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April 11, 2021
JUSTICE

CCR reasoning: When the solutions are decided in criminal trials, the information provided by the evidence declared null must be ignored

When deciding on a solution in criminal trials, the information provided by the evidence declared null must be ignored, according to the reasoning of the decision of the Constitutional Court of Romania (CCR) on the unconstitutionality of certain provisions of the Criminal Procedure Code regarding the administration of the evidence.

“The Court finds that the process of proving the accusation in criminal matters, beyond any reasonable doubt, is a complex process which involves a careful and detailed analysis of the administered evidence in the case, conducted by the courts, as well as the exclusion of the evidence that was illegally obtained, a process which must be finalized by a decision based on a legal reasoning that must ignore the information provided by the evidence declared null. Therefore, this process is a cognitive process, specific to the judicial psychology, requiring a personal deep belief of the judge related to the defendant’s guilt” reads the reasoning published on Tuesday by the CCR website.

The Constitutional Court underlines that the analyzed cognitive process is conducted according to specific psychological rules which require a subjective assessment of the judge on the information existing in a case. For this reason, the judicial removal of the evidence declared null is not enough, they must be physically removed, too.

“In other words, the removal of the evidence illegally obtained in the criminal trial, as a legal consequence of the nullity of the evidence means / of the probative proceedings, involves a simple elimination of the possibility to develop judicial reasoning based on them, in order to solve the case, without being able to determine the disappearance of the known information based on these means of evidence from the magistrate’s memory. This judicial-cognitive mechanism is the one that the legislator had in mind when it regulated the institution of the nullity of evidence (…). But its efficiency is affected by maintaining the means of evidence corresponding to the evidence declared null in the file of the case; in fact, these means of evidence are a form of expression, on a material basis, of the evidence in question” the reading also mentions.

According to CCR, each new possible examination of the evidence declared null leads to a psychological process characterized by the contradiction between the information known by the judge and the one he is obliged to consider in order to solve the case.

The evidence illegally obtained and declared null in the criminal trial must be removed from the files, in order to guarantee the presumption of innocence and the right to a fair trial, CCR decided on January 18.

The CCR plenum debated the constitutional challenge of the art.102 para.(3) of the Criminal Procedure Code, which provides that “the nullity of the act by which the administration of an evidence was ordered or approved, or by which the evidence was administered, causes the removal of the evidence”.

According to CCR, the constitutional challenge was approved, establishing that these provisions are constitutional as long as the phrase “the removal of the evidence” also refers to the removal of the means of evidence from the file of the case.

“The Court found that the permanent access of the judge appointed to solve the criminal case to the material means of evidence declared null (absolute or relative nullity), can only have the consequence of bringing back to the judge’s attention, namely to refresh his memory with information likely to strengthen his belief related to the guilt/the innocence of the defendant, but which he cannot use legally in order to solve the case. Therefore, the judicial removal of the evidence illegally obtained and declared null in the criminal trial, in the absence of their removal from the criminal files, is not enough to actually guarantee the presumption of innocence of the defendant and his right to a fair trial”, CCR mentioned.

In this case, the Court decided that art.21 para.(3) and art.23 para.(11) of the Constitution are breached.

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