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Injuried parties with protected identity

The Court of Appeal from Brasov rulled that in the situation when in the indictment are not mentioned the real identification data of the injuried parties, the sanction that occurs is the document relative nullity, this invalidity cannot be removed in any other way than by restoring the document instituting and prosecuting acts.

“Due to article 24 paragraph 1 Criminal Procedure Code the person who suffered through the criminal act a phisical, moral or material damage, if he/she participates at the criminal trial it is named injured party, if he/she exercises a civil action is called hand civil party, due to the second paragraph of the same article, their declarations are considered to be test means  and in this case it is normal that the court proceds of their hearing ( article 326 Criminal Procedural Code ), firstly are taken into account the data concerning their identity, civil and material state, other personal data, and secondly their confessions about the offense and the circumstances in which it took place. As the article 771 Criminal Procedural Code states, the hearing of the injured party and the civil party can take place in using special methods likely to those concerning the witnesses, for their protection. So, in the case their life, their coporal integrity and the freedom of the injured party and the civil party are in danger, the prosecutor or the court  can admit the hearing of this party without being present at the place where the judgement is taken, by using the technical machines of the judicial authority, the provisions regarding the protection of the witnessed identification data can be applied using the analogy.

Interpreting these last provisions in the meaning of their application for the injured party or the civil party too equals to an extentions of the criminal law, applying the criminal law for some facts which are not included in their norms, which is an inadmissible situation and it is in contradiction with the principle of legality.

In this case, taking into account the provisions of article 4 from the Law no. 211/2004 concerning some measures to assure the protection of crime victims and also the legal provisions mentioned concerning the protection of witnesses identification data, the criminal prosecuting body, using the analogy extended the criminal law too much and has created a third institution, that of  ” victims with protected indentity ”, unallowed situation and infringed the principle of legality.

So, the victims of a crime have the possibility to choose, either they participate in the criminal trial as injured party or civil party, or they give up this position and they will be heard as a witness.

(…) Proceding in hiding the indentity of the injured and civil parties, the defandents were infringend their right to defend themselves as article 6 paragraph 3 letter b from ECHR states ” every person who is arrested has, especially, the right to be informed in the shortest period of time, in a language he understands and with all the concering details about the nature and the cause of the accusion brought against him, so inclusively he must be informed about the identity of those who accused him when they participate in the criminal trial as injured/civil parties. Using another procedure than by respecting the legal provisions in what concerns the hearing of the injured/civil parties and as a consequence, of the defandents, regarding the way it was done it was an infringement of the contradictoriality principle too, the sanction being relative nullity which can be covered just by having the criminal proceding acts resteored, respecting the infringed legal provisions ”. ( Criminal Decision no. 693 from 22nd of October 2009 pronounced in appeal  by the Criminal Department and minority cases of Brașov Court of Appeal having as object child trafficking- Law no. 678/2001- JURINDEX 2010648471, judges: Aurelia Munteanu, Nicoleta Țînț and Laura Popa ).

>> The source: JURIDICE.ro

Daniela GHICAJANU

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