Admission of guilt in the Romanian Criminal Procedure Code. A comparative law perspective

Author:Sorin - Alexandru Vernea - Versavia Brutaru
Position::Judge, Slobozia Court of First Instance - PhD, scientific researcher, Institute of Legal Studies 'Acad. Andrei Radulescu', Romanian Academy, Associate Professor at Hyperion University, Law School, Criminal Law Department
Pages:89-116
SUMMARY

Entry into force of the Law no. 202/2010 regarding some measures to accelerate the settlement of the process, already raises a number of problems of interpretation. According to the Explanatory Memorandum of Law 202/2010 states that: "Unlike the other laws, the Law no. 202/2010 comes into Romanian legislative with the aim of speeding criminal proceedings as well as to prepare the implementation... (see full summary)

 
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LESIJ NO. XXI, VOL. 1/2014
ADMISSION OF GUILT IN THE ROMANIAN CRIMINAL
PROCEDURE CODE. A COMPARATIVE LAW PERSPECTIVE
Sorin - Alexandru VERNEA*
Versavia BRUTARU**
Abstract
Entry into force of the Law no. 202/2010 regar ding some measures to accelerate the settlement of the
process, a lready raises a number of problems of interpreta tion. According to the Explana tory
Memorandum of Law 202/2010 states that: "Unlike the other laws, the Law no. 202/2010 comes into
Romanian legislative with the aim of sp eeding cr iminal proceedings as well as to prepa re the
implementation of the new codes, some of the regula tions contained in future coding being found in
this law." In this respect, in the explanator y memorandum to the bill it was noted that "from the major
failures of justice in Romania, the har shest criticism was the lack of celerity in solving cases." As often
judicial pr ocedures prove to be heavy, formal, expensive and lengthy it was recognized that judicial
effectiveness of justice consists, lar gely, in the speed with which the rights a nd obligations enshrined
in judgments are part of the juridical circuit, thus ensuring the stability of legal relations to be decided.
Keywords: simplified procedure, explanatory memorandum, a rticle 3201 Criminal pr ocedure
Code, admission of guilt
I. Introduction***
Entry into force of the Law no.
202/2010 regarding some measures to
accelerate the settle ment of the process,
already raises a number of problems of
interpretation. According to the Explanatory
Memorandum
1
of Law 202/2010 states that:
"Unlike the other laws, the Law no.
202/2010 comes into Romanian legislative
with the aim of speeding criminal
proceedings as well as to prepare the
implementation of the ne w c odes, some of
the regulations contained in future coding
being found in this law."
* Judge Slobozia Court of First Instance
** PhD,ăscientificăresearcher,ăInstituteăofăLegalăStudiesă“Acad.ăAndreiăRdulescu”,ăRomanianăAcademy,ăAssociateă
Professor at Hyperion University, Law School, Criminal Law Department.
1
Law 202/2010 regarding some measures to accelerate the settlement of the process, OG. No.. 714/26.10.2012
2
M. Udroiu Preliminar y Explanations of Law. 202/2010 rega rding some measures to acceler ate the settlement of
the process in criminal tria l, www.inm-lex.ro
In this respect, in the explanato ry
memorandum to the bill it was noted that
"from the major failures of justice in
Romania, the harshest criticism was the lack
of celerity in solving cases." As often
judicial procedures prove to be heavy,
formal, expensive and lengthy it was
recognized that judicial effectiveness of
justice consists, lar gely, in the speed with
which the rights and obligations enshrined in
judgments are p art of the juridical circuit,
thus ensuring the stability of legal relations
to be decided
2
.
The introduction of simplified
procedure o f admission of guilt was
justified in the explanatory memorandum,
90 Lex ET Scientia International Journal
LESIJ NO. XXI, VOL. 1/2014
among others, by article 6 paragraphs 3 letter
d) of the European Convention which
guarantees the d efendant the right to
examine or have examined witnesses against
him and to obtain the attendance and
examination of witnesses under the same
conditions as witnesses against him. This
right has a relative character; the defendant
may give up his pursuit before an
independent and impartial tribunal, and elect
to be tried based on the evidence
administrated in criminal prosecution. In this
respect, the Strasbourg Court stipulated that
the defendant has the opportunity to waive
the right guaranteed by article 6 paragraph 3
letters d) of the European Convention and,
consequently, he cannot claim that this right
was violated , if the sentencing court based
its decision on the statement made d uring
prosecution of a witness (anonymously) in
whose defendant waived hearing
3
.
II. The Procedure A dmitting Guilt.
Romania
It is becoming increasingly clear that
the current legislation is no able to face the
criminal phenomenon in booming right now.
Lately it has increased the number of events
seen as crimes, the number of offenders and
offenses to be investigated and dealt with too
few resources.
Administration of criminal justice
requires not only protection against
insecurity determined by increasing crime,
requiring solutions that result usually in
authoritarian policies.
Applying the principle of active r ole
enshrined in article 4 of Criminal Proced ure
Code, Judicial bodies have an obligation to
intervene in criminal pr oceedings whenever
necessary for legal and thorough settlement
3
ECHR, judgment of 28 August 1991, in Case Brandstetter v. Austria, para. 49 www.echr.eu
4
Gheorghe Mateut, Treaty of Criminal P rocedure. General Part, Vol I, C. H. Beck Publishing House, Bucharest,
2007, p. 174
5
Diana Ionescu, Warning procedure. Implications for the validity, C.D.P. No. 2/2006, p. 40-41.
of the case, b oth by clarifications and
explanations provided by the parties and by
filling their inactivity. The active role
4
is
also manifested regarding the administration
of evidence, the judiciary bodies are
required to have, by default, the
administration of evidence necessary for a
fair determination of the case. The
exigencies of t his principle during trial
requirements are usuall y completed b y
immediacy rule, so that the first instance
court is req uired to conduct research
according to article 321 of Cri minal
Procedure Code, by hearing again the
witnesses that were interrogated during the
criminal prosecution.
Inflexible application of these
principles whose violation was constantly
punished by the courts for judicial review,
led inevitably to the extent of the resolution
of criminal cases and thus increasing state
spendingăadvanced.ăDefendant’să attitudeăbyă
recognition facts found in documents
instituting the proceedings was not likely to
contribute significantly to remedy these
shortcomings, since the case law did not
recognize a special significance of the
statement attributed in relation to other
evidence.
The need a retrial regulation applicable
to pleading guilty was invoked in the
doctrine, both as a form of recognition of a
relationship of equality between the accused
and the state (first offering statement
recognition the second offering a procedural
transaction, a second trial) a nd as a solution
for certainty and clarity in the process of
conflict resolution
5
.
Accepting that the later court
proceedings may prove cumberso me,
expensive and therefore lack of the req uired
efficiency, the legislator was aware of the

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