SURSE UMANE IN JUSTIŢIE. REGIMUL JURIDIC AL INVESTIGATORILOR ŞI COLABORATORILOR
HUMAN SOURCES IN JUSTICE. THE LEGAL REGIME OF INVESTIGATORS AND COLLABORATORS

Summary/Abstract: Although amended on numerous occasions, from their origin to the present day, special evidentiary procedures tend towards a “simplified” resolution of cases by obtaining evidence (means of proof) more easily than under ordinary law. This contention is supported by the same idea reiterated throughout the paper and which gave rise to the de lege ferenda proposals in the sense of the criticisms of taking over the criteria developed in the case law of the common law and of the European Court of Human Rights, criteria which, in my view, are ineffective in the absence of actual legislative clarifications, or of clear assessment criteria in the sense of those laid down in Article 318 of the Code of Criminal Procedure. It is also worth noting that, of the four criteria, only the one laid down in Article 139(2) requires an in abstracto assessment, while the other three, namely proportionality, subsidiarity and necessity, involve a subjective (in concreto) assessment, which is unsatisfactory from our point of view, since such mechanisms may create arbitrariness where the reasoning1 is based on means of proof which may be unknown to the “accused” person and their lawyer, or on evidence which may be overestimated (for various reasons, for example the lack of solid evidence), which would in essence be imposed on the judge who, although holding exclusive discretionary power, will not be able to exercise it in a purely objective manner due to the lack of objective criteria to complement the criteria that must be fulfilled.

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