Procedural implications of the illegal administration of evidence during a criminal trial

• Author: Bogdan-Florin Micu
• Position: Associate Professor Ph.D., Faculty of Law, 'Nicolae Titulescu' University, Bucharest, Romania
• Pages: 107-115

Bogdan-Florin Micu

107

LESIJ NO. XIX, VOL. 1/2012

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PROCEDURAL IMPLICATIONS OF THE ILLEGAL ADMINISTRATION

OF EVIDENCE DURING A CRIMINAL TRIAL

Bogdan-Florin MICU ∗

Abstract

As the title suggests, the purpose of this study is to analyze the procedural implications of the

illegal administration of evidence. The present paper begins with a short presentation of criminal

trial probation, and continues with the analyses of the conditions with which a proof has to comply in

order for it to be administered in the trial, as well as the analyses of the procedures of administration

themselves. Another part of the study deals with the principles that should govern the administration

of evidence during the criminal trial, respectively the principle of legality and loyalty (regulated in

article 64 respectively 68 of the Criminal Procedure Code) as well as the European Court of Human

Rights regulations. In spite of the weak criminal framework that exists regarding the illegal

administration of evidence, the outcome of a trial can be radically changed based on how the

evidence is administered. Therefore, this study also focuses on the consequences of the illegal

administration of evidence in the criminal trial, which will be dealt with by analyzing which sanction

should be applied, if any exists. The study will not be based solely on the normative guidelines, but

also on the judicial practice contained in decisions, which exist in this criminal framework, given by

various courts in the country. Last, but not least, this study shall present the legal changes which will

occur once the new Criminal Procedure Code shall come into force.

Keywords: administration of evidence, criminal trial probation, legality and loyalty

principles, Criminal Procedure Code, criminal framework

Introduction

One cannot imagine a criminal trial without evidence. In doctrine it has been defined as being

the element with informative relevance over all aspects of the criminal cause.1 Articles 62 to 135 of

title III of the Criminal Procedure Code regulate the means of evidence. The outcome of a trial relies

on the legality of illegality of the evidence administered.

According to article 62 of the Criminal Procedure Code in order to find out the truth, the

criminal investigation body and the court must clarify the case under all its aspects, on the basis of

evidence.

Article 63 states that any fact that leads to the acknowledgement of the existence or non-

existence of an offence, to the identification of the person who committed it and to the discovery of

the circumstances necessary for the fair resolution of the case is considered evidence.

The value of the evidence is not established in advance. The criminal investigation body and

the court appreciate each piece of evidence according to their own convictions, formed after

examining all the evidence administrated, and using their own conscience as guide.

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∗ Associate Professor Ph.D., Faculty of Law, “Nicolae Titulescu” University, Bucharest, Romania (e–mail:

bogdan.micu@mnpartners.ro)

1 Dongoroz I, „Explicaii teoretice ale Codului de procedur penal român”, ed II, C.H. Beck, 2003,

Bucureşti,p. 168