In the initial version of the Code of Criminal Procedure, obtaining the financial information of an individual could be achieved by obtaining a surveillance warrant under the provisions of art. 138 para. 1 lit. e) Code of Criminal Procedure (“Obtaining data on a person’s financial transactions“) or by obtaining them from financial institutions, at the request of the prosecutor, pursuant to the provisions of art. 153 Code of Criminal Procedure (“Obtaining data on a person’s financial situation“)
Likewise, in the judicial practice prior to the Government Emergency Ordinance no. 18/20161, we find solutions according to which information was obtained regarding the amounts of money transferred to various bank accounts, respectively the amounts of money acquired by the defendant or suspect based on the approval of the judge of rights and freedoms pronounced under the provisions of art. 153 Code of Criminal Procedure2 or „ata on financial transactions, content and turnover of accounts, documents regarding the empowered agents having rights related to the account, specimen signatures, requests for deposits, withdrawals and transfers of sums of money” were obtained directly based on the ordinance issued by the prosecutor based on the same provisions – art. 153 Code of Criminal Procedure3 . here was virtually no delimitation between the two proceedings, requiring the judge’s approval in any situation where the objective was to obtain financial information from a person or the measure was authorized by the prosecutor, without a distinction in terms of the content of the financial information concerned.
The modifications and completions operated by the Government Emergency Ordinance no. 18/2016 established, however, three types of financial information that can be requested by the judicial bodies on the occasion of a criminal investigation, respectively: (1) the history of all movements made through the account until the moment of request (art. 1461 par. 1 Code of Criminal Procedure); (2) data on the financial transactions to be performed (art. 1461 par. 2 Code of Criminal Procedure); (3) data on a person’s financial situation (art. 153 Code of Criminal Procedure).
Compared to the information obtained under art. 1461 Code of Criminal Procedure, those obtained according to art. 153 of the same code are much more concise, referring only to information about the existence of the bank account, not to the transactions made in the account.
The provisions of art. 1461 par. 1 and 2 Code of Criminal Procedure („Code of Criminal Procedure”) regulate the collection of data on financial transactions carried out or to be carried out (“supervision of the bank account”), a special method of investigation provided for by the judge of rights and freedoms who, if he considers the measure justified, orders the issuance of a warrant4. Thus, it does not matter if you want to know the content of financial transactions to be performed through a credit institution or other financial institution or financial transactions and other operations already performed (in this sense are also the provisions of Article 138 para. 9 Code of Criminal Procedure).
On the other hand, obtaining data on a person’s financial situation is a separate procedure provided by art. 153 Code of Criminal Procedure, the object of the request being restricted to the data regarding the existence of the account. The procedure for obtaining these data is given in the competence of the prosecutor, who is the one who orders in this regard, by ordinance, ex officio or at the request of the criminal investigation body, given the much lower intrusion into a person’s private life.
The major difference between the two special research methods, in addition to the distinct procedures5 and the different rules of jurisdiction, is given by the type of information and documents that can be requested under these legal provisions.6
Thus, the turnover of an account (debits and credits of the account), the data about the transactions operated, their value, the situation of the account balance at a given moment, as well as the documents related to these operations can be obtained in the criminal investigation phase only by order of the judge of rights and freedoms (according to art. 1461 Code of Criminal Procedure), unlike the data on the existence of the account of a person who may target the possible bank account opened, the date of possible account opening, the date of possible account closure, the documents submitted at the time of account opening, the person authorized to carry out operations on the account, internet banking ”etc. which can be obtained on the basis of an order issued by the prosecutor according to art. 153 Code of Criminal Procedure)..
Conclusions
Obtaining data on financial transactions and obtaining data on a person’s financial situation are two separate procedures, with different rules of jurisdiction, regulated in order to obtain different categories of data.
Obtaining data on a person’s financial transactions, the content of the account concerned, the movements of funds in the account can be done only with the prior consent of the judge of rights and freedoms.
The measure provided by the provisions of art. 153 The Code of Criminal Procedure is used to determine the existence of an account opened in the name of a person, in order to subsequently allow, if necessary, the request for information on financial transactions carried out through that account, with the consent of the judge.
FOOTNOTES
1. Published in the Official Gazette number 389 of May 23, 2016.
2. Bucharest Court of Appeal, Criminal Decision no. 1490 / A of 10.10.2016. Available here: http://www.rolii.ro/hotarari/58a06083e490091036001629
3. Bucharest Tribunal, Criminal Sentence no. 3001 of 22.12.2016. http://www.rolii.ro/hotarari/598a7e6fe49009886f000d2b.
4. In this regard, see the Meeting of the presidents of the criminal sections of the High Court of Cassation and Justice, which took place at Court of Appeal Iași, between 18th-19th May 2017 (http://www.inm-lex.ro/fisiere/d_1913/Minuta%20intalnire%20presedinti%20sectii%20penale%20Iasi%2018-19%20mai202017.pdf).
5. Obtaining a person’s account history- financial transactions performed- following a similar procedure to that of intercepting communications. ( subl. AC)
6. Neagu Ion; Damaschin Mircea; Iugan Andrei Viorel, Code of Criminal Procedure annotated from 06-Dec-2018, Legal Universe, Commentary on Article 153 of the Code of Criminal Procedure.
