Part Two
COURSE OF THE PROCEEDINGS
Chapter XIX
LEGAL REMEDIES PROCEEDINGS
2. Extraordinary Legal Remedies
a) Request for Reopening Criminal Proceedings
a. Basic provisions
Admissibility of Reopening Criminal Proceedings
Article 470
Criminal proceedings concluded by a final judgment may be reopened at the request of an authorised person under the conditions stipulated in this Code.
Persons Authorised to Submit a Request
Article 471
A request to reopen criminal proceedings may be submitted by the parties and the defence counsel, and after the death of the defendant by the public prosecutor and the persons referred to in Article 433 paragraph 2 of this Code.
A request to reopen criminal proceedings may also be submitted after the convicted person has served out the penalty, or the statute of limitations, an amnesty or a pardon have occurred.
The persons referred to in paragraph 1 of this Article may desist from their request to reopen criminal proceedings until the issuance of a decision of the court on the request.
Contents of the Request
Article 472
A request to reopen criminal proceedings must specify the reason for requesting that the criminal proceedings be repeated and the evidence substantiating the facts on which the request is founded. If the request does not contain these data, the court will instruct the applicant to amend the request with a written submission within a certain time limit.
The facts referred to in Article 473 paragraph 1 items 1) and 2) of this Code are to be substantiated with the final judgment that the persons referred to have been convicted in connection with the criminal offences referred to, and if proceedings cannot be conducted against them because they are deceased or there exist other circumstances which exclude their prosecution, the facts referred to in Article 473 paragraph 1 items 1) and 2) of this Code may also be substantiated by other evidence.
Reasons for Reopening Criminal Proceedings
Article 473
Criminal proceedings concluded with a final judgment may be repeated only to the benefit of the defendant :
1) if the judgment is founded on a forged instrument or a perjuries statement by a witness, expert witness, professional consultant, translator, interpreter or co-defendant (Article 406 paragraph 1 item 5)) ;
2) if judgment was preceded by a criminal offence committed by the public prosecutor, judge, lay judge or person conducting evidentiary actions ;
3) if new facts are presented or new evidence submitted which in themselves or in connection with earlier facts or evidence may lead to rejection of the charges or an acquittal or a conviction according to a more lenient criminal law ;
4) if the defendant was tried several times for the same offence or was convicted together with other persons for a criminal offence which only one person or some of those persons could have committed ;
5) if in the case of a conviction for a continued criminal offence, or for another criminal offence which under the law encompasses several actions of same or different kind, new facts are presented or new evidence submitted which indicate that he did not commit the action encompassed by the offence in the conviction, and the existence of these facts would lead to the application of a more lenient law or would substantially affect determination of the penalty ;
6) if new facts are presented or new evidence submitted which did not exist when the prison sentence was pronounced or the court did not know of them although they did exist, and they would obviously have led to a more lenient criminal sanction ;
7) if new facts are presented or if new evidence is filed proving that the defendant was not duly served the summons for the trial held in his absence (Article 449 paragraph 3).
A request to reopen criminal proceedings for the reasons specified in paragraph 1 item 6) of this Article may be submitted until the prison sentence is executed and the request for the reopening based on the reason referred to in paragraph 1 item 7) of this Article within six months after the appellate court renders its judgment.
Competence for Deciding on the Request
Article 474
The panel (Article 21 paragraph 4) of the court which tried the case in the first instance in the earlier proceedings decides on a request to reopen criminal proceedings and the panel of the court which adopted the decision after a trial held in the absence of the defendant decides on a request filed under Article 473 paragraph 1 item 7) of this Code.
In deciding on the request a judge who took part in rendering the judgment in the earlier proceedings will not be a member of the panel.
If the court referred to in paragraph 1 of this Article learns of the existence of a reason to reopen criminal proceedings (Article 473), it will notify thereof the defendant or the person authorised to submit a request on behalf of the defendant.
b. Actions Taken in Connection with the Request
Dismissing the Request
Article 475
The court will dismiss a request to reopen criminal proceedings with a ruling if :
1) the request was submitted by an unauthorised person ;
2) the applicant did not act in accordance with Article 472 paragraph 1 of this Code ;
3) the applicant has desisted from the request ;
4) the legally-prescribed conditions for repeating proceedings do not exist ;
5) the facts and evidence on which the request is based had already been presented in an earlier request to reopen criminal proceedings which was rejected with a final decision ;
6) the facts and evidence are obviously not appropriate to allow a repetition of criminal proceedings based on them.
Acting on the Request
Article 476
If the court does not dismiss a request to reopen criminal proceedings, it will deliver a copy of the request to the opposing party, which is entitled to respond to the request within eight days.
When the response to the request is received by the court, or when the time limit for a response expires, the president of the panel may order examination of the facts and acquisition of the evidence cited in the request and in the response to the request.
After conducting the examinations, if criminal offence is prosecutable ex officio, the president of the panel will order the files delivered to the public prosecutor, who is required to return them, with his opinion, without delay, or within 30 days at most.
Deciding on the Request
Article 477
When it has conducted the actions referred to in Article 476 of this Code and if it does not order the examination to be amended or does not dismiss the request (Article 475 item 3)), the court will either grant or reject the request to reopen criminal proceedings by a ruling, depending on the results of the examination.
In a ruling granting the request and allowing criminal proceedings to be reopened the court will order the holding of a new trial, and if reopening of criminal proceedings was allowed based on the reasons referred to in Article 473 paragraph 1 item 6) of this Code, only the evidence on which the type and extent of the criminal sanctions depends will be examined at the new trial.
If the court finds that the reasons based on which it allowed reopening of criminal proceedings also exist for a co-defendant who has not submitted such a request, it will act ex officio as if such a request had been submitted.
If the court finds, taking into consideration the evidence submitted, that the convicted person could in reopened proceedings be convicted to such a penalty that with time served he should be released, or could be acquitted of the charges, or that the charges could be rejected, it will order the execution of the penalty to be deferred or discontinued.
When the ruling allowing reopening of criminal proceedings becomes final, the execution of the penalty will be discontinued, but the court may order detention, acting on a motion by the public prosecutor, if the reasons referred to in Article 211 of this Code exist.
Acting in Reopened Criminal Proceedings
Article 478
In the new proceedings, conducted on the basis of a ruling allowing a reopening of criminal proceedings, the court is not bound by rulings issued in the criminal proceedings conducted earlier.
If the new proceedings are discontinued before the commencement of the trial, the court will abolish the earlier judgment by a ruling on discontinuing proceedings.
When the court issues a judgment in the new proceedings :
1) it will pronounce that the earlier judgment is abolished in part or in full or that it remains in force ;
2) it will calculate time served by the defendant into the penalty imposed by the new judgment, and if reopening of criminal proceedings was ordered for only some of the criminal offences of which the defendant was convicted, it will pronounce a new single penalty according to the provisions of criminal law.
In pronouncing a new judgment, the court is bound by the prohibition stipulated by Article 453 of this Code.
v. Repetition of Criminal Proceedings against a Person Convicted in Absentia
Admissibility of Reopening Criminal Proceedings
Article 479
Criminal proceedings in which a defendant was convicted in absentia (Article 381) will be repeated without fulfilling the conditions prescribed in Article 473 of this Code if the possibility arises that a trial is conducted in his presence.
Persons Authorised to Submit a Request
Article 480
A request to reopen criminal proceedings for the reasons stipulated in Article 479 of this Code may be submitted by the defendant and his defence counsel within six months of the date when the possibility arose of putting the defendant on trial in his presence.
At the expiry of the time limit referred to in paragraph 1 of this Article, a reopening of the proceedings is allowed only for the reasons stipulated in Article 473 of this Code.
Acting in Reopened Criminal Proceedings
Article 481
In the ruling allowing a reopening of criminal proceedings according to Article 479 of this Code, the court will order the indictment and ruling on confirming the indictment to be delivered to the defendant, unless they were delivered to him earlier.
In repeated proceedings an accomplice of the defendant who has already been convicted cannot be questioned or confronted with the defendant, but the presentation of the content of the testimony of the convicted accomplice is performed in accordance with Article 406 paragraph 1 item 5) of this Code, where the judgment may not be based only or to a decisive extent on such evidence.
In pronouncing a new judgment, the court is bound by the prohibition stipulated by Article 453 of this Code.
b) Request for the Protection of Legality
a. Basic Provisions
Admissibility of Submitting a Request
Article 482
An authorised person may submit in accordance with conditions prescribed in this Code a request for the protection of legality against a final decision of the public prosecutor or the court or for a violation of provisions of the procedure which preceded its issuance.
A request for the protection of legality is not allowed against a decision on the protection of legality or violation of provisions of the procedure before the Supreme Court of Cassation which preceded its issuance.
Persons Authorised to Submit a Request
Article 483
A request for the protection of legality may be submitted by the Republic Public Prosecutor, the defendant and his defence counsel.
The Republic Public Prosecutor may submit a request for the protection of legality both to the detriment and for the benefit of the defendant. A request may be submitted even after the defendant is encompassed by an act of amnesty or a pardon, or the statute of limitations has expired, or the defendant has died, or the penalty has been served in full.
A request for the protection of legality may be submitted by a defendant only through his defence counsel.
The persons referred to in paragraph 1 of this Article may desist from the request until the issuance of a decision of the court on the request for the protection of legality.
Contents of the Request
Article 484
A request for the protection of legality must specify the reasons for its submission (Article 485 paragraph 1), and in the case referred to in Article 485 paragraph 1 items 2) and 3) of this Code, a decision of the Constitutional Court or of the European Court of Human Rights must also be submitted.
Reasons for Submitting a Request
Article 485
A request for the protection of legality may be submitted if by a final decision or decision in the procedure which preceded its issuance :
1) the law was violated ;
2) a law was applied which was by a decision of the Constitutional Court found not to comply with the Constitution, universally accepted principles of international law and ratified international agreements ;
3) a human right or freedom of a defendant or other participant in proceedings guaranteed by the Constitution and the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Additional Protocols was violated or denied, as determined by a decision of the Constitutional Court or the European Court of Human Rights.
A violation of the law within the meaning of paragraph 1 item 1) of this Article exists if a provision of criminal procedure was violated by a final decision or in the procedure which preceded its issuance, or if the law was applied incorrectly to the finding of fact determined in the final decision.
A request for the protection of legality for the reasons stipulated in paragraph 1 items 2) and 3) of this Article may be submitted within three months of the date when the person (Article 483 paragraph 1) was delivered the decision of the Constitutional Court or the European Court of Human Rights.
A defendant may submit a request for the protection of legality in connection with violations of this Code (Article 74, Article 438 paragraph 1 items 1) and 4), and item 7) to 10), and paragraph 2 item 1), Article 439 items 1) to 3), and Article 441 paragraphs 3 and 4) made in the first-instance proceedings and the proceedings before the appellate court , within 30 days from the date of the delivery of the final decision, provided that he has used an ordinary legal remedy against that decision.
Competence for Deciding on the Request
Article 486
The Supreme Court of Cassation decides on a request for the protection of legality.
The Supreme Court of Cassation decides on a request for the protection of legality submitted in connection with a violation of the law (Article 485 paragraph 1 item 1)) only if it finds that it concerns an issue of importance for correct or uniform application of the law.
b. Procedure Regarding the Request
Ruling Dismissing the Request
Article 487
The Supreme Court of Cassation sitting in panel will dismiss a request for the protection of legality by a ruling :
1) if it was not submitted within the time limit referred to in Article 485 paragraph 3 and 4 of this Code ;
2) if it is inadmissible (Article 482 paragraph 2, Article 483 and Article 485 paragraph 4) ;
3) if it lacks the prescribed contents (Article 484) ;
4) if it was submitted in connection with a violation of the law which is not of importance for the correct or uniform application of the law (Article 486 paragraph 2).
The ruling referred to in paragraph 1 of this Article does not need to contain substantiation.
Actions Taken in Connection with the Request
Article 488
If the Supreme Court of Cassation does not dismiss the request, the reporting judge will deliver a copy of the request to the public prosecutor or the defence counsel, and may if needed obtain information about the reasons specified referred to in Article 485 paragraph 1 items 1) to 3) of this Code.
If the Supreme Court of Cassation deems the presence of the public prosecutor and defence counsel is of importance for rendering a decision, it will notify them about the session.
The Supreme Court of Cassation may, in view of the contents of the request, order the execution of a final judgment to be deferred or discontinued.
The Supreme Court of Cassation will deliver its decision with the files to the public prosecutor, a court of first instance, or an appellate court not later than six months from the date of the submission of the request.
Limitations of Examining the Request
Article 489
The Supreme Court of Cassation examines a final decision or the proceedings which preceded its issuance within the framework of the grounds (Article 485 paragraph 1), the criminal offence and the direction of the challenge specified in the request for the protection of legality.
If the Supreme Court of Cassation finds that the reasons why it issued a decision in favour of the defendant also exist for a co-defendant in respect of whom no request for the protection of legality was submitted, it will act ex officio as if such a request did exist.
The Supreme Court of Cassation may in connection with a request for the protection of legality submitted by a public prosecutor abolish or reverse a decision only in favour of the defendant.
Deciding on the Request
Article 490
If the Supreme Court of Cassation does not dismiss the request for the protection of legality (Article 487), sitting in session it will either reject or grant the request.
Judgment Rejecting the Request
Article 491
The Supreme Court of Cassation will dismiss a request for the protection of legality by a judgment as unfounded if it determines that the reason cited by the applicant in the request does not exist.
If a request was submitted in connection with a violation of the law (Article 485 paragraph 1 item 1)) which was specified without foundation in the ordinary legal remedy proceedings, and the Supreme Court of Cassation accepts the reasons given by the appellate court , the substantiation of the judgment will limit itself to an indication of those reasons.
Judgment Granting the Request
Article 492
The Supreme Court of Cassation will after granting a request for the protection of legality issue a judgment in which it will according to the nature of the violation :
1) abolish in full or in part the first-instance decision and a decision issued in ordinary legal remedy proceedings, or only the decision issued in ordinary legal remedy proceedings and send the case for a new decision to the authority conducting proceedings or for trial by a court of first instance or an appellate court, where it may order that new proceedings be held before a completely changed panel ;
2) reverse in full or in part the first-instance decision and the decision issued in ordinary legal remedy proceedings or only the decision issued in ordinary legal remedy proceedings ;
3) limit itself to establishing a violation of the law.
If the authority conducting proceedings which issued the decision on the ordinary legal remedy was not authorised under the provisions of this Code to rectify the violation made in the decision which was challenged or in the proceedings which preceded its issuance, and the Supreme Court of Cassation after granting the request for the protection of legality submitted to the benefit of the defendant finds that the request is well-founded and that the challenged decision should be abolished or reversed in order to rectify the violation of the law which was made, it will also abolish or reverse the decision issued in ordinary legal remedy proceedings although the law was not violated by that decision.
Determining Judgment
Article 493
The Supreme Court of Cassation will determine by a judgment that a violation of the law exists without going into the finality of the decision if it grants a request for the protection of legality submitted at the detriment of the defendant.
Actions Taken at the New Trial
Article 494
If a final judgment was abolished and the case sent for retrial, the earlier indictment or the part of it which relates to the part of the judgment which was abolished will be taken as the basis.
The court is required to perform all procedural actions and to examine the questions which the Supreme Court of Cassation indicated to it.
Before a court of first instance or an appellate court, the parties may present new facts and submit new evidence.
In pronouncing a new judgment, the court is bound by the prohibition prescribed by Article 453 of this Code.
Revision of conviction or sentence - national proceedings
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