Autor: Liliana-Dorina RĂDUCU
Publicat în: Challenges of the Knowledge Society, 2019
Disponibil onlineaici.
Abstract: The principle of legality of the criminal procedure is the established general rule according to which the criminal trial is carried out under the provisions stipulated by the law. In order to fully understand the application of the fundamental principle of legality of the criminal proceeding, it is necessary to clarify, on the one hand, the notion of “criminal procedural law” – a term that does not have a legal definition and, on the other hand, it is necessary to analyze the evolution of the concept referring to the source of criminal procedural law, in the current conventional context, as well as in the context of the Constitutional Court’s jurisprudence. Ensuring the application of the criminal process’ lawfulness is firstly achieved by the legislator’s fulfillment of the obligation to clearly regulate the rules of conducting the criminal proceedings and other judicial proceedings in connection with a criminal case. However, the actual reality proves the existence of numerous legal provisions declared unconstitutional, the Constitutional Court’s decisions being binding for both the legislator and the judicial bodies. Thus, the purpose of the research is to identify the consequence of the legislator’s lack of intervention so that the stipulations declared unconstitutional would agree with the Constitution’s provisions if it grants valences of some sources of law to the decisions of the Constitutional Court, if it transforms the Constitutional Court into a positive lawmaker or it just assigns the entire task of guaranteeing of the criminal process’ lawfulness to the judicial bodies. In fact, although the nullity is the main procedural guarantee of the legality of the criminal trial, the consequences of the Constitutional Court’s decisions raise many problems of unitary interpretation and application of the law even in this area, thus questioning the legality of the criminal process.
Keywords: the legality of the criminal trial; criminal procedural law; the effects of the Constitutional Court’s decisions; sources of criminal procedural law; absolute and relative nullity.