Restituirea cauzei la parchet pentru neregularitatea rechizitoriului
The restitution of the case-file to the prosecutor following the finding of irregularities in the indictment

Summary/Abstract: The present study represents a synthesis of the lecture given by the author at the Conference "Three years after the entry into force of the Criminal Codes", organized in Cluj-Napoca, on 3-4 March 2017, under the patronage of the Faculty of Law of Cluj. Taking advantage of both the practical experience acquired as a prosecutor working at the Prosecutor's Office alongside the Supreme Court and of the participation in the commission of experts from the Ministry of Justice, which elaborated the draft Law on the Implementation of the Criminal Code, the author exposes in a systematic manner high-profile discussions on the issue of the restitution of the case-file to the prosecutor following the finding of irregularities in the indictment, in the preliminary chamber proceedings. The first section of the study is devoted to understanding the legislator's will in relation to the new legislation governing the issue in question, as compared to the provisions of the previous Code of Criminal Procedure. Following the introductory part, the significance of the notion of "irregularity" of the indictment is analyzed, as opposed to the notion of unlawfulness. It is concluded that there is a species-genus relationship: unlawfulness signifying any violation of the legal provisions governing the issue of the indictment and the referral of the court, and irregularity - any aspect which determines the inability of the indictment to provide a referral of the court, whether it is a matter of unlawfulness (narrow interpretation), or whether it is a matter of inappropriate drafting of the act of referral. Having taken into account the former premises, the nature of the sanction that is to be imposed for the irregularity of the indictment is verified. The conclusion is that the regime specific to the indictment irregularity is different from that of nullity. Finally, the most extensive section of the material analyzes some of the recurrent reasons for the restitution of the case-file in judicial practice, starting from the ratio between the indictment and the acts which, in the course of the criminal prosecution phase, establish the procedural framework, the incomplete, defective description of the facts, or the imprecision of legal classification.

• Details
• Contents