Request for Revision Declared Inadmissible in Principle, after the Constitutional Court Admitted the Exception of Unconstitutionality Invoked in That Case. Consequences in Terms of the Right of Access to the Court

Request for Revision Declared Inadmissible in Principle, after the Constitutional Court Admitted the Exception of Unconstitutionality Invoked in That Case. Consequences in Terms of the Right of Access to the Court Associate professor Angelica ROȘU1 Abstract This article aims to analyze the limits of the judgment of the admissibility in principle of the extraordinary appeal of the revision of a criminal sentence and the delimitation of the judgment of the merits of such an appeal; we will emphasize, despite some jurisprudential interpretations, that between these two stages there is a link of interdependence, in the sense that the court cannot re-judge the merits of the case in the absence of a solution to admit in principle the review request, but it cannot also reject as inadmissible basically an application for review, with arguments that prejudge the merits of this application, much less the merits of the case. Another interpretation inevitably leads to the violation of a fundamental right, that of the right of access to the court. Keywords: exception of unconstitutionality, criminal sentence, request for revision, the Constitutional Court. JEL Classification: K14, K41 1. Some theoretical guidelines regarding the admissibility in principle of a review request According to art. 459 of the Criminal Procedure Code, marginally named "Admission in principle", "upon receipt of the request for review, a deadline is set for examining the admissibility in principle of the request for review, the president ordering the attachment of the case file. The admissibility in principle is examined by the court, in the council chamber, with the summons of the parties and the participation of the prosecutor. The non-appearance of legally summoned persons does not prevent the examination of admissibility in principle. The court examines whether: a) the request was made within the term and by a person from those provided for in art. 455; b) the application was prepared in compliance with the provisions of art. 456 para. (2) and (3); c) legal grounds were invoked for reopening the criminal proceedings; d) the facts and means of proof on the basis of which the request is formulated were not presented in a previous review request that was definitively judged; e) the facts and means of proof on the basis of which the request is formulated lead, obviously, to the establishment of the existence of some legal grounds that allow the revision; f) the person who made the request complied with the court's requirements according to art. 456 para. (4). If the court finds that the conditions provided for in para. (3), orders by conclusion the admission in principle of the review request. In the event that the court finds that the conditions provided for in para. (3), orders the rejection of the revision request as inadmissible. (...) The conclusion by which the request for review is admitted in principle is final. The sentence by which the review request is rejected, after analyzing the admissibility in principle, is subject to the same appeal as the decision to which the review refers." It is noted that through this text of law the limits of the judgment of the admissibility in principle of the review request are drawn, being listed, in a restrictive way, the aspects that the court must analyze, these referring to the content, in the formal sense, of the request of review, the checks aiming only at the fulfillment of some legal conditions; thus, the validity of the request for review is not subject to the stage of the admissibility judgment in principle. In our opinion, depending on the reason for revision invoked, the requirements subject to the 1 Angelica Roșu - „Danubius” University of Galati, Romania, . Perspectives of Law and Public Administration Volume 12, Issue 1, March 2023 100 court's verification can be narrowed or expanded, the particularities of the reason invoked making or not mandatory the analysis of all requirements or only some of them. For example, the admissibility condition stipulated in art. 459 para. (3) letter e) Criminal Procedure Code (the facts and means of proof on the basis of which the request is formulated obviously lead to the establishment of the existence of legal grounds that allow the review) cannot be analyzed in the case of all the reasons for review provided by art. 453 para. (1) Criminal Procedure Code; for example, the reason provided by letter e) – when two or more final court decisions cannot be reconciled; and the one provided by letter f) - the decision was based on a legal provision which, after the decision became final, was declared unconstitutional as a result of the admission of an exception of unconstitutionality raised in that case, in the situation where the consequences of the violation of the constitutional provision continue to occur and do not they can only be remedied by revising the pronounced decision - they do not presuppose the existence of facts or means of proof on the basis of which the request is formulated. In the sense of analyzing the conditions of admissibility, individually, by reference to the reason for review invoked, the mandatory jurisprudence of the Constitutional Court, respectively Decision no. 506/20152. In the considerations of this decision, the Constitutional Court held, with mandatory title, that: "22. the court examines whether the evidence submitted together with the review request provides sufficient data for the judgment on the request to continue, so the request is admitted in principle (art. 459 para. (3) letter e) of the Code. These evidence checks appear as necessary in the revision case regulated in art. 453 para. (1) letter a) from the Code, facts or circumstances that were not known when the case was settled and that prove the unfoundedness of the judgment pronounced in the case - it being necessary that the evidentiary facts be new, no extension of the evidence being possible for facts or circumstances known to the court and no re-administration or a reinterpretation of the administered evidence, and in the cases provided for in letters b), c) and d) of the same article, regarding false testimonies, false documents, illegal acts committed by official subjects, when these are not proven by court decisions". This interpretation is natural, since, regarding the nature of the admissibility judgment in principle, by the same decision, the Constitutional Court ruled that: - "21. Next, as regards the conduct of the judicial process in the admissibility in principle of the review request, the Court notes that the court verifies the review request in terms of its regularity and the fulfillment of the conditions for the use of this extraordinary remedy, which is in fact a judgment (judicium rescindes). Thus, according to the provisions of art. 459 of the Code of Criminal Procedure, the court examines whether the request for review is made under the law, i.e. regarding a final decision, within the deadline, b (...truncated)