Chapters of the article
Remedies in criminal proceedings
Appeals are divided into ordinary and extraordinary appeals. Ordinary appeals can be used if you are dissatisfied with the decision of the court at first instance. These include an appeal against a conviction, a complaint against an order and a resistance against a criminal order.
Extraordinary appeals are directed against a final decision of the court. This includes an appeal against a final decision of the Court of Appeal on grounds specified in the Act. It also includes a complaint for breach of the law. This can only be lodged by the Minister of Justice with the Supreme Court if he or she considers that a final decision has infringed the law. And the final extraordinary remedy is a retrial, which is the focus of this article.
Reopening of proceedings
A retrial is an extraordinary remedy that allows a final decision to be reviewed if new facts or evidence come to light that, by themselves or in conjunction with evidence previously adduced, could lead to a different decision on the case. This instrument is intended to remedy situations where a final decision may have been influenced by unknown or newly discovered information. A retrial is possible in administrative, civil and criminal proceedings or in proceedings before the Constitutional Court.
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When criminal proceedings can be reopened
Criminal proceedings can be reopened if new evidence or facts come to light. However, this does not mean that every new piece of evidence is grounds for a retrial. The new evidence or fact is always considered in the context of the whole case and the final, final decision. Thus, there must be some likelihood that the new evidence or facts could lead to a different decision.
Such new evidence and facts most often include:
- New witnesses: witnesses may appear who were not known during the original proceedings. For example, someone who witnessed an event but did not inform the authorities at the time. Alternatively, witnesses or the victim may change their testimony. This may include admitting to false testimony or revealing new facts that were not previously known.
- Evolution of science: science is constantly moving forward and so are the techniques used to obtain evidence. For example, advanced forensic techniques such as DNA analysis can reveal new facts years later. For example, new DNA tests can prove that biological traces at a crime scene do not belong to the defendant.
- New expert testimony: New expert testimony may become available that was not available during the original trial, providing new or more accurate information. This may include opinions from forensic science, psychology, medicine, ballistics, etc.
- Newly discovered documents: these may be letters, contracts, records or other documentary evidence that was not known during the original proceedings.
- Discovery of falsification: It may also be discovered that evidence used in the original proceedings has been falsified or tampered with.
- New confession: a person may be found to have confessed to a crime for which someone else was convicted.
- Supporting Alibi: Evidence may also appear that supports the defendant’s alibi, such as testimony that he or she was at another location at the time of the crime, records of activity such as work attendance, bank transactions, etc.
The other two grounds for retrial include situations where the law enforcement authorities, i.e. the police, prosecutor or judge , have breached their duty in the criminal proceedings through conduct that constituted a criminal offence. Or, furthermore, where the Constitutional Court has annulled the relevant regulation or part thereof.
Deadline for the resumption of criminal proceedings
The application may be filed with the court that decided at first instance within three months of the discovery of new facts (the so-called subjective time limit), but no later than three years after the original decision became final (the so-called objective time limit).
The law allows only one exception to these time limits. This is in the event that the decision on which the decision to which the retrial relates is based is annulled in another proceeding (e.g. a criminal judgment, a decision on an offence, etc.). In this case, the action may be brought within three months of the annulment of the related decision. In this case, the objective time limit of three years does not apply.
How to apply for a retrial
The application may be lodged by the convicted person, public prosecutors and persons who have the right to appeal. The public prosecutor is the only one who has the right to file an application for a retrial against the convicted person. However, this cannot be done in situations where:
- the criminality of the offence has ceased,
- a period of one half of the limitation period of the offence prosecuted has expired,
- the offence is covered by a decision of the President of the Republic ordering that the prosecution should not proceed, or
- the accused has died.
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How criminal proceedings are reopened
The court accepts the application and examines whether the formalities are met, and then conducts a preliminary inquiry to determine whether the new facts or evidence have the potential to change the original decision. The court decides on the application for a retrial in open court. The application may either be rejected or accepted.
If the application is allowed, it shall set aside the original decision, either in whole or in part. Once the retrial is granted, a new main trial is opened, which is essentially a new hearing of the whole case. In the new trial, all the original and new evidence is taken. The court again hears the witnesses, the defendant and examines all the evidence presented. On the basis of the evidence taken, the court makes a new decision. This may uphold the original conviction or may lead to a change in sentence.
How to defend against the refusal of a retrial application
If the court denies your motion for retrial, you have the option of filing a complaint with suspensive effect. This must be lodged with the authority which made the contested order within three days of notification or service of the order. The complaint may be lodged in writing, orally on the record or electronically.
The authority which issued the order shall decide on the complaint only in the case of ‘self-medication’, which means that it shall uphold the complaint in full. In all other cases, the superior authority designated by the Code of Criminal Procedure decides.
The complaint shall be decided in the form of an order. In it, the complaint may be dismissed on substantive or formal grounds, or the superior authority may annul the contested order and either decide the matter again itself or order the authority against whose decision the complaint is directed to hear and decide the matter again.
Summary
A retrial is an important extraordinary remedy that allows a final decision to be reviewed on the basis of new evidence or facts. This process is essential to ensure justice and to remedy cases where the original decision may have been influenced by unknown or newly discovered information. For a retrial to be successful, the new evidence or facts must have the potential to change the original decision. Strict time limits and formalities ensure that this remedy is not abused but serves to correct genuine miscarriages of justice.