Autor: Magdalena ROIBU

Publicat în: Journal Of Eastern European Criminal Law no. 1/2014

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Abstract: Romania is the last state of the European Union that adopted a modern code of criminal procedure, and this was to a considerable extent, the outcome of the pressure from the European Court of Human Rights who urged our country to amend the former criminal legislation and make it correspond effectively to the standards imposed by the European Convention. The Romanian New Code of Criminal Procedure, adopted by Act no. 135/2010, came into force on the 1st of February 2014 and reshaped the whole structure of a criminal trial, by importing many essential institutions from the other, more advanced, European codes of criminal procedure. Among the most important legal novelties, the following are worth mentioning: the ne bis in idem principle, the right to a fair trial within a reasonable time, the separation of judicial functions, the liberty and custody judge, the pretrial chamber judge, the home arrest as pretrial detention alternative, the two degrees of jurisdiction in criminal affairs (instead of three, as in the former code), the appeal on law as extraordinary relief, and certain special procedures, such as plea bargaining, the challenge against the unreasonable time of a criminal trial, the procedure in case of criminal liability of legal persons, and so on. One of the positive features of the New Code of Criminal Procedure is undoubtedly the settlement of the liberty and custody judge, long needed as a guarantor of the legality of criminal investigation acts and the respect of individual rights and liberties. The liberty and custody judge was inspired by the French model of “le juge des libertés et de la détention” and has important control prerogatives during the stage of criminal investigation that precedes the trial. However, the liberty and custody judge is not absolutely new in the Romanian criminal procedure tradition, since in the codes of criminal procedure of 1864 and, respectively, 1936, there used to be the criminal instruction judge, but this institution faded away in the communist era and was revived in the current code under a different form, adapted to present realities. The following study aims at presenting the new institution in a comparative law approach, enhancing the advantages it brings into the present criminal trial, as well as the drawbacks of the new regulation consisting in that the prosecutor still preserves some powers that seriously diminish the role of the liberty and custody judge. Apparently, no Romanian governance so far could afford to displease the prosecutor. This in fact turns the new institution into a legal compromise.

Keywords: Romanian New Code of Criminal Procedure; separation of judicial functions; liberty and custody judge; comparative approach; legal compromise