Abstract
A new figure in the judicial system was foreseen in the legal amendments undertaken in the Code of Criminal Procedure, by law no. 35/2017, in the framework of the Justice Reform. The Code of Criminal Procedure has been changed in various aspects, including in here the changes that are related with the subjects of the criminal proceedings. I have previously set out what are the problems that emerged in the criminal process in general, and in the Preliminary phase of Investigation in particular, to understand the effects of this figure and the reason for it to enter into the judicial system. This preliminary investigation control based in ower law now is made by the Preliminary Hearing Judge (PHJ) and the Preliminary Investigation Judge (PIJ). The main task of this article, is to determine the impact that the PHJ has had on the progress of a fair and complete criminal process, since it has been sanctioned by law and has begun its functions. On the other hand what are the issues that this subject presents regarding the functions that the law attributes and their implementation in practice? The main focus of this paper is precisely those legal provisions that have provided for the manner in which this procedural subject operates, to further understand its impact on the criminal process in general and on the preliminary investigation phase in particular. An important aspect is making an overview of the Italian law from where we are based to foresee this judicial figure. After a comparison between these legal provisions we came in conclusion of the problematics that PHJ presents. We outline, at the end of the study, our conclusions arising from the examination of the preliminary session and PHJ, as well as some recommendations that I consider necessary for the process of criminal proceedings, in the light of the changes that have taken place.
Highlights
Preliminary investigation has been subject to various problems in practice and precisely to avoid such problems and in the context of an effective fight against crime in the country, the legislature deemed it reasonable to undertake legal changes that were mainly related to the Preliminary Investigation phase and the entities that would be prosecuted during this procedural phase
In this article we have applied some methods that we considered necessary for studying this judicial figure: Historical aspects of Preliminary Hearing Judge in the national law over the years Analitical Methods – analizing the provisions of procedures, highliting the innovations and shortcommings of this judicial figure
The initiation of a reform of Procedural Law in general and the preliminary investigation phase in particular came as a response to the problems posed by this phase in criminal proceedings, and these problems related to: The way the prosecution was organized as a centralized body/vertical hierarchical relationship, which reduced the responsibility of the prosecution in the process and rendered the latter more negligent in their function, and Preliminary Investigations appeared to have substantial deficiencies in the continuity of the criminal proceedings
Summary
Preliminary investigation has been subject to various problems in practice and precisely to avoid such problems and in the context of an effective fight against crime in the country, the legislature deemed it reasonable to undertake legal changes that were mainly related to the Preliminary Investigation phase and the entities that would be prosecuted during this procedural phase. One of the innovations was the introduction of the Preliminary Hearing Judge who would interact at the Preliminary Hearing stage, as an intermediate stage, which had the role of a controller of the files coming from the prosecution and needed judgment. Undertaking such a change came as a result of the changes that occurred regarding the prosecution, the decentralization of the prosecution. Answering this question and based on previous experience of centralized prosecution, the legislature deemed it necessary to increase control at judicial level, strengthening the powers of the Preliminary Investigation Judge, as well as through the provision of a new judicial figure, that of the PHJ. The following is a brief retrospective on legal provisions under the Criminal P.C 1995/not amended, on Preliminary Investigation and subjects of this procedural stage
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