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).

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