Procedura avertismentului. consecinte în materia validitătii declaratiilor acuzatului în procesul penal
The warning procedure. Consequences on the validity of the statements of the accused in the criminal process

Summary/Abstract: Through law no. 281/2003, the Romanian legislator has expressly regulated in art. 70 para. 2 and art. 143 para. 11 of the Code of Criminal Proceedings the procedure of warning concerning the right not to make statements: the accused is informed of “[…] the right not to make statements; being notified that anything he says can be used against him […]”. By the means of the same law, art. 64 of the Code of Criminal Proceedings has been completed with paragraph 2, which states that “evidence obtained illegally cannot be used in the criminal trials”. On the basis of these two texts, the study investigates the significance of the warning on the right not to make statements and supports the idea that this institution, alongside art. 64 para. 2, has a powerful impact in what concerns the validity of the affirmations of the accused. The right to remain silent is viewed as a primary theory in this field, which imposes a different approach to the question of proof admissibility, in comparison with the rule provided by art. 68 of the Code of Criminal Proceedings: “it is forbidden to use violence, threat or any other means of constraint, as well as promises or impulses, for the purpose of obtaining evidence”. In introduction, the author purports that the argument that justifies her thesis is the one that states that the warning procedure is a legal transplant of a specific Anglo-American institution in a system belonging to the continental tradition. From this perspective, the norm must be accompanied by the rationale that requested it, in its originating system, even though it might bring about essential amendments to the system that is undertaking it. Consequently, the Romanian penal system must effectively apply the theory of the right to remain silent, the newest and most controversial rule exclusively applied in the American system of law, and constantly refused by the English one. In its second part, the study presents the theory of the right to remain silent in its originating system, and particularizes two principal aspects: the delineation between this right and other rules incident in this area (the voluntary statement theory of the prosecutorial system / the loyalty principle in the continental system), and the presentation of the content of this rule, and its effects. The author shows that the right to remain silent entails as a criterion the free choice of the accused in cooperating or not cooperating with the authorities, criterion that is distinct from the one of the free will promoted by the voluntary statement theory. In applying the free choice criterion, the right to silence annuls the statements obtained through the application/ threat of application of a punishment for the refusal to talk, regardless of the gravity of the punishment. The definition of the notion of “punishment” is completed with references to ECHR case-law - which, in the author’s viewpoint, does not supply clear standards and suggests a reconsid

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