Starting with 27.01.2020, the Law no. 192/2019 for the modification and completion of some normative acts in the field of public order and safety, and the main amendments brought by GEO no. 104/2001 regarding the organization and functioning of the Romanian Border Police aim to introduce preventive or coercive measures to strengthen the border police authority, such as personnel with responsibilities in the field of public order and safety, who carry out missions in the area of competence (30 km from the border line inland) enters into force.
The normative act brings additions and clarifications to the attributions provided by the law, these concerning both the rights and obligations of the border guards in the exercise of the function, as well as the rights and obligations of the citizens.
The normative act establishes the obligation that, during the course of these activities, the border guard is obliged to have a civilized behavior, to show kindness and solicitude, respectively to adopt a polite and firm attitude. The border guard must demonstrate self-control, communication ability and conflict management skills.
When and how does the legitimation and establishment of a person's identity take place?
The border guard is entitled to legitimize and establish the identity of the person only if (Article 272, paragraph 1 of GEO 104/2001 regarding the organization and functioning of the RBP with subsequent amendments and completions):
- a) he/she violates the legal provisions or there are probable causes to suspect that he/she is preparing or has committed an illegal act at the state border regime;
- b) his/her presence in the border area is suspicious or cannot be justified;
- c) there are probable reasons to suspect that he/she was present at the place of an unlawful act or is aware of the fact, author or property related to the deed;
- d) he/she requires the support or intervention of the border police bodies or when due to their age, health, disability, alcohol or other psychoactive substances consumption or other such circumstances, they need the support of the authorized bodies;
- e) his/her description corresponds to a wanted person in accordance with the law, holds goods or moves with a vehicle, boat or aircraft that corresponds to the description of wanted goods or means of transport according to the law;
- f) he/she carries out an activity subject, according to the law, to authorizations, notices or registrations or it is involved in a legal procedure before a public authority or institution;
- g) he/she tries to penetrate or is in a facility where access is controlled;
- h) on the occasion of controls or raids, carried out under the conditions provided by law;
- i) there is a legal obligation to establish his/her identity.
The legitimized person has the right to be informed, which is why the border guard is obliged to inform the person, verbally, the reason for the legitimation. (Article 272, paragraph 2, GEO 104/2001).
The way to establish the identity (Article 27 paragraph (3) - (7) of GEO no. 104/2001):
- based on the identity documents
- based on an act provided with the photograph or his/her statements, as well as the border guard checks, carried out on the spot, in the electronic databases to which it has access according to the law
In case of refusal to legitimize or present identity data, the person is alerted that the failure to present the identity document at the request of the border guards constitutes a violation of the law and is sanctioned contraventionally, according to Article 75, letter d of GEO 105/2001 regarding the state border of Romania. If the person still refuses to cooperate in order to establish the identity, then he/she will be taken to the headquarters of the RBP structure to establish his/her identity.
As a novelty, by way of exception, when the measures provided above have not allowed the establishment of identity, for this purpose the border guard, even in the absence of the person's consent, is entitled to proceed to:
- a) identifying another person who can provide identity information, if possible;
- b) photographing, taking and processing the individual's fingerprints, signals and signs;
- c) to make public, by any means, a photograph, recording, sketch or description of the person, if there is a reasonable belief that this measure will help to establish the identity.
During the course of the legitimation action, the border guard is entitled to request the person who is the object of the legitimation to keep his hands in sight and, if necessary, to temporarily give up the means that can be used for an armed attack (Article 271, par. (1) GEO 104/2001).
- When is body, luggage and vehicle control carried out?
In fulfilling his/her duties, the border guard is entitled to carry out the body search of the identified person and, as the case may be, of the luggage or the vehicle used by him only for (Article 273, OUG 104/2001):
- to collect the goods subject to confiscation, forbidden to detention, searched according to the law or which can be used as evidence in a judicial procedure, when there are probable reasons to suspect that the person has or under his control such goods;
- identification and collection of weapons, objects or substances that can be used against the border guard, other persons or for self-harm, when the person is subject to the measure of the taking at the border police headquarters or of a warrant for bringing, warrant arrest or execution of punishments;
- identification of documents or documents that can serve to establish the identity
of a person in a state of unconsciousness;
- identifying and removing dangerous weapons, objects or substances, when the
person tries to enter or is in places where their access is prohibited.
Body search is performed, with the respect of human dignity, by a person of the same sex with the controlled person and involves the bodily examination and the clothing of a person, visually, as well as by touching or pressing, the thick clothing can be examined separately. When objects are identified by examination, at the request of the border guard, the person is obliged to present them.
The baggage control involves an external examination of it, visually, as well as by touching and pressing. At the request of the border guard, the person has the obligation to open them and present the contents of the luggage.
The control of the vehicle can also be carried out in order to identify a person pursued or searched according to the law, when there are probable reasons to suspect that it is present in the vehicle.
The vehicle is examined by viewing the compartments which, by construction, are intended for the transport of passengers and goods. At the request of the border guard, the person has the obligation to open and present the contents of the compartments.
The action of the border guard to dispossess the person of a firearm or a white weapon whose possession is visible or known does not constitute body search.
The result of the control is recorded in a report, which is signed by the border guard and the person concerned or the legal representative. A copy of the report shall be delivered to the person concerned or to the legal representative, the refusal of signature or receipt being recorded in the document.
The border guard has the right to request the person subject to the body search to adopt a harmless position, which allows his effective and safe execution (Article 271, paragraphs 2-3, GEO 104/2001).
- keeping the hands above the head or parallel to the ground
- distance of the legs
- adopting the sitting position
- adopting the lying position
- another position of the body, which prevents a violent action against the border guard and respects human dignity
The request to adopt a harmless position must be appropriate to the danger that the person may represent and not exceed the real needs to reach the purpose of the intervention.
- When and in what situations is a person taken to the RBP headquarters?
The border guard is entitled to take a person to the border police headquarters when (Article 274 paragraph (1), GEO 104/2001):
- a) under the conditions of the law, its identity could not be established or there are probable causes to suspect that the declared identity is not real or that the documents presented are not genuine;
- b) due to his/her behavior, place, moment, circumstances or assets, there are likely reasons to suspect that he/she was preparing or committed an illegal act;
- c) by his/her actions it endangers the life, health or bodily integrity, of himself or of another person or public order;
- d) taking legal measures, on the spot, could create a danger to himself/herself or to the public order.
The person taken to the border police headquarters has the following rights (Article 274 -27 GEO 104/2001):
- a) to be informed about the reasons for his/her taking at the border police headquarters; to be informed about their rights;
- b) to file an appeal against the disposition of the measure, according to the law;
- c) to be assisted by a lawyer, according to the law, to communicate directly with him, under conditions that ensure confidentiality, as well as not to give any statement without his presence, except for the communication of the identification data or of some necessary information removing an imminent danger to one's life, health or bodily integrity or to another person;
- d) to request that a family member or other person designated by him/her be informed of the measure taken;
- e) to request the information of the diplomatic representatives of the state of origin, in the case of foreign citizens;
- f) to communicate through an interpreter or through a person with communication skills, in case he/she does not speak, does not understand the Romanian language, he/she cannot express or presents hearing or deafblindness disabilities;
- g) to be consulted by a doctor or, at his own expense, by the doctor indicated by him/her.
In the case of the minor or of the person without exercise capacity, the border guard has the obligation:
- a) to inform about the measure taken, the parents, guardians or other legal representative or, if none of them can be contacted or not presented, the competent authority according to the law;
- b) not to take statements from it or to request the signing of documents, in the absence of a legal representative or of the competent authority, except for the communication of the identification data.
The border guard draws up a report in which he records the reasons for the person's taking to the border police headquarters, the measures taken on this occasion, the way of exercising the rights, as a result of being informed, the result of the body search, of the luggage and of the vehicle control, the completion of the situation verification of the respective person and the measures undertaken.
 to carry out controls and to participate in the raids, independently or in collaboration with the local police bodies, when there are indications regarding the commission of crimes at the state border regime or the concealment of criminals or property from these crimes
 The control of the vehicle means the control of any means of transport by road, rail, air or water.
 Establishing a person's identity is based on identity documents. When the person cannot present an identity document, the identity determination is made on the basis of an act provided with a photograph or of his statements, as well as of the border police checks, carried out on the spot, in the electronic databases to which he has access according to the law.
 The report shall be recorded in the records of the border police unit and signed by the border police officer and the person concerned or the legal representative. A copy of the report shall be delivered to the person concerned or to the legal representative, the refusal of signature or receipt being recorded in the document.