THE EVIDENTIARY PROCEDURE OF A PERSON’S CRIMINAL INVESTIGATION. ISSUES RELATED TO THE COMPLIANCE WITH THE RIGHT TO A PERSON’S PRIVACY BY CONSIDERING THE PRACTICE OF THE EUROPEAN COURT OF HUMAN RIGHTS
THE EVIDENTIARY PROCEDURE OF A PERSON’S CRIMINAL INVESTIGATION. ISSUES RELATED TO THE COMPLIANCE WITH THE RIGHT TO A PERSON’S PRIVACY BY CONSIDERING THE PRACTICE OF THE EUROPEAN COURT OF HUMAN RIGHTS

Summary/Abstract: The system of evidence, means of proof and evidentiary procedures in criminal proceedings, as regulated in the Code of Criminal Procedure in force, has undergone a series of changes phased in relation to the needs of criminal instruction as adaptations to the realities of the contemporary society, the legislator gradually adopting knowledge from other science fields which he has made available to the judiciary bodies adapting them to the needs of criminal justice. Such an evidentiary procedure is the one represented by the physical examination of the person, whether (s)he is a perpetrator or an injured person, a procedure that has been regulated for the first time in the criminal procedural legislation and is a response to the emphasis laid on the increased protection which has to be granted to the right to a person’s privacy as evidenced by the jurisprudence of the human rights court in this field, as well as by the legislation of the European Union. The physical examination of a person is assessed in the practice of the human rights court as an interference with the individual’s right to privacy. The criminal procedural regulation regarding the interference with the individual’s right to privacy must meet certain conditions of enforceability, in the sense that it must be provided by law, pursue a legitimate purpose, be necessary in a democratic society, i.e. meet a stringent social need and, in principle, is proportionate to the legitimate pursued purpose and if the reasons invoked by the national authorities to justify it are relevant and sufficient. The criminal procedural law must be subject to the constitutional provisions on the right to privacy, constitutional provisions relating, in the human rights filed, to the provisions of the Universal Declaration of Human Rights, as well as to the pacts and treaties to which Romania is a party, when they contain provisions which are more favorable than the internal laws.

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