Academic journal article Contemporary Readings in Law and Social Justice

A Comparative Approach regarding the Appeal Institution in Romania and Albania. the Case of Applicants

Academic journal article Contemporary Readings in Law and Social Justice

A Comparative Approach regarding the Appeal Institution in Romania and Albania. the Case of Applicants

Article excerpt

1. Introduction. Holders of the Right to File an Appeal in Romanian Criminal Law Procedure

Basically, when the Court of First Instance rules the resolution every procedure subject becomes entitled to the right to fight against that resolution, under the conditions provided by law, because each subject is interested in finding the best solution, as interest represents the justification of every legal action.

Practice of the right to appeal is limited only to the role had by subjects in criminal procedure, meaning the capacity of each owner in the criminal procedure and the interest claimed by him, by using this fighting way, and referring only to the content of the appealed resolution regarding his interests in the criminal procedure.

The appeal is personal, compared to different parties that make use of it: this means that the right to file an appeal of each party doesn't depend on the others' rights to file appeal (Papadopol and Turianu, 1994: 45).

Several owners can file the appeal at the same time, and the solution of an appeal does not stop the solution of others.

According to art 409 paragraph 1, the following persons can file appeal: the prosecutor, the defendant, the civil party, the victim, the witness, the expert, the interpreter, any natural or legal entity whose legitimate rights were directly violated through a measure or an action of the court, with respect to the orders that caused such a violation.

But, according to paragraph 2 in the case of above mentioned persons the appeal may also be filed by the legal representative or by the counsel, whereas in the case of the defendant, by the spouse.

The prosecutor, having the obligation to supervise the observance of law, is also the beneficiary of the full right to appeal concerning the criminal part of the case and also the civil part during the criminal trial, according to art 409 paragraph a of the New Criminal Procedure Code. He can use this method any time during the criminal trial when legal provisions are being violated or the resolution is not legal or well grounded, causing prejudices to the interested parties, while these remain passive, not using the right conferred by law to fight against the resolution.

The prosecutor of the Court that ruled the resolution, subject of appeal, by the superior prosecutor, declares the appeal. According to the impartiality, legality and hierarchic principles, regulating the Public Minister, the prosecutor has to be objective and fair. He becomes the one that guarantees the law enforcement and when the law has been misused he file appeal to restore the justice.

The prosecutor can file appeal against all the resolutions subjected to the same fight method, no matter if he participated or not to those trials. His capacity results from the procedure position. Compared to other owner of such right, the prosecutor, because he is not a party in the trial, he does not file appeal for his own interest, to obtain rights or personal interests. Finding errors in the resolution ruled by the Court of First Instance, he could file appeal in the name of the parties prejudiced by it.

Also, if the reasons of the appeal refer to some decisive elements, these will not stop him from filing appeal by mentioning other aspects to fight the resolution, leading, thus, to reexamination of the case in favor or against the trial parties. This right is not conditioned, in any way, by the attitude of the parties towards the ruled resolution.

Although the prosecutor has the role of the accusation, we should not think that by filing appeal this would aggravate the situation of the defendant. The prosecutor appeal can bring advantage or disadvantage to the situation of any of the parties, if by solving the case we have an illegal or ungrounded resolution (Volonciu, 1994: 243).

About the criminal side, the prosecutor can appeal any resolution: sentence, acquittal or stop of the criminal trial. …

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