BRIEF CONSIDERATIONS REGARDING THE RESPECT FOR THE RIGHT OF DEFENCE OF THE ACCUSED PERSON DURING CRIMINAL PROSECUTION, IN THE LIGHT OF THE CASE-LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS. CASE STUDY.
Authors: Bosinceanu Daniel Constantin 
Published: December 2022

By the entry into force of the current Code of Criminal Procedure on 01.02.2014, the national legislator aimed to create a clear, accessible and predictable judicial system for all participants involved in a criminal proceeding, but also to place this system on the pillars of new principles in order to precisely respect human rights and fundamental freedoms.

Its objectives have been specifically set out from the very preliminary theses of the adoption of the Code of Criminal Procedure, among which we mention that of establishing an appropriate balance between the requirements for an effective criminal proceeding and respect for the fundamental human rights of all participants in a criminal trial.

This was a pressing need, because Romania ratified the European Convention on Human Rights (hereinafter E.C.H.R.) on 20.06.1994, introducing the obligation to respect it by the national judicial bodies, an aspect subsequently transposed into the internal legislation by adopting Article 20 of the Constitution (amended in 2003), as well as by introducing Article 1 (2) of the current Code of Criminal Procedure.

Although the role of the European Court of Human Rights (hereinafter E.Ct.H.R.) is not defined by a court of judicial review of the decisions adopted by the national courts, not being able to modify or abolish them, it plays a subsidiary role to the national judicial systems which subsequently must verify the compatibility of internal legislation with the mandatory requirements of the European Court.

From the content of the File on Romania, drawn up by the Strasbourg Court Registry, published in January 2021, as well as of its Report for 2020, both published on the website of this institution, it results that between 1997 (the date of the first conviction against Romania) and December 2020, a number of 1578 judgments and decisions passed against our country, and this ranks it in the top four member countries, after Turkey (convicted in 3742 cases), Russia (convicted in 2884 cases) and Italy (convicted in 2424 cases). Statistics also show that, after Romania, there are Ukraine (convicted in 1499 cases), Poland (convicted in 1197 cases), France (convicted in 1048 cases), Bulgaria (convicted in 737 cases) and Moldova (convicted in 473 cases).

At the end of 2020, our country was convicted in 82 cases by E.Ct.H.R., and an analysis of the violated fundamental rights shows that the most common is the right to a fair trial provided for in Article 6 of E.C.H.R. (in 82 cases) which includes the right of defence of the person accused of having committed a criminal offence in its content.

In accordance with Article 6 (2) and (3) from E.C.H.R.: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law... Everyone charged with a criminal offence has the following minimum rights: to be promptly informed of the nature and cause of the accusation against him in a language which he understands and in detail...; to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require...”