Restituirea cauzei la parchet în fază de judecată. Constatarea nulității absolute a încheierii de finalizare a camerei preliminare
Overturning the case to the prosecutor's office during the trial phase. Establishing the absolute nullity of the conclusion of the preliminary chamber closing

Summary/Abstract: Even if the provisions of art. 396 of the Criminal Procedure Code does not expressly provide for such a solution, however, as long as, according to the art. 280 para. (3) of the Criminal Procedure Code, the violation of procedural rules provided by the art. 281 para. (1) let. b) of the Criminal Procedure Code (according to the interpretation given by the Constitutional Court, by the Decision of Unconstitutionality no. 302/2017), it can be invoked during any status of the process, and according to the art. 280 para. (3) of the Criminal Procedure Code, when the invalidity of a procedural document is established, it is necessary to restore the respective act in compliance with the legal provisions, the only procedural remedy to correct the irregularity is the restitution of the case to the prosecutor's office. If the court limited the solutions that can be pronounced in the judgment phase exclusively to the provisions of the art. 396 of the Criminal Procedure Code, this would mean the circumvention of the provisions of the art. 281 para. (3) of the Criminal Procedure Code, by reference to the art. 280 para. (3) of the Criminal Procedure Code. Basically, it would mean that the substantive court only ascertains the absolute nullity, but the irregularity cannot be rectified, although as concerns the circumstance of absolute nullity, the act of producing the injury is presumed by the legislator.

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