THE RIGHT TO REPAIR OF DAMAGES IN THE EVENT OF AFFECTION OF THE INDIVIDUAL FREEDOM OF THE PERSON DURING THE CRIMINAL PROCEEDINGS

Authors

  • Anca-Lelia LORINCZ ”Dunărea de Jos” University of Galați, Faculty of Legal and Administrative Sciences

DOI:

https://doi.org/10.55516/ijlso.v1i1.75

Keywords:

the right to liberty and security of person, criminal trial, illegal or unjust deprivation / restriction of liberty, damage repair, legislative changes

Abstract

Starting from the need to respect, in any judicial procedure, the right to liberty and security of the person, in order to guarantee public safety and ensure a high level of social capital, this study addresses the issue of reparation for damage to the individual's liberty during the criminal proceedings. The paper presents the special procedure for reparation of material damage or non-pecuniary damage in case of illegal deprivation of liberty in the regulation of the current Romanian Code of Criminal Procedure, with the interpretations given by the High Court of Cassation and Justice for ensuring a unitary judicial practice, as well as with the aspect of unconstitutionality ascertained by the Decision of the Constitutional Court of Romania no. 136/2021. In the context of the legislative interventions envisaged by the latest draft law on amending and supplementing the Code of Criminal Procedure, concrete regulatory proposals are made in the paper so that this special procedure guarantees the exercise of the right to reparation for all situations of unlawful or unjust deprivation of liberty in the course of criminal proceedings, according to the standard of protection established by the European Convention for the Protection of Human Rights and Fundamental Freedoms. The possibility of extending the scope of the special reparation procedure to the case of impairment of individual liberty by restrictive measures of liberty is also being considered.

References

Law no. 135/2010 on the Code of Criminal Procedure, published in the Official Gazette no. 486/15 July 2010, as subsequently amended and supplemented;

Lorincz, Anca-Lelia: Drept procesual penal (Criminal procedural law), vol. I, Universul Juridic Publishing House, Bucharest, 2015;

European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in 1950, entered into force on 3 September 1953;

International Covenant on Civil and Political Rights, adopted on 6 December 1966;

Charter of Fundamental Rights of the European Union, proclaimed on 7 December 2000;

The Romanian Constitution, adopted in 1991, republished in the Official Gazette no.767/31 October 2003;

Muraru, Ioan: Drept constituţional şi instituţii politice (Constitutional law and political institutions), ProArcadia Publishing House, Bucharest,1993;

Ghigheci, Cristinel: Principiile procesului penal în noul Cod de procedură penală (Principles of criminal proceedings in the new Code of Criminal Procedure), Universul Juridic Publishing House, Bucharest, 2014;

Romanian Code of Criminal Procedure adopted in 1936, published in the Official Gazette no. 66/19 Mars 1936;

Romanian Code of Criminal Procedure adopted in 1968, republished in the Official Gazette no. 78/30 April 1997;

Lorincz, Anca-Lelia: Drept procesual penal (Criminal procedural law), ed. III revised and added, Universul Juridic Publishing House, Bucharest, 2011;

Moroșanu, Raluca, in Volonciu, Nicolae; Uzlău, Andreea Simona; Moroșanu, Raluca; Voicu, Corina; Văduva, Victor; Tudor, Georgiana; Atasiei, Daniel; Gheorghe, Teodor-Viorel; Ghigheci, Cristinel; Chiriță, Cătălin Mihai: Noul Cod de procedură penală comentat (The new Code of Criminal Procedure commented), Hamangiu Publishing House, Bucharest, 2014;

Decision of the High Court of Cassation and Justice no. 15/2017, published in the Official Gazette no. 946/29 November 2017;

Lorincz, Anca-Lelia: Stabilirea caracterului nelegal al privării de libertate în cursul procesului penal – repararea pagubei (Establishing the illegal character of deprivation of liberty during the criminal trial - reparation of the damage), in Pro Patria Lex no. 1(28)/2016;

Decision of the High Court of Cassation and Justice no. 11/2019, published in the Official Gazette no. 613/24 July 2019;

Decision of the Constitutional Court of Romania no. 136/2021, published in the Official Gazette no. 494/12 May 2021;

Draft law amending and supplementing Law no. 135/2010 on the Code of Criminal Procedure, as well as other normative acts, launched for public debate by the Ministry of Justice, on 2 September 2021 and submitted to the Government for approval on 2 June 2022, available on https://www.just.ro/proiectul-de-lege-pentru-modificarea-si-completarea-legii-nr-286-2009-privind-codul-penal-si-proiectul-de-lege-pentru-modificarea-si-completarea-legii-135-2010-privind-codul-de-proced/, accessed on July 1, 2022;

Dragomir v. Romania, decision on application no. 59064/11, pronounced on June 3, 2014, available on http://ier.gov.ro/traduceri/drepturile-omului/jurisprudenta-cedo/, accessed on July 9, 2022;

N. v. Romania, decision on application no. 59152/08, pronounced on November 28, 2017, available on http://ier.gov.ro/traduceri/drepturile-omului/jurisprudenta-cedo/, accessed on July 9, 2022;

Decision of the Constitutional Court of Romania no. 244/2017, published in the Official Gazette no. 529/6 July 2017;

Decision of the Constitutional Court of Romania no. 48/2016, published in the Official Gazette no. 346/5 May 2016.

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Published

2022-12-27

How to Cite

LORINCZ, A.-L. (2022). THE RIGHT TO REPAIR OF DAMAGES IN THE EVENT OF AFFECTION OF THE INDIVIDUAL FREEDOM OF THE PERSON DURING THE CRIMINAL PROCEEDINGS. International Journal of Legal and Social Order, 1(1). https://doi.org/10.55516/ijlso.v1i1.75

Issue

Section

Law