Contingencies of criminal procedure with religion

• Author: Nicolae Grofu
• Position: Associate Researcher, Institute of Legal Research 'Acad. Andrei Radulescu' of the Romanian Academy, University Lecturer, Ph.D. student, 'Al. I. Cuza' Police Academy, Bucharest
• Pages: 29-33

CONTINGENCIES OF CRIMINAL PROCEDURE WITH RELIGION

Nicolae Grofu

Abstract

The a rticle addresses the issu e of the r elationship between criminal procedure law a nd r eligion in a

diachro nic perspective. The a uthor a nalyzes the models of criminal procedur e and the evolution of criminal

procedur e regulations in reference to r eligious elements.

Keywords: Criminal P rocedure, religion, contingencies.

Introduction

In the history of criminal procedur e exist three models of criminal procedur e, which have worked

sometimes exclusively, sometimes simultaneously in the same period of time: accusatoria l, inquisitor ial and

mixed. The first two are typical and do not define themselves in opposition to each other

1, and the third is

eclectic and tr ies to reconcile the other two.

1. Preliminary considerations on models of criminal procedure

Criminal Procedure reflects on the one hand, the type of relations between the state, judicial bodies and

citizens, and on the other hand, political and social values and cultural needs of a determined community, in a

certain historical period of its development. Criminal procedure expresses the balance between the req uirements

of crime repression and those of individuals’ interests’ protectio n, which indicates the weight given to each o f

these three essential parts of the procedure: prosecution, defense and trial 2.

In the procedural regulations of various laws, these three models were represented o nly by their

essential and constant characteristics, which varied in their content from one period to another and fro m one

legislation to another; in pure form, attributed theoretically, they did not exist almost nowhere in legislative

regulations and practical realities3.

2. Models of criminal procedure in historical perspective

a. Accusatorial system

From a historical point of view, due to its particular characters which do not involve complexity in

judicial organizing and in the way a trial is conducted4, it is considered that the accusatorial procedure was first

published, b eing characterized by the freedom of producing evidence 5, by orality and publicity of the trial 6.

This system was used in different types of ancient laws in the first part of the Middle Ages7.

b. Inquisitorial system

In its traditional purity, inquisitorial model is firstly characterized by certain particular features,

namely: prosecution, defense and court activities were no longer distinct, preparatory phase of the procedure was

part of the process, so that the evidence gathered before the trial could be used during the trial; the body which

had to gather evidence and to hear the case - emblematic figure of the Inquisition - had the power to initiate, ex

officio, the process; clues were legally regulated, assessed and could not be fought, the suspect could be

interviewed to obtain a declaration, even against his will and if a spontaneous confes sion was refused, the

testimony was ta ken through the use of torture; the procedure was written a nd secret; there were no parties, but

only accused; the case was resolved by the court, in general, without debate8.

 Associate Researcher, Institute of Legal Research “Acad. Andrei Rdulescu” of the Romanian Academy, University Lecturer, Ph.D.

student, “Al. I. Cuza” Police Academy, Bucharest, nicugrofu@yahoo.com.

1 See Jean Pradel, Defence du système inquisitoire, Regards sur l’actualité no. 3/2004, Reformes de la justice pénale, La documentation

française, Paris, 2004, p. 57 apud Gheorghi Mateu, Tratat de procedur penal. Partea general, vol. I, C. H. Beck Publishing House,

Bucharest, 2007, p. 145.

2 See Gheorghi Mateu, op.cit. p. 135.

3 See Vintil Dongoroz, Explicaii introductive, in “Explicaii teoretice ale Codului de procedur penal. Partea general” by Vintil

Dongoroz, Siegfried Kahane, George Antoniu, Constantin Bulai, Nicoleta Iliescu, Rodica Mihaela Stnoiu, vol. I, Romanian Academy

Publishing House, Bucharest, 1975, p. 20.

4 The process was initiated by a prosecutor who may have been the victim of the crime or of any other person.

5 Evidence had to be gathered by the accuser, but the person under investigation was entitled to bring counter-evidence and, after his own

will, to declare the truth, contrary to the truth or remain silent.

6 Evidence and counter-evidence were discussed oral and in public only before the court, which maintain a passive role, solving the cause

according to the gathered evidence and in case of doubt they would appeal to evidence with a sacred character.

7 See, for details, Vintil Dongoroz, in Tratat de drept şi procedur penal, by Ion Tanoviceanu, 2nd edition, vol. IV, revised and completed

by Vintil Dongoroz, Corneliu Chiseli, Ştefan Laday, Eugen C. Decusar, Publishing House Curierul Judiciar, Bucharest, 1927, p. 72.

8 See, in the same direction, Vintil Dongoroz, in Tra tat vol. IV supra cit. pp. 72-73; Vintil Dongoroz, Explicaii introductive supra cit. p.

21; Gheorghi Mateu, op.cit. p. 145.