The principle of separation of judicial functions

Author:Denisa Barbu
Position:Assistant Professor, PhD, The Faculty of Law and Administrative Sciences, Valahia University of Targoviste, (e-mail:denisa.barbu77@yahoo.com).
Pages:145-149
LESIJ NO. XXIII, VOL. 1/2016
THE PRINCIPLE OF SEPARATION OF JUDICIAL FUNCTIONS
Denisa BARBU
Abstract
The fundamental principles of the cr iminal pr ocedure ar e general r ules applicable thr oughout
the criminal procedur e in order to achieve its purpose. The fundamental principles ar e covered by art.
2-12 C.C.P. a nd are: the legality of criminal procedure, separating the functions of the judiciary, the
presumption of innocence, finding out the truth, ne bis in idem, a requirement for moving and exercising
penal action, is fair and r easonable term of the criminal tria l, the right to liberty and security, the right
to defence, respect for human dignity and privacy, the official language and the right to an interpr eter.
The Europea n Court of Human Rights is conscious that by pr otecting the fundamental principles it
does not only aim at the pr otection of super eminence of the inextricably right tied to the state of la w.
These principles r epresent a set of obligations imposed on the State tha t has a s the sole purpose the
protection of fundamental rights and freedoms.
Keywords: right to defence, presumption of innocence, guaranteeing the freedom of the
person, the legality, the separ ation of judicial functions.
1. Introduction
The current criminal procedure code
brings important changes to some of t he old
code of criminal procedure, but devotes a
number of ne w institutions, which have not
existed in our criminal procedural
legislation. All of these changes are reflected
primarily in Title I of the General Part of the
Code, which governs the procedural
criminal law principles
1
.
In connection with the principle of
separating the functions of the judicial
doctrine, the following co nclusion was
reached, namely, that there are 3 functions:
judicial prosecution, defense and
jurisdiction (criminal law co nflict
substantially in the courts of law), showing
Assistant Professor, PhD, The Faculty of Law and Administrative Sciences, Valahia University of Targoviste,
(e-mail:denisa.barbu77@yahoo.com).
1
D. Barbu, Principiile procesului penal , Ed. Lumen, Iasi 2015, p. 13.
2
M. Damaschin, Dreptul la un proces echitabil în materie penal, Editura Universul juridic, Bucureşti, 2009,
p.108.
that they are resolved, by the authorities of
their respective differentiated parties
involved in the criminal proceedings.
2
It may thus be inferred that the
legislature did not take into account the
doctrine opting for regulating four functions
which are incompatible with the exercise of
other functions, unless the function available
on the rights and freedoms of individuals
during criminal investi gation and
verification of the legalit y of sending or not
sending to court, which are compatible with
one another; cf. art. 3 para. 3 C.c.p.
A number of issues concerning the
incompatibility of judicial functions in the
same case were put into the jurisprudence of
the ECHR, laid down a clear situation
regarding the impartiality of the Court which
adjudicates the case fund and the judge who

To continue reading

Request your trial