Autor: Adrian Stan
Publicat în: Revista Universul Juridic nr.10/2017
Disponibil online: aici.
Abstract: We propose in this analysis, without asserting to fully treat criminal appeal, to underline
certain aspects related to one of the solutions of the appeal, by which the Courts of Appeal or the High
Court decide that a new judgment of the merits of the cause in an appeal is not an effective remedy,
due to the serious infringement of the law by the first courts, deciding the return of their file to be
re-judged, under lawsuit fairness conditions.
The re-judgment of the cause by the court having ruled the decision is a procedural remedy by
which the court of appeal returns the file to be re-judged by the first court or by the competent court,
in case the judgment occurred with the infringement of principles of the criminal lawsuit, or with the
failure to meet dispositions established with falling within absolute or relative nullity sanction.
First of all, we debate the situation when the judge of the merits is different than the one having
decided the admission of the judgment, in which case, the first court does not rule on actions related
to the performance of the criminal investigation, of the cases when a party has not been duly serviced
and of the aggravation of the defendant-appellant’s situation as consequence of the re-judgment.
We shall also analyze the cases when, although the procedure code does not provide for
expressly, the courts of appeal refer the cause to be re-judged, like the failure to discuss the legal
classification, the failure to administer evidences during the indictment or the total failure to
motivate the judgment of the merits, when the ECHR principles of a fair lawsuit are directly applied
in the appeal.
Keywords: dissolution with referring for re-judgment, criminal lawsuit, ECHR Convention,
absolute and relative nullities, re-judgment of the cause
