REPORT ON THE EXCHANGE AND SUMMARY

Transcription

1 REPORT ON THE EXCHANGE AND SUMMARY Instructions: 1. The report must be sent to the EJTN within one month after the exchange. 2. Please use the template below to write your report (at least 4 pages). 3. The report must be filled in English or French. If not possible, the report could be written in another language but the summary must be in English or French. 4. Please read the guidelines for drafting the report (in Annex). Feel free to add any other relevant information in your report. 5. The summary (1-2 pages) shall contain a synthesis of the most important information of the report. 6. If you agree for your report and/or summary to be published on the EJTN website, please tick the relevant box below. Identification of the participant Name: First name: Nationality: Romanian Functions: prosecutor Length of service: 11 years and 4 months Identification of the exchange Hosting jurisdiction/institution: Prosecutors' Office in Madrid City: Madrid Country: Spain Dates of the exchange: 15 th - 26 th of March 2010 Type of exchange: x one to one exchange group exchange general exchange specialized exchange (please specify : ) Authorization of publication I undersigned hereby authorize the publication of this report and/or summary on the website of the. In Bucharest On 23 rd of April Signature / (aisbl) Rue du Luxembourg 16B, B-1000 Bruxelles; Tel: ; Fax: ; exchanges@ejtn.eu

2 REPORT I. Starting point: Why did I do an application to participate to the exchange program, at the beginning? I wrote in my application form: Motivation, wishes and expectations concerning the exchange program: I expect to meet my colleagues, to share my experience with them and to learn from their experience. Fighting against crime is something we have in common, but the way to solve the problems, offered by each national law system, could be different. Be there, seeing the same problem from two points of view, discussing and exchanging the reasons for being like this, can help each of us to have information and to understand the other law system. In the end, this experience could improve collaboration between authorities of both countries and could shorten the reaction time in case that collaboration is necessary. II. Developments: My candidature was accepted and I participated to the exchange program at the Prosecutors Office in Madrid, Spain, between the 15 th and 26 th of March IV.a The hosting institution: Prosecutors' Office in Madrid, where I participated to the exchange, exercises his functions under the principles of legality and impartiality, in the territorial area of the Spanish capital. It is in charge, mainly, to defend the public interest and the rights of people before the Courts in Madrid. Although the prosecutors' office in Spain has competences in civil and administrative law, identically like the Romanian one, I observed during the exchange stage only the participation of the Spanish prosecutor in criminal law cases, which corresponds to my area of competences, now, in Romania. IV b. My activity in the context of the tasks of the hosting institution: The hierarchy of the Spanish Courts contains (with the original designation of the Courts, in Spanish) 1 : Juzgados de Primera Instancia e Instrucción, de lo Penal, de lo Contencioso-administrativo, de lo Social, de Menores y de Vigilancia Penitenciaria. (low Courts) Audiencias Provinciales. (higher Courts) Tribunales Superiores de Justicia. Audiencia Nacional. Tribunal Supremo. * * * Viewing the map of the low Courts organisation in Spain, 1 by the site of the General Council of the Judiciary (Consejo General del Poder Judicial), 2

3 I could say I participated with my Spanish colleagues to hearings and trials before the Investigating Court (Juzgados de Instruccion) and before the One judging Court (Juzgados de lo Penal). Before the Investigating Court, I participated to preliminary hearings and decisions regarding pre-trial detention (at Guardia de detenidos). Also before the Investigating Court, I participated at hearings and judgements when the accused pleaded guilty in easy crimes (Guardia de rapidos). * * * In addition, I participated to a trial at Higher Court before a three panel judge Court (Audiencia Provincial) a murder case in a detention unit. * * * Underlining the importance given to some social domains by the Spanish criminal law policy, the prosecutors' office contains also different specialized sections as: juvenile crime matters (Menores), violence against women (Violencia sobre la mujer), environmental matters (Medio Ambiente), workplace accidents (Siniestralidad laboral), economic crimes (Delitos económicos), cybercrime (Delicuencia informatica), crimes and offenses connected to immigration law (Extranjería) and to road traffic safety law (Seguridad vial). Regarding those special areas of interest, I could assist to trials (or part of trials) targeting violence against women, crimes in connection with immigration law and crimes in connection with road traffic safety law. I also could get a touch with the sphere of workplace accidents in Madrid. Concerning the juvenile crime matters, I could assist to preliminary hearings by the specialized prosecutor (Fiscalia de menores) who was in charge to decide whether or not it was the case to ask the judge to order some precautionary measures against juveniles suspected to have committed crimes. I could also see and meet the specialists who helped the judicial authorities to decide about the juveniles. * * * Before the beginning of the preliminary hearings, I spoke with my Spanish colleague about 30 cases on going at the Guardia de Detenidos, all about whether or not it is necessary to ask the judge to order an arrest warrant. In all 30 cases, after independently reading the written documents (which had been made by the Spanish Police), we reached the same conclusions. Later, I saw that our conclusions were in accord with the judge's decisions. As a result, it appears there are the same authorities views in both countries regarding the necessity of a 3

4 pre-trial detention. That conclusion could only consolidate the mutual trust and could make easier both communication and collaboration between authorities. * * * All the time I could see and read the documents which had been put in the files and I could also read the accusation acts. In some cases, I could read the appeal documents written by the prosecutor against some of the sentences given by the investigating judge (sentencias de conformidad con la acusatión). My colleges explained to me the material and the procedural law which was applicable in each case. As a result, I could follow and understand the reasons in fact and in law which motivated their procedural conduct together with the conduct of the defence and that of the private accusation. I also had the opportunity to hear and understand the reasons of some decisions taken by judges in some particular cases. In these cases I could hear that Spanish judges refer in their judgement to both national and European law, together with the Human Rights Law and jurisprudence of the European Court of the Human Rights in Strasbourg. V. The law of the host country What was new and interesting in Spain was the possibility to have an agreement between prosecution and defence about facts, person s guilt and criminal penalty. This agreement put end to the criminal trial and shortened the procedure, whatever the crime would be. Moreover, when easy crimes have been committed (punishment less than 5 years in prison) and an agreement (between defence and prosecution) is concluded before the investigating judge, the accused person obtains a quick judgement and, in the same time, a reduced penalty with a third towards the agreed penalty. On one hand, this seems to be a good solution to the problem of long trial s duration and to the problem of the Courts overloading, because a lot of crimes committed in society are easy crimes (like thefts and crimes against road traffic safety). Put an end in a quickly and successfully way to those trials has many advantages: Firstly, it allows authorities to concentrate on the heavy crimes. Secondly, it induces into the society feelings of a rapid and efficient reaction from the authorities. Thirdly, we can speak about feelings of trust of people in authorities as an effect of their rapid reaction. On the other hand, the quick judgement is done on the base of written documents together with declaration of the accused person, who pleads guilty. There is not a real and adversarial trial, and the judge does not verify the proofs by himself, so it is put a lot of value on what the accused person says. The choice between the advantages and disadvantages of the procedure was made by the Spanish lawmakers in order to increase the efficiency of the authorities. In the Romanian system there is no investigating judge, so the Romanian lawmakers chose to refer the case to the Court and to have an adversarial process even when the accused person pleads guilty. Also, in Romania there is no possibility of agreement, between prosecution and defence, which can put end to the criminal trial; in every trial the judges must decide according to the law and according to the proofs presented in Court. 4

5 VI. The comparative law aspect of my exchange Like the Romanian legal system, the Spanish system is based on the old Roman Law and took influences from the French legal system, therefore it was not so difficult for me to understand it in the extent it was necessary (of course it wasn t enough time to compare the entire legal systems). For example, talking about necessary measures to protect juvenile people, we could use the designation of some legal notions (- as: curatela, tutela ) without further explanations, because in both legal systems, Romanian and Spanish, the words are the same and have the same meaning. Some notions of criminal law are very similar in both legal systems, as the attempt to crime, concealment or favouring a criminal. Also there are crimes which are very similar described in both systems (for example: theft, robbery, fraud). What would help me (and some of my Romanian colleagues) in particular, it was the difference between Romanian and Spanish criminal laws regarding prostitution and begging. As it is well known, Romania provides a lot of victims for the human beings organised traffic. The victims sometimes juveniles are used in west European countries (among them, Spain) for doing begging and prostitution. Doing prostitution or begging as a habit is a crime in Romania, so authorities react when they observe such behaviour, in order to stop it. [That reaction could be considered normal in Romania today, while the law has been like this since 1969, at least]. In some of Romanian trials against members of the organised crime networks who did human beings traffic in Spain, the defence proves that the Spanish authorities were aware of what victims were doing. Despite this, they never reacted to stop them and to put end to the crimes. [That lack of reaction could seem to be not normal for a Romanian, which is influenced by his own law system.] After my exchange, I know that the reason of the behaviour of the Spanish police (very different, indeed, from the behaviour of the Romanian police) is not their inertia (as the defence tries usually to establish), but the Spanish law. In Spain, neither prostitution nor begging is crime, as I learned during my stage, so Spanish police have nothing to do to stop such behaviours, if the victims do not tell them about the traffic. As evidence shows, the victims and/or their families are usually threatened or physically abused by the members of the criminal networks, so they are keeping the silence for long time about their status of being victims, because they are afraid of traffickers. As a result, there are indeed Romanians who are being exploited for a long time in Spain, but there is no ground to doubt about the Spanish authorities, which have done their job well and applied the Spanish law. In this particular matter, I finally understand that the differences between the reactions of the incharge authorities are not based on some inertia in reaction, but on the differences between the material criminal laws. This conclusion consolidates my trust (and also my Romanian colleagues trust) in Spanish authorities after my exchange program in Spain. 5

6 VII. The European aspect of my exchange The European aspect of my exchange was mainly concentrate on procedural safeguards for suspects and defendants in criminal proceedings, and on the respect of fundamental human rights and freedoms, in context of an increasing European co-operation. The liberty of a person is one of the most important rights targeted by a criminal procedure. European Arrest Warrants, main instruments of mutual assistance, come very often on my desk or on my colleagues' desks. Executing it is based on mutual trust. That means we must trust one each other to respect some minimum standards of procedural' guarantees. Therefore, as a general characteristic, judges and prosecutors are usually interested in knowing if there are similar ideas in different European countries, about the gravity of a crime and the necessity of ordering an arrest warrant. Following this line of common interest, I discussed with my Spanish colleagues about Romanian and Spanish law and practice, confronting them with the European law and European Courts jurisprudence. We identified some differences regarding convictions "in absentia" 2. On the contrary, some fundamental rights were identified to have the same content in both legislations and practice. These were the rights of the accused person to information, to legal advice, to legal assistance free of charge, to remain silent in order to avoid self-incrimination, to interpretation and translation. Firstly, I could see there was a preoccupation in Spain for respecting the fundamental human rights. As I have already written, I could hear that the European Law and the European Human Rights Law, together with the jurisprudence of the European Courts especially that of the Strasbourg Court -, are all the time used by judges, prosecutors and defence lawyers in their speeches. I could also remark there were large procedural guarantees and the accused person rights were strictly respected. Secondly, my experience, due to the attendance at the judge for preliminary proceedings (Guardia de detenidos) and at the Prosecutors' office specialized in juvenile crime (Fiscalia de Menores), proved that it would be very likely for me to take the same decisions as my Spanish colleagues have taken, if I were the Spanish prosecutor in charge to decide. In the end, I could say that our mutual Romanian - Spanish trust was proved to be founded. VIII. The benefits of my exchange The most important benefit I achieved is that I cleared all my questions I had had about Spanish law and about the reason of the reaction which the Spanish authorities had had (or had not had) in some cases. I understood that the authorities did their duty in the same way in both countries. Also they both take care about respecting the fundamental human rights during criminal procedures. As a result, surrendering a Romanian citizen or a Romanian resident to the Spanish authorities seems to be exactly the same as the procedure develops before a Romanian Court. I am also capable now to answer some questions about Spanish legal system that my Romanian colleagues could have, and I know who to ask for the right answer when I need more information about it. 2 It is limited in Spain (the penalty does not exceed two years imprisonment); while in Romania there is no penalty limit. 6

7 I hope my Spanish colleagues feel the same: they could ask me about the Romanian legal system every time they need to. We met together, we know each other, and it is easier now to interact. Another benefit of my exchange was that I had been using the Spanish language in Spanish environment for two weeks, which means I reactivate my Spanish knowledge. Moreover, I learned new uses of some words which formed the judicial vocabulary. That is important in my activity because the Court where I work has usually requests for executing European arrest warrants or for recognising Spanish sentences in Romania. There are also documents which come in Romania from Spanish speaking world (Central and South America s countries). Now I can understand more than before when I read the documents directly in Spanish (of course they are translated in Romanian too, but, I think, reading the original and in the original language is more beneficial). Reactivating the Spanish knowledge is also beneficial for the co-operation activity with my European colleagues who can speak Spanish. What is more, reactivating Spanish knowledge helps me to read opinions based on European Law or on European jurisprudence, written in Spanish and accessible on Internet. That could improve my professional skills. IX. Conclusions I met my colleagues. I discussed with them a lot of solutions that our lawmakers adopted in order to assure the respect of the law in the society. We had the opportunity to discuss the similarities and the differences in our material and procedural law. We could identify the reasons for the solutions of being like this in our legal systems. We could remark that there are a lot of similarities in our law systems: ones due to their origins and influences (Roman law and, respectively, French law), and others due to the European Law (treaties, conventions, directives etc. together with the jurisprudence of the European Courts). We establish a professional connection between us and we can now communicate more rapidly and more efficiently if that is necessary. In the end, I can say that all my motivations, wishes and expectations from the exchange program, written on my application form and presented at the beginning of this report, were fulfilled. X. Looking ahead to the future I can not finish my report without saying that, in my opinion, offering to the European authorities the opportunity to work together is a very good idea of the. It is here a point in strengthening the mutual trust but, also, this activity could be another way to form convergent European views on the criminal law and on the criminal procedure law. In time, that could lead to a unified European Criminal Law and Procedure for all European space, which is ongoing to be an area of freedom, security and justice for each European citizen. For all that work I thank to the and to all the European Institutions 7

8 which have made this work possible. SUMMARY Starting point: Motivation, wishes and expectations concerning the exchange program Developments of my aplication I. Program of the exchange: II.a The hosting institution: Prosecutors Office in Madrid II b. My activity in the context of the tasks of the hosting institution: - The hierarchy of the Spanish Courts - Map of the low Courts organisation in Spain - My participation before law Courts - My participation before Higher Courts - My participation by specialized Prosecutors' office sections: 8

9 - Juvenile Crime matters - By investigating judge for preliminary proceedings - By investigating judge sentencing in easy crimes - Advantages and disadvantages of the procedure - Solution in Romanian law, completely different as the solution in Spanish law III. The law of the host country Legislative solutions completely new for me, as a Romanian prosecutor - Possibility of an agreement between prosecution and defence - Possibility of an agreement between prosecution and defence in easy crimes before the Investigating judge IV. The comparative law aspect of my exchange - Similarities of the two legal systems - Origins in old Roman law and - Historical influences from the French legal system - Identity in name and content for some legislative solutions used in protection of juveniles - Similarities in content of some criminal law notions - Similarities in content of the definitions of crimes - Differences between Romanian and Spanish criminal laws - Special case: differences between views of the two legislations regarding begging and prostitution - Consequences of this differences regarding organised crime networks specialized in human being traffic - Possible consequences regarding the image of the Spanish authorities in Romania V. The European aspect of my exchange - Procedural safeguards for suspects and defendants in criminal proceedings and the respect of fundamental human rights and freedoms - Special area of interest: the European Arrest Warrant and the liberty of the person - Differences between the two legislations and jurisprudences regarding convictions "in absentia" - Similarities between the two legislations and jurisprudences regarding fundamental procedural safeguards - Practical experience before Spanish Courts and Prosecutors' Office - Conclusions regarding mutual trust VI. The benefits of my exchange - Clearing of all questions regarding Spanish authorities' behaviour I had before the stage - Knowledge about Spanish legal system and Spanish jurisprudence - Reactivating the Spanish language knowledge - Possibility to form and develop a judicial vocabulary in Spanish - Possibility to interact with others authorities in Spanish - Further possibility to understand EAW and Spanish sentences which come before Romanian Court in their original language - Possibility to read in Spanish legal Spanish opinions and articles on Internet based on European law and jurisprudence 9

10 Conclusions - The opportunity of knowing each other as professionals of the law - Establishing of some professional connections and making the interact easier - Remarks about the sources of similarities between the two legal systems: origin (Roman law), historical influence (French law) and actual developing source (European law) - Fulfilling of all the motivations, wishes and expectations from the exchange program Looking ahead to the future - Considerations about the idea of organising this kind of exchange - Immediate effect: increasing the mutual trust - Possible medium distance effect: forming convergent views on the Criminal and Procedural law - Possible long distance effect: establishing a unified Criminal law and Procedure for all European Space - Special thanks 10