The right to defense in criminal proceedings – Theoretical and applied dimensions
The right to defense in criminal proceedings – Theoretical and applied dimensions

Summary/Abstract: The right to defense is a fundamental principle of criminal proceedings and an indispensable guarantee of a fair trial. Regulated by the Romanian Constitution (art. 24), the Code of Criminal Procedure, as well as international treaties (in particular art. 6 of the European Convention on Human Rights), this right has a double dimension: theoretical and practical. Theoretically, the right to defense is manifested through a series of essential components: access to a lawyer (chosen or ex officio), complete information on the charges, the possibility of proposing and countering evidence, as well as ensuring equality of arms between the prosecution and the defense. In practice, the application of this right encounters difficulties, especially in the criminal prosecution phase. Among the problems reported are: formal legal assistance ex officio, limited access to the file, lack of real information on the charges and excessive use of technical means (e.g. wiretaps) without sufficient guarantees. The jurisprudence of the European Court of Human Rights has strengthened the protection of this right, emphasizing the importance of effective legal assistance from the very beginning of the procedure (e.g. the Salduz, Beuze, Ibrahim cases). The general conclusion is that, in order to have an effective and not just formal defense, a consistent and real application of legal guarantees is necessary, coupled with continuous training of defense lawyers and the active involvement of judicial bodies in respecting the procedural balance.

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