Removing samples taken illegally in the criminal trial
Removing samples taken illegally in the criminal trial

Summary/Abstract: As far as evidence in a criminal trial is concerned, Criminal Act no. 281/2003 has brought about a new procedural sanction in Romanian criminal procedure, completing article 64 in the Code of Criminal Procedure by a second para-graph, namely the exclusionary rule. The case-law of the European Court in Strasbourg is not very clear when it comes to the admissibility of illegally seized evidence against the defendant. As opposed to that, American and British common law and, following these standards, most of the traditional legal systems on the continent, acknowledge the practical use of this procedural sanction,although it is set out differently and gene-rates somewhat different effects. The said sanction is applied ac-cording to the particulars of each case, in order to achieve a just balance between the right to punish, which belongs to the state and the right to fair trial, which belongs to the suspect or the accused. In Romanian law, the unsubstantial legal provisions and the sparse case-law give no obvious answer to a series of fundamental questions related to the functioning and effects of this legal instrument: its relation to nullity, the“fruits of the poisonous tree” effect, its practical use depending on the “causes “ of illegality, the trial stage when it may be used, the procedure that governs its application and the persons entitled to benefit from this right etc. Moreover, the New Code of Criminal Procedure, in spite of its more complex content, tends to complicate many of the problematic issues in the current criminal procedure.

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