Autor: Adrian Stan
Publicat în: Revista Universul Juridic nr. 2/2018
Disponibil online: aici.
Abstract: This research treats the changes occurred by the new vision of the Constitutional Court
on the institution of preliminary chamber, the procedure initially thought as a legality filter
of the criminal investigation file.
Relevant for such purpose is Decision 802/2017 of the Court, which set that there is a
need in this procedure to administer not only the evidence with instruments, but also any
other evidences, in order to prove the illegality of another evidentiary procedure.
Initially, in 2014, by decision 641, the Constitutional Court opened to all the parties
the preliminary procedure, by imposing their summoning, changing it into oral,
contradictory evidence. It was a first step. Afterwards, in 2016 the change of the Code also
occurred by Law 75, law which imposed only the administration of written instruments.
The Court set ever since that the impossibility of the preliminary chamber judge to
administer new evidences or to require the submission of certain instruments, as well as the
lack of oral debates related to such aspects, may make it impossible for the judge to clarify
the de facto situation.
The law specialists opined that, based on such formulation, evidences may be
administered, even contrary to the law, in directly applying the Constitution and the
ECHR. This is how some courts proceeded.
Published in the Official Gazette on 6.02.2018, Decision 802 reconfigures as well the
system of nullities and even the structure of the preliminary chamber, as it makes a
differentiation between nullity and inadmissibility, saying that the latter might be invoked
as well after the deadline, in the step of judgment on the merits.
The court resumes some older formulations, with very serious consequences, we
believe, like those that the preliminary chamber judge might make justice and should find
the judiciary truth, which is not exact for a technical procedure.
It is difficult to say if, in the current form, the preliminary chamber keeps identifying
with the purposes it was introduced for in the Romanian criminal lawsuit. Thought as a
non-contradictory, written procedure, it becomes, more and more, a true criminal action,
where participants are summoned and evidences are administered. The lawmaker needs to
make a radical decision for the immediate future, or it will reconfigure the institution in its
essence, or needs to totally abrogate it and the judge of the merits to resume their full duties
as in the system prior to 2014.
Keywords: preliminary chamber, Constitutional Court, Decision 802/2017,
administration of evidences, nullity, inadmissibility, evidence, illegality, non-loyalty,
challenge
