An appeal for annulment is an extraordinary way of appeal that can be applied in cases, strictly and limitedly provided by law, for the purpose of annulment of the final decision rendered in violation of the rules of criminal procedure.

Thus, the final decision, which is considered legal and justified, can be canceled only in exceptional situations for reasons not considered by the courts in the previous procedure, reasons arising from changes in the factual situation, procedural errors or judicial decisions, a decision on the contrary that leads to a violation of the security of legal relations (the mandatory principle of preserving the trust of citizens in the activity of the court and the prestige of independent authorities subject only to the law, characteristic of the real power in the state. )

Final criminal judgments issued by a court of first instance or an appellate court, which resolve a criminal/civil claim, when the case under Art. 426 liters b) C.proc.pen. is likely to be challenged by annulment appeal.

As for the cases of disputing invalidity, in the context of this article we are interested in the case provided for in Art. 426 liters b), respectively: “when the defendant was convicted, although there was evidence of grounds for criminal proceedings”

Grounds for termination of criminal proceedings are directly and limitedly provided by the Code of Criminal Procedure, they consist, among other things, in the interference of the statute of limitations of criminal liability.

Regarding this ground for appeal of annulment, recently Decision no. No. 500/39/2022, respectively, the Court of Appeal of Cluj – Criminal and Juvenile Section in case no. 547/33/2022, which requires a preliminary ruling to resolve legal issues, the ICCJ – Legal Issues Panel considered that the application should be allowed, ruling as follows:

1. Provisions of Art. 426 liters b) the Code of Criminal Procedure has been interpreted to mean that a court deciding on the merits of an appeal for annulment cannot re-examine which of the criminal laws which have followed each other over a period of time is more favorable in the event that there is a reason the termination of the criminal proceedings in relation to the subsequent law, which was not found to be more favorable in this case.

2. The appellate court’s failure to issue a decision on the existence of grounds for stopping the criminal process in relation to a more favorable criminal law from the date of the act to the day of the verdict in the appeal case cannot be considered. caused by means of an appeal for cancellation on the basis of the provisions of Art. 426 liters b) from the Criminal Procedure Code.

Regarding the case of closing the criminal proceedings in the intervention in bringing to criminal responsibility on 25.06.2018 it was made public Decision of the Constitutional Court No. 297/2018 regarding the exclusion of the unconstitutionality of the provisions of Art. 155 para. (1) of the Criminal Code. With this decision, the Constitutional Court ruled as follows: He recognizes the exception of unconstitutionality (…) and notes that the legislative decision, which provides for the interruption of the statute of limitations of criminal responsibility by the execution “any procedural document referred to”, from the provisions of Art. 155 para. (1) of the Criminal Code is unconstitutional.”

Practically after the publication of the above-mentioned decision of Art. 155 para. (1) of the Criminal Code acquired such a form that, as can be seen, could no longer be applied as such: “(1) The running of the statute of limitations for criminal liability is interrupted by execution.”

However, after the publication of Decision no. 297/2018, judicial bodies proposed a certain interpretation and subsequently applied this incomplete form of Art. 155 para. (1) of the Criminal Code with reference to the text of the decision and the legislative decision provided for in Art. 123 par. (1) of the Criminal Code of 1968, which had the following wording: “The running of the statute of limitations (..) is interrupted by the commission of any act which, according to the law, must be notified to the accused or the defendant in the course of criminal proceedings.“.

This interpretation was based on the considerations set forth in p. 34 Decision No. 297/2018by which the Constitutional Court established the following: “(…) preliminary legislative decision provided for in Art. 123 par. (1) of the Criminal Code of 1969 met the conditions of foreseeability imposed by the constitutional provisions analyzed in this case, since it provided for the interruption of the limitation period of criminal responsibility only by the commission of an act which, according to the law, had to be reported in the event that the person concerned had the capacity to accuse or blame“.

The Constitutional Court ruled as follows Decision No. 358/2022: “68.The Court further notes that in paragraph 34 of Decision no. 297 of April 26, 2018 highlighted the fact that the legislative decision of the Criminal Code of 1969 met the requirements of clarity and predictability, as it provided for the interruption of the statute of limitations for criminal liability only by the commission of an act, which according to Art. according to the law, it was necessary to inform in the case when the relevant person had the status of an accused or a defendant. However, the Court notes that the reference to the legislative decision in the previous regulatory act had a guiding role and in no case can have an absolute character in the sense of the obligation of the legislator to adopt a rule identical to that contained in the Criminal Code of 1969 (…) 70. (…) The court believes thatin paragraph 34 of Decision No. 297 of April 26, 2018. highlighted the benchmarks of constitutional behavior, which the legislator, not the judicial authorities, had the obligation to accept, this, in accordance with Art. 147 of the Constitution, being obliged to legally intervene and clearly and predictably establish cases of interruption of the statute of limitations for criminal liability.. 71. (…) At the same time, The court ruled that allowing a person who interprets and applies the criminal law, in the absence of a direct rule, to independently establish a rule according to which he is going to decide the case, taking as a model another decision pronounced in another regulated system, is an application by analogy with the criminal law. Or, according to the jurisprudence of the European Court of Human Rights and the Constitutional Court, Article 7 Clause 1 of the Convention on the Protection of Human Rights and Fundamental Freedoms and Article 23 par. (12) The Basic Law, which enshrines the principle of the legality of prosecution and punishment (nullum crimen, nulla poena sine lege), in addition to the prohibition, in particular, to extend the content of existing crimes to actions that were previously committed as non-crimes, also provides for the principle according to which the criminal the law should not be interpreted and applied broadly against the accused, for example by analogy. 72. Taking this into account, the Court recognizes that the current normative set does not contain all the legislative elements necessary for the intended application of the norm sanctioned by Decision no. 297 of April 26, 2018. Thus, although the Constitutional Court referred to the old provision, highlighting the guidelines of constitutional behavior that the legislator was obliged to adopt, applying those provided by the Court, this fact cannot be interpreted as the permission of the constitutional court for the judicial authorities to independently establish cases of suspension of criminal responsibility.. 73. Therefore, the Court recognizes that under the conditions of establishing the legal nature of Decision no. 297 of April 26, 2018 by a simple/extraordinary resolution, in the absence of active intervention of the legislator, mandatory according to Art. 147 of the Constitution, during the period from the date of publication of the relevant decision to the entry into force of the regulatory act, which clarifies the norm, by clearly regulating cases capable of interrupting the period of limitation of criminal liability. there are no cases in the current legislation that would allow the limitation period of criminal responsibility to be interrupted..”

Later, on 30.05.2022 entered into force in GEO no. 71/20221, which establishes that Art. 155 para. Part 1 of the Criminal Code has been amended to read as follows: “(1) The expiration of the statute of limitations for criminal liability is interrupted by the commission of any relevant procedural action, which, in accordance with the law, must be notified to the suspect, the defendant.

In the case of the plea agreement, there are some interesting features, especially since there are very few files when doing legal research on this extraordinary appeal from the decision made under the aforementioned special procedure.

In essence, a plea bargain trial, although resulting in a final judgment, does not actually involve a trial on the merits where any reprehensible defects of illegality or unreasonableness may be revealed. in an extraordinary order of appeal, but rather consists in checking the legality of the agreement concluded with the prosecutor’s office, therefore there is no detailed consideration of the case on the merits.

In addition, in the situation of concluding a plea agreement, the judge of the previous chamber (who is responsible for checking the legality of the indictment and the provided evidence) is not involved, since the stage of the preliminary hearing is practically absent, no evidence is provided (except for the documents in the case). circumstances), which gives the procedure, as well as the pronounced court decision, a special character.

For this reason, in conjunction with the case of appeal of the cancellation incident, respectively the accused was convicted, although there was evidence of grounds for criminal proceedings, our attention was focused on justifying the admissibility of the extraordinary remedy applied.

The rationale for the admissibility of an appeal for annulment was based on the aspects preserved in the specialized doctrine regarding the exercise of this appeal on the grounds provided for in letter b) respectively “It does not matter whether the guilty verdict remained final in the first instance due to failure to exercise the right to appeal or in the appellate court, this case, along with the one provided for in Art. 426 liters and), the only cases in which an extraordinary appeal of a complaint for annulment may have as its subject the final decision of the first instance.”[2]

In the same sense, with regard to decisions subject to appeal for annulment, another author noted the following: “Only for the cases provided for in Art. 426 liters b) and i) of the CPP, may refer to the appeal of annulment final decisions regardless of the method of acquisition of this trait, as a result of a failure to appeal or after a decision on an appeal, the final decision is, as the case may be, a judgment or decision. In this logic, No the subject of the appeal against the cancellation is the conclusions of the judge of the previous chamber or the conclusions provided as a result of the review of complaints against the classification order in accordance with Art. 341 of the Criminal Procedure Code or conclusions that the same judge made in connection with the approval of the resolution on the refusal of criminal prosecution.” [3]

The arguments presented in the Bucharest Court led to a favorable decision, i.e. a decision on the admissibility of the appeal in principle, after which a decision was made to recognize the appeal for annulment.​​​​​​

The article is signed by Veronica Dobozi ([email protected]), partner, STOICA & Associates. ​​​​​​​