Dreptul acuzatului de a avea acces la dosarul cauzei, din perspectivă naţională şi europeană
The right of the accused to access the case file. A Domestic and European Approach

Summary/Abstract: The right of the accused to adequate time and facilities necessary for the preparation of the defense, which represents a guarantee of the right to a fair trial mentioned under article 6 paragraph 3 letter b) in the European Convention of Human Rights, also entails the right to access the case file. Any attempt of the accused to adequately organize the defense in a restriction-free manner would not be otherwise possible. The study focuses on presenting the European Court of Human Rights jurisprudence on the matter, whilst distinguishing between the main trial that establishes the guilt of the individual in question and the precursory procedures to deciding an individual’s freedom, as well as the interpretation given to the right of the accused to access the case file, in light of the functions the latter fulfills in the general context of the procedure and in relation to the other general and special guarantees of the right to a fair trial. Moreover, the present study is concerned with analyzing the implications of the right to access the case file in different phases and stages of a criminal trial in the Romanian judicial system, especially in the criminal investigation phase, in the practice of which multiple issues have appeared. The absence of a distinct provision dedicated to recognizing access to the case file in the criminal investigation phase has determined judicial practice to adopt and motivate solutions that may be arguable through direct reference to the European Court of Human Rights jurisprudence or by analogy with other criminal trial institutions, while being vulnerable to pertinent criticism and thus robbed of their bold and innovative character. Finally, the author approaches the legislative modifications deriving from the entrance into force of the new Code of criminal procedure and advances the first problems bound to arise in judicial practice as a result of applying the new provisions to the subject of the right to access the case file.

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