Autor: Adrian Stan
Publicat în: Revista Universul Juridic nr.1/2018
Disponibil online: aici.
Abstract: The study deals with the relationship between the principles of the criminal trial,
regarding what constitutes the conflict between the continental-inquisitorial system,
traditional in the Romanian criminal proceeding and the adversarial -common-law
principles introduced by the new criminal procedure code in 2014.
By recent decisions, the Constitutional Court is striking a blow to the attempts of the
new criminal law to implement a set of principles previously foreign to the Romanian law
system and to restrict the scope of procedures specific to the continental type systems. In
this sense, the most relevant and recent is the decision 554 dated 19.09.2017.
Adversarial systems attach greater importance to the procedure, to the detriment of
finding out the truth, a procedure which must be fair, perfectly equitable, in order to reach a
just solution. A contrario, the continental system gives priority to learning the real truth,
to the officiality of the criminal trial and the active role of the judge.
After a brief look at another purely adversarial institution, the prosecutor’s waiver in
the criminal investigation, where the Court again intervened, introducing the mandatory
examination of the judge, we turned to the issue of the judge’s observation of the relative
nullities ex officio, without there being a request of the party injured by incompliance with
the law.
Initially, until the Court’s intervention, these non-compliances with the procedure
were analyzed, in their majority, only if a party to the proceedings requested it in the
preliminary chamber, considering itself injured, with priority to the rule of availability,
fairness and the judge’s reduced role. After the decision 554, the role of the judge becomes a
strong one, as he is obliged to observe these errors ex officio.
In the choice of the Constitutional Court of the priority of the automatic analysis,
finding out the truth and the realization of justice prevailed, considering that justice can
only be done correctly if the magistrate will verify the legality of the investigation, even in
the passivity of the parties. The judge will thus become a kind of lawyer for the party who
does not hire a defender.
As a matter of fact, the Court tried to answer a question that not even the great
philosophers and lawyers could answer. Is it fair for the parties to capitalize on their own
interests in the proceeding, but in this way, can the judge make justice? Over time, one will
see if the solution is the right one.
Keywords: principles of the criminal trial, Constitutional Court, adversarial system,
continental system, finding out the truth, equity, the active role of the judge, equality of
arms, justice, waiving the indictment, preliminary chamber.
