Mircea Damaschin. Lecturer, Ph.D., Faculty of Law, “Nicolae Titulescu” University, Bucharest (e-mail: email@example.com). This work was supported by CNCSIS–UEFISCSU, project number 860 PNII – IDEI 1094/2008.
In accordance with Article 6 Paragraph (1) of the Convention, the requirements regarding a fair trial, consisting of a public hearing within a reasonable time by an independent and impartial tribunal established by the law, are to be applied both to any alleged violation of the civil rights and obligations and to the accusations of a criminal nature.
In addition to these general guarantees, Article 6 of the Convention also includes the guarantees specific to a criminal trial. Thus, Article 6 Paragraph (2) is dedicated to the presumption of innocence (“everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law").
Moreover, in accordance with Article 6 Paragraph (3) of the Convention, everyone charged with a criminal offence shall have the right:
a). to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
b). to have adequate time and facilities for the preparation of his defence;
c). to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
d). to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
e). to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
Within the classification of the explicit guarantees specific to a fair trial in criminal matters, we are going to deal below with the right of the charged person to be informed of the nature of the accusation against him, the right to have adequate time and facilities for the preparation of his defence, the right to examine the witnesses involved in the trial under the same conditions as the other parties and the right to have free assistance of an interpreter.
Moreover, being of the opinion that the right against self-incrimination is a right specific to the criminal proceedings, we considered that this can be regarded as a guarantee specific to a criminal trial, which is not regulated as such in the text of the Convention, but which clearly arises as a requirement regarding the fairness of the proceedings, especially from the point of view of the ECHR jurisprudence.
In accordance with Article 6 Paragraph (3) of the Criminal Procedure Code, the judicial bodies have the obligation to apprise the accused or defendant, immediately and before examining him, of the deed for which he is held responsible and of its legal framing, and to give him the possibility to prepare and perform his defence1.
As compared to the regulation preceding the adoption of the Law no. 281/2003, it can be noticed that the moment when the charged person must be informed of the commitment of a criminal offence was expressly placed before the first statement.
These obligations of the criminal prosecution bodies must be recorded in a minutes, a procedural act which also comprises references to the information of the relevant person of his right against self-incrimination and of his right to know the fact that any possible statement made may also be used against him during the legal proceedings.
The issue that appears in case of a violation of the rules governing the information of the accused or defendant of all these rights defining the broader concept of defence has been debated in the national jurisprudence. Therefore, there has appeared the question what sanction could be applicable if the information minutes comprising, among other components, the information of the nature of the public accusation is not prepared.
Taking into account the fact that this omission is not included in the cases of absolute nullity, the conclusion was that the relative nullity could be applicable, if any injury is caused. But in order to produce effects this nullity must be claimed in accordance with the requirements set down at Article 197 Paragraph (4) of the Criminal Procedure Code, i.e. during the performance of the act, when the party was present or at the first trial date with complete procedure2. Nevertheless, under the circumstances leading to the conclusion that the violation of this obligation has had consequences on the manifestation of truth and the fair result of a case, the relative nullity can be claimed within the legal regime of a nullity, whereas it may be stressed upon the request of thePage 74 parties or ex officio at any time during the criminal proceedings. For this purpose, if the statements have been obtained by violating the right of the accused or defendant to be informed of the nature of the accusation against him, of the committed deed and of its legal framing, and these are crucial for demonstrating that the accused or defendant is guilty, a procedural defect which can determine the nullity of the evidence obtained in this way may be claimed and the provisions of Article 64 Paragraph (2) of the Criminal Procedure Code may be invoked.
The regulation is also reiterated in Article 70 Paragraph (2) of the Criminal Procedure Code, according to which he must be informed of the deed with which he is charged, of its legal framing, of his right to a defender, as well as of his right to remain silent, whereas he must be warned that any statement made may also be used against him. If the accused or defendant makes a statement, he must be advised to state everything he knows with regard to the deed and the accusation against him3.
There exists in the specialised literature4 the opinion that the judicial bodies have the obligation to perform the information of the perpetrator with regard to the defence rights - the information of the nature of the accusation as well - as soon as the commitment of a flagrant offence has been established. Consequently, the perpetrator must be apprised of the accusation against him before his first statement (which includes the questions of the criminal prosecution bodies with regard to the circumstances of the commitment of the criminal offence).
As far as the trial phase and the exertion of the right of the defendant to be informed of the public accusation against him are concerned, there are three instruments for informing the defendant, as well as the public, of the essential elements of the criminal case, namely the preliminary procedure preceding the court hearing, the reading of the document instituting the proceedings, respectively the procedure for changing the legal framing of the deed.
Therefore, in accordance with Article 313 Paragraph (4) of the Criminal Procedure Code, the defendant who is arraigned while being under arrest must be served a copy of the document instituting the proceedings (which can be only the indictment of the prosecutor in this case). In this way, through the submission of the procedural act, the defendant is officially informed of the committed deed and its legal framing, which were referred to the court. Second, we notice Article 322 of the Criminal Procedure Code, according to which, before starting the court inquiry, the President of the court must order the registrar to read or to briefly present the document instituting the proceedings and must then explain to the defendant the accusation brought against him5.
In case of a change of the legal framing of the deed during the court inquiry, the court has the obligation, in accordance with Article 334 of the Criminal Procedure Code, to discuss the new legal framing with the parties and to warn the defendant that he has the right to require that the case should be left at the end of the court hearing or should be postponed so that he may prepare his defence.
There has been established in the jurisprudence of the Supreme Court6 that the provisions of Article 334 of the Criminal Procedure Code set down the procedure to be carried out in case of changing the legal framing of the deed specified in the document instituting the proceedings. Therefore, in order to comply with the procedural guarantees, the court must discuss the change of the legal framing with the parties, even if the legal framing is more favourable, because in such a case the defendant must organise his defence and, probably, propose evidence correlated with the new legal framing. The obligation of the court is fulfilled only when the defender of the defendant takes into account the new legal framing in his conclusions, whereas the discussion between the parties also derives from the rule that the parties should be heard.
Against this background, as it was established that the appeal court had changed – without discussing it with the parties - the legal framing of the deed from the offence of deceit set down at Article 215 Paragraphs (2), (3) and (5) of the Criminal Code into the offence set down at Article 215 Paragraphs (1), (2) and (3) of the Criminal Code, the court ruled that the defendant had been deprived of the possibility to defend himself against the new legal framing. These aspects...