Relative nullity is a virtual nullity that derives from the fundamental principle of lawfulness and results from the infringement of any legal provisions regarding the proceedings, other than the ones expressly stipulated by law, that entail – result in absolute nullity.
This is characterised by the fact that it intervenes when, by infringing the legal provisions, an infringement of the participants’ rights in the criminal proceeding occurred (prosecutor, parties and main subjects to the process), that this shall be invoked at a certain stage of the criminal proceeding or in a certain procedural moment stipulated by law, that this shall be covered when the holders of the right to invoke it do not exercise this right within the time limit provided by law, and by the fact that the main subjects that can invoke relative nullity must have the quality provided by law, as well as their own procedural interest in complying with the allegedly infringed legal provision.
The infringement of the parties’ or of the main subjects’ rights shall address the fundamental rights regulated by the European Court of Human Rights and the Romanian Constitution with respect to which the restriction, ignoring the provisions of art. 53 of the Constitution or restricting them with the infringement of the provisions of the European Convention on Human Rights (in the interpretation given by CEDO – European Court of Human Rights) or of the Charter of Fundamental Rights of the European Union (in the interpretation given by CJUE – Court of Justice of the European Union) will unnecessarily entrail the retention of a procedural infringement whereas in any other interpretation, the rights illegally restricted or infringed would be devoid of their fundamental content. It is essential to determine and analyze the nature of the infringement, the nature of the infringement, the proof of reasonable suspicion of the infringement of the legitimate rights and interests.
The proof of the existence of an efficient and concrete compensatory mechanism for maintaining the illegal document/evidence represents an obligation of the Prosecutor’s Office. Although, in practice, the possibility to “reassess the illegal evidence/remaking of the illegal act during the judicial investigation”1 is frequently invoked, we estimate that such a “solution” will finally lead to a situation in which the illegal evidence or act will be subject to court analysis form the perspective of the probative standard beyond any reasonable doubt, separate matter form the necessity to analyse the legality of the evidence/act.
- According to a solution of judicial practice2 it was noted that: “Assuming that the preliminary chamber judge finds that a legal provision was infringed during the process of assessing the evidence, maintaining the illegal evidence shall be conditioned by the retention of an effective compensatory mechanism, because the relative nullity operates only when the infringement cannot be removed otherwise, in terms of compensatory mechanisms’ geometry, thus the following coordinates must be drawn: (i) researching the possibility of finding a remedy (…); (ii) the remedy shall be proportionate to the nature of the right that was infringed and with the extent of the damage made (…); (iii) when the illegally assessed evidence reveals only deeds or circumstances of fact in the indictment, the possibility of reassessing the evidence in the trial phase, does not constitute an effective remedy (…).
Finding the incidence of relative nullity entrails the appliance of the considerations of the Decision of the Constitutional Court No. 22/20183 concerning the legal and material exclusion of illegally obtained evidence (information about a deed or circumstance) during the trial, in order to observe the benefit of the doubt and all the composing elements regulated in art. 6 of the European Convention on Human Rights ending with the preparation of the file in order to be submitted to the evaluation of the court in order to pronounce a solution.
1. See: Criminal Conclusion No. 305/CT of 14.11.2014 issued by the Court of Mureș, Criminal Division; Criminal judgment No. 336 of 30th May 2014 issued by the Court of Appeal Alba Iulia, available on www.rolii.ro.
2. See: Criminal conclusion No. 16 of 18.01.2019 issued by the Court of Suceava, available on www.rolii.ro.
3. Published in the Official Journal, Part I No. 177 of 26th February 2018.