Autor: Teodora PLAESU

Editura:  Cugetarea

Cod ISSN: 1221-4876, pp. 96-112

Abstract:

The Romanian Constitution of November 21, 1991 acknowledges, by art. 21, the free access to justice on any person in view of defending the rights, liberties and legitimate interests. In order to do this, the persons who have addressed to justice and have acquired the quality of part, in any of the forms of the judiciary case, are entitled to a fair trial. Considering the criminal trial, the free access to justice of the parts who appear under this form of the judiciary trial is also accomplished through „the right to a fair trial”, that is a trial which corresponds to the norms of criminal law, both those regarding the organisation and the functions of a judiciary public authorities and their competence as well as the norms of procedure which comprise regulations regarding all the documents of trial and procedure that form the contents of the judiciary activity at the stage of criminal sueing, of the actual judgement and the execution of the final court decisions. Under this aspect, the criminal law maker had in view not only to cover by law some norms regarding the basic requests all the documents of criminal sueing have to comply with, but also the creation of a judiciary control – depending on the stages and phases of the criminal trial – within which all the elements concerning the legality and grounds of any document are considered.

In the phase of criminal inquiry, the cheking up of proofs, legality and opportunity of documents is accomplished by the prosecutor, who has supervision qualities (art. 209, 218 Code of Criminal Procedure and art. 28, line 2, of Law no. 92/1992) by the Public Defender’s Office or following the complaints of any of the parts of the trial or other persons whose legitimate interests have been altered. The Code of Criminal Procedure, even in the form of 1968, admitted that, as far as some documents of criminal inquiry are concerned, the court should decide on the legality and grounds of these documents.

The Law no. 281/2003 enlarged the area of documents subject to the judiciary control from the part of the court, namely: the resolution of ceasing the criminal inquiry; the decision or, depending on the case, resolution of filing up, of ceasing the criminal inquiry. Thus, by art. 278 Code of Criminal Procedure, there appears a second way of appeal against the resolutions or decissions of the prosecutor to cease the criminal inquiry, namely the complaint addressed to the court, besides the complaint addressed to the superior prosecutor, under the conditions of art. 278 Code of Criminal Procedure.

In the present study, the author discusses the aspects regarding the period of time in which the complaint is addressed to the superior prosecutor, as well as to the competent court, the procedure in front of the court and the solutions which can be adopted after analysing the complaint. The author amphasizes the solution stipulated by art. 278, line 8, letter c, the Code of Criminal Procedure – the admittance of the complaint, the cancelation of the resolution or decission of the prosecutor to cease the criminal inquiry and the rpesenving of the case to be judged in first instance and possibly in the ways of appeal – the consditions which have to be fulfilled for the complaint of the defendant to constitute the act of noticing the court, as well as the notification done by the bill of indictment of the prosecutor or the previous complaint of the defendant.

The violation of the requests imposed by art. 278 Code of Criminal Procedure, in the case of admitting the complaint and to keep the case in order to be tried in first instance is sanctioned with absolute nulity, on the grounds of the violation of legal dispositions regarding the „notification of the court”(art. 197, line 2, Code of Criminal Procedure).