Efficiency of procedural remedies for the removal of irregularities occurred in appeal
DEZBATERI
Abstract
Sanctioning the breach of law by the court of appeal has been made over the systems of law which have succeeded in our country, either by way of second appeal, an ordinary remedy at law, or by way of appeal in cassation, an extraordinary remedy at law. The breach of the procedural rules in appeal was sanctioned starting with the effective date of the Code of Criminal Procedure of 1968 and so far by way of appeal for annulment. Although the opinion of the legislator was to rearrange the second appeal among the extraordinary remedies at law, which may only be exercised for reasons of legality, nevertheless, the cases of appeal in cassation are far from covering all the potential breaches of the law in the appeal proceedings. Examining these cases compared to those in which the second appeal could be previously declared, in the light of the Code of Criminal Procedure of 1968, when it represented the third level of jurisdiction (art. 385^9 of the Code of Criminal Procedure of 1968), but also the cases of appeal in cassation existing in certain European States, similarly to the opinions expressed by certain practitioners, we consider that this remedy at law is rather delusional than effective, as in none of the examined systems of law, the second appeal is so devoid of content as in the recent one established in the Romanian criminal procedure. Issues which traditionally belong to the lawfulness of the decision delivered in appeal (legal classification of the offense, reasoning of the decision delivered, ruling on all declared appeals), in the current regulation seem to be irrelevant and impossible of sanctioning, in the absence of some adequate rules, even if the court of appeal breaches the law in relation to them. As regards the sanctioning of the breach of the rules of procedure inn appeal, by way of appeal for annulment, some of the existing cases are enough regulated and do not cover any breaches of certain essential rules, likely to protect any fundamental rights of the parties and procedural subjects in the criminal procedure.
Keywords: appeal, second appeal, appeal in cassation, lawfulness, remedies rules of procedure, appeal for annulment
