Observations on a decision to return the case to the prosecutor’s office in the appeals proceedings

Abstract

At the beginning of our analysis, we presented, in extract, Decision no. 1082/A issued by the Bucharest Court of Appeal – 1st Criminal Division, on September 5th, 2024, by which the case was returned to the prosecutor’s office due to the appeal court’s finding regarding the unclear nature of the accusation, pursuant to art. 421 para. (1) and (2) of the Criminal Procedure Code, art. 6 para. (3) of Directive 2012/13/EU, and art. 47 of the Charter of Fundamental Rights of the European Union, as interpreted by the judgment of the Court of Justice of the European Union in Case C-282/20, dated October 21st, 2021.

In accordance with this decision, we have likewise expressed the opinion that the regularity of the indictment may also be reviewed by the appeal court during the trial phase, based on the CJEU case law. We argued that throughout the trial, the regularity of the indictment may be challenged incidentally, by raising an exception similar to that found in Belgian law: obscuri libelli.

However, we did not concur with the appeal court’s decision to order the direct restitution of the case to the prosecutor’s office without complying with the procedures established by the CJEU in its judgment in case C-282/20. In this regard, we presented a series of arguments supporting the view that the optimal solution, upon discovering irregularities in the indictment at the appeal stage, is the invalidation of the first-instance judgment and the restitution of the case for retrial.