Sesizare pentru dezlegarea unor chestiuni de drept. Inadmisibilitate. Stabilirea caracterului nelegal al privării de libertate în executarea unei pedepse aplicate printr-o hotărâre definitivă. Recurs în casație
Referral for solving different law issues. Inadmissibility. Establishing the illegal character of deprivation of liberty in the execution of a sentence applied by a final decision. Appeal in cassation

Summary/Abstract: 1. From the perspective of the conditions of admissibility of the referral for the settlement of a question of law, the veracity, the degree of difficulty and complexity of a law issue, diminish when the mandatory resolutions already pronounced by the High Court of Cassation and Justice become incidental, within the mechanisms of unification of judicial practice. The pre-trial mechanism cannot be activated whenever a case – in which an interpreted text is incidental or in which a law issue, decided by the supreme court within the mechanisms of unification of judicial practice, finds its applicability – has particular circumstances or presents elements partially different in fact, from those of the case in which the preliminary decision was pronounced or which constituted the common denominator of those analyzed during the appeal procedure in the interest of the law. In this context, the referring court was required to observe and make the proper application of the mandatory disclosures already established in the Decision no. 15 of September 18, 2017, pronounced by the High Court of Cassation and Justice – the panel competent to judge the appeal in the interest of the law. 2. Regarding the circumstance if, in the context of the Art. 539 para. (1) of the Code of Criminal Procedure, the illegal deprivation of liberty could only take into consideration the preventive measures of deprivation of liberty, not the illegal deprivation of liberty in executing the custodial sentence (sentence of imprisonment), it is established, from the perspective of an interpretation that the rule relied on, refers to the right to reparation of the damage for the person who, during the criminal proceedings, was illegally deprived of his liberty, without distinguishing as the deprivation of liberty was the result of a preventive measure of deprivation of liberty, of a punishments or other criminal sanctions. As the analyzed provision does not contain such distinctions, the interpreter is not allowed to make them either, according to the principle ubi lex non distinguit nec nos distinguere debemus. As a result, the Art. 539 para. (1) of the Code of Criminal Procedure does not regulate the right to reparation of damage only in favor of persons who have been illegally deprived of liberty, exclusively on the basis of a preventive measure of deprivation of liberty and, even less, does not exclude the same right for persons who were illegally deprived of their liberty, on the basis of a warrant for the execution of the custodial sentence (sentence of imprisonment). 3. Regarding the explicit nature of the finding of the illegal character of the deprivation of liberty, deriving from the execution of the custodial sentence, the resolution of this issue was unequivocally established in the operative part of the Decision no. 15 of September 18, 2017 of the High Court of Cassation and Justice – The panel competent to judge the appeal in the interest of the law, applicable, mutatis mutandis, and if the premise is that of illegal deprivation of liberty by enforcing a warrant imprisonment. The decisions to unify the judicial practice do not mention that the term "explicit character" should refer to the insertion ad litteram, exclusively in the operative part of the procedural acts listed in the text, of the finding of the illegal character of deprivation of liberty, emphasizing instead, the need to unequivocally establish this character in the procedural acts provided by the Art. 539 para. (2) of the Code of Criminal Procedure. Considering the principle ubi lex non distinguit nec nos distinguere debemus, such a release is mandatory in all situations where an illegal deprivation of liberty is invoked during the criminal trial, being irrelevant if it is the consequence of ordering a preventive measure or applying a custodial sentence. 4. The issue of whether the phrase "the final decision of the court invested with the trial of the case" includes the decision pronounced in resolving an appeal in cassation, was unequivocally resolved in the content of the Decision no. 15 of September 18, 2017 of the High Court of Cassation and Justice – The panel competent to judge the appeal in the interest of the law, paragraph 34. Thus, the appeal in cassation represents an extraordinary appeal, regulated by the provisions of the Art. 433-451 of the Code of Criminal Procedure, which seeks to submit the judgment to the High Court of Cassation and Justice, under the provisions of the law, the conformity of the contested decision, according to the applicable rules of law. According to the Art. 434 para. (1) of the Code of Criminal Procedure, the appeal in cassation may be exercised against a decision issued by the courts of appeal and by the High Court of Cassation and Justice, as courts of appeal, except for the decisions ordering the retrial of the cases. This appeal can be initiated, therefore, only against a final decision, either according to the Art. 551 point 4 of the Code of Criminal Procedure – in case the appeal was rejected, on the date when the decision of the appellate court was pronounced –, or according to the Art. 552 para. (1) of the Code of Criminal Procedure – on the date of its pronouncement, when the appeal was admitted and the trial ended before the appellate court. Therefore, as the judgment of the High Court of Cassation and Justice in resolving the appeal in cassation is a final judgment, it reslts that there is no reason to exclude it from the category of the final judgments of the courts vested with the trial of the case, to which the Art. 539 para. (2) of the Code of Criminal Procedure refers to. 5. The distinction between the illegality of the final judgment annulled in an extraordinary appeal, such as the cassation appeal, and the character – legal or illegal – of the deprivation of liberty already based on this final decision, prior to its annulment, is only a particular aspect, for applying in a concrete file, the unbundling of the principle given by the Decision no. 15 of September 18, 2017 of the High Court of Cassation and Justice - The panel competent to judge the appeal in the interest of the law. The referring court is the only one entitled to assess and rule on these aspects, in terms of the application of the provisions of the Art. 539 of the Code of Criminal Procedure, in light of all relevant binding decisions issued by the supreme court and the requirements of Art. 5 para. 1 letter a) of the Convention for the Protection of Human Rights and Fundamental Freedoms, as developed in the case law of the European Court of Human Rights (for example, the Judgment of October 21, 2013, Grand Chamber, Del Rio Prada v. Spain, Judgment of June 10, 1996, the Grand Chamber, in Benham v. the United Kingdom of Great Britain and Northern Ireland, and the judgment of May 29, 1997 in Tsirlis and Kouloumpas v. Greece).

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