O scurtă trecere în revistă a jurisprudenţei Înaltei Curţi de Casaţie şi Justiţie în materia cazului de casare privind aplicarea pedepselor în alte limite decât cele prevăzute de lege

Autor: Valentin-Cristian ȘTEFAN
Publicat în: Revista Dreptul nr. 3/2019
Revistă disponibilă online: aici
A brief review of the case law of the High Court of Cassation and Justice in the matter of the case of cassation regarding the application of punishments within other limits than those provided by law
Abstract: The article sets out two components of the case of cassation on the application of the punishment within other limits than those provided by law: the scope of incidence the case of cassation in question and the solutions that may be given subsequent to the admissibility of the means of the appeal in cassation and the cassation of the challenged judgment, in this case. In the scope of incidence of the case of cassation on the application of punishments within other limits than those provided by the law several assumptions of violation of the principle of legality of the criminal law sanctions are included. First, the appeal in cassation is suitable to remedy illegalities which relate to the very nature of the sanction applied: punishment or educational measure. Secondly, an appeal in cassation may be filed to remedy illegalities related to punishments, regardless of their nature: main, complementary or accessory. Thirdly, within the category of main punishments, by way of appeal in cassation illegalities concerning the placement of punishment outside the special limits can be remedied, in the absence of a individualization cause. Under a first aspect, there may be invoked illegalities concerning the placement of punishment below the special minimum limit, in the absence of a mitigating cause. Under a second aspect, there may be invoked illegalities concerning the placement of the punishment over the special maximum limit, in the absence of an aggravation cause. Also within the category of the main punishments, by way of appeal in cassation there may be remedied illegalities resulting from the misapplication of the criminal treatment of the various causes of individualization. With regard to the solutions which may be pronounced subsequently to the admission of the appeal in cassation and of the cassation of the challenged judgment, in case of applying the punishment within other limits than those provided by the law, two options can be envisaged. The court of appeal in cassation may retain the case for retrial and rule out the misapplication of the law or refer the case back for retrial to the court of appeal. The criterion for distinguishing between the two options is the material activity following the admission of the appeal in cassation and the cassation of the challenged judgment. If this activity is limited to a simple mathematical operation, designed to correct the illegality of the punishment, the court of appeal in cassation retains the case for retrial and rules out the misapplication of the law. If this concerns a veritable judgment activity, involving more than a mathematical correction of the illegality of the punishment, the court of appeal in cassation sends the case to the court of appeal for retrial.
Keywords: case of cassation concerning the application of punishments other than those provided by law; scope of incidence; solutions subsequent to the admissibility of the means of the appeal in cassation and the cassation of the challenged judgment;