ROLUL JUDECĂTORULUI DE CENZOR AL MĂSURILOR PROCESUALE CE INTERFEREAZĂ CU DREPTURILE ŞI LIBERTĂŢILE FUNDAMENTALE ALE ACUZATULUI
THE ROLE OF THE JUDGE AS CENSOR OF PROCEDURAL MEASURES INTERFERING WITH THE FUNDAMENTAL RIGHTS AND FREEDOMS OF THE ACCUSED

Summary/Abstract: The role of the judge is a complex one: he must ensure that he does not facilitate the burden of proof of the Public Prosecutor, that he sanctions the violation of the right to silence and the privilege against self-incrimination, as well as that he facilitates the accused's right to prove his innocence. In concrete terms, the judge's prerogatives in this matter involve several directions of action. We observe how, thus, two divergent interests, corresponding to two distinct desiderata of the criminal process, are apparently irreconcilably opposed, namely: the interest of the accused in preserving his freedom, which corresponds to the procedural desiderata of ensuring a fair procedure, on the one hand, and the interest of society in preserving public order, which corresponds to the desiderata of finding the truth, on the other hand. The apparent irreconcilability of the conflict between the two interests is solvable by resorting to the hierarchy of purposes of the criminal trial, mentioned above, where we found that, at present, the criminal procedural norms aim, mainly, to ensure the accused a fair criminal trial, and only subsidiary, to find out the truth. Thus, the Code of Criminal Procedure recognizes, as we have seen above, the possibility of restricting the rights and freedoms of the accused during this criminal trial, but the restriction must be an exceptional one, a solution of last resort. What, however, is the role of the judge in the process of harmonizing the right of the accused to be presumed innocent with the possibility of restricting his rights and freedoms by ordering procedural measures that deprive or restrict rights? The answer is a legally configured one on the basis of the axiological compromise.

• Details
• Contents