Challenges of the Knowledge Society (May 2024)
BRIEF CONSIDERATIONS REGARDING THE UNCONSTITUTIONALITY OF THE PROVISIONS OF ART. 126 PARA. (4) AND (5) CPP
Abstract
During the Preliminary The unconstitutional nature of the provisions of art. 126 para. (4) and (5) CPP has not yet been ascertained by the Constitutional Court, however, its way of drafting involves extensive discussions at the level of judicial practice. Specifically, the power of the judicial body to establish the status of threatened witness and to establish the protection measures referred to in art. 125 CPP in conjunction with art. 126 para. (1) CPP covers situations that call into question firm, coherent and adequate interventions to ensure the safety of the persons involved, which may also involve restrictions on the exercise of fundamental rights of defendants. However, in the latter hypothesis, the texts of law that exceed the generic regulatory framework and allow the execution of specific actions must also be subordinated to the principle of legality, as well as the constitutional conditions regarding the restriction of the exercise of certain rights provided by the provisions of art. 53 of the Romanian Constitution. Thus, it may be regarded that the legal provisions criticised are unconstitutional insofar as they do not recognise, during the preliminary chamber proceedings, the power of the preliminary chamber judge to rule on the protection measures, i.e., the manner in which his/her competence is exercised. In this way, the provisions of art. 1 para. (5) of the Fundamental Law on the clarity, precision and predictability of the law and the provisions of art. 124 para. (3) of the Romanian Constitution on the principles of judicial independence and separation of judicial functions are violated. This paper aims to present all these aspects and to provide the author's point of view on the reasons why the text of art. 126 para. (4) and (5) CPP is unconstitutional.
