The minor in criminal proceedings: rights of the juvenile defendant and the role of parents or guardians

In Romanian law, the regime of the minor in criminal proceedings is built from several normative blocks: the Criminal Code and Title V – “Minority” (Articles 113–134 of the Criminal Code), the Code of Criminal Procedure – Chapter III “Procedure in cases involving juvenile offenders” (Articles 504–520 of the Code of Criminal Procedure), as well as Law no. 272/2004 on the protection and promotion of children’s rights. These are complemented by the case law of the European Court of Human Rights (ECtHR) and decisions of the High Court of Cassation and Justice on the application of educational measures in respect of juvenile defendants.

This article follows the path of a criminal case with a juvenile defendant from the investigation stage, through trial, to the application and enforcement of educational measures. The focus is on the child’s procedural rights, on the safeguards surrounding his or her hearing and on the role of parents, guardians or curators, so that they can effectively intervene in support of the minor without infringing his or her evolving autonomy and right to be heard.

1. Legal framework and general principles

1.1. Age and criminal liability of the minor

The first step in assessing a child’s situation in a criminal case is to determine age and, implicitly, criminal capacity. The Criminal Code provides that a minor who has not reached the age of 14 is not criminally liable; a minor between 14 and 16 is criminally liable only if it is proven that he or she committed the act with discernment; a minor who has reached the age of 16 is criminally liable under the law as a general rule, subject to a specific sanction regime (Article 113 of the Criminal Code; see also the synthetic presentation on ConsultantAvocat.ro).

Determining the existence of discernment in minors aged 14 to 16 is usually done by means of a forensic psychiatric expert report, correlated with data on the minor’s life and the concrete manner in which the offence was committed. Both the prosecution and the court must ensure that there is sufficient information to assess whether the minor understood the illicit nature of the act and its consequences.

1.2. Consequences of criminal liability: educational measures, not classic punishments

Where the minor is criminally liable, the Criminal Code no longer allows the imposition of classic punishments (imprisonment, fine) for acts committed during minority. The consequence of criminal liability consists exclusively in the imposition of an educational measure, either non-custodial or custodial (Article 114 of the Criminal Code). Non-custodial educational measures – regulated in Chapter II of Title V of the Criminal Code – include, among others, civic training course, supervision, weekend curfew and daily assistance (doctrinal analysis).

Custodial educational measures – regulated by Articles 124–125 of the Criminal Code – are placement in an educational centre (for a period between 1 and 3 years) and placement in a detention centre (for longer periods, depending on the seriousness of the offences). Case law has emphasized that these measures are essentially educational, aimed at social reintegration, and should not be equated with imprisonment applicable to adults, even though they involve deprivation of liberty (High Court Decision no. 17/2020).

1.3. The best interests of the child and “child-friendly justice”

Law no. 272/2004 enshrines the principle of the best interests of the child as a primary consideration in all decisions concerning the child, including in the field of criminal justice (Law no. 272/2004, Articles 2 and 6; general overview on DreptOnline.ro). International instruments – in particular the UN Convention on the Rights of the Child and the Council of Europe Guidelines on child-friendly justice – require that procedures be accessible, age-appropriate, confidential, speedy and ensure the child’s participation in his or her own proceedings, in conditions of safety.

In criminal matters, these principles translate into, among other things, hearings in camera, limitation of the number of interviews, mandatory presence of a lawyer, clear information given to the minor in language appropriate to his or her age and the possibility of being accompanied by parents, guardians or other reference persons when this is in the child’s best interests.

1.4. Special procedure in cases with juvenile defendants

The Code of Criminal Procedure provides a special procedure for cases involving juvenile offenders in Chapter III of Title IV. The general provisions of Article 504 of the Code of Criminal Procedure establish that the investigation and trial of offences committed by minors shall be carried out according to the ordinary procedure, with the additions and derogations laid down in this chapter. The composition of the court, the persons summoned to the trial of the minor and the conduct of the hearing are expressly regulated in Article 507, Article 508 and Article 509 of the Code of Criminal Procedure.

2. The minor in the criminal investigation phase

2.1. Acquiring the status of juvenile suspect or defendant

The minor enters the sphere of specific procedural protection when he or she acquires the status of suspect or defendant. Once the prosecution authority has a reasonable suspicion that a minor has committed an offence, the minor must be informed of his or her procedural status and the related rights, and any interview must comply with the special safeguards for minors. Determining age is essential – in practice, where necessary, civil status documents or other official documents are requested to prove the exact age at the time of the act.

2.2. Informing the minor about the accusation and rights

Under the new Code of Criminal Procedure, the rights of the suspect or defendant apply universally, but for minors the legislator has introduced additional information obligations. According to the amendments brought by Law no. 284/2020, Article 505 of the Code of Criminal Procedure requires that the minor be informed in a manner adapted to his or her age, including about the right to have parents or the legal representative informed of the criminal proceedings, the right to be assisted by a lawyer and the consequences of admitting the facts. Detailed analyses of the new provisions can be found in doctrine and practice, for example in materials published on Portal Penalmente.ro and in articles dedicated to the hearing of minors on e-Juridic.

Comprehensive and clear information of the minor is not a formality but a condition for the validity of investigative acts. Failure to comply with this standard may lead to the exclusion of statements obtained and to a finding of a violation of the right to a fair trial, including from the perspective of the ECtHR case law.

2.3. Mandatory legal assistance and access to a lawyer (ECtHR standard)

Legal assistance is mandatory for the minor throughout the criminal proceedings. The regime of mandatory defence is provided in the Code of Criminal Procedure and expressly includes cases in which the defendant is a minor. In practice, the prosecuting authority may not proceed to hear the minor in the absence of a lawyer, under penalty of nullity of the interview.

At European level, judgments such as Salduz v. Turkey and Panovits v. Cyprus have established the principle that, in the case of minors, the lack of legal assistance in the initial phases of the investigation may irretrievably affect the fairness of the trial, especially where the conviction is decisively based on statements given by the minor without a lawyer. These standards have prompted states, including Romania, to strengthen the obligation of judicial authorities to ensure the effective presence of a lawyer from the first questioning.

2.4. Presence of parents or guardians at the hearing of the minor (Article 505 of the Code of Criminal Procedure)

Article 505 of the Code of Criminal Procedure regulates in detail the manner in which the juvenile defendant is heard in the investigation phase. For minors who have not reached the age of 16, at any interview or confrontation, the prosecution authority must summon the parents or, as the case may be, the guardian, curator or the person in whose care or supervision the minor is temporarily placed, as well as the general directorate of social assistance and child protection (DGASPC) in the locality where the hearing takes place (Articles 505 and 506 of the Code of Criminal Procedure – e-Juridic; further explanations on TPU – legal Q&A).

Law no. 284/2020 supplemented Article 505 with provisions according to which, for any other investigative act to which the juvenile suspect or defendant is summoned, the judicial authority may summon the parents or legal representative if it considers that their presence is in the child’s best interests and does not adversely affect the investigation (full text of Law no. 284/2020). Thus, the role of parents in the investigation phase is not limited to the hearing but extends to the entire procedural activity of importance to the minor.

2.5. The concrete role of parents or guardians in the investigation

Parents, guardians or the person caring for the minor have both the right and the obligation to support the minor during the criminal investigation. They may make applications and propose evidence, request expert reports (including forensic psychiatric assessments) and contribute to clarifying the child’s family and school situation. In addition, parents may be held civilly liable and thus be involved as parties responsible for damages, having to compensate the damage caused by the minor under Article 86 of the Code of Criminal Procedure, which makes their procedural role a complex one (analysis on the notion of civilly liable party).

In practice it is important that parents avoid attitudes that may be perceived as pressure on the minor (for instance, forcing the child to testify in a particular way), since the judicial authority must ensure that the minor’s statements are voluntary and that he or she understands their content and consequences. Where the parent is himself or herself the victim or a suspect in the same case, there may be a conflict of interests justifying the appointment of a special curator or the involvement of DGASPC as representative of the child’s interests.

2.6. The minor’s assessment report (Article 116 of the Criminal Code and Article 506 of the Code of Criminal Procedure)

In order to understand the minor’s personality, environment and the factors that favoured the commission of the offence, the Criminal Code and the Code of Criminal Procedure provide for the preparation of an assessment report by the probation service. Article 116 of the Criminal Code regulates the assessment report of the minor, and Article 506 of the Code of Criminal Procedure sets out the procedural stages in which it may or must be requested (Title V – Minority; Chapter III of the Code of Criminal Procedure).

The assessment report is a decisive tool for choosing the appropriate educational measure and assessing the risk of reoffending. It contains data on family, school, peer group, health, any substance use, as well as recommendations on the type of intervention considered suitable. Parents are usually interviewed in the course of this assessment and can provide relevant information about the child.

2.7. Hearing the minor: protection, adaptation and limiting the number of hearings

The hearing of a minor must take place in an environment that is as little intimidating as possible, with accessible language and a questioning structure adapted to his or her age. Although the most detailed regulations on hearings in specially equipped rooms and with the support of a psychologist concern primarily child victims or witnesses of crime, child-friendly justice principles require that similar standards be applied, as far as possible, to juvenile defendants as well (Council of Europe – Child-friendly justice).

Furthermore, in order to limit the traumatic impact, the law provides that, as far as possible, the minor should be heard by the same judicial authority and that the number of hearings should be limited to the strict minimum. Even if these rules are explicitly formulated in the context of minor victims, they are consistent with the general obligation of judicial authorities to protect the physical and mental integrity of the minor, including when he or she is a suspect or defendant.

2.8. Preventive measures against the juvenile defendant

Preventive measures – detention, judicial supervision, house arrest, pre-trial detention – may also be ordered against juvenile defendants, but under a more restrictive regime and with an emphasis on their exceptional character. Legal analyses stress that, in the case of minors, judicial authorities must first resort to non-custodial alternatives and carefully assess the proportionality and necessity of any measure (Avocat Tudor – preventive measures for minors).

Recent issues of inconsistent practice concerned the possibility of ordering pre-trial detention for a minor aged between 14 and 16 before establishing discernment by expert evidence. This debate is detailed, for example, in an analysis published by BihorJust, which highlights the need to correlate preventive measures with the requirements of safeguarding children’s rights and the presumption of innocence.

3. The minor before the criminal court

3.1. Court composition and jurisdiction

Article 507 of the Code of Criminal Procedure provides that cases in which the defendant is a minor are tried, according to the ordinary rules of jurisdiction, by judges specially designated by law. The court thus composed remains competent to adjudicate in accordance with the special procedural provisions on minors even if, in the meantime, the defendant has reached the age of 18 (Article 507 of the Code of Criminal Procedure). This ensures continuity of the protection regime, even if the trial extends beyond the defendant’s coming of age.

3.2. Public nature of the hearing and protection of the minor

In cases involving juvenile defendants, the hearing is, as a rule, held in camera. Article 509 of the Code of Criminal Procedure lays down that such cases are heard urgently and as a priority, and that the hearing is not public; with the court’s permission, other persons may attend, in addition to those summoned under Article 508 (Article 509 of the Code of Criminal Procedure; analysis in the Romanian Journal of Child Law). The purpose is to protect the minor’s private life and limit social stigmatization.

When both minors and adults are tried in the same case, some decisions have held that, where separation of cases (disjoinder) is not possible, the ordinary procedure with a public hearing applies so as not to prejudice the rights of adult defendants. Such a solution was adopted, for instance, by the Bucharest Court of Appeal in a decision concerning the joint trial of a minor and an adult (Criminal Decision no. 1865/R/2004), illustrating the tension between protecting the minor and the principle of publicity in criminal trials.

3.3. Parents, guardians and probation service in the trial of the minor (Article 508 of the Code of Criminal Procedure)

Article 508 of the Code of Criminal Procedure regulates the persons summoned at the trial of minors: the court summons the probation service, the parents of the minor or, as the case may be, the guardian, curator or the person in whose care or supervision the minor is temporarily placed. These persons have the right and the duty to provide clarifications, to lodge motions and to make proposals regarding the measures to be taken (Article 508 of the Code of Criminal Procedure).

Failure of legally summoned persons to appear does not prevent the trial of the case, but in practice the absence of parents may affect the quality of information available to the court and weaken the protection of the minor’s interests. The court may request additional information from the probation service and may take steps to ensure effective legal representation of the child.

3.4. Procedural rights of the juvenile defendant during trial

The juvenile defendant enjoys all procedural rights granted to defendants in general: the right to be informed of the accusation, the right to defence, to present evidence, to cross-examine witnesses, to an interpreter, to the last word, and so on. In addition, child-friendly justice principles apply, which means the use of accessible language, explaining each stage of the proceedings and avoiding unnecessary formalism. The Council of Europe insists on the child’s right to participate effectively in proceedings and to understand them, not just to be physically present (Guidelines on child-friendly justice).

The minor’s presence at the hearing is generally mandatory, particularly when important evidence is taken. However, the court may decide, in the minor’s best interests, to remove him or her temporarily from the courtroom when certain evidence is administered that could seriously affect the child’s psychological state (Article 509 paragraph 3 of the Code of Criminal Procedure).

3.5. Simplified procedure and admission of guilt by the juvenile defendant

Recent legislative amendments have clarified that minors may benefit from the simplified procedure of admitting guilt, with a reduction in the limits of the punishment or educational measure, under the same general conditions as adults, with adaptations required by their status (ConsultantAvocat.ro – juvenile defendant and simplified procedure). In practice, courts have reduced the duration of custodial educational measures where the juvenile defendant has admitted the acts and opted for the simplified procedure, under Article 396 paragraph 10 of the Code of Criminal Procedure (example of judgment).

The role of parents is crucial: together with the lawyer, they must ensure that the minor understands the consequences of admission of guilt and of waiving full evidentiary proceedings. The decision to accept the simplified procedure must not be the result of pressure from the family or the authorities but an informed and freely given choice.

3.6. ECtHR standards on juvenile defendants before the court

The ECtHR has repeatedly emphasized the particular vulnerability of minors in criminal trials. In T. and V. v. the United Kingdom, the Court criticized the way in which the trial of minors was conducted in an atmosphere similar to that of a criminal court for adults, holding that the children could not understand and follow the proceedings. In Blokhin v. Russia, the Court found serious problems concerning the detention of a minor in a re-education centre, without sufficient guarantees and without adequate access to medical care.

These judgments confirm that, in trials with juvenile defendants, the simple formal application of procedural rules is not enough: states must effectively adapt procedures so that the child can genuinely participate in the proceedings, exercise the right to defence and be protected against degrading treatment.

4. Educational measures applicable to the juvenile defendant

4.1. Non-custodial educational measures

The rule is that, where a minor is criminally liable, a non-custodial educational measure should be imposed. According to Articles 115 and following of the Criminal Code, the main non-custodial educational measures are: civic training course, supervision, weekend curfew and daily assistance (Title V of the Criminal Code; practical presentations in specialized literature and avocatpenalist.ro).

These measures usually involve keeping the minor in the community, under the supervision of parents, guardians and the probation service. They may include concrete obligations: school attendance, participation in educational activities, prohibition of attending certain places or meeting certain persons, participation in counselling programmes. Parents are called upon to cooperate closely with the probation service to ensure that these obligations are fulfilled.

4.2. Custodial educational measures

Exceptionally, a custodial educational measure may be imposed on a minor in two cases: if he or she has committed another offence for which an educational measure was applied, executed or started before the new act, or when the law provides for the offence a penalty of imprisonment of 7 years or more or life imprisonment (Article 114 of the Criminal Code; commentary on Legal-Land).

Custodial educational measures are placement in an educational centre and placement in a detention centre (Articles 124–125 of the Criminal Code). Educational centres are specialized institutions focusing on education and vocational training programmes, while detention centres have a more stringent regime, with emphasis on safety and intensive reintegration programmes.

4.3. Criteria for choosing the educational measure and relevant case law

The choice between a non-custodial or custodial educational measure is made on the basis of the general criteria in Article 74 of the Criminal Code (seriousness of the offence, person of the defendant, circumstances of the act, procedural attitude etc.), correlated with Articles 114 and 115 of the Criminal Code. The High Court has clarified, for example, how educational measures are applied where several offences committed during minority are in concurrence, stating that a single educational measure is to be imposed, taking into account the duration of previously executed measures (ruling on matters of law concerning juvenile liability).

In the practice of lower courts, one may find decisions where, for offences of medium gravity (for example, robbery, repeated aggravated theft), the court orders placement in an educational centre, reasoning that the minor has persisted in delinquent behaviour and that family resources are insufficient to ensure reintegration through non-custodial measures alone (example of a judgment ordering placement in an educational centre).

4.4. Enforcement, modification and substitution of educational measures

The enforcement of educational measures is primarily regulated by Law no. 253/2013. The enforcement of placement in an educational centre, for example, is carried out by communicating the judgment to the police and by placing the minor in the centre, the head of the centre notifying the court of the placement (practical description of the procedure).

Under certain conditions, educational measures may be substituted or extended. High Court Decision no. 17/2020 clarifies, for example, how placement in an educational centre may be substituted by placement in a detention centre in the case of concurrence of offences and how the duration of the new measure is calculated, taking into account the period already served (LegeAZ – High Court Decision no. 17/2020).

4.5. Role of parents in the enforcement phase of the educational measure

Once the judgment has become final, parents or guardians remain key actors in the minor’s reintegration process. They cooperate with the probation service in the case of non-custodial measures and with the staff of educational or detention centres in the case of custodial measures. Law no. 253/2013 also lays down obligations and support mechanisms for minors released from custodial educational measures, with parents playing an important role in social reintegration (Articles 70–71).

Where, during the enforcement of a non-custodial educational measure, the minor fails to comply with the imposed obligations, the court may substitute that measure with placement in an educational centre, upon the motion of the probation service, of the minor or of the parents/guardians, under the provisions amended by Law no. 284/2020 (Articles 4–8 of Law no. 284/2020). It is therefore crucial that parents actively engage in ensuring compliance with the programme established for the child.

5. The role of parents or guardians: representation, support and conflict of interests

5.1. Legal representation of the minor and special curator

In civil and procedural law, the minor is in principle represented by his or her parents; only in their absence do guardianship arrangements intervene, and in case of a conflict of interests a special curator may be appointed. The new Civil Code provides, in Article 150, that whenever conflicting interests arise between guardian and minor, the guardianship court must appoint a special curator (Article 150 of the Civil Code; see also Notari.pro).

This principle also applies in criminal proceedings: if the parent is the victim, civil party or even suspect/defendant in the same case, it may be considered that conflicting interests exist, making it necessary to appoint a special curator to safeguard the child’s interests. Civil case law has repeatedly confirmed the court’s obligation to appoint a special curator when a conflict of interests between parent and minor is found (example of a decision on conflicting interests).

5.2. Parents as civilly liable parties

In many cases, parents also appear as civilly liable parties, being obliged to compensate for the damage caused by the minor’s act under civil law. This procedural status grants them rights and obligations distinct from those of ordinary companions of the minor, allowing them to raise defences regarding the extent and merits of civil claims (article on the civilly liable party).

It is important that parents understand that their economic interest (limiting civil liability) must not conflict with the minor’s criminal interest (for example, pressuring the child to admit the facts solely to reach a settlement with the civil party). In case of serious conflict, the court may consider appointing a special curator or clearly delineating each party’s role.

5.3. How parents can prepare for investigation and trial

From a practical perspective, there are several essential recommendations for parents whose child is involved in a criminal case: to immediately consult a lawyer specialized in criminal law and ideally familiar with juvenile procedures; to attend hearings and trials whenever summoned; to cooperate with the probation service and DGASPC; to provide the court with concrete information on the child’s school performance, family behaviour and any health or substance use issues; to encourage the minor to be honest with the lawyer and to ask questions whenever he or she does not understand the procedure.

Parents should also avoid informal discussions with investigative authorities in the absence of the lawyer or the minor, if such discussions may have consequences for the case. Any relevant information should be introduced officially, through statements and documents, so that it can be properly considered in the proceedings.

5.4. Frequent mistakes made by parents and how to avoid them

Common parental mistakes include: trivializing the situation (“he is just a child, nothing will happen”), discouraging the child from fully disclosing the facts to the lawyer, insisting that the minor admit the act without a serious analysis of the evidence, or, conversely, pushing the child to deny everything even when the evidence is overwhelming, thus blocking the negotiation of a favourable solution (such as the simplified procedure). Avoiding these mistakes requires open communication with the lawyer and a realistic understanding of the minor’s legal situation.

Another error is neglecting the educational and psychological dimension of the intervention. Regardless of the criminal outcome (case dismissal, discontinuance of prosecution, non-custodial or custodial educational measure), parents should seek support (psychologist, school counsellor, juvenile delinquency prevention programmes) to reduce the risk of reoffending. Criminal law and procedure provide the framework; family and community ultimately make the difference between relapse and reintegration.

6. Conclusions

The legal regime of the minor in criminal proceedings is complex, at the intersection of criminal law, criminal procedure, civil law and child protection legislation. The Criminal Code and the Code of Criminal Procedure grant the minor multiple safeguards: exclusion of classic punishments in favour of educational measures, special procedures for investigation and trial, hearings in camera, mandatory legal assistance, involvement of the probation service and DGASPC.

At the same time, international standards and ECtHR case law require states to go beyond the formal application of these rules and turn the procedure into one that is genuinely child-friendly: accessible, age-appropriate, participatory and focused on social reintegration. In this context, parents, guardians and curators play a crucial role: they are not mere spectators but partners of the court and the prosecution in building a recovery pathway for the minor.

Ultimately, every decision in a criminal case with a juvenile defendant should be assessed through a simple question: do the chosen measure, the manner in which the procedure was conducted and the way in which parents were involved increase or decrease the child’s chances of becoming a responsible adult, reintegrated into the community? The answer to this question is the key to modern and effective criminal justice in the field of juvenile delinquency.

7. Sources and useful resources

• Code of Criminal Procedure – official text (Portal Legislativ)
• Criminal Code, Title V – Minority (e-Juridic)
• Law no. 272/2004 on the protection and promotion of children’s rights
• Law no. 284/2020 amending the Code of Criminal Procedure (hearing of minors)
• Council of Europe – Guidelines on child-friendly justice
• ECtHR – Salduz v. Turkey, Panovits v. Cyprus, T. and V. v. United Kingdom, Blokhin v. Russia
• High Court Decision no. 17/2020 on substitution of educational measures
• Law no. 253/2013 on the enforcement of educational measures
• Application of preventive measures against minors – Avocat Tudor
• Educational measures for minors – practical overview
• Comments on Article 114 of the Criminal Code – Legal-Land
• Article 507 of the Code of Criminal Procedure – composition of the court in juvenile cases
• Article 508 of the Code of Criminal Procedure – persons summoned at the trial of minors
• Article 509 of the Code of Criminal Procedure – conduct of the trial in juvenile cases

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