Anca-Lelia Lorincz

Starting from two jurisprudential solutions (one of the Constitutional Court of Romania and another of the Court of Justice of the European Union), the present study addresses some aspects related to the implementation of some provisions that regulate international judicial cooperation in criminal matters. The paper brings to attention the need to ensure the predictability of internal provisions in the field of international judicial cooperation in criminal matters, from the perspective of meeting the requirement of legality, as an expression of legal security. Also, the study brings into discussion the concepts of reciprocity and loyal cooperation of states regarding the application of community provisions in this field. The research methods used are: documentation, observation, scientific analysis and interpretation of both legal provisions and national and community judicial practice solutions. Finally, the importance of respecting both the principle of legal security and the principle of mutual trust in the context of cross-border judicial cooperation, in order to combat the criminal phenomenon at the European and international level, is emphasized.

The provisions of international documents that guarantee the fundamental right to freedom and security are transposed into Romanian legislation both in the Constitution and in the Code of Criminal Procedure. In this context, the present study aims to analyze the national standard of protection of individual freedom in judicial proceedings compared to the standard established by the Convention for the Protection of Human Rights and Fundamental Freedoms. Through documentation, interpretation, and scientific analysis as the main research methods, this paper emphasizes the possibility of establishing, through domestic legislation, a level of protection higher than that imposed by the conventional standard. From this perspective, by regulating a right to repair the damage suffered in the situation of unjust deprivation of liberty as a result of ordering a preventive measure, the national standard of protection established by the Romanian Code of Criminal Procedure is higher than the European standard. This study concludes with a proposal to expand the current procedural framework configured by the provisions of the Romanian Code of Criminal Procedure (with the amendments made in 2023) regarding the special procedure for repairing the damage suffered as a result of the illegal or unjust deprivation of liberty during the criminal process.

Starting from the need to respect, in any judicial procedure, the right to liberty and security of the person, in order to guarantee public safety and ensure a high level of social capital, this study addresses the issue of reparation for damage to the individual's liberty during the criminal proceedings. The paper presents the special procedure for reparation of material damage or non-pecuniary damage in case of illegal deprivation of liberty in the regulation of the current Romanian Code of Criminal Procedure, with the interpretations given by the High Court of Cassation and Justice for ensuring a unitary judicial practice, as well as with the aspect of unconstitutionality ascertained by the Decision of the Constitutional Court of Romania no. 136/2021. In the context of the legislative interventions envisaged by the latest draft law on amending and supplementing the Code of Criminal Procedure, concrete regulatory proposals are made in the paper so that this special procedure guarantees the exercise of the right to reparation for all situations of unlawful or unjust deprivation of liberty in the course of criminal proceedings, according to the standard of protection established by the European Convention for the Protection of Human Rights and Fundamental Freedoms. The possibility of extending the scope of the special reparation procedure to the case of impairment of individual liberty by restrictive measures of liberty is also being considered.

In the regulation of the current Romanian Code of Criminal Procedure (Law no. 135/2010, entered into force on February 1, 2014), the contestation regarding the duration of the criminal trial was conceived as a procedural remedy in the case of the lack of celerity of the judicial bodies. The lack of promptness of the criminal investigation bodies can lead to the violation of the fundamental right to resolve the case within a reasonable term, as a component of the right to a fair trial, enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms (art. 6 par. 1). Starting from a recent decision of the supreme court in Romania (Decision of the High Court of Cassation and Justice no. 7/2022) pronounced in the resolution of a recourse in the interest of the law, the present work addresses the issue of the admissibility of the contestation regarding the duration of the criminal trial in the case of facts whose authors have not been identified. In this study, the following research methods are used: documentation, interpretation and scientific analysis (including the comparative analysis of some jurisprudential solutions). The study aims to contribute to the unified interpretation and application of the provisions relating to the special procedure of contestation regarding the duration of the criminal trial, as currently regulated in the Romanian Code of Criminal Procedure. The paper emphasizes the need to exercise the active role of the criminal investigation bodies in the administration of evidence, including in cases with unknown authors. The conclusion is that, considering the hierarchy of normative acts, the application of methodological norms (with lower legal force than the law) regarding the administrative organization of criminal investigation activities in cases with unidentified perpetrators cannot have the effect of diminishing the role of the contestation regarding the duration of the criminal trial, as a remedy in speeding up the procedure, when the judge of rights and freedoms finds that the reasonable duration of these activities has been exceeded.

As a manifestation of the ne bis in idem principle at the interstate level, the transfer of criminal proceedings is one of the forms of international judicial cooperation in criminal matters that avoids the conduct of parallel proceedings that could lead to prosecution, trial and even conviction a person in different states for committing the same act. Starting from a non-unitary practice aspect regarding the qualification of requests to take proceedings (in the sense of requests to take criminal proceedings or requests to take trial), this study addresses the issue of transfer of proceedings in criminal matters, as regulated in international legal instruments and in the Romanian special law on international judicial cooperation in criminal matters (Law no. 302/2004, republished in 2019). The research methods used in the study are: documentation, observation and scientific analysis (comparative analysis of both legal regulations and solutions of judicial practice). The paper aims to contribute to the uniform interpretation and application of the provisions on the transfer of proceedings in criminal matters, in particular in the relationship between the Member States of the European Union, given that the regulation of those procedures in national legislations is not always similar. The conclusion is that the relations of judicial cooperation in criminal matters between the Member States of the European Union, including through the transfer of criminal proceedings, must be based on mutual trust in internal judicial systems, as a corollary of the principle of mutual recognition.

The concept of ”public safety” can be viewed, in relation to the need to respect the fundamental rights of the person during judicial proceedings, from a dual perspective: - on the one hand, public safety is guaranteed by ensuring that these fundamental rights are respected, because the safety of every person involved in legal proceedings ultimately leads to the preservation of public safety; - on the other hand, some limitations of these rights (in the sense of interfering with their exercise) may occur, in a state governed by the rule of law, only under conditions strictly provided by law and in cases justified precisely by the need to guarantee public safety. This study addresses, from this second perspective, the possibility of limiting by law the fundamental rights of the person during judicial proceedings (in this case, the right to privacy) and refers to the regulation of technical supervision, as evidence in criminal proceedings, calling into question the unconstitutionality of some criminal procedural provisions regarding the obligation to inform the under-surveillance person about the measure that targeted her.