DISCUSSIONS ON THE PRELIMINARY CHAMBER FROM THE PERSPECTIVE OF ARTICLE 282 OF THE C.C.P.
DISCUSSIONS ON THE PRELIMINARY CHAMBER FROM THE PERSPECTIVE OF ARTICLE 282 OF THE C.C.P.

Summary/Abstract: To operate the nullity, three substantive conditions must be met cumulatively, namely: a) there is a violation of the law at the time of the act (procedural or processual); b) there has been a violation of the rights of the parties or procedural subjects; c) its injury cannot be removed only by the abolished act. In the preliminary chamber procedure, the absolute nullity may be invoked ex officio by the preliminary chamber judge, but the defendant, in the exercise of the right to defence, as well as the civil party, the civilly responsible party, the injured person must show diligence and personally invoke it, otherwise, although absolute nullity, some of them will be covered by non incentives within the timeframe provided by the law.1 In the case of relative nullity, it must be proven by the claimant, not just the violation of the law, but also the existence of the injury and the circumstance that the injury could be removed only by the abolition of the respective act. The mere invocation of the non-observance of the law in the performance of a criminal prosecution act is therefore not sufficient to proceed to the procedural sanction unless the violation is sanctioned with absolute nullity, applicable in one of the cases mentioned in art. 281 para.1 C.C.P. In the case of other violations, the relative nullity penalty occurs during the preliminary camera procedure only insofar as the claim and proves the existence of the damage and the need to abolish the act. Art. 282 para. 2 C.C.P. provides that relative nullity may be invoked by the prosecutor, the suspect, the defendant,the other parties or the injured person, when there is an own procedural interest in complying with the lawful violation.

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