PROBLEME CONTROVERSATE DIN PRACTICA JUDICIARĂ ÎN LEGĂTURĂ CU PROCEDURA CAMEREI PRELIMINARE. PARTEA A II-A: IMPOSIBILITATEA JUDECĂTORULUI DE CAMERĂ PRELIMINARĂ DE A JUDECA FONDUL CAUZEI
CONTROVERSIAL ISSUES OF JUDICIAL PRACTICE IN RELATION TO THE PROCEDURE OF THE PRELIMINARY CHAMBER. PART II: THE IMPOSSIBILITY OF THE PRELIMINARY CHAMBER JUDGE TO JUDGE THE MERITS OF THE CASE

Summary/Abstract: The article does not intend to treat exhaustively the judicial practice in which the judge of the preliminary chamber cannot resolve the requests and exceptions concerning the merits of the case and therefore rejects them. We presented eight cases from the judicial practice that we identified as a result of the scientific research undertaken, which we consider relevant. Related to the first part of the article in which I indicated the controversial issues that refer to the court through the prosecutor's indictment, in this paper we want to highlight the controversial issues that refer to the requests and exceptions that have as their object matters related to the merits of the case and that prevent the judge from preliminary chamber to solve them, because he does not have the possibility to replace the prosecutor who carried out the criminal investigation or the court in the procedure of the preliminary chamber. The 8 cases from the judicial practice indicated in this article, refer to issues related to the merits of the trial, respectively: the way in which the testimonial evidence was administered; no evidence was administered in favor of the defendant; the prosecution is not complete; the way in which the damage to the defendants was determined is inconsistent and the unfounded nature of the civil claims; a financial-accounting expertise is required to establish the damage caused by each defendant; the crimes that are the subject of the indictment have not been proven; the lack of material evidence, which would have been used to commit the crime; the damage indicated has not been proven and the evidence indicated is not related to the cause; the administered evidence is insufficient; it was requested to change the legal classification of the deed for which the defendant was sent to court to a lighter one; in question is incident art. 16 para. 1 lit. b) Criminal Procedural Code; the factual situation contained in the indictment does not correspond to the truth; the documents proving the origin of the car are missing from the criminal investigation file; the witnesses proposed by the defendant were not heard, and the heard witnesses were not listened with the polygraph technique; the video recordings were not taken from the surveillance cameras at the place where the act was committed; the defendant did not have the management quality at the time of committing the acts. Among the powers that the pre-trial judge lacks are the impossibility of ruling on the merits of the accusations brought against a defendant and the impossibility of ordering the administration of new evidence to establish guilt or innocence. At the same time, in the procedure of the preliminary chamber, the judge cannot examine whether the criminal investigation is complete and whether there are the necessary evidences for sending to court, these elements exclusively relating to the merits of the case.

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