Challenges of the Knowledge Society (May 2021)
SOME CONSIDERATION REGARDING THE SCOPE OF MEDICAL SAFETY MEASURES IN THE CASE OF NON-TRIAL ORDINANCES
Abstract
The medical hospitalization and medical treatment are medical safety measures can be taken across the duration of criminal cases and aim to remove a state of danger and prevent the illicit acts provided by the criminal law. In accordance with GEO number 80/2016, the legislator introduced the possibility of taking these safety measures of a medical nature both in situations where a solution of non-prosecution, respectively filing or waiving the criminal investigation is ordered. Thus, from the corroborated interpretation of the provisions of art. 315 para. 2 lit. a, of the C.p.p. and art. 318 para. 8 of the C.p.p., it appears that the ordinances by which the prosecutor orders a solution of non to send to court may include provisions regarding the notification of the judge of the preliminary chamber in order to take, confirm, replace or terminate said medical safety measures. Regarding the prosecutor”s request through the order of dismissal or waiver of criminal prosecution of the judge of the preliminary chamber to decide on a medical safety measure, the specialized doctrine and the judicial practice have outlined two opinions. In a first opinion, it is considered that the notification of the judge of the preliminary chamber in order to take a safety measure of a medical nature must be made only after the non-trial solution remains final. According to the second opinion, the prosecutor is not obligated by any procedural condition to respect a specific term when he notifies the judge. The present paper aims to analyze the arguments of the two opinions by means of analysing the legal doctrine, the relevant jurisprudence in the matter, but also to the standards imposed by the EDO Convention.
