15/6/2021

Press Release No: Plenary Assembly 17/21

Press Release concerning the Decision Annulling the Provision Entailing Courts, in the Accelerated Procedure of Trial, to Adjudicate in accordance with the Sanction Specified in the Requisition

The Constitutional Court, at its session dated 31 March 2021, annulled the phrase “… in accordance with the sanction specified in the requisition…” in the first sentence of Article 250 § 9 of the Code of Criminal Procedure no. 5271, which had been rearranged, for being unconstitutional in so far as it related to subparagraph 7 of Article 250 § 1 (a) (file no. 2020/35).

Contested Provision

The contested provision sets forth that upon the application filed with the competent and authorised court by the public prosecutor issuing a requisition, the court shall adjudicate the case in accordance with the sanction specified in the requisition, provided that certain conditions are satisfied; otherwise, it shall dismiss the request and refer the case file to the chief public prosecutor’s office for conclusion of the investigation in line with the general provisions.   

Grounds for the Request for Annulment

It was maintained in brief that the contested provision was unconstitutional as the jurisdiction indeed conferred on courts was thereby transferred to prosecutors; being compelled to adjudicate the case in accordance with the sanction specified in the requisition, courts were bound by the findings and assessments of the prosecutor’s office, which fell foul of the requirement as to the independence and impartiality of courts.

The Court’s Assessment

Articles 9, 138 and 140 of the Constitution entail that jurisdiction be exercised by courts in a free and duly manner as well as according to personal conviction. Accordingly, any statutory arrangement which precludes judges from performing their duties independently and giving a decision according to their personal conviction and in compliance with the Constitution, statute and the law, which sets aside discretionary power and which thereby restricts the exercise of jurisdiction falls foul of these constitutional provisions.

It is inferred from the contested provision that the court, as the final decision-making authority, is entitled to review the requisition issued by the public prosecutor in terms of certain aspects but is to give a decision in accordance with the sanction indicated in the requisition if it finds no deficiency or unlawfulness with respect thereto.     

The basis of the law on criminal procedure is formed by a decision which is issued by a court at the end of an interactive process where the prosecution, the defence and the subjects of the trial get involved to a certain extent and through which the material truth is found established. The function undertaken by courts following the issuance of a requisition by the prosecutor’s office, as one of the basic stages of the accelerated procedure of trial, must be assessed.

It is apparent that the contested provision compels the courts to decide in accordance with the sanction determined by the public prosecutor and thereby precludes the supervision of the activities performed by the prosecutor, such as to establish whether a given offender is guilty and to determine the amount of prescribed sentence, as well as an interference with the sanction, if necessary, which leads to the restriction of the court’s jurisdiction.   

The lack of an opportunity, on the part of the courts, to make an assessment as to the merits of the case and to interfere therewith, when necessary, for being bound by the sanction specified by the public prosecutor in the requisition limits the judge’s power to reveal the material truth and ultimately give a final decision, which is directly related to the exercise of jurisdiction. In this sense, the contested provision is contrary to the principles that jurisdiction shall be exercised by independent and impartial courts, and judges shall give judgments in accordance with their personal conviction, as enshrined in Articles 9, 138 and 140 of the Constitution.

However, there is a close link between jurisdiction and the principle entailing courts’ independence, which are set forth in the above-cited constitutional provisions, and the presumption of innocence laid down in Article 38 of the Constitution. As required by presumption of innocence, a person’s guilt may be actually found established only by virtue of a decision issued by an independent court.

During the criminal procedures initiated upon the existence of sufficient suspicion, the existing suspicion may be refuted through a decision issued by an independent court which has freely assessed the evidence and acted in accordance with personal conviction. Accordingly, it is incumbent on the court, as a requirement of presumption of innocence, to reveal the material truth and issue a conviction decision beyond a mere suspicion that the offence has been committed by the given offender. It cannot be, however, argued that a person’s guilt has been actually found established through a decision rendered by a court, jurisdiction of which is limited due to the contested provision. Declaring a person guilty without these conditions being fulfilled undermines the presumption of innocence.

Therefore, the phrase in the provision “…in accordance with the sanction specified in the requisition…” is in breach of the presumption of innocence.

Consequently, the contested provision has been found unconstitutional and therefore annulled.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.