Commentary on Judgment No. 38848 of 2024: Recognition of "in Executivis" Continuation and Limits on Sentence Increase

Judgment No. 38848 of 2024, issued by the Court of Cassation, represents an important development in criminal enforcement matters, with specific reference to the recognition of "in executivis" continuation and the illegality of sentences increased beyond the limits established by Article 81 of the Criminal Code. This article aims to analyze the implications of this ruling, highlighting the avenues for appeal available to the convicted person.

Regulatory Context and the Judgment

The Court of Cassation, in the judgment under review, has established that a sentence is illegal if, as a result of the "in executivis" recognition of continuation, it exceeds the limits provided for by Article 81, paragraphs one and two, of the Criminal Code. This implies that, even if a sentence has not been appealed, the convicted person has the right to request the enforcement judge to reduce it to the limits set by law.

This decision is part of a rich and complex body of case law, in which the Court has previously ruled on similar issues in earlier judgments, emphasizing the need to ensure respect for the rights of the convicted person and the correct application of the rules.

Analysis of the Headnote and Practical Implications

Recognition of "in executivis" continuation - Increase exceeding the limit under Art. 81 of the Criminal Code - Illegal sentence - Failure to appeal the order - Subsequent deductibility of the sentence's illegality before the enforcement judge - Existence - Factual case. In matters of enforcement, a sentence is illegal if, as a result of the "in executivis" recognition of continuation, it has been increased beyond the limits established by Article 81, paragraphs one and two, of the Criminal Code. Therefore, even if the order has not been appealed, the convicted person may request the enforcement judge to bring it back within the non-derogable limits provided by the legal system. (Factual case concerning a request submitted by the convicted person following the notification of the combined sentence order that had put into effect the illegally determined sentence "in executivis").

The headnote of the judgment clarifies that a sentence, even in the context of combined offenses and the application of continuation, cannot exceed the limits set by law. This principle of legality is fundamental in a respectable legal system and serves as a bulwark against arbitrariness.

• The right of the convicted person to assert the illegality of the sentence, even if not appealed;
• The necessity of intervention by the enforcement judge to bring the sentence back within the prescribed limits;
• The emphasis on the protection of fundamental rights within the scope of criminal enforcement.

Conclusions

Judgment No. 38848 of 2024 represents a significant step forward in protecting the rights of convicted persons and in the correct application of criminal laws. It underscores the need for rigorous oversight of imposed sentences to ensure that the limit of legality is never exceeded. In a fair legal system, it is essential that every convicted person can fully exercise their rights, even during the sentence enforcement phase.