Rejudecarea după o condamnare în lipsă,o procedură iluzorie...Studiu asupra compatibilităţii instituţiei prevăzute de art. 522 ind.1 din Codul de proc
Retrial after conviction in absentia, an illusionary procedure ...A study on the compatibility of the institution referred by Article 5221 of the Roma

Summary/Abstract: The right to a fair trial explicitly includes the right to be tried in your own presence. This is a key part of the right to defend yourself. There is also a right to defend yourself in person or through legal assistance of your choosing which can only be exercised alongside the right to be present at trial. In the European Court of Human Rights’ view, the presence of the accused at their trial is one of the cornerstones of an equitable procedure. ECHR has consistently shown that the possibility of the accused to take part at the hearing results from article 6 of the European Convention on Human Rights, because the guarantees provided by art. 6 paras.3, for example, the right to provide evidence and examine witnesses personally, would be unthinkable without the presence of the accused before the court. The signatory states of the Convention for the Protection of Human Rights and Fundamental Freedoms can prosecute a person in her/his absence, provided he or she unequivocally renounces the right to take part in the proceedings, after a proper citation procedure has been performed. If, however, a state imposes a conviction of a person without observing the conditions stated above, the Court requires the states to ensure the reopening of the proceedings, in which a court has to rule again on the charge, regarding both the facts and the legal aspects of the case, after having heard the person convicted in absentia .. However, the European Court of Human Rights establishes the retrial of cases which were previously judged in absentia as a mandatory rule. The hypothesis of a retrial after conviction in absentia to a custodial sentence, when the convict is brought into the country in an extradition proceeding or the execution of a Doctrinã Roxana DAN 51 European arrest warrant, supports certain particular discussions occasioned by the fact that the person is in fact a prisoner. Retrial after an extradition or under a European arrest warrant, found under Article 522 1 from the Criminal Procedure Code is an institution which attempts to cover the flaws which develop at a trial in the absence of the accused but the current legal regulation do not allow this goal to be achieved. The current practice of the Romanian courts is losing sight of exactly the reason why this procedure was regulated in the first place, and that is the result of the poor regulation of this institution. This is why, in our opinion, the remedy for such a poorly regulated procedure is a direct application of the ECHR’ jurisprudence and therefore the exclusion of the existing national rules.

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