Academic journal article Contemporary Readings in Law and Social Justice

Considerations on "The Principle of Waiving the Criminal Investigation," One of the Changes Brought to the Criminal Procedure Provisions through the New Criminal Procedure Code

Academic journal article Contemporary Readings in Law and Social Justice

Considerations on "The Principle of Waiving the Criminal Investigation," One of the Changes Brought to the Criminal Procedure Provisions through the New Criminal Procedure Code

Article excerpt

1. Introduction

In Romania, the criminal justice has recorded a continuous transformation after December 1998, going from the old structures of the totalitarian state to the ones of the state subject to the rule of law, based on the principle of separation of powers within the state and of compliance with the human fundamental rights. This process of modifying, changing and modernizing the Romanian criminal justice has not ended and it is aimed at the basic institutions of the substantial criminal law and of the criminal procedure law.

Accordingly, following to institution of the separation of powers in the state by the revolution of December 1989, committed through the Constitution from 1991, the provisions regarding the criminal process have gone through changes, with the purpose of bringing on the forefront the protection and defense of individual interests and the citizens' fundamental rights (which during the communist regime had been subordinated to the party's interests). In the Constitution adopted in 1991, there were included many rights and fundamental freedoms, among which the individual freedom, the presumption of innocence and the right to defense, as well as guarantees for the fundamental rights of the citizen, with reference to the criminal process.

Romania's adherence to the European Union required the quick harmonization of the national legislation, including the criminal procedure one, with the communitarian legal rules applicable in the Union, coming from the European Convention of defending the human rights and the fundamental freedoms (adopted in 1950) and from the Jurisprudence of the European Court of Human Rights from Strasbourg. Due to this, changes and additions have been brought to the Criminal Procedure Code and the Constitution has been reviewed (through the referendum of October 18 - 19, 2003), being paid increased attention to the regulation of new guarantees for reinforcing the independence of justice and of the rights granted to the parties from the process.

Romania's integration into the European Union (January 1, 2007) represented a step that imposed, according to the documents that stay at the basis of European Union's constitution and functioning, the creation of rules in criminal and criminal procedure domains which would guarantee the international judiciary cooperation, in the sense of protecting the human rights and fundamental freedoms.

In the case the national legal provisions do not comprise rules meant to defend the human rights and freedoms in good conditions, the basic framework of the regulations in judiciary domain will be represented by the European Union Treaty. Subsequently, it is necessary to review our legislation, which must be in line with both the European Union laws and the national specificity and characteristics.

Taking above into account, the project of the new Romanian Criminal Procedure Code was created on February 25, 2009, based on the rules comprised in the international documents, sanctioned and ratified by the member states. At the same time, its regulations shall also comply also with the provisions of article 21, paragraph 3 from the Constitution, according to which "the parties have the right to a fair trial and a reasonable term for solving the case."

Through this project, it was desired to create a modem legislative system in criminal procedure domain, which would support improvement of this public service quality. Thus, there have been included provisions through which it is desired to solve the requirements of the actual society, like: shortening, simplifying the criminal procedure, speeding the duration of this procedure and forming a unitary judiciary practice and in accordance with CEDO jurisprudence. Based on this project, the Law no 135/2010 was adopted regarding the Criminal Procedure Code and for completing some normative acts which comprise criminal procedure provisions, to which additions and changes have been brought through Law no 255/2013. …

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