The ICLG to: Business Crime Laws and Regulations

Romania: Business Crime Laws and Regulations 2021

ICLG - Business Crime Laws and Regulations - Romania covers common issues in business crime – including criminal law enforcement, organisation of courts, corporate criminal liability, statutes of limitations, initiation of investigations, procedures of gathering information – in 25 jurisdictions.

Published: 06/10/2020 > Practice Areas > Business Crime > Romania Share in E-mail   Share on LinkedIn   Share on Twitter   Share on Facebook

Chapter Content Free Access

  1. 1. General Criminal Law Enforcement
  2. 2. Organisation of the Courts
  3. 3. Particular Statutes and Crimes
  4. 4. Corporate Criminal Liability
  5. 5. Statutes of Limitations
  6. 6. Initiation of Investigations
  7. 7. Procedures for Gathering Information from a Company
  8. 8. Initiation of Prosecutions / Deferred Prosecution / Civil Dispositions
  9. 9. Burden of Proof
  10. 10. Conspiracy / Aiding and Abetting
  11. 11. Common Defences
  12. 12. Voluntary Disclosure Obligations
  13. 13. Cooperation Provisions / Leniency
  14. 14. Plea Bargaining
  15. 15. Elements of a Corporate Sentence
  16. 16. Appeals

1. 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 enforcement authorities for business crimes are the regular Prosecutors’ Offices (“PO”), supported by the Judicial Police; both have specialised professionals for economic crimes.  They are divided by county and city/district (attached to courts of law), with a central structure in Bucharest.  Furthermore, there are three specialised structures within the PO with the High Court of Cassation and Justice (“HCCJ”) – the National Anticorruption Directorate (“NAD”), the Directorate for Investigating Organised Crime and Terrorism (“DIOCT”), both having central and territorial offices, and the central Department for Investigating Crimes of the Judiciary (“DICJ”).

1.2       If there is more than one set of enforcement agencies, how are decisions made regarding the body which will investigate and prosecute a matter?

Throughout the regular POs, the competence to investigate and prosecute a case results from the type of crime committed (less or more dangerous) or on the status of a person (e.g.  senator, judge, general). 

Moreover, Government Emergency Order (“GEO”) no.  43/2002 for NAD, GEO 78/2016 for DIOCT and Law no.  304/2004 (as completed by Law no.  207/2018) for DICJ determine the criteria by which their special competence incurs and prevails (special categories of crimes for NAD and DIOCT, judiciary system personnel – judges and prosecutors – for DICJ).

Territorially, the competent authority is (generally) that of the place where the crime was perpetrated.

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?

The National Agency of Fiscal Administration (“NAFA”) can conduct preliminary investigations regarding tax evasions, having the obligation to inform the POs when it suspects that a crime has been committed.  However, any prosecution can be conducted only by a prosecutor.  Similarly, the National Office for Prevention and Control of Money Laundering (“NOPCML”) and the Fight Against Fraud Department (“DLAF”) can also conduct preliminary inquiries regarding their areas of competence.

1.4       Have there been any major business crime cases in your jurisdiction in the past year?

Business crime investigations and trials are less mediated than those of public servants, the reason being the spotlight is rarely occupied by such cases, especially since both companies and public authorities tend to be careful about the public image side effects of making such files public.

However, after the last echoes of the Microsoft case (involving not the company but high-level politicians and businessmen) have dissipated, other corporate names appeared in the media: Oracle, in relation to a criminal investigation involving charges of private corruption of its general manager; BRD – Societe Generale, for a corruption self-intimation of several HR employees; and the investigation by the National Bank of 16–17 banks for involvement in suspicious money laundering transactions.

2. Organisation of the Courts

2.1       How are the criminal courts in your jurisdiction structured? Are there specialised criminal courts for particular crimes?

The Romanian courts are structured territorially: Ordinary Courts (several in each county); Tribunals (one in each county); Courts of Appeal (15, regional); and the HCCJ.  There are no specialised criminal courts in Romania.  Most business crimes are judged by Tribunals or superior courts.

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

Romania has a continental judicial system, based on courts constituted only of judges.

3. Particular Statutes and Crimes

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

Securities fraud

There are several incriminations for misrepresentation of facts about an entity’s financial situation by its representatives, such as art. 134 of Law no. 24/2017, art. 279 of Law no. 297/2004 and art. 271 of Law no. 31/1990.  Criminal intent is required.

Accounting fraud

Any form of false statements/recordings in the accountancy will be criminally prosecuted, usually under art. 321 CC (and in conjunction with tax evasion).  Other relevant and related crimes might be fraudulent management (art. 242 CC) or bankruptcy (simple or fraudulent, arts 240–241 CC).  All require criminal intent.

Insider trading

The incrimination is art. 134 of Law no. 24/2017, which also sanctions the abusive usage/disclosure of privileged information and market manipulation.  Criminal intent is required.


Art. 295 CC incriminates the appropriation, use or disposal of money, values or any other assets managed or administrated by a person, for their benefit or for another.  Intent is needed.

Bribery of government officials

Bribery has a very broad spectre of incrimination, for both active and passive corruption: taking/receiving bribe (arts 289–290 CC), traffic peddling (art. 291 CC) and buying influence (art. 292).  Law no. 78/2000 further criminalises other specific conducts by officials.  Criminal intent must be proven.

Criminal anti-competition

Art. 5 of Law no. 11/1991 regulates many such crimes: the use of a business, emblem or packaging that may cause confusion with those legitimately used by another trader or manufacturer; import, export, storage, sale of goods/services, etc.  bearing false patents/trademarks/other types of intellectual property rights to mislead others; disclosure, acquisition; or use of commercial secrets by third parties as a result of commercial/industrial espionage.  All require criminal intent.

Cartels and other competition offences

Art. 65 of Law no. 21/1996 sanctions cartel-type agreements performed with the purpose of hindering, restricting or distorting competition.

Tax crimes

Tax fraud crimes are incriminated by Law no. 241/2005 (arts 3–9) in a variety of forms, all of which can be committed only with intent: e.g.  registering false incomes/expenditures, not registering real commercial operations, hiding goods and assets, not complying with reporting duties, or forged books. 

The penalties are some of the most severe in Europe – if the prejudice exceeds EUR 500,000, the prison sentence can be up to 15 years.

Government-contracting fraud

Several crimes (committed with intent) should be observed: alteration of public tenders (art. 246 CC); illegally obtaining funds (art. 306 CC); and diversion of funds (art. 307 CC). 

One of the most controversial crimes in Romania is that of abuse of office (art. 297 CC), which can consist of any deed of a public servant who fails to perform an act or does it faultily (breaching a legal duty provided by a Law or Government Ordinance), causing damage or violating the rights or legitimate interests of a person or entity.  Through the soon-to-be-implemented legislative changes, this crime will suffer important limitations, including a threshold for the damage.

Environmental crimes

Art. 98 of GEO 195/2005 incriminates certain actions of pollution, destruction, transport of dangerous goods, etc., if they are susceptible to endanger public health or the life of humans, animals or plants.  Intent and negligence could be incurrent.

Campaign-finance/election law

Arts 385–392 CC sanction different intentional misconducts: forgery of votes; corruption of voters; improper voting procedures; etc.  Additionally, art. 13 of Law no. 78/2000 incriminates the action of the leader of a party/syndicate/patronage/NGO to use his influence or authority for obtaining, for himself or another, money or other undeserved goods.

Market manipulation in connection with the sale of derivatives

This is criminalised in art. 120 of Law no. 24/2017 and sanctioned by art. 134 of Law no. 24/2017, the same as insider trading.

Money laundering or wire fraud

Money laundering is defined in Law no. 129/2019 (art. 49).  Wire frauds are provided by art. 249 CC (computer fraud) and arts 250–251 CC (fraudulent financial operations).  All require criminal intent.

Cybersecurity and data protection law

Cybercrimes are incriminated in arts 360–365 CC: illegal access to an e-system; illegal interception of e-data; alteration of e-data; unauthorised transfer of e-data; and illegal operations with devices or software.

There are no direct data protection crimes in Romanian law (just contraventions).

Trade sanctions and export control violations

Law no. 86/2006 (the Customs Code) incriminates certain specific conducts, such as smuggling, using fake or forged customs documents, tampering in any form (collecting, holding, producing, transporting, receiving, depositing, offering, unpacking, selling) with assets that have a special customs regime, if the person knows that the assets have been/are destined to be smuggled, etc.

Any other crime of particular interest in your jurisdiction

One of the most recurring crimes in Romania (usually a “complement” of business crimes – tax evasion, money laundering, corruption, etc.) is of “organised criminal group” (art. 305 CC), namely initiating, creating, joining or supporting an organised criminal group, which is defined as a structured group, made up of three or more persons, which exists for a certain period and acts in a coordinated manner for the purpose of committing one or more crimes.

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

Yes, there are crimes which are sanctioned in attempted form (usually with lesser penalties), whereas for other crimes any preparative acts or beginning of execution are assimilated to the crime in completed form.

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?

Corporate criminal liability can incur when the crimes are committed by the representatives or the employees in the performance of the object of activity of the legal entities or in their interest or on their behalf.

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

Criminal liability is personal for corporate and natural persons alike and can also coexist; the latter when the managers/officers/directors/employees of the company have perpetrated a crime themselves (with intent or by negligence).  One’s criminal liability does not automatically determines the other’s.

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?

In most cases, individuals are the main targets of the investigations, yet corporate criminal liability has increased in occurrence following an increased accent placed on asset recovery.

4.4       In a merger or acquisition context, can successor liability apply to the successor entity?  When does successor liability apply?

Yes, the corporate criminal liability and other consequences will be transferred to the resulting legal entity.

5. Statutes of Limitations

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

The general statute of limitations (of three, five, eight, 10 or 15 years, depending on the penalty limits) starts at the date of the perpetration of the crime and until the date of the first investigative act communicated to the defendant (which interrupts the course of the statute of limitations).

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

Once the statute of limitations has been reached, the crimes cannot be prosecuted unless they are part of a continuous or continuing crime (actions or inactions that are part of the same crime, extended in time but with the same criminal resolution and against the same person), when the statute of limitations starts from the date of the last action/inaction.

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

The special statute of limitations is met when, no matter the number of interruptions of the general statute term, the general term plus an extra term is reached until there is a definitive conviction. 

The extra term is half the general term for crimes committed before April 22nd, 2012 and equal to the term for crimes after this date.  The recent modifications of the CC (not yet entered into force) provide for a return to an extra term of half the general one.

6. Initiation of Investigations

6.1       Do enforcement agencies have jurisdiction to enforce their authority outside your jurisdiction’s territory for certain business crimes? If so, which laws can be enforced extraterritorially and what are the jurisdictional grounds that allow such enforcement? How frequently do enforcement agencies rely on extraterritorial jurisdiction to prosecute business crimes?

The enforcement agencies can enforce their authority outside Romania if the author of the business crime is a Romanian citizen/entity and if the sanction stipulated by the Romanian law is imprisonment exceeding 10 years, or if the business crime is also incriminated in the country where it was committed.  In all situations, authorisation must be granted by the Chief Prosecutor of the PO with the HCCJ/competent Court of Appeal.  In terms of frequency of international cooperation, in 2019 there were over 13,000 criminal investigations in which Romanian and foreign authorities cooperated, at least 100 of them (those in the competence of NAD) being in business crime cases.

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

Investigations can be initiated by criminal complaint from the victim, through denunciation or intimation from a third party (public authorities included), or ex officio.

The complaint, denunciation and the intimation must follow specific rules (author, form, content, term of submission), whereas the ex officio is a self-intimation ordinance drafted by the prosecutor himself.

6.3       Do the criminal authorities in your jurisdiction have formal and/or informal mechanisms for cooperating with foreign enforcement authorities? Do they cooperate with foreign enforcement authorities?

International criminal cooperation is one of Romania’s strong points in criminal enforcement, considering that, individually or as a Member State of the EU, Romania is part of multiple international and European conventions or bilateral treaties that establish legal mechanisms for cooperation between enforcement authorities.  At a national level, Law no. 302/2004 regulates the international judicial cooperation in criminal matters.  INTERPOL, EUROPOL and the FBI have offices/representatives in Romania.  Also, Romania is one of the EU members which participates in the operationalisation of the European Public Prosecutors’ Office, the office being led by a Romanian national, Mrs. Laura Codruta Kovesi, former Chief Prosecutor of NAD.

7. Procedures for Gathering Information from a Company

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

The government, through its criminal investigation authorities, has the power to gather any information or documents/material evidence from any person that might know something about the crime, either by testimonies or requests to provide information/documents/material evidence.  Failure to comply can constitute a crime (art. 271 CC – obstruction of justice).  Furthermore, the prosecutor can request and use surveillance, wiretappings or other special investigation methods to collect information.


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?

If the criminal investigation authorities have reasonable suspicion that a person (companies included) is in possession of documents that might be necessary during a criminal investigation, they can demand those documents are provided, in exchange for a proof of surrender.  However, they can also raid the headquarters if they believe the search could lead to discovery and collection of evidence related to a crime, to the preservation of evidence or to capturing a suspect/defendant.  During the raid, the documents can be seized if the authorities have reasonable suspicion that they are related to the crime.  Raids can also be ordered in cases where requests for documents are ignored.

7.3       Are there any protections against production or seizure that the company can assert for any types of documents? For example, does your jurisdiction recognise any privileges protecting documents prepared by in-house attorneys or external counsel, or corporate communications with in-house attorneys or external counsel?

The client-attorney relationship is strictly privileged and confidential and derived documents or communications cannot be requested nor used (if obtained otherwise) as evidence by the authorities unless the attorney himself is suspected of having committed a crime.  Technical supervision is also excluded.

7.4       Are there any labour or privacy laws in your jurisdiction (such as the General Data Protection Regulation in the European Union) which may impact the collection, processing, or transfer of employees’ personal data, even if located in company files? Does your jurisdiction have blocking statutes or other domestic laws that may impede cross-border disclosure?

As Romania is part of the European Union, GDPR is fully applicable, including exceptions.  Thus, upon request of courts of law or prosecutors (national and foreign alike), producing information or documents is mandatory for all persons, under criminal sanction (obstruction of justice).

7.5       Under what circumstances can the government demand that a company employee produce documents to the government, or raid the home or office of an employee and seize documents?

The rules for raids, search warrants and seizure of evidence are the same for individuals and companies.

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

Please see the answers to questions 7.2 and 7.5 above.


Questioning of Individuals:

7.7       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?

Any person can be questioned as a witness, whereas refusal to comply can lead to criminal prosecution for perjury (art. 273 CC).  Suspects and defendants have the right to remain silent (invoking the privilege against self-incrimination) throughout the entire criminal process (investigation and trial alike), as granted by arts 78/83 Criminal Procedure Code (“CPC”).

The questioning usually takes place in the office of the prosecutor/police officer, except in special cases (e.g. hospital, jail, etc.).  An oath must be taken by witnesses (perjury rules applicable).  The questioning can be recorded (audio/video) and the testimony itself is mentioned in writing (computer-typed) and signed by the witness.

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

As mentioned above, any person who has information about a crime can be summoned as a witness, typically at the PO/Police headquarters.  This person has an obligation to be present at the date and place mentioned in the subpoena and to tell the truth. 

Failure to be present can result in the issuance of an Enforced Presentation Order, when a police officer identifies and escorts a person to give testimony.

7.9       What protections can a person assert upon being questioned by the government? Is there a right to be represented by an attorney during questioning? Is there a right or privilege against self-incrimination that may be asserted? If a right to assert the privilege against self-incrimination exists, can the assertion of the right result in an inference of guilt at trial?

The right to be assisted (not represented!) by an attorney during questioning is expressly offered to the suspect, defendant, victim, civil party or civil liable party.  The CPC can be interpreted to justify such possibility also in relation to witnesses (arts 31 and 34), however many criminal investigation authorities consider the respective CPC articles as a flaw of corroboration with art. 88 CPC and, thus, prohibit legal assistance to witnesses during testimonies.  The imminent legislative modifications will clear the issue and expressly grant attorney assistance privileges to witnesses.

Refusal to testify/to answer questions as a witness or the failure to tell the truth can constitute perjury (art. 273 CC) or the crime of accessory after the fact (art. 269 CC), but these two cannot both be incident for the same action.  However, a witness cannot be coerced into testifying regarding aspects of which he has no recollection or is uncertain.

A witness can only refuse to testify (usually this happens during questioning) if he/she invokes the privilege against self-incrimination or is related to a suspect/defendant – spouse (or previous spouse), sibling or their direct ancestors or descendants, or attorney.

If a person first testifies as witness in an investigation and, afterwards, is accused/charged regarding the respective deeds, the witness testimony cannot be used against him (or even removed from the file, along with all derived evidence obtained – debates exist in practice and doctrine on this aspect). 

Invoking the privilege of self-incrimination cannot be used against the suspect/defendant (even if, more than once, in practice this is considered as a negative personal circumstance).

8. Initiation of Prosecutions / Deferred Prosecution / Civil Dispositions

8.1       How are criminal cases initiated?

Once the criminal authority is informed of a crime through complaint, denunciation or self-denunciation (and these comply with certain formal procedural requirements), the prosecutor initiates criminal investigation in rem (regarding the deed) if none of the cases that prevent the initiation and exercise of a criminal action exist (art. 16 CPC) and no matter if a person is named as a possible perpetrator.  If reasonable suspicions arise/are confirmed against a certain person, then the criminal investigation is continued against that person, again through prosecutorial ordinance.

8.2       What rules or guidelines govern the government’s decision to charge an entity or individual with a crime?

The main principles of the criminal investigation are “the pursuit of truth” (reason for which a prosecutor must obtain evidence both against and in favour of the suspect/defendant), “the presumption of innocence” (innocent until proven guilty – after a definitive appellate court decision) and “the mandatory performance of the criminal investigation” (the authorities are obligated to clarify the facts and circumstances of the case, based on evidence, and to start and exercise the criminal action when such evidence demonstrate that a crime has been committed by a certain person and no legal impediments exist). 

As exceptions, the prosecutor can waive the exercise of the criminal action (drop the charges) if, considering the concrete elements of the case, there is no public interest in pursuing it further and must stop an investigation if the crime requires a preliminary complaint from the injured person and this is not formulated in the legal term of 90 days or is withdrawn.

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

Starting from February 1st, 2014, Deferred Prosecution Agreements (“DPA”) were introduced in CC (arts 478–488), along with a couple of procedural solutions better adapted to European and international requirements: in the criminal investigation phase – waiving the exercise of the criminal action (dropping criminal charges, art. 318 CPC) and, in the trial phase – waiving criminal punishment (arts 80–82 CC) and postponing the application of a punishment (arts 83–90 CPC).

In all situations, there are several conditions which must be met: a maximum punishment for the crime (five or seven years); certain circumstances of the deed/person; and the proportionality with the deed.  Furthermore, the suspect/defendant can be obligated to comply with some supervision obligations (if the obligations are not complied with in bad faith, the prosecutor/judge can overturn the decision).

8.4       If deferred prosecution or non-prosecution agreements are available to dispose of criminal investigations in your jurisdiction, must any aspects of these agreements be judicially approved? If so, please describe the factors which courts consider when reviewing deferred prosecution or non-prosecution agreements.

Yes, a Court must verify the legality and thoroughness of the Ordinance of the prosecutor to drop charges or to conclude a DPA and can dismiss it if it considers the solution to be too lenient or does not meet all legal (mainly formal) conditions.

8.5       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 may apply.

The civil action of the damaged person against the defendant can be exercised either in the criminal investigation and trial, or through a separate civil action (tort liability).  During any criminal procedure (investigation or trial) the suspect/defendant and the victim can draft a settlement or mediation agreement concerning the civil action.

9. Burden of Proof

9.1       For each element of the business crimes identified above in Section 3, which party has the burden of proof? Which party has the burden of proof with respect to any affirmative defences?

The prosecutor has the burden of proof with regard to the criminal action.  In a civil action, the damaged/civil party (who formulates demands) bears the burden of proof. 

Should a defendant request administration of evidence, the prosecutor/court of law decides on its relevance and utility.  Then, they proceed in obtaining it, allow the defendant to submit documents directly, obtain testimonies or documents from other persons/authorities, etc.

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

A person can be only convicted if the court is convinced that the charge was proven beyond any reasonable doubt.

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

The arbiter of facts is the Court of Law (one or more judges), which determines whether the burden of proof was satisfied or not and, consequently, can convict or should acquit the defendant.

10. Conspiracy / Aiding and Abetting

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

Yes, a person who facilitates or helps the author in any way before or during the perpetration of the crime, as well as the person who promises, before or during the crime, that they will buy the assets originating from the crime or that they will help the author in any way is an accomplice to that crime (art. 48 CC).  A person who, with direct intent, determines another to commit a crime is considered an instigator (art. 47 CC).  Both are criminally liable within the same punishment limits as the author of the crime (even if the author commits the act without intent).

An accessory after the fact (art. 269 CC) is the person who helps the perpetrator, after the crime, for the purposes of preventing or hindering the investigation, criminal liability, serving the sentence or a custodial measure.  A fence (art. 270) is a person who receives and sells stolen goods, knowing or foreseeing, based on concrete circumstances, that the assets originate from criminal activities.  Both are punishable with imprisonment (yet this cannot exceed the sentence of the author).

Moreover, a person can be liable for the crime of initiating, creating, adhering or supporting an organised criminal group, in which case a crime itself is committed even before the originally intended crime.

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?

Guilt is one of the key elements of a crime (art. 15 CC), the reason for which either intent or negligence must exist and consequently be proven (by the accusation) for each crime (art. 16 CC), as each incrimination requires. 

It is possible to defend against criminal charges by showing that there was either no criminal intent or there was just negligence (in cases in which the crime can either be a lesser one, or the deed may not be incriminated at all).

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?

CC regulates (art. 30) the error as an exonerating circumstance, which incurs when the perpetrator did not know of the existence of a status, situation or fact which determines the criminal nature of a deed.  Furthermore, ignorance of a legal stipulation (other than part of the criminal law) can also be claimed.  The burden of proof belongs to the defendant.

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?

As above, the defendant must prove lack or impossibility of knowledge.

12. Voluntary Disclosure Obligations

12.1    If a person or entity becomes aware that a crime has been committed, must the person or entity report the crime to the government? Can the person or entity be liable for failing to report the crime to the government? Can the person or entity receive leniency or “credit” for voluntary disclosure?

Failure to report (art. 266 CC and other special norms) applies to any person who does not inform the criminal investigation authorities about the perpetration of a crime of a certain gravity (e.g.  crimes against the life of others, crimes resulting in the death of a person, crimes against national security).  Family members of the author(s) are exempted.  Public servants and persons/officials having controlling duties also have reporting obligations if they become aware of the commission of a crime during their service or, respectively, regarding persons or controlled activities. 

Furthermore, a person can, for some crimes (e.g.  giving a bribe, buying influence), not be criminally charged if he reports the crime before the authorities become informed of it, whereas, in all other cases, acknowledgment of guilt can result in a reduction of the sanctioning limits by ⅓. 

Additionally, the participant (instigator or accomplice) of any crime can avoid sanction if, before the deed is discovered, he denounces it, so that the consummation of the crime can be prevented, or if he prevents himself from the consummation of the crime.

Lastly, voluntary disclosure of other crimes (not known to the authorities and committed by other persons) could also be rewarded (art. 19 of Law no. 682/2002) with a reduction of the punishment limits by half.  Imminent criminal laws intend to reduce this possibility to crimes perpetrated more recently than one year before the denunciation.

13. Cooperation Provisions / Leniency

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

As mentioned above, voluntary disclosure or cooperation may lead to total or partial immunity from criminal investigation/sanction. 

Furthermore, cooperation in any investigation (even in one where the defendant does not acknowledge guilt) can also be considered as mitigating circumstances (possible, not mandatory), with the effect of a reduction of the sanctioning limits by a third.  Cooperation can also be considered the settlement of the prejudice, with the important exception of tax evasion, where payment in full results in a reduction by a half of sanctioning limits (or up to full immunity for tax evasions lower than EUR 100,000 committed before March 2013).

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

Cooperation can range from providing the authorities with requested information/documents and up to full admission of guilt, with the consequences mentioned previously. 

In all cases of admission of guilt, a DPA could be concluded with the prosecutor (as per the request of the defendant) or a simplified “admission of guilt” court procedure could be requested (to the court of law), which usually results in lesser punishments since sanction limits are automatically reduced by ⅓ and punishments tend to be oriented towards a minimum, or near to it, plus the highly likely benefit (if final sanction is below three years’ imprisonment) of not actually doing jail time.

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?

As mentioned in section 8 above, DPAs are a possibility in the Romanian criminal system after February 1st, 2014 (no matter what the perpetration date of the crime).  However, DPAs can only refer to an agreed-upon sentence (which still has to be confirmed by a judge, for legality) and cannot reduce the charges (from more to less severe crimes or disproving lesser crimes altogether, like in other jurisdictions).  Furthermore, a simplified court procedure can also be applicable in such cases (of admission of guilt), as mentioned above.

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

Please see section 8 above.

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 a sentence on the defendant? Please describe the sentencing process.

There are several particularities to the criminal condemnation of a moral person (art. 135 CC): the punishment itself can only consist of a fine (the “fine-days” system), though there are specific ancillary punishments (disclosure of condemnation in the media, closure of operation locations for certain periods of time, forbiddance to participate in public tenders, suspension of activity and dissolution of the company).

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.

To be held criminally liable (as mentioned in section 4 above), a corporation must not be part of the public domain (public institution).  Insolvent/bankrupt companies, until judicial dissolution, can be held criminally liable.

16. Appeals

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

Yes, any verdict is appealable by the parties of the file (defendant, prosecutor, injured person/civil party or civilly liable party.

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

See the answer to question 16.1 above.

16.3    What is the appellate court’s standard of review?

The appeal phase is characterised by the following principles: the suspensive effect (appealing a sentence suspends in full its effects); the speciality principle (the court is bound to examine the case only with respect to the person who appealed it and the person referred to in the appeal, but under all relevant aspects related to the facts and the law); the non reformatio in pejus principle (the court cannot create a more difficult situation for the appellant); and the extensive effect (the court shall extensively examine the case also regarding parties which did not file for appeal or to whom it does not refer, if it thus improves their procedural situation). 

The appellate court must examine all relevant evidence obtained in the criminal investigation phase and first court procedure but can also request new evidence (within the limits of the appeal).

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

The appellate courts can reverse the ruling of the first court and issue a new ruling regarding both the criminal and civil action, with full powers (within the limits of the appeal).  The only exception is that, if a defendant was acquitted in first court, a condemnation can only be ordered if new evidence is provided in support of his guilt (condemnation cannot be ordered just on sheer re-interpretation of evidence obtained before). 

Moreover, the appellate courts can order a retrial by the first court in case of summoning/subpoena incidents regarding the defendant; oversight of solutioning charges or claims; or absolute nullity cases.

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