally liable when, at the perpetration of the act, he/she was not aware of the existence of a situation or circumstance on which the criminality of the act depends. Additionally, a circumstance not known by the perpetrator at the time of perpetration shall not be an aggravating circumstance.

The burden of proof with respect to the existence of such error of fact is with the defendant.

12. VOLUNTARY DISCLOSURE OBLIGATIONS

12.1. If a person becomes aware that a crime has been committed, must the person report the crime to the government? Can the person be liable for failing to report the crime to the government?

The law incriminates the failure to report certain crimes to the investigation bodies. The non-denunciation of specific crimes (e.g. murder, robbery, embezzlement) is incriminated. Any person who learns about the perpetration of such crimes has to inform immediately the investigation body. Under specific circumstances the person may avoid criminal liability (e.g. the spouse or the close relative of the perpetrator is not punished; the person denouncing the crime before the initiation of the criminal investigation shall not be punished).

The anti-corruption provisions incriminate the intentional failure to inform the investigation bodies in relation to any data out of which are resulting indications (clues or other information) that a corruption crime has been committed. Additionally, the intentional failure to inform the competent prosecution or control authorities about operations entailing the circulation of capitals concerning money or other values which may be assumed to have been derived from corrupt criminal offences or assimilated criminal offences or criminal offences in relation thereto, constitutes a crime. The latter may be perpetrated by persons who, irrespective of their position, carry on, control or grant specialised assistance, to the extent they participate in the decision-making process or they are able to influence the decisions, in relation to capital operations, banking operations, exchange operations, capital market operations, insurance operations, bank accounts and transactions related thereto, as well as domestic and international commercial transactions.

13. COOPRATION PROVISIONS / LENIENCY

13.1. If a person voluntarily discloses criminal conduct to the government or cooperates in a government criminal investigation of the person, can the person request leniency from the government? If so, what rules or guidelines govern the government's ability to offer leniency in exchange for voluntary disclosures or cooperation?

According to the Romanian Criminal Code, the court may reduce the imprisonment period (or even replace the imprisonment with a fine penalty if permitted under the law) in consideration of the following conduct of the offender:

  • he/she had a record of good conduct before committing the crime;
  • he/she endeavoured to remove the result of the crime or to repair the prejudice created; or
  • after committing the crime, the offender's repentant attitude was shown by his/her appearance before the authority, the sincere behaviour during the trial or the facilitation of the discovery or arrest of participants.

In some cases, the disclosure of the crime before the investigation body is informed about the perpetration of the respective crime may result in the offenders not being punished (such as in the case of active bribery). Also, the relevant provisions of the answer under question 12.1 are applicable.

13.2. Describe the extent of cooperation, including the steps that an entity would take, that is generally required of entities seeking leniency in Romania, and describe the favourable treatment generally received.

Under the current Romanian law, there is no regulation prescribing a specific procedure to be followed by an entity seeking leniency. However, when imposing the sentence, the court could take into consideration the measures taken by the entity in order to disclose all the relevant elements of the crime (e.g. facilitating the discovery of all other participants in the crime), to eliminate the consequences of the crime (e.g. compensation of the damage) or to prevent the perpetration of similar crimes (e.g. implementing compliance programmes).

When the court decides to apply mitigating circumstances such as those described above, the fine penalty of the entity will be reduced as follows:

  • when the minimum of the fine provided by the law for the crime is at least RON 10,000 (approx. EUR 2,340), the fine will be reduced below that minimum by not more than one third; and
  • when the minimum of the fine provided by the law for the crime is at least RON 5,000 (approx. EUR 1,170), the fine will be reduced below that minimum by not more than one fourth.

14. PLEA BARGAINING

14.1. Can a defendant voluntarily decline to contest criminal charges in exchange for a conviction on reduced charges, or in exchange for an agreed upon sentence?

Plea bargaining is not recognised under Romanian law.

14.2. Please describe any rules or guidelines governing the government's ability to plea bargain with a defendant. Must any aspect of the plea bargain be approved by the court?

This is not applicable in Romania (please refer to question 14.1).

15. ELEMENTS OF A CORPORATE SENTENCE

15.1. After the court determines that a defendant is guilty of a crime, are there any rules or guidelines governing the court's imposition of sentence on the defendant? Please describe the sentencing process.

The court will determine the concrete amount of the penalty within the minimum and maximum limits provided by the law. When individualising the punishment, the court shall consider aspects such as the degree of social danger of the act, the personality of the offender, and the mitigating or aggravating circumstances. The court shall consider the above elements also when choosing the punishment (if the law provides for alternative punishments e.g. fine or imprisonment).

The court may conditionally suspend the execution of punishments which do not exceed 3 years of imprisonment or which just consist of a fine. Also, subject to meeting the conditions provided by the law, the court may decide that a punishment not exceeding 5 years of imprisonment should be executed at the offender's workplace.

15.2. Before imposing a sentence on a corporation, must the court determine whether the sentence satisfies any elements? If so, please describe those elements.

When imposing a sentence on a corporation, the court shall determine whether the elements of the crime are met and in particular if the conduct of the company's representative(s) is likely to determine the criminal liability of the company.

The court will impose a fine penalty to the company. The amount of the fine is determined according to the imprisonment penalty applicable for the crime committed by a natural person. The fine applicable to the legal entity may range between RON 5,000 – 600,000 (approximately EUR 1,200 – 140,000). If the law stipulates life imprisonment or imprisonment over ten years as a punishment, the fine may range between RON 10,000 – 900,000 (approximately EUR 2,300 – 210,000).

In addition to the fine penalty, the court may deem it necessary to apply one or more of the following additional punishments to a company: (i) publication of the conviction sentence; (ii) prohibition in participating, directly or indirectly, in public procurement procedures for one to three years; (iii) shutting down work locations owned by the company where the criminal activity has taken place for three months to three years; (iv) suspension of the company's activities relating to the crime, whether in whole (for three months to one year) or in part, (for three months to three years); or (v) winding up of the company. The winding up and suspension penalties do not apply to legal entities such as political parties, trade unions, collective employers' associations (patronate), religious organisations, agents of the mass media and to certain minority groups recognised by law.

16. APPEALS

16.1. Is a guilty or a non-guilty verdict appealable by either the defendant or the government?

Both the defendant and the prosecutor may appeal a guilty or non-guilty verdict. The defendant is entitled to appeal a non-guilty verdict only concerning the ground of being declared non-guilty (e.g. the defendant wants to prove his/her innocence when the ground of being declared non-guilty is the amnesty of the crime).

Additionally, the injured party may appeal only the part of the decision concerning the damages.

16.2. Is a criminal sentence following a guilty verdict appealable? If so, which part may appeal?

The sentence declaring the defendant guilty may be appealed by both the defendant and the prosecutor.

If only the defendant seeks an appeal, the initial verdict cannot be worsened on appeal. If both parties appeal, the verdict can be changed either way (i.e. favourable/unfavourable to the defendant).

16.3. What is the appellate court's standard of review?

The appellate court reviews the case both on its merits and on its legal aspects. Besides the reasons claimed by the appellant, the appellate court will examine the cause under all its aspects, even by extension to the parties that have not filed for appeal, without worsening their situation.

In case of the second appeal (recurs), the court reviews legal aspects only.

16.4. If the appellate court upholds the appeal, what powers does it have to remedy any injustice by the trial court?

When upholding the appeal, the appellate court abates the sentence of the trial court and may either judge the case and pronounce a new decision or refer the case for rehearing to the trial court or to the competent court. The rehearing by the trial court takes place when the trial court did not examine the case on its merits (e.g. the trial took place in the absence of the party illegally summoned or who, the sentence of the trial court is null and void due to breach of the procedural rules).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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