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- Title
34. Camera Preliminară. Neregularitatea rechizitoriului. Consecințe.
- Abstract
1. Unless indictment contains a rigorous description of all acts for which defendants have been put on trial and no adequate analysis of the evidence on which the prosecutor substantiates the order for a writ of summons, in the context in which the data regarding the acts in their charge, may lead to confusion at times, or they are incomplete, which entails the difficulty of the clear determination of the subject-matter of the trial, and evidence is only generically listed as regards the crimes of setting up/supporting an organized crime group, of the improper participation in the crime of illegal logging from the forest fund and incitement to the crime of illegal logging from the forest fund, this shall not circumscribe to the substance requirements imposed by Article 328 of the Code of Criminal Procedure. 2. Recourse to a certain evidentiary technique or means of evidence to prove a factual element shall be an issue of opportunity, and not of lawfulness, and during the stage of criminal prosecution, the criminal prosecution body shall be the only authority entitled to appeal to a certain evidentiary procedure or means of evidence or to any other technique. Nevertheless, the compliance with the conditions provided for by law by the criminal prosecution body when opting for an evidentiary technique or means of evidence, shall be an issue related to the legal nature of the criminal prosecution acts and it is reserved to the subject of the pre-trial chamber. In other words, the pre-trial chamber judge shall not be legally competent to investigate the likelihood of ordering during the criminal prosecution stage, an evidentiary technique or producing means of evidence, however, he is legally competent to investigate whether the criminal prosecution body complied with the law when it decided to use that evidentiary technique or means of evidence. According to Article 172 para. (9) of the Code of Criminal Procedure, the conduct of a finding may only be ordered if there is a danger of extinction of certain means of evidence or of change of certain facts or if it is necessary to urgently clarify any facts or circumstances of the case. By ordering the conduct of certain findings under other conditions than those provided for by law, followed by the rejection of the defendants' applications for carrying out some expertise with a view to determine the loss arising from tax evasion and by the use of the submissions of the anti-fraud tax inspectors in the writ of summons, the right to defence has been significantly prejudiced to the defendants who, even if they have been entitled - as long as the technical and scientific findings have been illegally ordered --, they have not have the opportunity to benefit from the guarantees provided for under Article 177 of the Code of Criminal Procedure. Under such circumstances, the remedy shall be the same as set forth in Article 282 para. (1) of the Code of Criminal Procedure, namely the repealing of the ordinances by which the conduct of the technical and scientific findings had been ordered. 3. According to Article 2331 para. (5) of the Government Ordinance no. 92/2003 into force in the year 2014, within the meaning of Article 97 para. (2) letter e of the Code of Criminal Procedure, means of evidence shall be the result of the tax inspections materialized in the minutes drafted by the tax bodies at the prosecutor's request, following the initiation of criminal prosecution. As minutes were executed during the criminal proceedings, Decision no. 72/2019 of the Constitutional Court shall not be applicable in this case.
- Subjects
CRIMINAL procedure; PROSECUTION; CRIMINAL law; CRIMINAL act; ILLEGAL logging; ORGANIZED crime; FRAUD in science
- Publication
Romanian Case Law Review / Revista Română de Jurisprudenţă, 2019, Issue 4, p213
- ISSN
1844-6450
- Publication type
Article