| Abstrakt: |
Starting from the premise that the judge of the preliminary chamber is not a judge of the merits, he does not have the possibility, as the court, to order the change of the legal classification of the fact with which it was referred by the indictment. We will present a case that was recently before the judges of the preliminary chamber of the Sibiu Court and, by disclaimer of jurisdiction, the Sibiu Tribunal. At the same time, we present the reasoning of the preliminary chamber judge from the Alba-Iulia Court of Appeal, referred to the resolution of the negative conflict of jurisdiction between the preliminary chamber judges from both courts. Even if there are opinions, in doctrine, that claim that the judge of the preliminary chamber can evaluate and pronounce implicitly or explicitly on the correct or incorrect legal classification of the facts in the indictment, we believe that the provisions of the Code of Criminal Procedure, as well as the Decision Constitutional Court no. 253/2017 regarding the rejection of the exception of unconstitutionality of the provisions of art. 342 C. pr. pen., which ruled that, after being sent to court, only the court can order the change of legal classification. Therefore, as long as in the procedure of the preliminary chamber, there has been no change of legal classification, the competence is the one established in relation to the legal classification indicated in the act of referral to the court and not by reference to the factual situation held in charge of the defendant. [ABSTRACT FROM AUTHOR] |
