Challenges of the Knowledge Society (May 2019)
ENFORCEMENT OF THE RIGHT OF DEFENSE IN THE CRIMINAL TRIAL
Abstract
One of the fundamental principles of the criminal trial is the principle of enforcing the right of defense, being not only an expression of the rule of law, but also a necessary condition for the efficient course of justice. The right of defense is a complex right, comprising all the possibilities provided by the legislator to the parties and subjects in the criminal proceedings, in order to defend their interests, and is expressed under three general aspects: the possibility of the parties to defend themselves in person during the criminal trial; the obligation of the judicial bodies to consider ex-officio aspects also favorable to the parties involved in the criminal trial; the possibility and sometimes the obligation to provide legal assistance during the criminal trial. The right of defense is a fundamental right, guaranteed by the Constitution, by the Criminal Procedure Code and by the international treaties. Any violation of the right of defense implies various penalties, including the most important sanction provided by the Criminal Procedure Code, respectively the absolute nullity of the acts taken in violation of this right, including the nullity of the decision pronounced under these conditions and retrial of the case
