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Mădălin Marian PUȘCĂ, Costin Cristian PUȘCĂ: Limits of Capitalization of art. 6 ECHR ...

Abstract: The European Court of Human Rights has clarified in its case law the requirements for the observance of the right to a fair trial in the event of a conviction following direct acquittal, directly on appeal. The Court pointed out, in multiple judgments, that the manner of reassessing the evidence administered in previous phases of the criminal process, with the consequence of direct conviction in the appeal, leads to the violation of the right to a fair trial, provided by art. 6 of the Convention. The cassation appeal allows the finality of the final court decisions handed down by the courts of appeal and must be recognized as the only internal, viable and appropriate mechanism to find and exclude violations of the right to a fair trial in the context of favorem cases. The object of the present study is the analysis and capitalization of the jurisprudential interpretation of the principle nulla poena sine lege, in the case provided by art. 438 par. (1) point 7 of the Code of Criminal Procedure, “deed not provided for by criminal law”, in the particular situation of pronouncing a solution of conviction, in the appeal, following acquittal and without direct administration of evidence (by reassessing the evidence administered in earlier stages of the criminal proceedings). This article aims to capture and argue the possibility of capitalizing on this case of cassation in the stated hypothesis and the possibility of remedying or eliminating, in this procedural framework, violations of the right to a fair trial.

Keywords: cassation appeal; cassation case; the right to a fair trial


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