Decision No. 14 of 9 October 2018 on Constitutional Case No. 12/2017
Referring Authority and Subject Matter of the Case
The case was initiated upon a request submitted by a three-member panel of the Supreme Bar Council (SBC). The subject matter of the case concerns the constitutionality of a number of provisions of the Criminal Procedure Code (CPC), which, according to the applicant, infringe fundamental rights and freedoms of citizens. In the request, various aspects of the rights of the accused, respectively of the defendant, as well as of other participants in the criminal proceedings, are examined in light of the requirements of the Constitution. The issue of ensuring the proper and constitutionally compliant conduct of criminal proceedings is also addressed.
Summary of the Court’s Reasoning
The Constitutional Court finds that, as worded, the provision of Article 247c, paragraph 1, item 3 of the Criminal Procedure Code (CPC) infringes the right of defence of the defendant (Article 56 of the Constitution). The possibility of holding a preparatory hearing without ensuring legal assistance to the defendant, even where his or her procedural conduct has been entirely lawful, constitutes an unjustified and disproportionate restriction of the right of defence. The approach adopted by the legislature is neither necessary nor appropriate for eliminating the risk of speculative prolongation of the proceedings.
According to the Constitutional Court, the provision of Article 351, paragraph 2 CPC is incompatible with the Constitution. In accordance with the position of the Supreme Court of Cassation within the hierarchy of the courts, Article 124 of the Constitution entrusts it with the power to exercise supreme judicial supervision for the exact and uniform application of the laws by all courts, including in the field of criminal justice. This supervision is exercised both through the issuance of interpretative acts, which are binding on the courts, and through the court’s cassation jurisdiction (Decision No. 2/2005 on Constitutional Case No. 9/2004). The Supreme Court of Cassation cannot be restricted by the legislature in the scope of its constitutionally conferred powers. In the present case, this means that the law must ensure that cassation review extends to all violations of criminal procedure that substantially impair the parties’ right of defence, regardless of the stage at which they were committed. Only in this way can the functions envisaged in Article 124 of the Constitution be fully and effectively realised through cassation proceedings.
The Constitutional Court further considers that the existing inconsistency between Article 351, paragraph 2 CPC and Articles 320, paragraph 2 and 360, paragraph 2 CPC gives rise to ambiguity and contradiction, resulting in instability and legal uncertainty in the application of the law that is incompatible with Article 4, paragraph 1 in conjunction with Article 124 of the Constitution. It also creates objective difficulties in the exercise of the right of defence under Article 56 of the Constitution in cassation proceedings, both for the accused and for victims of crime. For these reasons, Article 351, paragraph 2 CPC must be declared unconstitutional.
Grounds for the Ruling and Disposition
Pursuant to Article 149, paragraph 1, item 2 of the Constitution (the competence to rule on requests for a declaration of unconstitutionality of laws), the Constitutional Court declares unconstitutional the provisions of: Article 247c, paragraph 1, item 3, in the part reading “in the cases under Article 94, paragraph 1,” and Article 351, paragraph 2 of the Criminal Procedure Code. The Court rejects the request of the Supreme Bar Council for a declaration of unconstitutionality with respect to: Article 73a, paragraph 2 and Article 416, paragraph 5; Article 227, paragraph 5; Article 248a and Article 252, paragraph 2, in the part reading “or where it has identified manifest factual errors in the indictment”; Article 358, paragraph 2; Article 301, paragraph 4 and Article 305, paragraph 6; Article 336, paragraph 1, item 4, Article 354, paragraph 1, item 3, and Article 425, paragraph 1, item 3; Article 248, paragraph 3, Article 320, paragraph 2, Article 348, paragraph 3, item 1, and Article 360, paragraph 2 of the Criminal Procedure Code. The Court dismisses the request of the Supreme Bar Council for a declaration of unconstitutionality with respect to: Article 50 and Article 81, paragraph 3, in the part reading “or within one month from the day on which the victim received notice of the termination of the pre-trial proceedings on the ground that the offence is prosecuted upon complaint by the victim,” as well as Article 63, paragraph 2, item 4 of the Criminal Procedure Code, and terminates the proceedings in this part.
The decision was adopted with one dissenting opinion.