Revista Institutului Naţional de Justiţie (Apr 2016)
Reincadrarea juridică a faptei inculpatului in sensul atenuării: problem de drept penal material şi processual
Abstract
The most important role in the criminal proceedings is assigned to the legal classification of the offence; or, in accordance with the legal basis of the charges brought against him, a person can organize an effective defence based on alleged misconduct by way of contesting the charge, the latter one being the essential element of a fairness trial guaranteed by Article 6 of the European Convention. Thus, any changes in the legal classification, even in the mitigating process that is done by the court, when it does not constitute the object of judicial investigation, is likely to violate the defendant’s rights, in this way decreasing the possibility of the latter to provide a solution for the legal classification of the crime differently from that for which he was initially sued. The present article is based on several judgments of national practice, but also on some European Court test cases, and aims to answer the following questions: 1) is the defence right violated or not in case the court reappoints the offence on the ground of another crime having the same identical objective side with the charged crime, but with an evident guilt and does it make the defendant’s position worse? 2) In case the court changes the defendant’s legal role from the one appointed at the indictment, is his defence right violated? 3) What are the ways of restoring the rights of the accused to a fair trial, in terms of informing him about the retraining he is charged with?
