Complaint for violation of the law

Quick overview

A complaint for violation of law is directed against a final decision of a court or prosecutor that violated the law or was issued on the basis of a defective procedure. It is filed exclusively by the Minister of Justice with the Supreme Court. Anyone may file only a complaint, not the complaint itself. In the case of sentencing, its application is limited: it is only applicable where the sentence is manifestly disproportionate to the nature and gravity of the offence or the offender’s circumstances, or where the type of sentence imposed is manifestly contrary to the purpose of the sentence.

What is a complaint for breach of the law

A complaint for breach of the law is one of the extraordinary remedies in criminal proceedings. This means that it is directed against a final decision, i.e. against a decision that can no longer normally be challenged by an ordinary appeal. Section 266 of the Code of Criminal Procedure expressly provides that it may be brought by the Minister of Justice against a final decision of a court or prosecutor which violated the law or was made on the basis of a defective procedure.

In practice, it is a tool for correcting legal defects. It is not ‘another appeal’, nor is it a means of revisiting every dispute about who did what. If the issue is new evidence or new facts, it is usually a retrial rather than a complaint for violation of law.

When a complaint for breach of the law can be used

It is particularly applicable when there is a legal error in the final decision or in the proceedings preceding it. This may be, for example, a misinterpretation of the Criminal Code, the application of an incorrect procedural provision, the decision of an incompetent authority or any other defective procedure which may have affected the legality of the outcome. The Ministry of Justice expressly states that this remedy is intended to remedy legal defects in final decisions or in the procedure.

A special restriction applies to challenges to sentences. The Code of Criminal Procedure permits a complaint against a sentence only if the sentence is manifestly disproportionate to the nature and gravity of the offence or the offender’s circumstances, or if the type of sentence imposed is manifestly contrary to the purpose of the sentence. It is therefore not enough that the punishment seems harsh. It must be a manifest excess.

Who can bring it

Only the Minister of Justice can bring a complaint for breach of the law. Neither the accused, the convicted person, the victim nor their lawyer can file it. They can only initiate a motion for the Minister of Justice to review this possibility. This is explicitly confirmed by both the Criminal Procedure Code and the information provided by the Ministry of Justice.

In practice, this has an important implication: you have no legal right to file a complaint. Even a perfectly drafted complaint does not automatically mean that the Minister of Justice will actually file a complaint. The Ministry explicitly states that the Minister may or may not file it at his or her discretion. If he or she puts the complaint off, it is not a decision under the Criminal Procedure Code or the Administrative Procedure Code, so there is no appeal.

Complaint for violation of the law

Any natural or legal person may file a complaint. It does not have to be only the accused or the victim. The complaint may be addressed directly to the Minister of Justice or to the public prosecutor’s office immediately superior to the public prosecutor’s office that was involved in the case at the last instance. That superior prosecutor’s office shall examine the complaint and submit it to the Minister with its opinion.

Neither the law nor the Ministry sets a general time limit for the submission of the complaint. However, this does not mean that it is advisable to wait. In practice, a complaint that is filed without undue delay, is clear, is based on a specific file and clearly describes the illegality is more likely to succeed.

What the complaint should contain

The complaint does not need to be in a complicated form, but it must make it clear which matter it relates to and why you believe the law has been broken. The Ministry of Justice explicitly states that it should contain an identification of the decision being challenged, ideally the date and file number of the particular court or prosecutor’s office, and a brief explanation of the facts on which you are alleging a breach of the law.

In practice, it is also worth attaching a copy of the contested decision and clearly distinguishing whether you are alleging an error of law or a procedural error. If you simply repeat that “the court believed the wrong witness”, this is usually a weak point for this extraordinary remedy. Conversely, it is stronger to argue that the court applied an incorrect legal characterization, ruled contrary to a mandatory provision, or made a procedural error that affected the legality of the decision.

How the Supreme Court decides on a complaint

If the Minister of Justice lodges a complaint, the Supreme Court decides on it. The Code of Criminal Procedure provides that the Supreme Court shall review the legality and reasonableness of the sentences against which the complaint has been lodged, to the extent and on the grounds set out in the complaint, as well as the proceedings preceding the part of the decision complained of.

The Supreme Court may dismiss the complaint if it is inadmissible, late or unfounded. If, on the other hand, it finds that the law has been infringed, it shall give judgment to that effect. The further procedure depends on whose benefit or detriment the law has been violated. According to the Code of Criminal Procedure, if the law has been violated to the detriment of the accused, the Supreme Court shall at the same time annul the contested decision or part of it and, where appropriate, the defective proceedings which preceded it. It will then, as a rule, remit the case for a new hearing and decision, or it may, if the statutory conditions are met, decide the case itself.

If, on the other hand, the law has been infringed in favour of the accused, the Supreme Court’s finding of an infringement of the law does not itself affect the legal validity of the contested decision. Practically speaking: in such a case, the decision may be mainly of a jurisprudential and unifying nature, but it may not lead to the annulment of the specific final decision. This is an important distinction that is often overlooked in lay texts.

Does the filing of a complaint have suspensive effect?

The mere filing of a complaint for breach of law does not automatically suspend the execution of the contested decision. However, the Code of Criminal Procedure allows the Supreme Court to suspend or stay the execution of the contested decision or suspend the disposal of items that have been forfeited or seized before deciding on the complaint. If the Minister of Justice proposes this together with a complaint filed in favour of the accused, the Supreme Court must decide on it by order within 14 days of receiving the file.

In common practice, this means that if someone relies on a mere suggestion to the Minister as a way of “stopping the punishment”, they are relying on something that is not enough on its own.

When does a complaint actually make sense

A complaint for breach of the law makes the most sense where the legal error is clear and, at the same time, there is no more common and effective route available. Typically, this may involve an unlawfully imposed sentence, a manifestly incorrect legal classification, a decision by an incompetent authority or a procedural error that has affected the final outcome of the case. On the other hand, it is less appropriate where the crux of the dispute is that the court has evaluated the evidence differently or that new facts have emerged after the final judgment. There, an appeal or retrial is often more likely to be offered, depending on the nature of the case.

Summary

A complaint for violation of law is an extraordinary remedy in a criminal proceeding against a final decision of a court or prosecutor. Only the Minister of Justice can file it himself, while other persons can only file a complaint. It is mainly used to remedy legal defects and defective procedural procedure, not as a general remedy to re-examine the facts. It may be used in relation to sentencing only in exceptional cases of manifest disproportion or inconsistency with the purpose of the sentence. The Supreme Court decides on the complaint, which may reject it or declare an infringement of the law and, under the conditions laid down by law, annul the contested decision. The complaint to the Minister has no suspensive effect and there is no legal right to have it dealt with.