Among the most important matters regarding the latest alterations in the Code of Criminal Procedure is “Acceleration of the criminal proceedings” – arranged in Chapter 26.
The alterations have been in force since November 5. They have raised controversy and will probably continue to do so.
A new legal term
First and foremost, the used by the legislator term “acceleration” is far from precise. The names of provisions in the CCP have always reflected the main guiding principles of the criminal procedure or different stages of its development. “Acceleration of the criminal proceedings” is a terminology which does not correspond with the CCP’s structure and creates grounds for ambiguity regarding the objective and effect pursued by it.
An essential principle in the criminal procedure is revealing the objective truth. This is the main purpose and function of the CCP. Every other principle is introduced in order to provide in an even greater extent for this fundamental task. The provisions unified under the title “Acceleration of the criminal proceedings” create the impression that this essential purpose of the procedure is neglected. Revealing the truth is an activity which should not be restricted by time. “Acceleration” cannot be an end in itself. But let us see whether these concerns are justified.
With the latest alterations in the CCP the so called “acceleration” of the criminal proceedings is provided for by two main groups of norms – those of Art. 247a and those following it as well as those of Art. 368-369 from the CCP.
In accordance to the provisions in Art. 247a and those following it the legislator has prevised an open regulatory session with subpoenaed parties for managing the so called preliminary matters which the court has to consider when forming the case.
Up until now the court has conducted such sessions, but behind closed doors. This means that the court handled the preliminary matters on its own. The fundamental alteration in this regime is connected with the question whether substantial procedural violations in the pre-trial proceedings, which lead to restricting the right of protection of the accused, the victim or his/her successors, were made. According to the newly adopted provisions the court gives the parties an opportunity to state their positions on matters that are to be considered in a 7-day period since handing the notice for the set regulatory session. The court shall pronounce with a ruling on all of them in the regulatory session. With this determination the first instance court shall deliver for the removable procedural violations in the pre-trial proceedings. According to Art. 247, Para. 3 objections in the first and second instance and the cassation court cannot be made for violations in the procedural rules in the pre-trial proceedings which were not discussed in the regulatory session or were regarded as insubstantial.
The alteration aims to eliminate the possibility of returning the case from the court to the prosecutor in the event of establishing a violation of the procedural rules in second instance court or cassation court which were made in the pre-trial proceedings.
Does the early preclusion restrict the right of protection?
This legal alteration contradicts the main principles of the criminal procedure and will not ensure the “acceleration” in the development of the proceedings. With the normative decision at hand the opportunity for objecting removable substantial violations of the procedural rules is excluded only up until the regulatory session in front of the first instance court, regardless of the circumstances that they were not made by the parties. Such an inhibition, especially regarding the defendant, is a drastic restriction of the right of protection. A balance between ensuring the equality between the parties in the criminal procedure and all the necessary preconditions for revealing the objective truth on one hand, and on the other – complying with the public interest for fair and fast criminal justice, is needed.
Is the “constant defendant” returning?
The second group of norms, on which the legislator places hopes to achieve substantial acceleration of the criminal proceedings, is the norms in Art. 368-369 from the CCP.
The so far existing order aimed to liquidate the so called “constant defendant”. That is to say – to eliminate the possibility that a person is garnished as a defendant and the case is left in a pre-trial stage for years during which this person without justification and any security for himself continues to suffer the adverse effects of being accused. This could occur due to incompetence, unscrupulousness, lack of security or sufficient control over the work of the pre-trial authorities.
In such a situation the defendant had the opportunity to inquire the court to consider his case in the event that more than two years since his garnishment as a defendant for a serious crime have passed or more than one year in all the other occasions. In that situation the court immediately considered the case and if it established that there were indeed prerequisites, it returned the case to the prosecutor with instructions to terminate the criminal proceedings. The prosecutor had to inform the court or to bring the case to the court with an indictment, with a preposition to release the defendant from responsibility, with imposing an administrative sanction or with a settlement. If the prosecutor failed to execute his power in due time, the court terminated the case with a determination which did not subject to appeal. If the prosecutor executed his power in the three-month period, but the court established substantial violations of the procedural rules, the court terminated the proceedings and returned the case to the prosecutor with instructions to eliminate the violations and to file and indictment in a one-month period. If the prosecutor failed to file the indictment and to eliminate the violations in this period, the court terminated the criminal proceedings with a determination which also did not subject to appeal.
This order ensured security in the criminal proceedings, effectively coped with the possibility of a person being accused for an unlimited amount of time and had a disciplinary effect on the pre-trial authorities
The latest alterations in the CCP have abolished the above described order when dealing with a case on the defendant’s initiative and have replaced it with a construction known to our Civil Procedure Law as application for delay.
The alteration provides for the defendant, the victim and the aggrieved legal entity an opportunity for submitting an application for acceleration of the investigation in the event that the pre-trial proceedings, regarding a serious crime, have been lingering for more than two years (or more than six months in all other cases). This application is submitted via the prosecutor who is considering the case to the relevant first instance court. The court has to deliver its enactment in a 15-day period in a private session.
If more than two years have passed since the establishment of the case in front of the first instance court, the parties can submit an application for its “acceleration”. The application is submitted via the court in front of which the case is pending to the relevant upper instance. The law requires that the actions, which were not concluded and which according to the party have delayed the case, be indicated in the application. The court which is considering the case has the right to “accelerate” itself in a 1-month period since the application submission by concluding the indicated actions. In such cases the application is considered to be withdrawn. If the court failed to conclude the actions pointed out in the application after the due date, the case is sent to an upper instance. The latter is obliged to deliver a determination in a 7-day period in a private session. The determination does not subject to appeal.
If the court which is considering the application for “acceleration” establishes an unnecessary delay in the pre-trial proceedings, respectively in the proceedings in front of the court, it fixes an appropriate period for concluding the actions, indicated in the application for “acceleration”.
The alteration is Chapter 26 from the CCP are looked upon as instruments for a quick development of the criminal procedure. The legislation for the application for delay is almost completely transcribed from the Civil Procedure Code and, as far as we are familiar with its application, we can be sceptical for its effect in the criminal procedure.
The court which will consider the application for “acceleration” will determine terms at its own discretion. The actions which the court considered to be unnecessarily delaying the process have to be concluded in the determined period. Up until now when the defendant requested consideration of his/her case, the law determined terms (three months, respectively one month) as well as consequences for the prosecutor’s negligence of his duties, namely – termination of the criminal proceedings with a final determination. The new alterations do not introduce such time frames and there are no sanctions for the delay.
The alteration apprehends the determination of an appropriate period but in the same time it is not at all clear what will the procedural consequences be if the prosecutor (respectively the relevant instance court) failed to accomplish the instructions, indicated within the court’s enactment on the application for “acceleration”. The aimed swiftness is under question. This is apparent form Art. 369, Para. 3 from the CCP, according which new applications for acceleration can be submitted after the determined period for concluding the relevant actions has expired. That is to say – if the pre-trial authorities (respectively the relevant court instance) fail to accomplish their tasks in the determined period, the parties have the right to submit a new application for “acceleration”.
The adopted alterations in Chapter 26 for the CCP will not only fail to meet expectations but will also create serious prerequisites for restricting the unconditional right of protection of the defendant/accused. Often misunderstandings are brought about from otherwise good intentions. The “acceleration” of the criminal proceedings seems to be such a case.
This article is published in http://legalworld.bg/67271.uskoriavaneto-na-nakazatelnoto-proizvodstvo-spored-poslednite-izmeneniia-na-npk.html
Author: Petar Spasov, Attorney-at-law