Considerations Regarding The Motion To Notify The High Court Of Cassation And Justice In Order To Issue A Prior Decision For Solving Certain Law Issues In Preliminary Chamber Procedure

Author:Sandra Gradinaru
Legal Sciences in the New Millennium
Considerations Regarding the Motion to Notify the High Court of Cassation
and Justice in order to Issue a Prior Decision for Solving certain Law Issues
in Preliminary Chamber Procedure
Sandra Gradinaru1
Abstract: The present paper aims at sustaining the concept regarding the possibility of examining the
lawfulness, in the preliminary chamber, of court orders issued by a judge for rights and freedoms through
which technical surveillance measures were authorized. This work is of great interest given the obvious
discrepancy between the object of preliminary chamber procedure, in the light of the legality and validity of
evidence acquired during prosecution and the non-challengeable nature of the warrant as provided by the
Romanian Criminal Procedure Code. The jurisprudence of national court decisions reveals that the rulings
issued by a judge for rights and freedoms tro ugh which a measure of technical surveillance is authorized are
subject to judicial control in the preliminary chamber, but there also are several courts in Romania that states
on the contrary.
Keywords: Preliminary chamber; technical surveillance measures; ruling; judicial control
1. The Factual Situation
In fact, the defendant X brought in the preliminary chamber procedure, under article 344 par. 2 of the
Criminal Procedure Code, requests and exceptions concerning the lawfulness of evidence and of the
acts conducted by criminal investigation authorities in case no. .../P/2015, requesting the exc lusion of
data derived from conducting technical surveillance measures due to the fact that the decisions by
which these measures were authorized are void.
In front of the Preliminary Chamber judge it was revealed that the means of evidence consisting of
recordings of telephone conversations, rendered in the reports of the case file are obtained in flagrant
violation of criminal procedural law, based on rulings and warrants given in flagrant violation of the
law and therefore it is necessary to exclude them from the evidentiary material.
The rulings of judges for rights and freedoms, based on which were issued and extended over several
months the warrants for technical surveillance that led to administration of evidences intrusive into the
private life of the defendant were motivated considering different facts than those prosecuted in the
present case, ignoring the very motivation of the prosecutor`s requests.
Meeting all essential conditions stipulated by articles 139-140 of the Criminal Procedure Code, for a
lawful technical supervision, namely proportionality, necessity and subsidiarity, conditions designed
to ensure compliance with fundamental rights and freedoms were not reviewed by judges of rights and
freedoms based on present facts. They were based on a completely different subject than those of the
case file. Therefore, the “considerations shown” by the judges refers to different crimes than those
who were prosecuted in file no. ... /P/2015.
1 Senior Lecturer, PhD, Alexandru Ioan Cuza University, Faculty of Economics and Business Administration- Public
Administration, Romania, Address: 11 Carol I Blvd., 11, Iasi 700506, Romania, Corresponding author:

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