Editura Universitara Criminal Procedure Law. The general part

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45,00 Lei 32,85 Lei

ISBN: 978-606-28-0109-0

DOI: 10.5682/9786062801090

Publisher year: 2014

Edition: I

Pages: 341

Publisher: Universitară

Author: Marius Eugen Radu

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Criminal procedural law consists of the set of legal norms that regulate the activity of judicial bodies, parties and persons, as well as the relations established between them, in order to ascertain all the facts that constitute crimes and to apply the punishments and norms provided by criminal law. to those who committed them.

The object of the criminal procedural law is represented by the social relations that arise as a result of the activity organized by the state for the criminal and civil liability of those who have committed crimes. If the criminal procedural law is the general, the abstract, the criminal process is the particular, the concrete.

This branch of law has the task of regulating in the smallest details the way in which the film of the entire criminal proceedings is carried out; in this sense, the norms of the criminal procedural law must contain exact rules for the development of the criminal investigation, for the trial of the criminal cases and for the execution of the criminal court decisions.

According to art. 1 c. Pr. pen. the rules of criminal procedure regulate the conduct of criminal proceedings and other judicial proceedings in connection with a criminal case.

The norms of criminal procedure aim at ensuring the efficient exercise of the attributions of the judicial bodies with the guarantee of the rights of the parties and of the other participants in the criminal process so as to respect the provisions of the Constitution, of the constitutive treaties of the European Union. and of the pacts and treaties regarding the fundamental human rights to which Romania is a party.

The criminal procedural legal norms indicate:
- the public authorities that have the right and, at the same time, the obligation to hold accountable the persons who have committed crimes, establishing their structure and attributions;
- natural and legal persons who may be involved in the activity of justice, their attributions, rights and procedural obligations;
- the documents and means that can be used by the judicial bodies, by the parties and other persons in the development of the criminal process;
- the sanctions that can be applied in case of violation of the procedural norm (revocation, nullities, judicial fine, disciplinary sanctions, etc.
  • Drept procesual penal. Partea generala

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Marius Eugen Radu

CHAPTER 1

PRINCIPLES AND LIMITS OF THE APPLICATION OF THE CRIMINAL PROCEDURAL LAW / 11

Section 1. Criminal procedural law, distinct branch of law / 11

Section 2. The criminal process - definition and defining elements / 15


Section 3. Phases of the criminal process / 16

Section 4. Fundamental principles of the criminal process / 17


4.1. The principle of procedural legality / 18

4.2. The principle of separation of judicial functions / 19

4.3. The principle of the presumption of innocence / 20

4.4. The principle of finding the truth / 23

4.5. The principle "ne bis in iden" / 24

4.6. The principle of the obligation to initiate and exercise the criminal action / 25

4.7. The principle of conducting the criminal trial fairly and within a reasonable time / 26

4.8. The principle of guaranteeing the right to liberty and security / 29

4.9. The principle of guaranteeing the right to defense / 30

4.10. The principle of respect for human dignity and privacy / 33

4.11. The principle of using the mother tongue and the right to an interpreter / 35

4.12. The principle of equality of persons in criminal proceedings / 36

Section 5. Application of the criminal procedural law in time / 39

Section 6. Application of the criminal procedural law in space / 40



CHAPTER II

PARTICIPANTS IN THE CRIMINAL PROCEEDINGS / 48


Section 1. General aspects regarding the participants in the criminal process / 48

Section 2. Successors, representatives and procedural substitutions / 48


2.1. Successors / 48

2.2. Representatives / 49

2.3. Procedural substitutions / 50

Section 3. Judicial bodies / 51

3.1. The court; judge of rights and freedoms; the judge of the preliminary chamber / 51

3.2. Public Ministry / 58

3.3. Criminal investigation bodies / 63

Section 4. Parties in criminal proceedings / 65

4.1. The defendant / 65

4.2. Civil part / 67

4.3. The civilly responsible party / 70

Section 5. Main procedural subjects / 74

5.1. The suspect / 74

5.2. Injured person / 74

Section 6. Lawyer / 75

Section 7. Other procedural subjects / 85



CHAPTER 3

CRIMINAL ACTION AND CIVIL ACTION IN CRIMINAL PROCEEDINGS / 86

Section 1. Legal action / 86

Section 2. Criminal action - introductory considerations / 87

2.1. Object and subjects of the criminal action / 89

2.2. Characteristic features of the criminal action / 89

2.3. Moments of criminal action / 92

2.3.1. Initiation of criminal proceedings / 92

2.3.2. Exercising the criminal action / 93

2.3.3. Extinguishing criminal actions / 94

2.4. Cases in which the initiation or exercise of criminal proceedings is prevented / 98

Section 3. Civil action in criminal proceedings / 103

3.1. The notion of civil action in criminal proceedings / 103

3.2. Subjects of civil action / 104

3.3. The necessary conditions for exercising the civil action in the criminal process / 106

3.4. Object of the civil action / 110

3.6. Solving the civil action in the criminal process / 112

Section 4. The relationship between the criminal action and the civil action / 119

Section 5. The authority of the criminal decision in the civil process and the effects of the civil decision in the criminal process / 120


CHAPTER IV

JURISDICTION OF THE JUDICIAL BODIES / 121

Section 1. Competence and its forms / 121

Section 2. Material competence / 123

2.1. Jurisdiction of the court / 123

2.2. Jurisdiction of the court / 123

2.3. Jurisdiction of the military tribunal / 124

2.4. Jurisdiction of the Court of Appeal / 124

2.5. Jurisdiction of the Military Court of Appeal / 125

2.6. Jurisdiction of the High Court of Cassation and Justice / 125

Section 3. Territorial jurisdiction of courts / 127

Section 4. Special provisions regarding the competence of courts / 129

4.1. Reunification of cases / 129

4.2. Disjunction of causes / 130

4.3. The exceptions of incompetence / 131

4.4. Competence in case of change of the defendant's quality / 131

4.5. Competence in case of change of legal classification or qualification of the deed / 132

4.6. Decline of competence / 132

4.7. Conflict of competence / 132

4.8. Preliminary issues / 134

Section 5. Jurisdiction of the judge of rights and freedoms and of the judge of the preliminary chamber / 135

Section 6. Criminal investigation bodies and their competence / 135

Section 7. Incompatibility, abstention and recusal / 139

Section 8. Relocation / 144


CHAPTER V

EVIDENCE, MEANS OF EVIDENCE AND PROOF PROCEDURES

Section 1. General aspects of evidence / 149

Section 2. Evidence in criminal proceedings / 150


2.1. Object of probation / 150

2.2. Sarcina probei / 152

2.3. Evidence management / 153

2.4. Assessment of evidence / 155

Section 3. Hearing persons / 156

3.1. General rules on hearing persons / 156

3.2. Hearing of the suspect or defendant / 157

3.3. Hearing of the injured person, of the civil party and of the civilly responsible party / 161

3.4. Hearing of witnesses / 162

3.5. Witness protection / 167

3.5.1. Protection of threatened witnesses / 167

3.5.2. Protection of vulnerable witnesses / 170

Section 4. Confrontation / 173

Section 5. Identification of persons and objects / 173

Section 6. Spsupervisory or research standards / 175


Section 7. Searching and picking up objects and documents / 195

6.1 Home search / 195

6.2. Other forms of search / 202

6.3. Lifting objects and documents / 205

Section 8. Expertise and finding / 207

Section 9. Investigation of the crime scene and reconstruction / 226

Section 10. Photographing and taking fingerprints of the suspect, defendant or other persons / 228


Section 11. Means of evidence / 228

Section 12. Documents / 229

Section 13. Letter rogatory / 230




CHAPTER VI

PREVENTIVE MEASURES AND OTHER PROCEDURAL MEASURES

Section 1. General provisions on preventive measures / 233

Section 2. The competent judicial body and the act by which the preventive measures are ordered / 236

Section 3. The appeal against the decisions ordering the preventive measures / 237

Section 4. Verification of preventive measures / 240


Section 5. Retention / 242

Section 6. Judicial control / 246


Section 7. Judicial control on bail / 251

Section 8. Home arrest / 253


Section 9. Pre-trial detention / 259

Section 10. Termination, revocation and replacement of preventive measures / 271


Section 11. Special provisions regarding preventive measures applied to minors / 279

Section 12. Provisional application of medical safety measures / 280


12.1. Provisional obligation to medical treatment / 280

12.2. Provisional medical hospitalization / 282


Section 13. Precautionary measures / 283

13.1. Introductory aspects / 283

13.2. General conditions for taking precautionary measures / 284

13.3. Contestation of precautionary measures / 286

13.4. Seizure procedure / 289

13.5. Poprirea / 297

13.6. Restitution of things / 298

13.7. Restoring the previous situation / 298


CHAPTER 7

COMMON PROCEDURAL AND PROCEDURAL ACTS / 299

Section 1. The notion and classification of common procedural and procedural acts / 299

Section 2. Application / 300

Section 3. Citation / 301

Section 4. Communication of procedural documents and mandate to bring / 308

Section 5. Deadlines / 311

Section 6. Judicial expenses / 314

Section 7. Modification of procedural acts, correction of material errors and removal of obvious omissions / 318

Section 8. Procedural nullities / 320

Section 9. Judicial fine / 323

Bibliographic references / 326

Criminal procedural law consists of the set of legal norms that regulate the activity of judicial bodies, parties and persons, as well as the relations established between them, in order to ascertain all the facts that constitute crimes and to apply the punishments and norms provided by criminal law. to those who committed them.

The object of the criminal procedural law is represented by the social relations that arise as a result of the activity organized by the state for the criminal and civil liability of those who have committed crimes. If the criminal procedural law is the general, the abstract, the criminal process is the particular, the concrete.

This branch of law has the task of regulating in the smallest details the way in which the film of the entire criminal proceedings is carried out; in this sense, the norms of the criminal procedural law must contain exact rules for the development of the criminal investigation, for the trial of the criminal cases and for the execution of the criminal court decisions.

According to art. 1 c. Pr. pen. the rules of criminal procedure regulate the conduct of criminal proceedings and other judicial proceedings in connection with a criminal case.

The norms of criminal procedure aim at ensuring the efficient exercise of the attributions of the judicial bodies with the guarantee of the rights of the parties and of the other participants in the criminal process so as to respect the provisions of the Constitution, of the constitutive treaties of the European Union. and of the pacts and treaties regarding the fundamental human rights to which Romania is a party.

The criminal procedural legal norms indicate:
- the public authorities that have the right and, at the same time, the obligation to hold accountable the persons who have committed crimes, establishing their structure and attributions;
- natural and legal persons who may be involved in the activity of justice, their attributions, rights and procedural obligations;
- the documents and means that can be used by the judicial bodies, by the parties and other persons in the development of the criminal process;
- the sanctions that can be applied in case of violation of the procedural norm (revocation, nullities, judicial fine, disciplinary sanctions, etc.

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