Criminal Procedural Law – Criminal procedural guarantees
Criminal-law protection of legal assets;
Principle of the presumption of innocence;
Right to contest;
Submission of a list of witnesses;
Send back for new trial
RULING No. 584/16
3 of November of 2016
The Constitutional Court (TC) found no unconstitutionality in an interpretation of Criminal Procedural Code (CPP) norms whereby, when a higher court decides that an accused person should be given a new trial, he/she should not be granted a new time limit in which to submit his/her prior written defence and a list of witnesses.
The dynamic with which the law imbues criminal procedure fulfils an express constitutional purpose of speediness, which is justified by the need to ensure both quick and effective protection of the legal assets and values protected by the criminal law, and the principle that accused persons are presumed to be innocent, which is incompatible with delays in or indefinite extensions of proceedings designed to determine whether or not they are criminally liable.
The legal status of accused persons does not exempt them from the burden of acting within the time limits and in the ways laid down by law, nor does it exclude the possible negative consequences of failing to do so.
Contesting the accusations brought against him/her by submitting a prior written defence is one of the fundamental instruments available to an accused person’s overall defence. However, it is also subject to peremptory procedural deadlines – i.e. time limits which, when exceeded, eliminate the right to engage in the act. If the accused is notified that he/she should submit a defence and a list of witnesses and does not do so within the stipulated time limit, he/she loses the procedural right to do so at all. Nor can an accused who has submitted a defence subsequently present a new one, inasmuch as the procedural right is exhausted when it is effectively exercised.
The right of the appellant in the present case to contest the facts of which he was accused and to submit evidence of his innocence had been effectively recognised, albeit not exercised, in the run-up to his first trial, and the deadline for doing so had long passed. The Constitutional Court took the view that his claim that he should be granted a new time limit within which to submit a written defence and a list of witnesses prior to his new trial was unfounded in constitutional terms.
The appellant in this concrete review case argued that a higher court’s (in this case, the court of appeal) decision to send his case back to the lower courts for a new trial should mean that the accused was entitled to a new opportunity to submit a prior written defence and a list of witnesses. From his perspective, the fact that there was going to be a “new trial” because the first one was annulled meant that the rights of the defence should be assured and maintained “anew”, failing which the new trial risked becoming nothing more than a “simulacrum” of the process of doing justice in a democratic state based on the rule of law.
The Court said that the CPP article containing the disputed norms is included in the Title devoted to pre-trial acts, and only grants accused persons the procedural ability to submit a prior written defence and a list of witnesses, regulating the details of how they should do so. From a systematic point of view, sending cases back for a new trial forms part of a Chapter devoted to the details of the ordinary appeal process.
The question of constitutionality here was not about the norm which allows accused persons to contest the charges against them and present evidence in their favour, but just the legislative solution under which they are specifically precluded from doing so when an appeal court strikes down an original conviction on procedural grounds and sends the case back down for a new trial. The essential normative elements of the legal source of the interpretative solution adopted by the court a quo include not only the article governing how written defences and the accompanying list of witnesses should be submitted, but also the norm that sets out the preconditions for ordering a new trial and delimits the scope of application of such orders. The constitutional appellant targeted the set of normative CPP provisions which permits the interpretation that when higher courts order a new trial, the accused’s defence is not entitled to a new time limit within which to contest the accusations and submit a list of witnesses.
As shaped by the law, criminal process is the sequence of acts and procedures which the legislator preordains as the way in which the criminal law must be applied.
The Constitution expressly says that accused persons must be tried in the shortest period of time compatible with the guarantees available to the defence. The sense of urgency in penal proceedings, which is justified by the need to protect the legal assets and values that are injured by crime, is limited by those guarantees. Criminal procedure must be structured in such a way as to make those two key elements of the value judgements entailed therein, which tend to pull in opposite directions, compatible with one another.
The Court said that the concept of preclusion, under which failure to exercise a subjective procedural right and take advantage of an ability by the applicable deadline results in their loss, must also operate in criminal proceedings. Every procedural subject, including the accused, is required to act in the proceedings within the time limits and in the manner laid down by law, failing which they will not be able to act at all. This is how the law makes the public interest in defending the legal assets and values that are protected by the criminal law on the one hand compatible with the need to protect the defence guarantees which the Constitution expressly affords to the accused on the other.
The constitutional principle of the presumption of innocence means that the rule in criminal cases is that if an accused does not contest the charges against him/her, this does not have the damaging effects generated by an absence of counter-arguments in a civil case. As a result, the procedural idea of preclusion does not have the same substantive impact in the legal sphere of the accused in criminal proceedings as it does in that of the defendant in civil cases. Where evidence is concerned, the law also gives judges the power to ask questions and conduct enquiries on their own initiative with a view to discovering the truth and thus helping them reach a good decision, and this is an important limit on the procedural effects of an accused’s failure to fulfil his/her legal burden, among other things when it comes to submitting a list of witnesses and other evidence.
As such, the Court rejected the appellant’s argument that the normative interpretation in question was unconstitutional.
Rulings nos. 658/11 (21-12-2011); 266/15 (19-05-2015); and 193/16 (04-04-2016).