How do I defend myself against a criminal decision?

Proper remedies in criminal proceedings

There are two groups of remedies. The first group includes those which can be used to defend against non-final decisions.

Appeals

An appeal is the basic and most common remedy. It may be brought against any judgment of a court of first instance. If it approves a plea bargain, an appeal can be brought only if the judgment ultimately differs from the plea bargain.

The judgment must be served on all persons affected by its terms. An appeal may be lodged within eight days thereafter. There are no restrictions on the grounds of appeal; it is sufficient to comply with the time limit and to state clearly which parts of the judgment you are challenging and on what grounds.

If only the defendant appeals against the judgment, he is assured that he will not be aggrieved by further decisions. This corresponds to one of the principles of criminal law, namely the principle of impossibility of change for the worse.

A number of persons may appeal in criminal proceedings:

• theprosecutor – the only one who can appeal against the accused,
• thedefendant – can appeal against statements that directly affect him/her,
• thedefendant’s relatives – in the direct line of descent, siblings, spouse, partner or companion, or, in the case of juveniles, the child welfare authority,
• theinterested party (i.e. the person whose property is to be or has been seized in the proceedings) – he may appeal only against the part of the judgment relating to the seizure of his property,
• theinjured party (e.g. someone who has been harmed by the perpetrator) – may appeal against a judgment on compensation for damages, non-pecuniary damage or the award of unjust enrichment if he or she has claimed any of these.

Theappeal shall, in principle, be lodged with the court against whose judgment it is directed. It shall have suspensive effect, that is to say, it shall suspend the legal force and enforceability of the contested decision. Thus, for example, if the offender is sentenced to imprisonment, he will not serve it after the appeal has been lodged.

If only the victim or the person involved files an appeal, then they have the aforementioned limited scope of appeal and the other parts of the judgment can be enforced.

Court of Appeal

Theappeal procedure is always before the superior court. This is the regional court if the district court ruled at first instance, or the high court if the regional court ruled at first instance.

The court should always follow the appeal and review only the contested part of the decision. However, if the guilty verdict is contested, the penalty verdict is logically also always subject to review. Likewise, if the alleged error in the sentence was related to and originated in another sentence, that sentence is also reviewed.

The Court of Appeal may:

• dismiss the appeal – if it does not meet the basic formal requirements, e.g. it was lodged out of time, etc. Similarly, it may dismiss it if it reviews it and finds that it is not well founded,
• reject the appeal if it does not comply with the substantive requirements, i.e. if it is not clear from the appeal which parts of the judgment are being challenged and what defects are alleged,
• review the appeal and set aside the judgment under appeal or part of it and refer the case back to the Court of First Instance for a fresh hearing. It shall do so, in particular, if new evidence is required,
• set aside the judgment or part of the judgment under appeal and give judgment itself, if the facts so far permit,
• discontinue the prosecution if a circumstance described in the law has arisen.

Complaint

In criminal proceedings, you can also use a complaint, which is the only proper remedy against the order under the Criminal Procedure Code. It is admissible against any police decision. However, the law defines which court orders are open to complaint and which are not. The complaint must also be lodged with the authority against whose order it is directed within three days of its notification.

Exceptional remedies in criminal proceedings

Appeal

An appeal in criminal proceedings falls within the category of extraordinary remedies. It can be used to remedy legal defects in final judicial decisions and, where appropriate, in decisions which preceded them. As their name suggests, they are admissible only on exceptional grounds. They are aimed at correcting the most serious types of defects in the court’s decisions. An appeal has no suspensive effect in law, which means that the previous decision remains final and enforceable even after it has been lodged.

The law lists all the types of decisions that can be challenged in this way, including, for example, a judgment finding the accused guilty and imposing a sentence, a judgment acquitting the accused or a decision to discontinue prosecution. The defects which may be challenged are also listed. However, it cannot, for example, challenge the completeness of the evidence and the correctness of the assessment of the evidence. It is therefore not a further level of appeal.

Complaint for breach of the law

The purpose of a complaint is to remedy errors of law or deficiencies in the findings of fact. It seeks to remedy such defects as were already present at the time when the decision was given and are therefore, as a rule, directly apparent from the case-file.

Only the Minister of Justice is entitled to lodge a complaint for breach of law with the Supreme Court.

Reopening of proceedings

Another remedy available under the Code of Criminal Procedure is a retrial. It also allows for the breaking of the barrier of a final decision. Here, too, the list of decisions that can be challenged in this way is limited directly by law. Unlike the review procedure, the restoration procedure can be used for several reasons. As a rule, these are the following situations:

• After the decision has become final, new facts have come to light which existed at the time of the proceedings but which could not be invoked for objective reasons. For example, a new document proving new facts has been discovered or a previously unknown witness has come forward.
• A police authority, prosecutor or judge has breached his or her duty in criminal proceedings by acting in a way that constitutes a criminal offence.
• The relevant regulation or part of it has been annulled by the Constitutional Court.

A retrial is initiated by the administrative authority that issued the decision at the last stage of the proceedings. It may do so not only on its own initiative but also on the basis of a request.

The Criminal Procedure Code provides that a request for a retrial may be submitted at any time. It is therefore not limited in time and can be made even if the defendant is dead.