English Challenges for Romanian prosecutors in exercising their duties of defense during pre-trial stage

Abstract

Current paper aims to emphasise that, over the time, it has been proven that the accuracy of an analysis of criminal procedural law is accomplished only whether it is certified by the conviction that norms and decisions of national and European courts enshrine and guarantee human rights. Thus, the legislation in criminal procedural matters can be rationalized compulsorily starting from European premises – “the unit of European conventionality” – and going further to constitutional, organic and ordinary normative requirements.

In the same time, from a methodological point of view, for reaching the human rights goals in criminal procedures, it is crucial to be adopted an approach which includes the requirement for the provisions of the Criminal Procedure Code to be interpreted in the light of the general principles of the criminal trial – many of these principles being principles of human rights, in fact. Equally, indispensable appears the feature of the principle of subsidiarity of European protection of human rights which underlines the role of the main guarantees of the European Convention on Human Rights for national judicial authorities.

Whether a hierarchy of the rights relevant for criminal procedures is established, the right to defense should be one of the most important rights to discuss. This traditional approach underlines the horizontal effects of the right to defense, like the need to have regulated the defense of the suspect or the accused by Code of Criminal Procedure. Alike, the vertical effects of the right to defense complete the challenges for national judicial authorities. In this context, it has to be accentuated the role of the prosecutor within the criminal investigation and prosecution phase, respectively the prosecutor must defend the legal order and fundamental rights.

Beyond legal techniques, an exquisite study of the right of the defense must contain interdisciplinary references which value the current requirements for emancipation in criminal procedural matters focused on the legal education of civil society and the change of mentality of judicial authorities.