The role of the defence lawyer during criminal investigation in Romania: what they actually do and which mistakes they can prevent

1. Why the lawyer matters already at the criminal investigation stage

In a large number of criminal cases, people only reach out to a lawyer when the investigation is almost over or even after they have already been indicted and summoned to court. By that time, they have given statements to the police, signed minutes, accepted expert reports, taken part in confrontations or line-ups, often without really understanding what those procedural acts mean and how they will influence the case. Only when they receive a summons to appear before the court or a copy of the indictment do they start wondering: “Should I have spoken to a lawyer earlier?”

The problem is that, in criminal practice, the “battle” over a case is not fought only in the courtroom. Most of the essential evidence is collected during the criminal investigation stage, and some strategic or legal errors made at that point are very difficult or even impossible to fix later. Statements given without proper legal advice, failure to request certain evidence, not challenging procedural acts or tacitly accepting restrictions of rights can all weigh heavily against you at the end of the trial.

The role of the defence lawyer during criminal investigation is not limited to “sitting next to the client” during a hearing. Ideally, the lawyer is the one who explains the legal framework from the very beginning, who translates into clear language what it means to be a suspect or a defendant, what the real risks are, which options you have and how a long-term strategy can be built. At the same time, the lawyer should act as a barrier between the client and potential abuses or undue pressure during the investigation.

This article aims to explain, in practical and accessible terms, what the lawyer actually does at the criminal investigation stage, what he or she can and cannot do, what the Romanian Code of Criminal Procedure provides and what recent case law of the national courts and of the European Court of Human Rights says about the right of access to a lawyer at the early stages of criminal proceedings.

2. Legal framework: the right to a lawyer during criminal investigation

The right to defence is one of the fundamental principles of Romanian criminal procedure. Article 10 of the Code of Criminal Procedure expressly provides that the parties and the main procedural subjects have the right to defend themselves personally or to be assisted by a lawyer, and that the judicial bodies have an obligation to ensure the effective exercise of this right. This principle is not confined to the courtroom; it applies from the moment a person is informed that he or she is suspected of having committed a criminal offence.

Article 83 of the Code of Criminal Procedure sets out in detail the rights of the defendant (most of which also apply, mutatis mutandis, to the suspect), including the right not to make any statement, the right to be informed about the accusation and its legal classification, the right to consult the case file, the right to request evidence and, crucially for this article, the right to be assisted by a lawyer chosen or appointed ex officio. Article 89 of the Code further develops this, providing that the suspect or defendant has the right to be assisted by one or more lawyers throughout the criminal investigation, and that the judicial bodies are obliged to inform them of this right and to ensure effective assistance whenever it is mandatory.

Beyond domestic law, Romania must comply with European standards on access to a lawyer. Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings requires that any person who is suspected or accused of an offence must be able to consult confidentially with a lawyer, to be assisted during questioning and to receive legal advice before deciding whether or not to make a statement. The European Court of Human Rights, in judgments such as Salduz v. Turkey, has emphasised that access to a lawyer should, as a rule, be ensured from the first interrogation by the authorities, and that the absence of a lawyer at that stage may irretrievably affect the fairness of the criminal proceedings.

The Constitutional Court of Romania has also examined different aspects related to the right to a lawyer during criminal investigation, from the situation of witnesses who later become suspects, to the safeguards provided to vulnerable persons or those in detention. Its decisions consistently stress that merely mentioning the right to a lawyer in the law is not enough: the prosecuting authorities must ensure its effective exercise in practice, and acts performed in breach of these guarantees may be sanctioned with nullity.

3. When is legal assistance mandatory during criminal investigation?

The Code of Criminal Procedure distinguishes between situations in which legal assistance is a right (which the person may or may not choose to exercise) and those in which it is mandatory, in which case the authorities are obliged to ensure the presence of a lawyer, including by appointing one ex officio. Although the law expressly lists these situations, in practice it is useful for the person under investigation to know in advance when the state must provide a lawyer regardless of their financial means.

Legal assistance is generally mandatory in the following situations (summarising the relevant provisions of the Code of Criminal Procedure):

– when the suspect or defendant is a minor;

– when he or she is in police custody or pre-trial detention;

– when provisional medical internment is being ordered;

– when the person has a particular vulnerability (for example, psychological or intellectual disabilities) and cannot effectively exercise the right to defence alone;

– in cases where the law provides for particularly severe penalties and the court or prosecutor considers that the person cannot adequately defend themselves without a lawyer.

In such situations, if the person does not hire a lawyer of their own choosing, the judicial authorities must contact the Bar in order to appoint an ex officio lawyer. Key procedural acts performed in the absence of a lawyer, where legal assistance is mandatory, risk being null and void. Even when assistance is not mandatory, the prosecution has a duty to inform the suspect or defendant of their right to be assisted and to record this information in the procedural document.

Unfortunately, in practice, suspects or defendants sometimes treat the ex officio lawyer as a mere formality, someone who “has to be there but whose opinion does not matter”. This perception is dangerous: even where assistance is mandatory and provided ex officio, the person under investigation has the right to a real discussion with the lawyer, to explain their situation, to receive concrete advice and to ask the lawyer to file motions or raise objections. A lawyer who is present only symbolically, without engaging with the case, is not fulfilling their role, and the negative consequences will be borne, primarily, by the person under investigation.

4. What the lawyer actually does during criminal investigation

The first essential task of the lawyer, before anything else, is to explain to the client where they stand and what is coming next. For someone with no experience of criminal proceedings, the difference between “being heard as a witness”, “having the status of suspect” and “being charged as a defendant” is often unclear. The lawyer must translate these legal notions into practical terms: what criminal risks exist, what consequences a statement may have, what cooperation with the prosecuting authorities really means and what it means in practice to exercise your right to remain silent.

At this stage, the lawyer analyses the documents already in the case file (to the extent access is granted), discusses with the client their version of events and quickly tries to identify the sensitive points: is there a risk of police custody? is pre-trial detention likely? are we dealing with an offence with high statutory penalties? are there co-defendants or vulnerable witnesses involved? The answers to these questions will influence how each interview or act of criminal investigation is approached.

Another central role of the lawyer during criminal investigation is managing the evidence. The Code of Criminal Procedure recognises the right of the suspect and defendant to request the taking of evidence, to raise objections to acts of criminal investigation and to challenge the legality of the way evidence has been obtained. In practice, this means that the lawyer may request expert reports, the hearing of certain witnesses, the production of documents or the repetition of acts carried out in breach of the law.

At the same time, the lawyer must pay close attention to how the prosecution collects the evidence it proposes: how searches are carried out, how minutes are drafted, whether rules on interceptions, technical surveillance or line-ups are respected, whether witnesses are heard in conditions that guarantee their freedom to speak. Many debates about nullity or exclusion of evidence later in the proceedings stem from errors made during the criminal investigation, which the lawyer needs to identify and flag in good time.

Participation in hearings – whether of the client or of other procedural subjects – is another area where the lawyer’s role is decisive. When the client is being questioned, the lawyer must ensure that they have been informed of all their rights, that they understand the accusation, that they have had sufficient time to discuss confidentially with the defence, that there is no improper pressure or informal promises, and that the questions asked are not aimed at eliciting ambiguous answers or forcing a confession.

When witnesses or other key persons are heard, the lawyer has the right to ask questions, to object to improper questions put by the prosecution, to request clarification of contradictions and to ask for confrontations when statements are inconsistent. In complex cases, a passive lawyer – who merely sits by and does not intervene – can leave unchallenged assertions which will later be presented to the court as uncontested facts.

Lastly, the lawyer is the one whose trained eye looks for procedural irregularities. If a search has been carried out without proper authorisation or beyond the limits of the warrant, if a procedural record does not contain the mandatory elements, if interceptions were ordered by an incompetent authority or exceeded the statutory time limit, if a line-up did not respect neutrality requirements, all these issues may be raised by the lawyer through motions and objections, both during the investigation and later, during the preliminary chamber proceedings.

Without a lawyer who monitors these details, many irregularities simply go unnoticed. Even though courts theoretically have an obligation to verify the lawfulness of evidence, in practice this control is far more effective when it is informed by specific, well-argued objections lodged already during criminal investigation.

5. The right to silence and statements during criminal investigation: the lawyer’s role

One of the most important changes of perspective that a lawyer must bring to the client early on is that, in criminal law, remaining silent is not an admission of guilt. The Code of Criminal Procedure expressly provides that the suspect and defendant have the right not to make any statement and that refusal to speak cannot be sanctioned. At the same time, any statement given may be used as evidence, including against the person who made it.

In European practice, the European Court of Human Rights has repeatedly stressed that the right not to incriminate oneself and the right to silence are essential components of a fair trial. The judgment in Salduz v. Turkey – and many subsequent cases – shows that taking a decisive statement in the absence of a lawyer may undermine the fairness of the entire trial, even if, formally, the person was told that they had the right to remain silent.

In practical terms, the lawyer’s role is to assess whether and to what extent it is in the client’s interest to make a statement at a given time. There are situations where a clear position, coherently explained from the outset, can prevent the situation from escalating or can quickly dispel an unfounded suspicion. But there are also many cases where the urge to “explain oneself” to the prosecution – without knowing the file and without understanding the prosecution’s strategy – leads to incoherent, contradictory or incomplete statements that are later used against the person.

A careful lawyer will weigh not only what the client might say, but also the timing, context and risks associated with that statement. Sometimes the best advice a lawyer can give at the early investigation stage is: “today we will not make a statement; we will first see what is in the file and then come back with a position when we have all the information”.

6. The lawyer’s relationship with the prosecuting authorities

Although tensions sometimes arise in practice between lawyers and the prosecuting authorities, the lawyer’s role is not to turn the case into a personal conflict with the prosecutor or the police officer in charge. In a healthy system, the lawyer and the prosecutor have different, but complementary functions: one prosecutes, the other defends, and the truth and legality are clarified through a loyal confrontation of arguments and evidence.

An effective defence lawyer at the investigation stage understands how prosecutors work, what constraints the police officer in charge faces and which deadlines press on all actors in the case. They know when it is useful to discuss a procedural issue informally, when it is appropriate to file a firm written motion or to challenge an act before the hierarchically superior prosecutor, and when it is sufficient to record an objection in the minutes.

At the same time, the lawyer is the only actor in the case whose exclusive duty is to protect the interests of the suspect or defendant. It is not the lawyer’s job to “make the prosecutor’s work easier” at the client’s expense, but to ensure that the investigation is conducted in strict compliance with procedural rights and safeguards. When the lawyer considers that a measure is abusive or unlawful, they must react, even at the cost of occasional friction with the authorities.

7. The lawyer of the injured person and of the civil party

It is not only suspects and defendants who may need a lawyer during criminal investigation. The injured person – the one who has suffered harm as a result of the offence – also has important procedural rights, including the right to be assisted by a lawyer. In many cases, it is the injured person who files the criminal complaint, provides the first pieces of evidence and decides whether or not to join the proceedings as a civil party in order to claim damages.

The lawyer of the injured person has the task of clarifying what can and cannot be obtained through the criminal proceedings, what the differences are between the criminal and civil limbs of the case, what types of damages may be claimed and what the realistic chances of recovery are. They must monitor how the prosecution gathers evidence, raise objections when the investigation seems to steer towards minimising the seriousness of the offence and ensure that the injured person’s voice is not lost in the procedure.

In cases where the civil action is brought in the criminal proceedings, the lawyer has the additional mission of organising the evidence on the damage suffered: medical documents, invoices, contracts, expert evaluations, documents proving loss of earnings, as well as elements relating to non-pecuniary damage, such as psychological suffering and impact on family or professional life. If these aspects are neglected during criminal investigation, the trial court will have far less concrete material to rely on when determining compensation.

8. What the lawyer cannot and must not do during criminal investigation

When discussing the role of the lawyer during criminal investigation, it is equally important to clarify what they do NOT do or should not do. The defence lawyer is not a broker of opaque deals with the prosecution, cannot guarantee a particular outcome and is not allowed to encourage the client to lie or to destroy evidence.

The ethics of the legal profession, as well as criminal law itself, set clear boundaries: the lawyer may not improperly influence witnesses, may not promise unlawful advantages to obtain certain testimony, and may not participate in hiding traces of the offence. If the lawyer crosses these lines, they do not only endanger the client but also expose themselves to criminal and disciplinary liability.

On the other hand, the lawyer is not obliged to promise the client that every wish will be fulfilled. Their role is to explain realistically what can and cannot be achieved, to recommend a certain strategy even at the risk of not pleasing the client, and to refuse steps which they consider illegal or contrary to the client’s long-term interests.

9. Common mistakes when you do not involve a lawyer during criminal investigation

Practical experience shows several recurring patterns of mistakes made by persons under investigation when they do not involve a lawyer, or involve one too late:

– they go to a hearing “to clear things up” without knowing exactly what the accusation is and what they are obliged to answer;
– they agree to give detailed statements immediately after a traumatic event, without time to calm down and reconstruct events coherently;
– they sign minutes without reading them carefully or without asking for imprecise formulations to be corrected;
– they do not request copies of key documents from the file and rely only on what the police officer or prosecutor “tells them informally”;
– they give up challenging preventive measures or decisions of the prosecutor because they believe “it is pointless to upset the investigator”.

All these decisions, seemingly minor at the time, can have a major impact once the case reaches the trial court. A lawyer involved from the criminal investigation stage can prevent such mistakes, not through “magic”, but simply by changing the perspective: each procedural act is a piece of a larger puzzle and deserves to be treated with care.

10. How criminal investigation looks from the courtroom

Many defendants only realise in front of the court how important what happened during the criminal investigation actually was. The judge forms an opinion not only from what happens at trial, but also from how the case was built: the coherence of statements, the way evidence was collected, the presence or absence of objections, the lack of requests for evidence that could have been made earlier.

The preliminary chamber procedure – the stage in which the court verifies the lawfulness of the indictment and of the evidence gathered during the investigation – is closely linked to the lawyer’s activity during the investigation. If the lawyer has carefully followed each procedural act, it is much easier, in the preliminary chamber, to identify which pieces of evidence can be challenged, what irregularities in the indictment can be invoked and which objections can lead to the exclusion of evidence.

By contrast, if the investigation was treated superficially and the lawyer only became involved at the trial stage, the room for manoeuvre is narrower. Although the law allows for new motions to be filed before the court, many procedural opportunities are simply lost when they have not been used at the appropriate time during the investigation.

11. Conclusions: why you should involve a lawyer as early as possible

For anyone targeted by a criminal investigation, this is a period marked by stress, uncertainty and fear. The temptation to “get it over with quickly” by going alone to the police and giving statements without consulting a lawyer is understandable, but risky. Such an approach can lead to adopting positions that are difficult to change later, missing opportunities to request evidence and tacitly accepting restrictions of rights.

The role of the defence lawyer during criminal investigation is essentially twofold: on the one hand, to protect the client’s procedural rights and prevent abuses, and on the other hand, to build together with the client a realistic long-term strategy. In an increasingly complex criminal justice system, in which domestic law must be read in conjunction with European standards, the presence of a well-prepared lawyer from the early stages of the case is not a luxury, but a necessity.

This article is for general information only and does not constitute legal advice. Every criminal case has its own particularities, and solutions that are appropriate for one file may be completely unsuitable for another. If you are a suspect or a defendant in criminal proceedings – or an injured person seeking to assert your rights – you should discuss your situation with a lawyer before making decisions that may have long-term consequences for your legal, professional and personal life.

Useful sources (legislation, case-law and international materials)

• Romanian Code of Criminal Procedure (Law no. 135/2010, republished) – consolidated text available as PDF on the SNPPC website and in updated form on the official Legislative Portal.

• Article 10 of the Code of Criminal Procedure – the right to defence – can be consulted in the consolidated code on legislatie.just.ro and in various annotated editions of the Code of Criminal Procedure.

• Article 83 of the Code of Criminal Procedure – rights of the defendant – text available, for example, on Lege5.ro and on specialist platforms such as Sintact.ro.

• Article 89 of the Code of Criminal Procedure – legal assistance of the suspect or defendant – available on Lege5.ro and in commented versions published by Wolters Kluwer.

• Directive 2013/48/EU of the European Parliament and of the Council on the right of access to a lawyer in criminal proceedings – full text on EUR-Lex and, in Romanian translation, on Lege5.ro.

• ECtHR, Salduz v. Turkey (Grand Chamber, 27 November 2008) – full judgment available on HUDOC, with summaries and practical commentary, for example, on CRIN Legal and Fair Trials.

• Decisions of the Constitutional Court of Romania on the right to a lawyer and procedural guarantees during criminal investigation – for example, Decision no. 260/2016 and Decision no. 236/2020, available on the Legislative Portal and on the Constitutional Court’s own website.

• Overview articles on the rights of suspects and defendants in Romanian criminal procedure, such as “Drepturile suspectului și drepturile inculpatului” published on indrumari-juridice.eu, which provides a practical synthesis of the relevant provisions of the Code of Criminal Procedure.

• European Commission reports on the implementation of Directive 2013/48/EU – analysis of how Member States, including Romania, have transposed the standards on access to a lawyer – available, for instance, via the website of the Spanish Bar Council.