51. Incompatibilitatea judecătorului. Nulitatea relativă a sentinței primei instanțe. Trimitere spre rejudecare
51. Incompatibility of the judge. Relative nullity of the judgment delivered by the court of first instance. Remanding the case for retrial

Summary/Abstract: A judge who settled the case according to the procedure laid down in art. 374 para. (5), art. 375 and art. 396 para. (10) of the Code of Criminal Procedure regarding certain defendants, shall become incompatible to judge the disjoined case regarding the other defendants sued by the same indictment, if only he expressed his opinion in the considerations of the judgment delivered according to art. 374 para. (5), art. 375 and art. 396 para. (10) of the Code of Criminal Procedure with a view to the solution to be given in the disjoined case. The solution of dismissing the declaration of abstention, delivered by the immediately following panel cannot be opposed to a court of judicial review with the force of res judicata, even if this court ruling was delivered without any appeal according to art. 68 para. (7) of the Code of Criminal Procedure. Thus, having jurisdiction to judge a completely devolutive appeal, the court of appeal has also jurisdiction to examine the entire manner in which the court of first instance proceeded to the conduct of the inquiry in this case, being also able to consider whether the impartiality of the judge of the court of first instance would have been affected by certain actions or measures taken or ordered by the respective judge. The case of incompatibility of the judge of the court of first instance shall lead to the relative nullity of the entire judicial proceeding conducted before this judge, and the consequence shall be imposed by art. 280 para. (3) of the Code of Criminal Procedure, respectively the restoration of the act in compliance with the legal provisions, respectively the resumption of the judicial investigation before the court of first instance before a judge having jurisdiction to settle it. The judgment of the case in the court of first instance by a court which raises serious doubts of partiality, shall prejudice the right to a fair trial provided for by art. 6 paragraph 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as the right to a fair trial is closely related to the right to a double level of jurisdiction in criminal matter. The court of appeal could not fully substitute the trial stage which should have taken place in the first instance, as such a solution would determine the artificial removal of a level of jurisdiction, to the detriment of the procedural interests of defendants, for which the procedural legislation sets forth that two levels of jurisdiction must be passed through.

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