Journal Article

SOME CONSIDERATIONS REGARDING THE PROVISIONS OF LAW NO. 254/2013 ESTABLISHING THE REGIME OF EXECUTION OF CUSTODIAL SENTENCES, THE SUMMONS PROCEDURE, THE HEARING, PRESENCE IN COURT AND RIGHT TO DEFENCE OF THE DETAINEE

Hărătău, Adrian, Härätäu, Lamya-Diana

2024

Overview

The regulations falling under the scope of this study are essential for the observance of convicted persons' rights, their right to free access to a court of justice (art. 21 of the Romanian Constitution), and to a fair trial, in proceedings related to challenges against the resolutions passed by the custodial supervisory judge in response to applications by inmates regarding the observance of their rights and against the decisions of the disciplinary board in matters relating to the customisation or the amendment of their custodial regime. (6) of Law no. 254/2013, and the resolution is notified to the detainee and to the prison administration, within 3 days of the adjudication date. [...]the reasoning of the custodial supervisory judge will remain unbeknown to the detainee, who will not be able to learn why the court decided upon a certain solution, nor will they know what the prison administration argued in regard to the situation brought before the court. The only possibility of a convicted person to consult the documents in their respective case file is, therefore, as mentioned above, to develop a request to consult and make photocopies of the case file and to submit it to the court, which represents a significant financial effort, in order for the prisoner to gain access in person to the court archives, and some inmates are unable to sustain such expenses. [...]in the trial phase before the custodial supervisory judge, the detainee is deprived of an effective possibility to consult the case file registered in the wake of their application, also being unable to be informed of the arguments of the prison administration or to study other documents therein. (17) from Law no. 254/2013, the „prosecutor and the prison administration representative will take part in the proceedings and submit arguments\", meaning that the trial phase will be completed without any contribution from one of the parties (namely, the convicted person), which constitutes a lack of proportion that breaks the balance between prosecution and defence taking part in criminal proceedings, in terms of procedural means. [...]the proceedings before the custodial supervisory judge are assimilated, mutatis mutandis and de plano, to a first instance adjudication on the merits of a case, and the judicial procedure before a trial court - where the resolution of the custodial supervisory judge is challenged - becomes assimilated to an avenue of appeal.

• Publisher: Nicolae Titulescu University Editorial House,Nicolae Titulescu University Publishing House
• Subject: Court hearings & proceedings / detainees / enforcement of custodial sentences law / free access to justice / Judges & magistrates / Prisoners / right to defence / Trials