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This is the controversial law proposal that the defendant reached the situation in the courtroom with his victim. The CCR declared this article unconstitutional.
The Constitutional Court issued Wednesday the reasons for the decision 633 of 12 October 2018 on the amendments to the Code of Criminal Procedure. The document has 430 pages. The reasoning, put forward by Judges Daniel Morar and Liviu Stanciu, has two distinct opinions.
Read also: The CCR abolishes the provisions of the Code of Criminal Procedure committed in Liviu Dragnea
"Considering the provisions of European law of the content of the directive that the Romanian State is required to transpose and apply, The Court considers that the legislator not only ignored them, but also regulated them by granting an additional procedural right to the defendant, provided that the right to defense is guaranteed by the provisions of Article 92 para. (1) of the current Code, which establishes the right of the suspect's or defendant's attorney to attend any criminal proceedings ", motivates the CCR.
"The Court held that the provisions of Article I, point 41, relating to Article 83 (b) (1) of the final Code Code, are unconstitutional because they violate the right to a fair hearing devoted Article 21, paragraph 3, of the Constitution, and the provisions of Article 148, paragraph 2, which establish the binding nature of European law, "reads the RAC.
It's daunting
Analyzing the criticisms of unconstitutionality, the Court held that in granting this right to the defendant, the legislator had ignored the effects that his presence in criminal proceedings, including at hearings, could have on criminal investigations.
"Thus, for example, his presence at the hearing of witnesses or injured persons may be intimidating, so as to compel them to remain in their statements and not to declare everything that they know about. the act, destabilizing the fairness of the criminal process ", motivates the RCC.
"Avoid contacting the victim with the accused"
The legislator also ignored the provisions of Directive 2012/29 / EU of the European Parliament and of the Council of 25 October 2012 laying down minimum rules on the rights, support and protection of victims of crime and replacing the 2001 Framework Decision / 220 / JHA. of the Council, whose transposition into national law is imperative, in accordance with Article 148 of the Constitution.
This Directive imposes on the Member States the obligation to regulate criminal proceedings in order to "avoid contact between the victim and members of his family, on the one hand, and the offender, from the other". somewhere else".
In paragraph 57 of the preamble to the Directive, the Court further specifies that "victims of trafficking in human beings, terrorism, organized crime, violence in close relationships, violence or exploitation" sexual violence, gender-based violence, hate crime, victims and disabled children with disabilities tend to experience a high rate of repeated and secondary victimization or intimidation and revenge.
Particular attention should be paid to the risk of additional victimization or not, and there should be a strong presumption that victims will benefit from special protection measures.".
Vulnerability status
The CCR magistrates have also shown that by integrating the right to protection, the European legislator has established a presumption of vulnerability of the victim, result of post-traumatic stress, dependence or subordination, even fear of power. , control or threat. the offender or the outcome of other causes, including self-incrimination (even in the absence of any contribution to what has happened to him).
"The victim can not even know his status, has the ability to understand the objective content of his rights and its practical effect, the concrete procedural steps to follow and their role, can not detect the emotional complexities that he lives. the reasons for the fear, so as to bring them to the attention of the prosecutor or the judge by making a request for the granting of the status of threatened or protected person, on the basis of Article 130 of the Code of Criminal Procedure which governs this right ", motivates the RCC.
This is why the obligation to assess the risk of secondary victimization exacerbates the state organs and, above all, the legislator, who must take appropriate measures, including the "procedures established by national law for the physical protection of children". victims and their family members.
The full motivation of the RCC decision has been published on the website of the institution.
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