Excluderea declarației de martor din procesul penal
Excluding the witness statement in the criminal proceedings

Summary/Abstract: The stake of the debate brought forward by this study consists of understanding the way in which the preliminary chamber judge must act when, based on art. 102 (2) of the Code of Criminal Procedure (“the CCP”), he notes that a piece of evidence has been unlawfully obtained during the investigation stage. Thus, two solutions have shaped out. In a first approach, the unlawfully obtained evidence must be effectively removed, i.e. physically disposed of from the criminal file (material exclusion); the second solution focuses only on the application, by the preliminary chamber judge, of the exclusionary rule and the declaring as inadmissible of the respective evidence in the criminal trial (formal exclusion). The study comes up with statutory arguments which indicate that the philosophy of the CCP seems to be the formal exclusion, in the situation when a witness statement is obtained under conditions susceptible of violating the witness’s right against self-incrimi-nation, meaning that said piece of evidence was used against the witness as a suspect during the investigation and later on, when the suspect became a defendant in the same case.

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