Theoretical and practical aspects regarding the nullities in the romanian criminal trial

• Author: Mircea Damaschin
• Position: Associate Professor, PhD, Faculty of Law, 'Nicolae Titulescu' University, Bucharest
• Pages: 111-117

LESIJ NO. XX, VOL. 1/2013

THEORETICAL AND PRACTICAL ASPECTS REGARDING THE

NULLITIES IN THE ROMANIAN CRIMINAL TRIAL

Mircea DAMASCHIN

Abstract

In the present study we are going to analyse the regime of the nullities in the Romanian criminal

trial. This presentation will take into consideration the Criminal Procedure Code in force (adopted in

1968), the doctrine and the practice of the courts. Also, we took into consideration the new provisions of the

Criminal Procedure Code which is going to enter into force in 2014. This study is focused on analysing the

distinctive regime of the absolute and relative nullities and illustrating the situation in which absolute

nullities do not lead ope legis to the annulment of the acts set up without respecting the requirements. In

this way, we are going to analyse the situation in which in spite of absolute nul lities existence, this sanction

can be disregarded and the criminal trial will follow its course.

Keywords: criminal procedural sanctions, criminal trial, absolute nullities, relative nullities,

initiation of proceedings before the court.

1. Introduction

In the Romanian criminal trial, the most frequent situations which imply procedural errors

are met in relation to the sanctioning of nullity, in both its forms, i.e. relative nullity,

respectively, absolute nullity. It is true that there are numerous legal hypotheses which imply the

sanctioning of delay or inadmissibility and which imply that, however, nullities represent the

most frequent cases of sanctioning illegal pursuance of processual or procedural acts. Thus, in

criminal trials, not only nullities, but also forfeiture of rights is expressis verbis regulated

(forfeiture of rights sanctions delayed exercise of certain rights), as well as the san ction of

inadmissibility (which takes into consideration the hypotheses that certain processu al rights are

exercised by persons wh o do not have a processual quality or the situation in which certain acts

of disposal are appealed although there is not legal framework for exercising thos e means of

appeal).

Nullity, as a procedural sanctioning, in its two regulatory forms, is provided by Article

197 of the Criminal Procedure Code (hereinafter referred to as C. pr. c.). The two categories of

nullities are defined differently; thus, the criminal processual law points out a set of

particularities that will be detailed in our study. In this section we only make reference to the

fact that absolute nullities pose a nullifying character and are explicitly provided by the law,

whereas relative nullities are not explicitly set f orth and, in many circumstances, may be

covered, which means that they actually produce no legal effects.

In the present research we intend to prove that even if absolute nullities cannot be

covered, co nsidering the presumption of damaging certain processual interests, in practice, in

several hipotheses, the existence of absolute nullities does not lead to th e annulment of the acts

that were accomplished in this manner, while these acts continue to produce legal effects. In

mostăcases,ă asăweă areăgoingă toăseeă inăoură analysis,ătheă possibilityăofă “ignoring”ă the san ctioning

of absolute nullity is legall y grounded. Similarly, we are going to point out the existence of

hypotheses that may convert absolute nullities into relative nullities (as regards the produced

 Associateă Professor,ă PhD,ă Facultyă ofă Law,ă “Nicolaeă Titulescu”ă University, Bucharest (e-mail:

damaschin.mircea@gmail.com).