MĂSURILE PREVENTIVE ÎN CAMERA PRELIMINARĂ. RESTRÂNGEREA NEJUSTIFICATĂ A DREPTULUI LA O CALE DE ATAC. ARGUMENTE DE NECONSTITUŢIONALITATE
PREVENTIVE MEASURES IMPOSED UNDER THE PRELIMINARY JUDGE’S CHAMBERS PROCEEDINGS. UNJUSTIFIED RESTRAINT OF THE RIGHT TO APPEAL A COURT ORDER. UNCONSTITUTIONALITY PLEAS

Summary/Abstract: The legal provision we have brought up and analyzed in this paper is envisaged by art. 348 par. 2 Romanian Rules of Criminal Procedure and concerns the preventive measures imposed under the preliminary judge’s chambers proceedings. The legal text stipulates that where the individual subject to the enforcement of a preventive measure appears before a higher court with jurisdiction to review challenges regarding pleas (art. 347 of the Romanian Rules of Criminal Procedure), this higher court is the competent court to check and eventually maintain and affirm the measure imposed. We find this aspect to be unconstitutional (as a matter of fact, on November 11th 2016, Timis County Court, upon our request, referred the legal provision we highlighted in this study to the Constitutional Court of Romanian) because the restraint of the right to lodge an appeal breaches not only a series of fundamental rights but also several constitutional principles such as: equality before the law, individual freedom, the right to challenge the preventive measures, access to justice, proportional and exceptional circumstances that allow the restraint or limitation of certain rights. The legal provision, as it is today, has been recently amended under the Law no. 75/2016 enacted on May 2nd 2016. Prior to this last amendment and starting from the date the new Romanian Rules of Criminal Procedures became effective, the aforementioned legal text was read as follows: „during the appeal proceedings, as long as the case undergoes the challenging procedure, the court of first instance, which is the court where the indictment has been filed, is entitled to check the preventive measure under a court decision subject to appeal”. The manner in which the new law restricted the right to challenge a measure that restrains an individual’s rights by passing over and even invalidating certain fundamental rights, breaches not only the Constitution but also the ECHR Convention. For example, the individual for whom the court affirms his/her custody on remand under a court order – the most severe restriction imposed on that individual’s rights, is no longer entitled to challenge such court order before a higher court. The text is deprived of clarity and legal logic because, if a person asks the court of first instance, under a separate proceeding, to order in favour of the replacement of the preventive measure, the order the court is to deliver may be appealed but, if he/she waits for a higher court to review such court order, he/she will have no control upon that court order.

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