16/3/2021

Press Release No: Plenary Assembly 9/21

Press Release concerning the Decision Annulling the Provision Precluding the Application of Simplified Trial Procedure in respect of Cases Adjudicated by a Certain Date

The Constitutional Court, at its session dated 14 January 2021, found unconstitutional and annulled the phrase “…adjudicated…” included in Provisional Article 5 (d) of the Code of Criminal Procedure no. 5271 in so far as it related to “…simplified trial procedure…”, but dismissed the request for annulment of the phrase “…finalised…” in so far it related to “…simplified trial procedure…” as not being unconstitutional (file no. E.2020/81).

Contested Provision

The contested provision stipulates that the simplified trial procedure shall not apply in respect of the cases that have been adjudicated or finalised by 1 January 2020.

Ground for the Request for Annulment

It was maintained in brief that the contested provision was unconstitutional since it precluded the retrospective application of the simplified trial procedure introducing arrangements in favour of offenders, which fell foul of the principle of nullum crimen nulla poena sine lege, and it led to the employment of different procedures with respect to those who had committed the same offence on the same date.

The Court’s Assessment

1. Review of the phrase “…adjudicated…” in respect of “simplified trial procedure”

The Constitution explicitly prohibits the application of any law imposing more aggravated penalties to the offences that have been committed before its entry into force. This prohibition, as a result of legal certainty and legal security principles, also entails the application of the subsequently-enacted law if it prescribes more lenient penalty for the same offence than that of the law which was in force on the date of the offence. Besides, the retrospective application of a law which is more favourable to the offender is also a requisite of the principles of justice and equity in conjunction with the state governed by rule of law.

In view of all these considerations, it has been concluded that the application of law which is more favourable to the offender in criminal proceedings is a constitutional requirement under the principle of nullum crimen nulla poena sine lege enshrined in Article 38 of the Constitution.

In its previous decision no. E.2020/16, the Court annulled the phrase “…proceeded to trial…” included in the same subparagraph with the contested provision in so far as it related to “simplified trial procedure”. Accordingly, it has been concluded that the provision which precluded the application of simplified trial procedure introducing more favourable provisions in respect of the cases that had been under prosecution by a certain date was in breach of Article 38 of the Constitution.

The contested provision in question envisages that simplified trial procedure cannot apply in respect of cases that have been adjudicated by a certain date. In consideration of this nature of the provision and its impact on the proceedings, there is no situation which would require the Court to depart from its conclusion in the decision no. E. 2020/16.

Consequently, the phrase “…adjudicated…”  has been found unconstitutional and therefore annulled in so far as it relates to “simplified trial procedure”.

2. Review of the phrase “…finalised…” in respect of “simplified trial procedure”

The simplified trial procedure is indeed related to the process before first instance courts. The law-maker intends, through the application of this procedure, to ensure the conclusion of the relevant proceedings within the shortest time possible by allowing for the non-performance of certain trial processes in cases where simplified trial procedure applies. As the trial process is completed with a finalised court decision, the simplified trial procedure is not enforceable in respect of finalised cases. Therefore, the provision envisaging that the simplified trial procedure shall not apply in finalised cases does not fall foul of Article 38 of the Constitution.

The principle of equality before the law, which is laid down in Article 10 of the Constitution, comes into play for those who are in the same legal position. To be found contrary to the principle of equality, a statutory arrangement must cause a distinction or privilege among those in the same legal position. In the context of criminal procedure, it is obvious that the accused, one of the subjects of the trial initiated upon the alleged commission of an offence, and the convict, whose trial has been concluded by a finalised court decision and who has been currently at the execution stage, are not in the same legal position. It cannot be argued that subjecting those who are in different legal positions to different statutory arrangements gives rise to an inequality. In this sense, the contested phrase is not contrary to the principle of equality.

Consequently, the Court has found the phrase “…finalised…” constitutional, in so far as it relates to “simplified trial procedure”, and accordingly dismissed the request for its annulment.

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