NEMOTIVAREA CORESPUNZĂTOARE A HOTĂRÂRII PENALE ÎN CALEA DE ATAC A APELULUI. PROPUNERE DE LEGE FERENDA

The study refers to the way in which national criminal processual legislation provides safeguards regarding the respect for the right to a fair trial, with particular reference to the obligation of the courts of law to properly motivate the solutions they pronounce in solving the merits or even the ordinary remedy of appeal. From the research made, the author concludes that the European standards do not find an explicit consecration in the current national legislation and identifies situations from the recent case law in which the courts have directly applied the European conventional provisions, by abolishing the sentences analyzed and sending the case for retrial by the same court even without Article 421 (2) b) of the Criminal Procedure Code providing such a case. The author proposes that it should be completed de lege ferenda the text itself previously invoked by including a case which should refer to the failure to provide proper motivation for the sentence of the court examining the merits and he continues the argumentation by proposing the extension in the same way also of the cases in which an review in cassation may be lodged against the decisions of the courts of appeal. The conclusion he reaches has in view the fact that the two legislative amendments would be likely to provide adequate safeguards to the right to a fair trial in criminal matters, without the need to resort to conventional provisions which should be conferred direct applicability, a solution often avoided by the courts in this field.