Regarding the admissibility on the restitution of the case to the prosecutor after the conclusion on the preliminary chamber proceedings

Abstract

Although the configuration of criminal proceedings has changed substantially since 2014, at the level of national courts there is a strong tendency to return to a solution regulated in detail in the previous Criminal Procedure Law, but without any normative support in the new configuration of criminal trial.

Although, unlike the 1969 Criminal Procedure Code, the law no longer offers the appellate court the possibility of deciding a complementary solution, in the sense of returning the case to the prosecutor, some judicial review courts have considered that such a solution could become relevant again by admitting the appeal, annulling the appealed criminal sentence in its entirety, and sending the case to the preliminary chamber.

The establishment of a possibility for the court of first instance or of the appellate court to censor also the minute of the preliminary chamber judge before the start of the trial and the appealed sentence, is of great importance in the current practice of national courts, but no point of view adopted by the majority exists.

Thus, a frequently encountered issue is the one related to the situation of the preliminary chamber in the circumstances of the annulment of a criminal sentence on merits, annulment ordered based on Article 421 paragraph 2 letter b) of the Criminal Procedure Code due to the fact that the trial of the case in the first instance took place in the absence of the illegally summoned defendant, and the appellate court that decides to refer for retrial makes no reference to the last maintained criminal procedure act, finding, however, that the irregularities regarding the procedure of summoning a party existed both at the trial on the merits stage, and also previously, in the preliminary chamber phase.

Both the Decision of the Constitutional Court no. 802/2017, as well as the Decision of the Constitutional Court no. 88/2019 confirms that absolute nullity can be invoked throughout the criminal proceedings, the completion of the preliminary chamber proceeding not being able to represent an impediment in this respect.

These decisions of the Constitutional Court should be correlated with the provisions of the criminal procedure law. However, regarding the solutions that can be ordered in the trial phase of the appeal, the instances of restitution of the case in view of the retrial provided in Article 421 paragraph 2 letter b) of the Criminal Procedure Code are exhaustive and do not cover any legal defects of the preliminary chamber, the only effective remedy being the intervention of the national legislator. A proposal would involve regulating in the preliminary chamber proceedings the jurisdiction of the same court subsequently called upon to adjudicate on appeal.