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ROMANIA 1 Is it possible for evidence to be taken by

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									                                                                    ROMANIA

       1. Is it possible for evidence to be taken by videoconference either with the participation of a
       court in the requesting Member State or directly by a court of that Member State? If yes, what
       are the relevant national procedures or laws that apply?

       Yes. The second sentence of Article 23(1), Article 23(3) and Article 37(3) of Law No 189/2003 on
       international legal assistance in civil and commercial matters, as amended, apply in such cases.

       The requested Romanian judicial authority may, at the request of the requesting judicial authority,
       consider using a special procedure, provided that it is not contrary to Romanian law. The Romanian
       court will inform the requesting judicial authority of the date and place where the letters rogatory are
       carried out. On request, it may permit the participation of foreign magistrates. On the basis of Article
       3(3) of Council Regulation (EC) No 1206/2001 of 28 May 2001, it is the Ministry of Justice that is
       responsible for taking decisions on requests pursuant to Article 17 of that Regulation.

       A videoconference should take place in the presence of the judge of the district court under whose
       jurisdiction the evidence is to be taken. Where applicable, the judge may be assisted by an interpreter.
       The judge is required to check the identity of the person examined and must ensure compliance with
       the fundamental principles of Romanian law.

       2. Are there any restrictions on the type of person who can be examined by videoconference –
       for example, is it only witnesses or can others such as experts or parties also be examined in this
       way?

       No. Under Article 15 of Law No 189/2003 on international legal assistance in civil and commercial
       matters, as amended, the letters rogatory allow for the hearing of witnesses or other persons
       concerned.

       However, under Article 24(2) of Law No 189/2003 on international legal assistance in civil and
       commercial matters, as amended, the letters rogatory may be refused if the person to be examined is
       unable to give testimony owing to the existence of provisions in Romanian legislation prohibiting this
       or when the documents to be transmitted or subject to expert analysis cannot be distributed.

       Moreover, pursuant to Articles 189, 190 and 191 of the Code of Civil Procedure, the following
       categories may not be examined as witnesses: relatives and relatives by marriage up to and including
       the third degree of relationship 1 ; a spouse (even a separated spouse) 2 ; those prohibited from testifying
       or legally declared unfit to give testimony; those convicted of perjury. Relatives and relatives by
       marriage, apart from descendents, may be examined in matters relating to civil status or divorce. The
       following categories are exempt from testifying: clerics, doctors, midwives, pharmacists, lawyers,
       public notaries, and any other working persons bound by law to confidentiality concerning matters
       they have heard in the course of their professional activities; active and former public officials in
       connection with secrets they learnt in their professional capacities; those who through their answers
       might incriminate themselves, their relatives or relatives by marriage up to and including the third
       degree, or their spouse (even a separated spouse), or expose themselves or such persons to public
       contempt.




1
    The parties may agree, either expressly or tacitly, for such persons to be examined as witnesses

2
    The parties may agree, either expressly or tacitly, for such persons to be examined as witnesses




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3. What restrictions, if any, are there on the type of evidence that can be obtained by
videoconference?
There are no such restrictions. Under Article 15 of Law No 189/2003 on international legal assistance
in civil and commercial matters, as amended, the letters rogatory allow for the hearing of witnesses or
other persons concerned.

4. Are there any restrictions on where the person should be examined by videoconference – i.e.
does it have to be in a court?

Under Article 169(1) of the Code of Civil Procedure, evidence is taken before the court.

5. Is it permitted to record videoconference hearings and, if so, is the facility available?

Yes, this is permitted. At present, the facility is not available, having been postponed until 1 January
2011 in accordance with Article XI of Government Order No 114/2009 on certain financial and
budgetary measures.

6. In what language should the hearing be conducted: (a) where requests are made under
Articles 10 to 12; and (b) where there is direct taking of evidence under Article 17?

a) in Romanian.
b) also in Romanian, as the requested Romanian court should draw up a report recording the date and
place of the hearing, the identity of the person examined, information regarding the taking of the oath,
the technical conditions in which the hearing took place, etc.

7. If interpreters are required, who is responsible for providing them under both types of
hearing and where should they be located?

Under Article 25 of Law No 189/2003 on international legal assistance in civil and commercial
matters, as amended, the requested court is responsible for providing interpreters.

8. What procedure applies to the arrangements for the hearing and to notify the person to be
examined about the time and place? How much time should be allowed when arranging the date
of the hearing to enable the person to receive sufficient notification?

At least one month and a maximum of three months.

Article 23(3) of Law No 189/2003 on international legal assistance in civil and commercial matters,
as amended, applies in such cases. The Romanian court will inform the requesting judicial authority
of the date and place that the request in the letters rogatory was carried out. Pursuant to the second
sentence of Article 169(4) of the Code of Civil Procedure, if the type of evidence permits and the
parties are in agreement, the court taking the evidence may be exempted from summoning the parties.

However, given the existence of two procedures involving foreign courts (the service procedure
within the procedure for taking evidence), we believe that in practice the amount of time allowed
should be at least one month and a maximum of three months, within the margin already allowed for:

- fulfilling the service requirements laid down in Regulation (EC) No 1393/2007 of the European
Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial
and extrajudicial documents in civil or commercial matters, namely to include at least the one month
period necessary to fulfil the request or to serve it by registered letter with acknowledgement of
receipt
- the requesting court's obligation to comply with the requests of the requested court concerning the
provision of additional information, payment of the advance/deposit, etc., mentioned in Council
Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member
States in the taking of evidence in civil or commercial matters

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Grounds for this would relate to the time allocated for any possible translations of correspondence
with the requesting court or with the witness, or the time allocated for posting aboard, for a large
volume of case files, and not least, for making videoconference bookings.

9. What costs apply to the use of videoconferencing and how should they be paid?

The average costs of establishing a video link and making the link available in the requesting state are
approximately EUR 50-100. These costs should be paid by bank transfer into the account of the
appeal court. In addition to these costs, one must also add those relating to the payment of
interpreters, compensation paid to witnesses and experts, and travel costs in the requested state, which
will be paid by the foreign state that made the request to the Romanian State.
10. What requirements, if any, are there for ensuring that the person examined directly by the
requesting court has been informed that the performance shall take place on a voluntary basis?

The person to be examined should be summoned also in accordance with the relevant provisions in
the Romanian Code of Civil Procedure. The person should be informed that the hearing will take
place on a voluntary basis in the summons issued by the requested Romanian court on the basis of the
decision to approve the evidence by the requesting court or in any other act.

Pursuant to the second sentence of Article 169(4) of the Code of Civil Procedure, if the type of
evidence permits and the parties are in agreement, the court taking the evidence may be exempted
from summoning the parties.

11. What procedure exists for verifying the identity of the person to be examined?

Pursuant to Article 192 of the Code of Civil Procedure, before the testimony is heard, the President of
the Court will call on the witnesses to indicate their name, occupation, place of dwelling and age;
whether they are a relative or relative by marriage of one of the parties and if so to what degree; if
they are in the service of one of the parties; if they are involved in legal proceedings, are in hostile
relations or have a particular interest with regard to one of the parties.

12. What requirements for taking oaths apply and what information is needed from the
requesting court when an oath is required during direct taking of evidence under Article 17?

Pursuant to Article 193 of the Romanian Code of Civil Procedure, before being examined, the witness
(except for members of a religion other than Christianity) take the following oath: "I swear to tell the
truth and that I will not conceal anything. So help me God!" When taking the oath, the witness places
his/her hand on a cross or on the Bible. The reference to a divinity in the wording of the oath differs
depending on the religious belief of the witness. A witness who does not belong to any faith will take
the following oath: "I swear on my honour and conscience to tell the truth and that I will not conceal
anything." Witnesses who cannot take an oath for reasons of conscience or faith will state the
following before the court: "I undertake to tell the truth and not to conceal anything." A decision with
regard to the situations described above is taken by the judicial body based on statements made by the
witness. After the oath has been taken, the President of the Court will remind the witness that if s/he
does not tell the truth, s/he will have committed the offence of perjury. All of the above will be
recorded in the written declaration. Minors below the age of 14 cannot take an oath; instead, they are
told to tell the truth.




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13. What arrangements are there for ensuring that there is a contact person at the place of the
videoconference with whom the requesting court can liaise and a person who is available on the
day of the hearing to operate the videoconferencing facilities and deal with any technical
problems?

The following may be contact persons: the judge; the registrar – head of section; specialised IT staff
or the chief IT officer in the legal information team of the appeal court, tribunal, specialised tribunal
or district court.

14. What, if any, additional information is required from the requesting court?




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