ASPECTE CONTROVERSATE REFERITOARE LA REGLEMENTAREA DE LEGE LATA A ASISTENŢEI JURIDICE A PERSOANELOR PRIVATE DE LIBERTATE. PROPUNERI DE LEGE FERENDA
CONTROVERSIAL ASPECTS OF THE BROAD LEGAL AID REGULATION OF PERSONS DEPRIVED OF THEIR LIBERTY. PROPOSALS DE LEGE FERENDA

Summary/Abstract: The present study aims to analyse the current regulation of the right to defence of persons deprived of their liberty and to capture those aspects where it is deficient. Deficiencies in the de lege lata regulation have on many occasions led to difficulties of interpretation, but also to practical difficulties in implementing the legal provisions. Thus, we identified, first of all, a non-uniform practice at the level of the courts competent to judge in matters of ensuring the exercise of the rights of persons deprived of their liberty, in disciplinary matters, as well as in matters of establishing or changing the regime of execution of sentences or measures of deprivation of liberty regarding the provision of legal assistance. Secondly, we note that, from the point of view of the right of defence of the person deprived of liberty in the case of custodial pre-trial measures, the legislator felt the need to expressly mention its guarantee in the case of persons executing the measure of pre-trial detention in detention and pre-trial detention centres, but this provision is not found in the rules governing the execution of the measure of pre-trial detention in prisons or in the rules governing the execution of the pre-trial measure of house arrest. We consider this difference in regulation to be unjustified. We have concluded that it is appropriate to introduce a legal provision providing, under penalty of absolute nullity, that the legal assistance of the person deprived of liberty is obligatory in all cases in which he appears before the judge designated to supervise the deprivation of liberty or the court, whether he is arrested in another case or is in execution of a single sentence. Secondly, we concluded that the difference in regulation between guaranteeing the rights of defence of persons deprived of their liberty according to their status, whether they are convicted, remanded in custody, under house arrest, under arrest before or after referral to the court, should be harmonised.

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