"On October 21, 2021, the European Court of Justice ruled in ZX and Spetsializirana prokuratura (Specialized Prosecutor's Office, Bulgaria), application no. C ‑ 282/20, by which it established art. 6 para. (3) of Directive 2012/13 / EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings and the Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as precluding national legislation which does not provide, after closing the preliminary hearing, for a procedure remedy for the ambiguities and gaps in the content of the indictment, irregularities, which affect the right of the accused person to be provided with detailed information on the indictment.
This specific article analyzes the meaningful purpose of the judgment in ZX and the procedural remedies regulated in the Romanian Code of Criminal Procedure applicable to changes in the factual and legal elements of the indictment.
In applying the jurisprudence of the ECJ, art. 6 para. (3) of Directive 2012/13 and art. 47 The EU CDF requires Member States to regulate legislation that allows for the legal recourse in court of any ambiguities and gaps in the content of the indictment that affect the right of the accused person to be provided with detailed information on the accusation. At the same time, national law must be interpreted in accordance with European Union law, in the sense that the judge must resort to all procedural means regulated by law in order to ensure that the defendant receives detailed information on the factual and legal grounds of the accusation and may apply properly for the right of defense.
Only if national law entails impediments in the activity of the judge to provide such information or to remove any ambiguities and gaps in the indictment, which may compromise the defendant's right to understand the essential elements of the prosecution, he may ensure that the defendant receives the right information on the factual and legal basis of the charge necessary to formulate the defense.
In the current regulatory framework, the absence of express provisions to establish on the procedural level a way to remedy the irregularities of the indictment conceives the premise of adopting solutions exclusively in court, without having a normative basis. In the doctrine, two remedies were outlined, the first involving a directly intervention of the prosecutor on procedural acts, which helps in enforcing the order of the judge of the preliminary hearing or the court of physical exclusion of illegal or unfair evidence, without operating a disinvestment of the court.
The second remedy involves a restitution of the case either to the prosecutor's office or even to the prosecutor, according to the distinctions evoked during the present study. But where should the restitution be ordered? At the prosecutor's office or at the prosecutor? The nuance is important because it implies differences in the procedural mechanism by which the resumption of criminal prosecution is carried out in the current criminal procedural system.
Finally, we consider that remedying the irregularity of the indictment by restituting the case and reactivating the judicial function of criminal prosecution is preferable to the direct intervention of the prosecutor in the trial phase, the representative of the Public Ministry having the possibility to maintain the possibility to redo the procedural documents and to issue a new regulatory indictment.
For the arguments extensively developed in this study, the court's order should be a return to the case to the prosecutor and not to the prosecutor's office, as the procedural filter of restitution to the prosecutor's office involves the exclusive power of the chief prosecutor to assess the extent to which it is necessary to resume the criminal investigation (according to the provisions of art. 334 CPC) is, in this case, superfluous. Being given the nature of the incidents that makes impossible for the trial to, in the cases discussed in this article, the direct application of the jurisprudence of the ECJ should lead to a mandatory resumption of the criminal prosecution limited to the need to replace compromised acts that successively set up criminal charges.
In conclusion, we note that the remedies proposed by the ECJ judgment in ZX should only operate in the limited context capable of justifying their existence. These should not become mechanisms for circumventing a procedural obligation of the court to resolve the case. Thus, we reiterate that if certain incidents arising during the trial, such as the change of the legal classification of the deed or the exclusion of decisive evidence, do not concern the external aspect of the accusation, but represent internal shortcomings closely related to its validity, the court is obliged to fully perform its function activated by notification and investment, following to rule on an acquittal, as the evidence in the accusation does not meet the minimum standard necessary to engage in criminal liability provided by art. 103 para. (2) CPC, beyond any reasonable doubt. Under these conditions, the remedies presented, regardless of the order of preference established by the interpreter, become incidental insofar as there are ambiguities in the accusation that could impede the proper exercise of the judicial function, not when the accusation is not supported by evidence, capable of proving beyond any reasonable doubt the guilt of the defendant."
La Transposición al Derecho Nacional de la Directiva Europea 2010/64/UE en España, Francia, Bélgica y Luxemburgo: “Lost in transposition”
