Procedura audierii anticipate: abordarea convenţională a unui transplant de procedură adversială într-un sistem continental
The Pre-Trial Witness Hearing Procedure: Conventional Approach of a Transplanted Adversarial Procedure in a Continental System

Summary/Abstract: With the entry into force of the new Criminal Procedure Code the legislator has regulated a new system of rules of criminal procedure, based on the continental system, but the contents of which include various elements of adversarial type. One of these adversarial elements is the preliminary hearing procedure of a witness, meaning the prosecutor may send a request to the judge of rights and liberties to proceed to hearing a witness during the criminal investigation phase, on the grounds that the witness will not be able to be heared during trial directly by the court. Thus, the author of this study wishes to bring to the attention of all readers a new procedure, which, so far, has not been frequently used in the judicial practice. Because the legislator has not allocated more than one article devoted to the preliminary witness hearing, the judicial bodies could face some difficulties regarding the interpretation and application of the procedure. Through this article, the author wishes to contribute to the development of criminal law doctrine, by explaining the content of this procedure in order to facilitate its application in practice. In the first part of the study, the author makes a brief introduction about what is to be addressed with reference to the history of preliminary witness hearing procedure. In this respect, it is shown that the usefulness of this procedure is indisputable in an adversarial system, but in terms of a continental system, such as the one in Romania, there are some doubts regarding this. In the second part, the author presents the new rules of the Criminal Procedure Code regarding the administration of evidence, rules that are significantly different that those provided by the old Code. Thus, if the defendant does not challenge the evidence during the criminal investigation, the court is not obliged to proceed to its readministration during the trial, unless it considers it necessary to establish the truth or it is requested by the parties or the prosecutor. Also, the impossibility of examining a witness during trial, for objective reasons, entitles the court to read his or her statement in open court and to put it into the parties’ discussion. Because of this rule, the utility of the preliminary witness hearing is being questioned. In the third part of the study, the author reviewed the procedure’s utility this procedure through the jurisprudence of European Court of Human Rights, showing that, however, it is highly useful when a witness statement is the only evidence or when it is determined to conviction. According to the European Court, the defendant must be given adequate and proper opportunity to question the prosecution’s witnesses.

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