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Vasile Ioan Vidrighin, George-Cătălin Grosu: Jurisprudential solutions for annulment ...

DOI: http://doi.org/10.47743/jss-2022-68-2-3

Abstract: We propose in this article, without claiming to deal in full with the solutions that can be pronounced in the appeal in the preliminary chamber procedure, to point out some aspects related to some solutions of the courts pronounced in the preliminary chamber procedure, by which the decisions pronounced by the preliminary chamber judge were annulled and the cases were sent for retrial. The retrial of the case by the preliminary chamber judge who handed down the judgment is a procedural remedy by which the court of judicial review returns the case for retrial to the first instance, in case some principles of criminal proceedings or some fundamental principles established by the European Convention of Human Rights have been violated. The solutions pronounced in the sense of abolition with reference to retrial, without having a normative support for criminal proceedings, were based on the principles of criminal proceedings and the right to a fair trial established in art. 6 paragraph 3 of the ECHR and refers to: the manner in which the accusation is formulated by the act of referral - the conclusion of the judge of the preliminary chamber of the merits - which is lacking sufficient clarity and exceeds the limits of the order to initiate criminal proceedings, provided that there has not previously been an extension of the criminal action; failure to rule by the judge of the preliminary chamber of the first instance on all the requests and exceptions invoked by the defendant in the preliminary chamber procedure; failure to resolve the defendant's request for the finding of his alleged illegal deprivation of liberty for a period of 40 hours; non-compliance with the procedural norms regarding the communication of the indictment. In the preliminary chamber procedure, the verification of the legality of the administration of evidence by the criminal investigation bodies must be carried out, directly, in contradiction with the injured parties and the injured person, with the possibility of administering any means of evidence. At European level, it has been ruled the need to carefully examine the judicial procedures by which evidence is administered in criminal proceedings, on the true, appropriate and sufficient possibility to challenge the legality of evidence produced in the criminal investigation phase. All these imply the necessity to give the possibility for the parties to use all means provided by law to invoke in their defense facts or circumstances, including the administration of any means of proof that would prove the illegality of the evidence produced by the criminal investigation bodies.

Keywords: criminal lawsuit, preliminary room, ECHR Convention, re-judgment of the cause.

References:

Ion Rusu, Efectele Deciziei Curții Constituționale nr. 51/2016 în procesul penal român, Universul Juridic Premium nr. 2/2021;

Mihail Udroiu, Procedură penală. Partea specială, Ediția a 5-a, revizuită și adăugită, Ed. C.H. Beck, București, 2018;


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