LEGALITATEA PROBELOR ADMINISTRATE ÎN STADIUL URMĂRIRII PENALE IN REM
LEGALITY OF EVIDENCE TAKEN AT THE STAGE OF CRIMINAL PROCEEDINGS IN REM

Summary/Abstract: The present article aims to analyze the limits of compliance with the principle of legality in the case of the administration of evidence at the stage of criminal prosecution regarding the act, the consequences of the birth of reasonable suspicion regarding the commission of crimes on the quality of the persons concerned, the consequences of not finding these circumstances supported by all the evidence, as well as the effectiveness of the remedies that the person against whom a criminal charge has been formulated can use to restore the fairness of the procedure. But, once the right to defense has been violated, can any remedy fully remove the effects of these intrusions, or will the accused bear the burden of the violation of his rights throughout the criminal process? After the start of the criminal prosecution regarding the act, in order to achieve the object of the criminal prosecution as configured by the provisions of art. 285 of the Criminal Procedure Code, the prosecutor and the criminal investigation bodies proceed, as a rule, to administer the evidence that will configure the main versions of the investigation. The Law on the Implementation of the Code of Criminal Procedure introduced a new procedural institution, which is distinguished and interposed simultaneously between the moment of the initiation of the criminal investigation and that of the initiation of the criminal action, i.e. the continuation of the criminal investigation towards the suspect. The legislator therefore circumscribes a crucial procedural moment that acquires the significance of formulating a "criminal charge". The latter notion has an autonomous character, representing the official notification, issued by a competent authority, by which a person is charged with committing a crime. The condition of proof and the standard to be met have been prescribed by the legislature in order to prevent the formulation of an arbitrary criminal charge, devoid of factual basis. Disposing of the further execution of the criminal investigation against the suspect if the conditions provided for by art. 77 and art. 305 para. (3) The Criminal Procedure Code constitutes a positive procedural obligation that arises in the responsibility of the criminal investigation body, and not a possibility of it that can be used in conditions of opportunity, nor a procedure that it can stop in relation to the conduct of the investigation. The rationale of the regulation is to ensure all the effective guarantees of the right to defense recognized to the persons concerned by the commission of a crime. In this sense, the European Court of Human Rights ruled in a constant jurisprudence that a person acquires the status of a suspect not from the moment it is brought to his attention, but from the moment the national authorities had plausible reasons to suspect him of committing a crime. Violation of the positive procedural obligation by carrying out the criminal prosecution regarding the act beyond the time when, reasonably, a criminal charge could and should have been filed, leads to the violation of the right to a fair trial of a nature to attract the incidence of the sanction of relative nullity under the conditions of art. 282 Criminal Procedure Code regarding procedural documents or evidence administered after this moment.

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