Global Investigations Review - The law and practice of international investigations

Extradition

Last verified on Tuesday 5th May 2020

Romania

Mihai Mares
Mares & Mares
  1. 1.

    Are extradition proceedings regulated by domestic legislation, treaties or both?

  2. The general rules on the extradition procedure are governed by Law 302/2004 on International Judicial Cooperation in Criminal Matters (Law 302/2004, http://legislatie.just.ro/Public/DetaliiDocument/53158). This law was adopted to facilitate the application of the relevant international legal instruments applicable to Romania as member of the Council of Europe (eg, the 1957 European Convention on Extradition and the 1977 European Convention on the Suppression of Terrorism) as well as of the European Union (eg, the Framework Decision No. 2002/584/JHA of the Council of the European Union of 13 June 2002 on the European arrest warrant and the surrender procedures between member states).

    However, there are still extradition treaties concluded by Romania separately with certain states that are not EU member states.

  3. 2.

    Is there a central register of extradition treaties that your state has entered into?

  4. As regards the extradition procedure with EU member states, Law 302/2004, as republished on 27 May 2019, refers to the provisions of the European treaties that harmonised the national extradition procedure in such a way that these European treaties are applicable. As regards non-EU member states, a register listing the countries with which Romania has concluded agreements is published on the official website of the Ministry of Foreign Affairs. (https://www.mae.ro/tratate-bilateralehttps://www.mae.ro/node/1491).

  5. 3.

    Do special extradition arrangements apply to certain foreign states, for example states that are geographically proximate, or politically, legally or economically closely linked?

  6. No.

  7. 4.

    Is extradition possible to states that have no bilateral or multilateral extradition treaty with your state if they are party to an international convention?

  8. Yes.

  9. 5.

    Is extradition possible to states that are not extradition treaty partners as an ad hoc arrangement?

  10. There is the possibility of extraditing a person, even in the absence of any treaty concluded between Romania and that state, on the basis of reciprocity, when, after consultation with the concerned state, it is established that this condition is fulfilled.  

    In the absence of an international convention, judicial cooperation may be performed by virtue of international courtesy, at the request of the requesting state submitted by diplomatic means and by written assurance of reciprocity given by the competent authority of that state (for example, if Romania makes a request for extradition on the basis of international courtesy, the reciprocity assurance will be given by the Minister of Justice).

    The reciprocity rule applies equally to situations not regulated by international treaties.

  11. 6.

    For which offences is extradition from your state allowed?

  12. As a rule, extradition from Romania at the request of another state (ie, passive extradition) may be carried out against individuals located on the Romanian territory who are prosecuted or indicted for the perpetration of a criminal offence or are being sought for the execution of a safety measure, a punishment or another court order issued by the criminal court in the requesting state.

    For Romanian judicial authorities to grant extradition, a threshold relating to the seriousness of the punishment must be complied with, as follows: the Romanian law as well as the law of the requesting state must provide a custodial punishment of at least one year, if extradition is sought for prosecution or trial, or at least four months, if extradition is sought for enforcing a sentence.

  13. 7.

    Is there a requirement for double (dual) criminality? How is this assessed?

  14. The general rule is that extradition may be allowed only if the act (ie, referring to the facts, not the legal classification of the offence) for which the person whose extradition is requested is punishable as a criminal offence under both the law of the requesting state and under Romanian law. However, there is a derogation from this rule, and extradition may be granted if the act is not provided under Romanian law, if the offence is explicitly exempted from the double criminality rule by way of an international convention to which Romania is a party.

  15. 8.

    How would your state deal with a request that includes an offence for which extraterritorial jurisdiction is claimed?

  16. In general, requests for the extradition of a person from Romania are settled in accordance with the procedure regulated by Law 302/2004, therefore according to national provisions.

    As an exception, the extradition rules of the requesting state may be applied if it is provided for in the extradition treaty between the two states (if any) or if this is provided for in an international convention to which both states are parties.

    Depending on the concrete situations, falling within any of the above situations, the Romanian state will allow or reject the request for the extradition procedure of the requesting state.

  17. 9.

    What must be included as part of a valid extradition request made by the foreign state?

  18. For a request for extradition to be allowed, the written application must be accompanied by documentation providing a description of the facts for which extradition is requested, the date and place of perpetration of the criminal act, or acts, for which extradition is sought, their legal classification and references to the applicable legal provisions, as far as possible, a copy of the applicable legal provisions or, if this is not possible, a statement of applicable law, as well as a precise indication of the extraditable individual and any other information likely to determine the person’s identity and nationality.  

    Also, depending on the stage of the criminal proceedings, original or authenticated copies of the final conviction decision must be presented, mentioning that it is final and irrevocable, of the decisions passed under the appeal procedures, the warrant to execute the imprisonment sentence, respectively, original or authentic copies of the preventative arrest warrant, of the indictment or other documents of equal authority. 

    Finally, as the case may be, data on the duration of the unexecuted punishment may be requested in the case of a request for extradition for a convicted person who has served only part of the sentence.

    All the aforementioned documents must be accompanied by authorised translations into Romanian; nevertheless, if authorised translations are not duly provided, the competent prosecutor's office proceeds to obtain the necessary translations as a matter of urgency.

  19. 10.

    What are the stages of the extradition process?

  20. The extradition procedure begins with the filing of a written application by the competent authority of the requesting state, addressed to the Ministry of Justice in Romania. The Ministry examines the application and the documents attached from the point of view of international regularity (which seeks to verify the conformity of the extradition request and attached documents to the provisions of the applicable international treaties, as well as seeking to confirm the existence of reciprocity). If the application meets the conditions of international regularity, the Ministry of Justice refers the application and the attached documents to the competent general prosecutor: either to the prosecutor's office attached to the court of appeal holding jurisdiction over the extraditable person’s location or, if the person’s location is unknown, to the general prosecutor of the prosecutor's office attached to Bucharest Court of Appeal.

    The court of appeal with appropriate jurisdiction over the extraditable person’s location and the competent prosecutor’s office also holds jurisdiction over the extradition trial procedure. The rules of criminal procedure regarding prosecution, trial and enforcement, as provided by Romanian law, are also applicable in the extradition procedure, insofar as the extradition law does not provide otherwise.

    Within 48 hours of receiving the extradition application and the attached documents, the competent general prosecutor proceeds to identify the extraditable person and inform him or her of the content of the documents transmitted by the authorities of the requesting state.

    The court of first instance, during the first court session, proceeds to hear the extraditable person, who must be assisted by an interpreter and an ex officio defence attorney, whenever there is no retained lawyer. The procedure is verbal, adversarial and public, unless the extraditable person or the prosecutor has requested an in-chambers court session.

    The extraditable person may opt for voluntary extradition or, if he or she opposes the extradition, continue the proceedings before court.

    After examination of the extradition application, of the evidentiary material and after hearing the conclusions of the extraditable person and of the prosecutor, the court assesses whether or not the conditions for extradition are met, settling the case by way of a court decision.

    The decision rendered by the court of appeal on extradition may be appealed within five days of the date of public sentencing, before the criminal division of the High Court of Cassation and Justice. The appeal suspends the enforcement of extradition.

    After the reasoning of the court of appeal is published, the case file is forwarded to the criminal division of the High Court of Cassation and Justice. The appeal is tried within 10 days. The final decision on extradition shall be communicated to the general prosecutor of the prosecutor's office attached to the court of appeal that tried the case as a court of first instance and to the specialised department of the Ministry of Justice.

  21. 11.

    If an initial political decision is required, what factors can be considered?

  22. Romanian legislation regulates the extradition procedure without providing for political decisions.

  23. 12.

    Is provisional arrest, before the extradition request is received, possible?

  24. Provisional arrest for extradition may be ordered at the request of the requesting state, prior to receiving the extradition request, if it is a matter of urgency.

  25. 13.

    Must a domestic arrest warrant be issued or can an Interpol red notice be used to carry out a provisional arrest?

  26. Red notice or international tracking diffusion through the channels of the International Criminal Police Organisation (Interpol) equates to a request for provisional arrest in view of extradition if expressly provided for in the applicable treaty or if reciprocity exists. Nevertheless, lack of reciprocity does not prevent the enforcement of provisional arrest if the measure is necessary, given the need to fight against serious criminality.

  27. 14.

    What is required to apply for a domestic extradition arrest warrant?

  28. A request for provisional arrest for extradition must include the following information:

    • the authority requesting provisional arrest for extradition;
    • the identification data of the internationally wanted individual, including their citizenship;
    • the existence of an arrest warrant, or any other document having the same legal effects, or of an enforceable court order;
    • confirmation of the validity of an arrest warrant, or any other document having the same legal effects, or of an enforceable court order;
    • a description of the facts, which must specify the date, the place where they were committed and the degree of participation in their commission;
    • the applicable legal provisions, including those relating to the statute of limitations on criminal liability or on the execution of punishments; and
    • confirmation that the request for extradition will be transmitted.
  29. 15.

    What rights does the requested person have while under arrest?

  30. The arrested individual has the right to be informed of the content of the European arrest warrant and the right to be assisted by a retained or state-appointed defence attorney.

    The prosecutor or, as the case may be, the enforcing court, shall notify the person held in custody or arrested that he or she has the right to appoint a lawyer in the member state that issued the European arrest warrant and to communicate with that lawyer, either directly or through the lawyer retained or appointed ex officio in Romania, under the conditions provided by Romanian law, including by ensuring confidentiality.

    If the person detained or arrested shows that he or she wishes to exercise this right, the prosecutor or the court of enforcement shall immediately inform the authority issuing European arrest warrant. The information transmitted by the issuing authority, through any means that leaves a written mark, shall be communicated to the requested person without delay through the administration of the place of detention.

    An arrested person who does not understand or speak Romanian has the right to an interpreter, who shall be provided free of charge by the court of law.

    Although these rights are explicitly provided in Law 302/2004 with respect to the European arrest warrant, they apply accordingly to all extradition procedures, because the common law regarding the arrest warrant is the Romanian Criminal Procedure Code, which also specifies the same rights. Other rights may be provided by way of international conventions.

  31. 16.

    Is bail available in extradition proceedings?

  32. This legal concept is not regulated under Romanian law. Besides arrest on remand, other restrictive measures may be taken, such as house arrest, judicial control and judicial control on bail. 

    The legal concept of judicial control on bail is regulated by the Criminal Procedure Code but it is different from the institution of bail. The judicial control on bail is a preventative measure through which the prosecutor may, in the course of criminal prosecution, request that the court take the measure against a defendant if that preventative measure is necessary to achieve the intended purpose, that is if there are solid clues or evidence that raise a reasonable suspicion that the person has committed an offence and the measure is necessary to ensure the proper conduct of the criminal process, to prevent the suspect or defendant from absconding from criminal prosecution or trial, or to prevent the perpetration of another offence.

    It is not mandatory for a person to be detained during extradition proceedings. As regards the assessment of the conditions of release, generally they are at the discretion of the judge. The law does not expressly state the terms on which a person may be released, only mentioning that in ‘well-justified cases’ and only ‘if the court considers’ that the extraditable person will not try to abscond from the trying of the extradition request.

  33. 17.

    If so, what are the factors that a court will take into account in deciding whether to grant bail?

  34. The competent court verifies periodically, but after no more than 30 days, the need to maintain provisional arrest. The measure of provisional arrest may be replaced by house arrest, judicial control or judicial control on bail only in well-justified cases and only if the court considers that the extraditable person will not try to evade extradition.

  35. 18.

    Can the court impose conditions when granting bail? What conditions can be, and usually are, imposed?

  36. The measures short of detention that are available are those provided by the Criminal Procedure Code, namely: house arrest, judicial control and judicial control on bail. The conditions pertaining to these restrictive measures are provided by the Criminal Procedure Code, and vary in a manner that is specific to each of the measures.

  37. 19.

      What bars can be raised to resist extradition?

  38. As far as the person's opposition to extradition is concerned, defence is generally limited to the fact that the person is not the one pursued or that the conditions for extradition are not met. 

    Among the mandatory reasons for refusal of extradition, we note the following:

    • there was a failure to comply with the international standards of the right to a fair trial;
    • there are serious reasons to consider that extradition is sought based on discriminatory grounds ;
    • the extradition request is submitted in a case pending with an extraordinary tribunal;
    • extradition refers to a political offence or to an offence related thereto; and
    • extradition refers to a military offence, which is not a common offence.  

    In addition to these mandatory grounds, there are also discretionary grounds for refusing extradition, such as when the offence generating the request is the subject of a pending criminal trial or when the offence may be the subject of criminal proceedings in Romania. Additionally, extradition of a person may be refused or postponed if it is likely to have consequences of particular gravity for that person, especially because of his or her age or state of health. 

    The standard of proof within extradition proceedings generally refers to the discretion and interpretation of the court, unlike the standard of proof applicable within criminal proceedings, which is beyond any reasonable doubt. This distinction is based on the nature of extradition proceedings, as they do not represent an assessment on the merits of the charges.

    International judicial cooperation is not permitted in breach of the ne bis in idem principle.

    Nevertheless, the extradition proceeding becomes admissible whenever extradition is requested for the purpose of reviewing the final decision, in an extraordinary challenge, that is also provided under the Romanian Criminal Procedure Code or whenever an international treaty to which Romania is a party contains more favourable provisions under the ne bis in idem principle.

    Other bars to extradition may be based on the lapse of the statute of limitation for criminal liability, amnesty or pardon as well as the lack of compliance by the requesting state with the requirements of properly ensuring the right of defence (especially within in absentia criminal proceedings).  

  39. 20.

    Does your state extradite its own nationals and residents?

  40. Romania does extradite Romanian citizens on the basis of multilateral international conventions to which Romania is a party and on the basis of reciprocity, provided that certain conditions are met: 

    • the extraditable person holds permanent residence in the territory of the requesting state as at the date of the extradition application;
    • the extraditable person also has the nationality of the requesting state; and 
    • the extraditable person has committed the act on the territory or against a citizen of an EU member state, if the requesting state is a member of the European Union.

    With regard to the conditions stated in the first and last points above, when extradition is requested for the purposes of criminal prosecution or trial, a further condition must be met, namely that the requesting state shall provide for assurances deemed sufficient that, in the event of a conviction resulting in imprisonment, the extradited person is transferred to serve the punishment in Romania.

  41. 21.

    Are potential breaches of human rights after extradition considered in the extradition process?

  42. Potential violations of human rights are taken into account as mandatory grounds for refusal (see question 19).

  43. 22.

     Can a person consent to extradition, and what is the procedure? Is consent irrevocable?

  44. The extraditable person has the right to declare before a court that they waive the legal benefits granting them the right to defend themselves against the extradition request, and consent to be extradited and handed over to the competent authorities of the requesting state. 

    The statement is recorded in a minute, signed by the following persons: the president of the court’s panel, the court clerk, the extraditable person as well as his or her attorney and interpreter.

    After the court finds that the extraditable person is fully aware of the consequences of their choice, the court, also hearing the prosecutor's closing statement, examines whether there is any impediment that precludes extradition. 

    If voluntary extradition is found to be admissible, the court takes note of this by way of a court judgment, and orders the necessary preventative measures to be taken until surrender of the extraditable person. This judgment is final; it is drafted within 24 hours and immediately sent, as a certified copy, to the Ministry of Justice, to continue proceedings in accordance with the law.

  45. 23.

    Is there a speciality protection? How is it provided? Does it apply if a person consents to extradition?

  46. Law 302/2004 provides that a person surrendered as a result of extradition shall neither be prosecuted, tried, held for the purpose of execution of a penalty, or subjected to any other restriction of their individual freedom, for any pre-surrender matter, other than those that motivated extradition. However, this rule is not absolute, as the law provides exceptions from its application.  

    The conditions of protection for persons extradited from Romania are governed by the national legislation of the state that filed the extradition request.

    Whenever the legal classification of the offence in question is changed during the criminal proceedings, the extradited person shall be prosecuted or tried only to the extent that the prima facie elements of the reclassified offence would allow extradition.

    The extraditable person who consents to extradition may consent to waive the application of the rule of speciality. It is an option available to the extraditable person.

  47. 24.

    If there is a political decision at the end of the extradition process, what factors can be considered?

  48. As discussed in question 11, Romanian legislation regulates the extradition procedure without any reference to political decisions.

  49. 25.

    What ability is there to appeal against or judicially challenge decisions made during the extradition process? What are the requirements for any appeal or challenge?

  50. A decision settling extradition proceedings may be challenged by the competent general prosecutor and by the extraditable person, within five days as of the date of rendering the court ruling, before the Criminal Division of the High Court of Cassation and Justice. The competent general prosecutor may file the challenge ex officio or upon the request of the Minister of Justice. 

    A challenge against a decision on extradition suspends any acts of extradition, but holds no effects on the custodial measures ordered against the extradited person in view of extradition.

  51. 26.

    What are the time limits for the extradition process? How long does each phase of the extradition process take in practice?

  52. Time limits for the entire extradition procedure are not provided under Romanian legislation.

    However, time limits are provided for certain procedural steps (for example the three-day period for the International Regularity Examination carried out by the Ministry of Justice) and there are deadlines for appeals or other available remedies (for example, challenging the extradition decision within five days of the date when the court ruling was rendered).

    In practice, it is not possible to establish a patterned timeframe for the extradition proceedings, as the duration thereof depends on various factors, such as the complexity of each case as well as the conduct of the authorities and of the extraditable person. Usually, although time limits are set for certain procedures, they are often exceeded (this applies solely to the procedural terms that are considered to be recommended and not imperative).

  53. 27.

    In what circumstances may parallel proceedings delay extradition?

  54. If the extradited person is prosecuted by the judicial authorities in Romania, the surrender is postponed until the case is finally settled. If a convicted person is punished with imprisonment, surrender is postponed until release under the release on parole or until the punishment is executed.

    If the surrender of an extradited person is postponed, the court issues a provisional arrest warrant for extradition purposes. If the extradited person is, upon admission of the extradition request, under the authority of a warrant for arrest on remand or execution of the prison sentence issued by the Romanian judicial authorities, the provisional arrest warrant for extradition enters into force on the date the reasons that justified the postponement cease to exist.

  55. 28.

    What provision is made for legal representation of the requesting state or the requested person?

  56. Regarding the representation of the requesting state, Law 302/2004 provides that, in passive extradition procedures, the requesting state is represented by the central authority in the requested state (ie, the Romanian Ministry of Justice) and by the Romanian Public Ministry. At the express request of the requesting state, its representatives may, with the approval of the competent court, participate in the settlement of the extradition request. The foregoing applies similarly for active extradition procedures.

    As regards an requested person’s right to be represented, this constitutes both a right of the person concerned and an obligation for the requested state. The extradited person may be assisted by a retained defence counsel or, whenever none is appointed, the court of law appoints a defence attorney ex officio.

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Questions

  1. 1.

    Are extradition proceedings regulated by domestic legislation, treaties or both?


  2. 2.

    Is there a central register of extradition treaties that your state has entered into?


  3. 3.

    Do special extradition arrangements apply to certain foreign states, for example states that are geographically proximate, or politically, legally or economically closely linked?


  4. 4.

    Is extradition possible to states that have no bilateral or multilateral extradition treaty with your state if they are party to an international convention?


  5. 5.

    Is extradition possible to states that are not extradition treaty partners as an ad hoc arrangement?


  6. 6.

    For which offences is extradition from your state allowed?


  7. 7.

    Is there a requirement for double (dual) criminality? How is this assessed?


  8. 8.

    How would your state deal with a request that includes an offence for which extraterritorial jurisdiction is claimed?


  9. 9.

    What must be included as part of a valid extradition request made by the foreign state?


  10. 10.

    What are the stages of the extradition process?


  11. 11.

    If an initial political decision is required, what factors can be considered?


  12. 12.

    Is provisional arrest, before the extradition request is received, possible?


  13. 13.

    Must a domestic arrest warrant be issued or can an Interpol red notice be used to carry out a provisional arrest?


  14. 14.

    What is required to apply for a domestic extradition arrest warrant?


  15. 15.

    What rights does the requested person have while under arrest?


  16. 16.

    Is bail available in extradition proceedings?


  17. 17.

    If so, what are the factors that a court will take into account in deciding whether to grant bail?


  18. 18.

    Can the court impose conditions when granting bail? What conditions can be, and usually are, imposed?


  19. 19.

      What bars can be raised to resist extradition?


  20. 20.

    Does your state extradite its own nationals and residents?


  21. 21.

    Are potential breaches of human rights after extradition considered in the extradition process?


  22. 22.

     Can a person consent to extradition, and what is the procedure? Is consent irrevocable?


  23. 23.

    Is there a speciality protection? How is it provided? Does it apply if a person consents to extradition?


  24. 24.

    If there is a political decision at the end of the extradition process, what factors can be considered?


  25. 25.

    What ability is there to appeal against or judicially challenge decisions made during the extradition process? What are the requirements for any appeal or challenge?


  26. 26.

    What are the time limits for the extradition process? How long does each phase of the extradition process take in practice?


  27. 27.

    In what circumstances may parallel proceedings delay extradition?


  28. 28.

    What provision is made for legal representation of the requesting state or the requested person?