Guaranteeing the criminal defense – fundamental principles


Guaranteeing the Criminal Defense – Fundamental Principles

The realization of justice in the rule of law can only be achieved by respecting the rights and legal interests of man. The courts do the prosecution of the offender through a criminal trial. This criminal process, in its conduct, is governed by some general rules on the basis of which the whole construction of the criminal procedure is built.

One of the fundamental principles of the criminal trial is the principle of guaranteeing the right of criminal defense, being not only a manifestation of the rule of law but also a prerequisite for the practical realization of justice. This principle also reflects an important policy of the criminal law, namely the humanism of justice. Having regard to the humanity of criminal law must be seen not only in relation to the rules on unlawful coercion but also with regulations containing incriminations, each state of criminalization constituting protection of man in all his humanity. Look at this.

The right to a criminal defense

Being one of the fundamental rights of citizens, the right to criminal defense is enshrined in some international instruments which embody these rights:

– The European Convention on Human Rights (1950) which, in Art. 6 point 3 lit. C provides that an accused has, in particular, to defend himself or to be assisted by a defender chosen by him and, if not, he has the means to pay a defender, can be supported free of charge by an ex officio attorney when the interests of justice so require.

– The European Charter of Human Rights stipulating in art. 47 the right to a fair trial establishes that persons without the necessary resources will receive free legal aid insofar as such assistance is needed to ensure adequate access to justice. The Constitution registers this right in article 24, which states that the power of defense is guaranteed throughout the criminal proceedings, the parties were entitled to be assisted by a lawyer elected or ex officio. Such regulation is also found in Law no. 304/2004 on the judicial organization which in art. 15 states that “the rights of defense are guaranteed. Throughout the trial, the parties have the right to be represented, or, as the case may be, assisted by a defendant elected or appointed ex officio, according to the law.”

Ensuring the right of defense as a fundamental principle of the criminal trial is regulated in Art. 6 of the Penal Code, according to which “the power of defense is guaranteed to the accused, the defendant and the other parties throughout the criminal proceedings. In the course of criminal prosecutions, the judicial bodies are obliged to ensure that the parties fully exercise the procedural rights under the conditions provided by the law and administer the necessary evidence in defense. You can also read more about dismissal vs. clearing your record, and see what option applies in your case.

The judiciary must notify it immediately and before hearing the accused or accused of the act for which he is charged, of his legal framing and to ensure the possibility of preparing and exercising the defense. Any party has the right to be assisted by the defender throughout the criminal proceedings.

About the judicial authorities

The judicial authorities must notify the accused or defendant, before the first statement is made, of the right to witness a defender, and this is recorded in the record of listening. Under the conditions and in the cases provided for by law, the judicial bodies are obliged to take measures to ensure the legal assistance of the accused or defendant if he has no elected defense.

It is clear from the content of these regulations that the execution of criminal justice in a state governed by the rule of law must be by all the parties’ procedural rights and interests. Defense in the course of criminal proceedings is a right and not an obligation of the accused or defendant, and the state is bound to ensure its right to defense.

Guaranteeing real defense is a guarantee of comprehensive, objective research, as only a legal sentence can be issued in this way. In rebuttal, the accused, the defendant or the defense counsel performs all the actions he deems necessary to reject the prosecution to cause either his acquittal or an easier sanction. However, guaranteeing the rights of the defense as a fundamental principle of the criminal process requires more than legal assistance.

The parties have the opportunity to secure their defense. Thus, the accused or the defendant benefits from a series of procedural rights that enable them to defend themselves. The accused or the defendant has the right to know the charge and to fight it by the evidence – the defendant or the defendant has the possibility to participate directly in the conduct of the criminal prosecution, and the acts of the court – the accused or the defendant has the right to present the criminal investigation material.

The right to defense is granted to all defendants. It can be done personally or through a defender. Therefore, the defense is a broader concept than the notion of a defender, because the case can be done either personally by the accused or the defendant, or by the defendant elected or appointed ex officio.

Given that according to a fundamental principle of the criminal proceeding, any person is considered innocent until a final criminal judgment has determined the conviction, the judicial bodies must also take into account the evidence that presents favorable aspects to the parties.

The right of the parties to legal assistance

 When the party deems it necessary, it may request the support of a lawyer who can provide legal assistance. The defense must relate to the cause in its complexity, both in fact and in law, and must be carried out through acts and fulfilled according to the legal forms prescribed by the law, which cannot be performed thoroughly and in all its magnitude than by a lawyer.

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Therefore, as a rule, the participation of the lawyer in the criminal proceeding is the will of the accused or the defendant, being optional. However, under the conditions and in the cases provided by law, the judicial bodies are obliged to take measures to ensure the legal assistance of the accused and the defendant if he or she has no elected defense.

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