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On the consideration of criminal cases under the appeal procedure upon coming into light of essentially different factual circumstances

The ruling of the Constitutional Court of the Republic of Lithuania of 26 June 2017

ON THE CONSIDERATION OF CRIMINAL CASES UNDER THE APPEAL PROCEDURE UPON COMING INTO LIGHT OF ESSENTIALLY DIFFERENT FACTUAL CIRCUMSTANCES

Summary

By this ruling, having considered the case subsequent to a petition of the Court of Appeal of Lithuania, the Constitutional Court declared Paragraph 4 (wording of 28 June 2007) of Article 320 of the Code of Criminal Procedure (CCP) to be (to have been) constitutional, insofar as a court considering an appeal of a convicted person under the appeal procedure is prohibited from worsening the situation of another convicted or acquitted person, or the situation of a person against whom a case was dismissed, where no appeal is filed by a prosecutor, private accuser, victim, or civil claimant on this matter. However, Item 4 (wording of 28 June 2007) of Paragraph 1 of Article 326 of the CCP was declared unconstitutional, insofar as it did not establish the powers of the court of appeal instance to refer a case back to the court of first instance for reconsideration if, upon the investigation of evidence, such factual circumstances came into light that were essentially different from those established by the court of first instance, and this could determine the essential worsening of the situation of the convicted or acquitted person, or the situation of the person against whom the case had been dismissed.

The Constitutional Court held that the legislature had established such a criminal procedure that could create a situation where, having investigated new evidence or the evidence already investigated by the court of first instance upon assessing which the conclusion could be drawn that the factual circumstances essentially differed from the circumstances established by the court of first instance and this could result in the essential worsening of the situation of the convicted or acquitted person, or the situation of the person against whom the case had been dismissed, the court considering the criminal case under the appeal procedure could not remove the factual mistakes (i.e. the mistakes of the establishment and assessment of legally significant facts) made by the court of first instance and, thus, could not adopt a fair decision in the case, as a prosecutor, private accuser, victim, or civil claimant had no legal possibility to file or supplement the appeal, and the court itself was limited by the principles of criminal procedural law reflected in Paragraph 4 of Article 320 of the CCP, i.e. the principle non reformatio in peius (under which, while considering a case subsequent to an appeal of a convicted or acquitted person, or a person against whom a case was dismissed, it is prohibited to worsen the situation of the appellant) and the principle tantum devolutum quantum appellatum (under which, while considering a case under the appeal procedure, only the legitimacy and reasonableness of the appealed part of the decision of the court of first instance must be verified and assessed).

The Constitutional Court noted that, under the CCP, in such a case, no legal possibility existed for a prosecutor, private accuser, victim, or civil claimant to apply to the court of cassation instance in order to worsen the situation of a person against whom no appeal had been filed (or to worsen the situation of the person against whom the appeal had been filed to the extent greater than had been requested in the said appeal); at the same time, the court of appeal was not allowed to annul the final decision or ruling and to renew the criminal case due to the circumstances that had been known or could have been known to the court of appeal instance that were different than those established by the court of first instance.

Having regard to such possible situations where the court considering a criminal case under the appeal procedure was limited by the above-mentioned principles of criminal procedural law and could not, in the specified situation, remove itself the mistakes of the establishment and/or assessment of legally significant facts made by the court of first instance, the Constitutional Court noted that the powers of a court to administer justice, which stem from Paragraph 1 of Article 109 of the Constitution, implied that the law must provide for the powers of the court of appeal instance to refer, in such a situation, the case back to the court of first instance for reconsideration.

Item 4 of Paragraph 1 of Article 326 of the CCP, which established the grounds for the annulment of a decision and the reference of a case back to the court of first instance for reconsideration, did not provide for such powers for the court of appeal instance. According to the Constitutional Court, such a legal regulation of criminal procedure did not provide the preconditions for the court to adopt a fair decision in a case (to impose a fair punishment on the person having committed a criminal act and to award just compensation for the damage inflicted by that criminal act) and to properly administer justice; therefore, such a legal regulation did not ensure the effective protection of every person and society as a whole from criminal attempts and denied the powers of a court to administer justice, which stem from Paragraph 1 of Article 109 of the Constitution; such a legal regulation also derogated from the constitutional concept of a court as an institution administering justice in the name of the Republic of Lithuania, as well as from the constitutional principles of a state under the rule of law and justice.

The Constitutional Court emphasised that, under the Constitution, a court has the duty not only to investigate all the circumstances of a case that would allow the court to adopt a fair and reasonable decision, but also to deliver this decision within the shortest possible time. Thus, having investigated the evidence leading to the conclusion that the factual circumstances essentially differ from the circumstances established by a court of first instance, the court considering the criminal case under the appeal procedure should annul the decision of the court of first instance and refer the case back to it for reconsideration only in such a case where the situation of the convicted or acquitted person, or the situation of the person against whom the case was dismissed, could be essentially worsened.

In the ruling, it was also noted that, in order to ensure the right of a person to a trial within the shortest possible time, as well as the adoption of a fair and reasonable court decision based on the circumstances of the case, and the rights of defence, and having regard to the chosen model of consideration of criminal cases in the court of appeal instance, the legislature can also establish other ways to remove, in the courts of higher instance, any mistakes made due to some reasons by the courts of lower instance in establishing and assessing legally significant facts; in addition, the legislature can envisage for the right of a prosecutor, private accuser, victim, or civil claimant to file (or supplement) an appeal in cases where, upon investigating and assessing the evidence at the court of appeal instance the conclusion could be reached that the factual circumstances are essentially different from those established by the court of first instance, and this could result in the worsening of the situation of the convicted or acquitted person, or the situation of the person against whom the case was dismissed.