Breach of the loyalty principle. Threatening of the witness by the prosecutor and the criminal investigation bodies during the criminal investigation

  • Anca-Ioana Negru Faculty of Law, Babeș-Bolyai University, Cluj-Napoca; Cluj Bar Association
Keywords: loyalty, threat, witnesses, evidence, standard of proof in the preliminary chamber proceedings


In the preliminary chamber procedure, the preliminary chamber judges, by dealing with the appeals, considered that it is not necessary to exclude the statements given by the witnesses, because: the statements of the witnesses heard in the preliminary chamber procedure regarding the threats to which they were subjected by the prosecutor and the police officers cannot be taken into consideration; no complaints or claims have been filled by witnesses who claim to have been threatened; witnesses were encouraged to tell the truth. It should be noted that the preliminary chamber judges also made an analysis of the credibility and reliability of the witness statement regarding the aspects related to the merits of the case.

This decision is incorrect and subject to criticism because the preliminary chamber judges disregarded the statements of the witnesses from the preliminary chamber without any reasoning, they made an impermissible confusion between the sanctions of criminal procedural law and those of substantive criminal law, they validated the use of disloyal methods in the situations where the judicial body seeks out the truth and proceeded to analyse the credibility of statements based on the merits of the case.