Principle of loyalty in producing evidence. Use of undercover investigators. Perjured testimony. Excluding the witness statement in the pre-trial chamber procedure

DREPT PENAL ŞI DREPT PROCESUAL PENAL

Abstract

1. The case-law of the European Court of Human Rights defines the inciting agents as agents of the State or any person acting under the coordination or supervision of an authority, which, in their activity carried on, exceed the limits of their duties conferred by law to act for the purpose of revealing the criminal activity of a person, provoking her to commit the offence, for the purpose of producing evidence in the indictment. Therefore, the activity carried on by the undercover investigators shall be deemed as unfair in the absence of any reasonable suspicion, even if it resulted in committing an offence. The subsequent continuation of the undercover investigator’s activity is not sufficient to prove the lack of challenge as the absence of any reasonable suspicion reveals the arbitrary ab initio nature of the judicial bodies, as well as the unlawfulness of the evidence procedure. 

2. If prior to their hearing as witnesses, the criminal prosecution bodies were in the possession of some ambient recordings the content of which revealed the reasonable suspicion regarding their possible criminal participation in committing the offence of bribery or aiding bribery, the prosecutor was not able to hear these persons as witnesses, but instead, possibly, as suspects, in compliance with their procedural warranties resulting from the provisions of Article 83 of the Code of Criminal Procedure, respectively Article 108 of the Code of Criminal Procedure and Article 6 of the European Convention on Human Rights. Moreover even in the assumption that the respective person was heard as witness, the prosecutor was required, when the presented facts outlined the involvement in committing an offence, to acknowledge that the witness incriminates himself and inform him about the consequences arising therefrom, inclusively the right not to incriminate himself.