High Court of Cassation and Justice. Referral to the Constitutional Court. Persons who can appeal in cassation. The case of appeal in cassation provided by art. 438 para. (1) point 12 C.pr.pen.

On 18 October 2022, the High Court of Cassation and Justice – Criminal Section admitted the application for referral to the Constitutional Court with the exception of unconstitutionality of the provisions of art. 435, 436 para. (1) and 438 para. (1) point 12 C.pr.pen., exception invoked in relation to the provisions of Article 16 para. (1), Articles 21 and 44 of the Constitution, respectively Articles 6 and 13 of the European Convention on Human Rights, as well as Article 1 of Protocol No 1. 1 to the Convention.

In essence, the exception took into account the fact that the legal provisions criticised do not allow other criminal sanctions to be challenged – in this case, extended confiscation – by means of an appeal in cassation and thus do not allow the rectification of errors of law which led to the ordering of that security measure, while limiting the access of other interested persons (the owners of the seized assets extended) to that remedy, although, in order to be able to order the extended confiscation of their assets, the court makes an analysis including of the existence of its own subjective element. 

The drafting of the exception was made by Mrs. Andra-Roxana Trandafir, lawyer, together with Mr. Dorel Herinean, lawyer, and the representation before the supreme court was ensured by Mr. Daniel Nițu, lawyer from the Cluj Bar, thus continuing the collaboration between the two law firms.