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Content updated: 25-08-2017 08:47

The provision of the Code of Criminal Procedure that does not provide for the possibility for the court of appeal instance to refer a case to the court of first instance for reconsideration declared unconstitutional

26-06-2017

By its ruling passed today, the Constitutional Court has declared that Paragraph 4 of Article 320 of the Code of Criminal Procedure (hereinafter referred to as the CCP), impugned by the Court of Appeal of Lithuania, is in compliance with the Constitution, but has recognised that Item 4 of Paragraph 1 of Article 326 of the CCP is in conflict with Paragraph 1 of Article 109 of the Constitution and the constitutional principles of a state under the rule of law and justice, insofar as it does 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 come to light that are essentially different from those established by the court of first instance, and this can determine the substantial worsening of the situation of the convicted or acquitted person, or the situation of the person against whom the case has been dismissed.

According to the Constitutional Court, the legislature has established such a criminal procedure that can 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 differ from the circumstances established by the court of first instance where this can result in the substantial worsening of the situation of the convicted or acquitted person, or the situation of the person against whom the case has been dismissed, the court considering the criminal case under the appeal procedure may not remove the mistakes of the establishment and assessment of legally significant facts made by the court of first instance and, thus, may not adopt a fair decision in the case, as a prosecutor, private accuser, victim, or civil claimant have no legal possibility of filing or supplementing the appeal. The court of appeal instance may not adopt a fair decision, since it is limited by the principles of criminal procedural law under which, while considering a case subsequent to an appeal of a convicted or acquitted person, or a person against whom a case has been dismissed, the court is prohibited from worsening the situation of the appellant and must verify and assess only the lawfulness and reasonableness of the appealed part of the decision of the court of first instance.

In such a case, there is no legal possibility of applying to the court of cassation instance in order to worsen the situation of a person against whom no appeal has been filed, or to worsen the situation of a person against whom an appeal has been filed to the extent greater than requested in the said appeal; at the same time, the court of appeal is not allowed to annul the effective judgment or ruling and to renew the criminal case.

Since the court considering a criminal case under the appeal procedure may not itself remove 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 courts to administer justice, which stem from Paragraph 1 of Article 109 of the Constitution (according to which, in the Republic of Lithuania, justice is administered only by courts), imply 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.

The grounds for the annulment of a judgment and the reference of a case back to the court of first instance for reconsideration are established in Item 4 of Paragraph 1 of Article 326 of the CCP. However, the same item does 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, the conclusion would be drawn that the factual circumstances are essentially different from those established by the court of first instance where this can result in the substantial worsening of the situation of the convicted or acquitted person, or the situation of the person against whom the case has been dismissed.

Such a legal regulation does not create the preconditions for a court to adopt a fair decision in a case and to properly administer justice, does not ensure the effective protection of every person and society as a whole from criminal attempts, and denies the powers of a court to administer justice, which stem from Paragraph 1 of Article 109 of the Constitution; such a legal regulation also derogates 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. The said duty implies that, having investigated the evidence leading to the conclusion that the factual circumstances essentially differ from the circumstances established by the court of first instance, the court considering the criminal case under the appeal procedure should annul the judgment 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 has been dismissed, could be worsened in substance.

In this ruling of the Constitutional Court, it is also noted that, in order to ensure the right of a person to a trial within the shortest possible time, to ensure the adoption of a fair and reasonable court decision based on the circumstances of the case, and to ensure the rights of defence, the legislature can also establish other ways to remove, in the courts of higher instance, any mistakes made due to some reasons by the court of lower instance in establishing and assessing legally significant facts; in addition, the legislature can envisage the right of a prosecutor, private accuser, victim, or civil claimant to file an appeal (or to supplement a filed one).

Paragraph 4 of Article 320 of the CCP, which was impugned by the petitioner, stipulates that the court of appeal instance may worsen the situation of a convicted or acquitted person, or the situation of a person against whom the case has been dismissed only when there is an appeal filed by a prosecutor, private accuser, victim, or civil claimant on this matter; in doing so, the court must not exceed the extent requested in the appeal. After it has been recognised that Item 4 of Paragraph 1 of Article 326 of the CCP is in conflict with the Constitution, the legal arguments presented by the petitioner have lost their legal significance (according to the said arguments, because of the legal regulation established in Paragraph 4 of Article 320 of the CCP, such a situation may arise where, when considering a criminal case under the appeal procedure subsequent to the appeal filed by a convicted person and having established factual circumstances that are different from those established by the court of first instance, the court of appeal instance would be obliged to adopt a clearly unfair, as well as unlawful, decision, as there would be no legal possibility for the court either to assess the guilt of another convicted or acquitted person, or that of another person against whom the case has been dismissed, or to refer the criminal case to back the court of first instance for reconsideration or to the prosecutor for the purpose of drawing up a new indictment.