Renewal of criminal proceedings: when is this remedy available?

Quick overview
A criminal retrial is an extraordinary appeal from a final disposition of a criminal case. It is available only in respect of final decisions defined by law, in particular a judgment, a criminal order or certain orders which terminated the prosecution. The basic ground is new facts or evidence previously unknown to the court which may lead to a different decision on the guilt, punishment or claim of the victim. The application shall be made to the court which made the decision in the first instance, and a complaint may be made against the refusal.

Remedies in criminal proceedings

In criminal proceedings, a distinction is made between ordinary and extraordinary remedies. Ordinary appeals include, in particular, appeals against a judgment, complaints against an order and opposition to a criminal order. These are directed against decisions which have not yet become final.

Extraordinary appeals, on the other hand, are directed against final decisions. These include appeals, complaints for breach of the law and retrials. A retrial is specific in that it is not based on a claim that the court has “misinterpreted the law”, but on the fact that something new will emerge after the final judgment which may change the outcome of the case.

What is a criminal retrial

A retrial is an extraordinary remedy that allows the reopening of a finally concluded criminal case. The Code of Criminal Procedure expressly provides that, where a criminal prosecution has ended by a final judgment, a final criminal order, a final decision to discontinue the prosecution, a conditional discontinuance of the prosecution, the approval of a settlement or the referral of the case to another authority, the prosecution of the same person for the same act may be resumed only if a retrial has been granted or if the original decision has been set aside in another prescribed procedure.

This is an important practical limit. A retrial does not resolve every dissatisfaction with the outcome of a criminal case. It serves only to break the rule of law in exceptional circumstances where something genuinely new and significant emerges.

When can criminal proceedings be reopened

The basic grounds for a retrial are set out in section 278 of the Code of Criminal Procedure. The reopening of proceedings which have ended in a final judgment or a criminal order is permitted where facts or evidence previously unknown to the court come to light which, either on their own or in conjunction with evidence already known, could justify a different decision on guilt, on the victim’s claim or a different sentence. The law also expressly contemplates that new facts may lead to the conclusion that the sentence originally imposed is manifestly disproportionate to the nature and gravity of the offence or to the offender’s circumstances, or that the type of sentence imposed is manifestly contrary to the purpose of the sentence.

In practice, this may include, for example:

• a new witness who was previously unknown to the court,
• a newly discovered document or digital trace,
• a new expert conclusion,
• new forensic methods, such as more precise biological or technical examination,
• evidence that substantially supports an alibi,
• a conclusively established falsification or tampering with original evidence.

But it is not enough to simply present a “different view” of what the court has already evaluated. It must be facts or evidence previously unknown to the court. This is crucial in a retrial.

Other legal grounds for renewal

The Criminal Procedure Code also provides for special cases of restoration. For example, in proceedings which have ended with a final decision to discontinue prosecution for inadmissibility on the grounds referred to in Article 11(1)(f) or (g), a retrial is permitted if the accused’s state of health changes so that the grounds preventing his prosecution no longer exist. The law further provides that a retrial shall also be granted if it is established by a final judgment that the police authority, prosecutor or judge in the original proceedings breached his or her duties by conduct constituting a criminal offence.

The law also provides for a special ground in the case of a cooperating defendant. If his conviction or criminal order rested on the scheme of the co-accused and he subsequently breaches his undertaking, this may be a ground for retrial against him.

On the other hand, it is not true that the repeal of a statute or part of a statute by the Constitutional Court is in itself a ground for reopening. The Code of Criminal Procedure provides for a special procedure in § 314h et seq. for situations after the Constitutional Court has annulled a decision, not for retrial.

Who can file a motion for retrial

A retrial may only be granted on the application of the person entitled. Only the public prosecutor may file a motion against the accused. In addition to the accused, persons who could appeal in favour of the accused may file a motion in favour of the accused. If they could do so against the will of the accused, they may also file a motion for leave to reopen against his will. After the death of the accused, the persons entitled may also lodge an application.

This is particularly important for the family of the convicted person or for cases where new evidence comes to light after his death.

When restoration against the accused is not possible

The Criminal Procedure Code expressly provides that a restoration against the accused is excluded if:

• the criminality of the offence has ceased,
• a period of one half of the statute of limitations of the offence has elapsed,
• the offence is subject to a decision of the President of the Republic not to proceed with the prosecution,
• or the accused has died.

On the other hand, a motion in favour of the accused may be filed at any time. In practice, this is very important in older cases where new evidence does not come to light until many years later.

How to file a motion to reopen criminal proceedings

The application must be filed with the court that ruled at first instance. This applies regardless of the fact that the original case may have gone through the Court of Appeal. The motion should be specific and should accurately describe:

• what new facts or evidence have come to light,
• why the court was not previously aware of them,
• how they might change the outcome of the original proceedings,
• and what evidence you propose to introduce to that effect.

This is not a formality. The most common practical error is an overly general motion that merely repeats the original defense or disputes the evaluation of the evidence in the original case. Such a motion for a new trial usually has no chance of success.

How the reopening procedure works

The court decides on the application for permission to reopen proceedings in open court. The court first examines whether the statutory conditions for reopening a final case are met. At this stage, a final decision is not made on guilt or innocence, but on whether new facts or evidence justify a retrial.

If the court does not grant the retrial, the motion is denied. If it grants the retrial, it annuls the contested decision or part of it and proceeds to a new trial. In some cases, the court will proceed on the basis of the original indictment, in other cases it will return the case to the public prosecutor for further investigation. Thus, a “new trial” does not always automatically follow in the same form as the original one; it depends on how the court decides after granting the retrial.

At the same time, there is an important protection for the accused: if the retrial is granted only in his favour, the new sentence must not impose a more severe penalty than the original one.

How to defend against the rejection of the application

An appeal is admissible against the order rejecting the application for a retrial. It must be lodged within three days of notification of the order with the authority which made the contested order. If the court of first instance itself does not fully comply with it, it shall be decided by the higher authority. The higher authority may reject the complaint or set aside the order under appeal and either decide itself or refer the case back for a fresh decision.

In practice, it is important not to underestimate a complaint. It is not enough to simply write that ‘the court has made an incorrect decision’. It is necessary to analyse precisely why the new facts or evidence meet the requirements of section 278 of the Criminal Procedure Code and why the court should have granted a retrial.

Summary

A criminal retrial is an extraordinary remedy that may be used to break a final judgment in a criminal case if new facts or evidence previously unknown to the court come to light and may lead to a different decision as to the guilt, punishment, or entitlement of the victim. The application shall be made to the court of first instance. It may be filed in favour of the accused by the accused himself or herself and by other authorised persons, but against the accused only by the public prosecutor and only under the statutory conditions. If the court rejects the application, a complaint may be lodged. The success of the motion depends mainly on whether it is actually based on new and substantial evidence and not merely on a repetition of the original defence.