U-I-289/95

Reference no.:
U-I-289/95
ECLI:
ECLI:SI:USRS:1997:U.I.289.95
Act:
Code of Criminal Procedure (Official Gazette RS, no. 63/94) (ZKP), para. 2 of article 344
Code of Criminal Procedure (Official Gazette SFRY, no. 4/77, 14/85, 74/87, 57/89 and 3/90) (ZKP-77), para. 2 of article 337
Operative provisions:
The provision of paragraph 2 of article 344 of the Code of Criminal Procedure is not in conflict with the Constitution . The provision of paragraph 2 of article 337 of the Code of Criminal Procedure (1977) was not in conflict with the Constitution .
Abstract:
The basic right to a fair trial in a criminal procedure is determined by the constitutional rights to equal protection of rights (article 22) to due process of law (article 23) and rights which represent legal guarantees in a criminal procedure (article 29). Article 22 of the Constitution guarantees an accused in a criminal procedure the same extent of rights or equal legal position as the opposing party has in the procedure - the state (or private) prosecutor. Article 29 guarantees to an accused among other things also the right to suitable time and possibilities for defence.

A statutory arrangement which authorises a court to judge whether it is necessary to terminate the main hearing because there is a change in the charge at the main hearing, is not in conflict with the Constitution since a judge, in reaching a decision on this in conformity with the purpose for which this authority has been given must respect the constitutional rights of the accused cited in the previous point. Whether these rights were respected in an individual case may only be the subject of judgement of a concrete judicial decision.
Password:
Criminal procedure, change of charge
Criminal procedure, abuse of procedural rights.
Right to a fair trial.
Equal protection of rights.
Legal guarantees in a criminal procedure
Rights, procedural rights, abuse.
Exercising and restricting rights.
Right to due process of law.
Presumption of innocence.
Principle of legality in criminal law.
Independence of judges.
Concrete control of constitutionality (article 156 of the Constitution ).
Dissenting opinion of a constitutional judge.
Legal basis:
Constitution, articles 15, 22, 23, 27, 28, 29, 125 and 156 European Convention on the Protection of Human Rights and Fundamental Freedoms (EKČP), article 6
Constitutional Court Act (ZUstS), articles 21, 47, and 50 to 60
Note:
In the reasoning of its decision, the Constitutional Court refers to its cases no. Up-88/94 of 31.5.1996 (OdlUS V, 201), no. U-I-18/93 of 11.4.1996 (OdlUS V, 40) and Up-34/93 of 8.6.1995 (OdlUS IV, 129)
Document in PDF:
The full text:
U-I-289/95
4.12.1997

DECISION

At a session held on 4 December 1997, in a proceeding for reaching a decision on the initiative of Dr. Milan Ličina of Borovnica, the Constitutional Court

reached the following decision:

1. The provision of paragraph 2 of article 344 of the Code of Criminal Procedure (Official Gazette RS, no. 63/94) is not in conflict with the Constitution .

The provision of paragraph 2 of article 337 of the Code of Criminal Procedure (Official Gazette SFRY, no. 4/77, 14/85, 74/87, 57/89 and 3/90) was not in conflict with the Constitution .

Reasoning

A.

1. The appellant submitted a constitutional appeal on 1.2.1994, on which the Constitutional Court decided by resolution no. Up- 7/94 of 30.11.1995. At the same time, he also submitted an initiative for the assessment of constitutionality of the provision of the Code of Criminal Procedures (hereinafter: ZKP77), which regulates a change of charge. The initiator believes that parties in a procedure do not have guaranteed the same possibilities if during the hearing the prosecutor proposes a change of charge. The statutory arrangement is thus claimed to be in conflict with articles 14 and 22 of the Constitution . If a court permits such a procedure in conformity with the statutory arrangement, in the opinion of the initiator, this would also signify an abuse of procedural rights guaranteed by the Constitution . The initiator believes that the legislator may not limit the constitutional right to defence (article 29 of the Constitution ) such that the court may freely decide whether it will adjourn the main hearing without resolving the prior question of whether a change of the charge is at all permissible. The appellant believes that the charge must be precise in order that, on its basis, a defence may be prepared.

In order to respect the principle of a state governed by law, the effect of surprise that the prosecutor can achieve by a change of charge should not be allowed, especially if this prevents the preparation of a defence. Since the requirement of suitable time and possibility of preparing a defence is a constitutional right, the law may not be restricted. The initiator believes that such an arrangement is also in conflict with article 6 of the European Convention of Human Rights and Fundamental Freedoms (Official Gazette RS, MP, no. 7/94 - hereinafter: EKČP) which guarantees a fair trial. A fair trial should also mean equal possibilities for establishing the legal and material circumstances and should guarantee a hearing and suitable time for the course of the procedure.

2. The Constitutional Court commenced the procedure for assessing the constitutionality of article 337 ZKP77 and the constitutionality of the provisions of article 344 of the Code of Criminal Procedures (hereinafter: ZKP). The National Assembly responded to the claims in the initiative. It believes that the impugned provisions are not in conflict with article 22 and the first and third indents of article 29 of the Constitution . The possibility of changing a charge is bound to a change of material circumstances on the basis of evidence introduced at a main hearing. In the opinion of the National Assembly, the possibilities of the prosecutor in comparison with the accused would be essentially diminished if he could not in such a case change the charge. Whenever a court decides according to the provisions of the second paragraph of article 344 ZKP, it must decide in conformity with the previously cited constitutional provisions, since under the provisions of article 125 of the Constitution, a judge is bound to the Constitution and law in performing the judicial function. If a charge is amended in only small and inessential parts, in a manner which does not require additional time for preparing a defence, in the opinion of the National Assembly an adjournment of the main hearing is unnecessary. The court is bound also to the provisions of article 23 of the Constitution and must ensure that the procedure runs without unnecessary delays.

B. - I.

3. The provision of article 344 reads:

" (1) If a prosecutor recognises during a main hearing that evidence introduced indicates that the material circumstances cited in the charge have changed, he may at a main hearing orally amend the charge, and may also propose that the main hearing be adjourned in order that he prepare a new charge.

(2) A court may in such a case adjourn the main hearing for the preparation of the defence.

(3) If the senate permits an adjournment of the main hearing in order for a new charge to be prepared, it shall determine a time limit in which the prosecutor must lodge the charge. A copy of the new charge shall be handed to the accused; there shall be no objection to this charge. If the prosecutor does not submit the charge within the time limit set, the senate shall continue the hearing on the basis of the former charge."

4. The Constitutional Court commenced the procedure for assessing the constitutionality of the second paragraph of the cited article, under which a court is allowed to decide on whether or not the main hearing shall be adjourned for the preparation of a defence. In order to judge the conformity of the impugned arrangement with the Constitution, the Constitutional Court must answer two basis questions: 1) whether a change of charge is permissible at all at a main hearing, and if it is, 2) under what conditions it is permissible in order that because of a change of charge, or because of the procedure on the basis of the changed charge, the constitutionally guaranteed rights of an accused would not be violated.

5. The Constitution determines in articles 22 and 23 basic rights to a fair trial. It determines in article 23 that everyone is entitled to have (...) any criminal charges laid against him decided without due delay by an independent, impartial court constituted according to statute. In conformity with article 22 of the Constitution, in any proceeding before a court, everyone is guaranteed equality in the protection of his rights. Article 22 gives to an accused in criminal proceedings the same extent of rights or the same legal position as the opposing party in the proceeding has, that is to say the state (or private) prosecutor. The provision of article 29 of the Constitution further supplements the provisions of articles 22 and 23 with a specific definition of legal guarantees in a criminal proceeding: "Any person charged with a criminal offence must be afforded absolute equality in implementation of the following additional rights: (1) the right to have sufficient time and opportunity to prepare his defence, 2) the right to be tried in his own presence and to conduct his own defence or to be defended by a legal representative; 3) the right to produce all evidence assisting his case; 4) the right not to be compelled to incriminate himself or his family and friends, or not to be compelled to plead guilty."

6. Article 29 of the Constitution guarantees to an accused a minimum level of rights (resolution of the Constitutional Court no. Up-88/94 of 31.5.1996 - OdlUS V, 201; decision of the Constitutional Court no. U-I-18/93 of 11.4.1996 - OdlUS V, 40), which means that it only enumerates individual rights as examples. Their circle can only be concluded bearing in mind 1) that specific rights additionally derive from articles 22 and 23 and especially 27 and 28 of the Constitution, and 2) the third and fifth paragraph of article 15 of the Constitution . Under the provision of the third paragraph of article 15 of the Constitution, human rights and fundamental freedoms shall only be restricted by the rights of others and by cases determined by the Constitution. Under the fifth paragraph of the cited article, no human rights and fundamental freedoms regulated in legal acts which apply in Slovenia may be restricted on the grounds that this Constitution does not recognise it or recognises it only to a limited extent. Article 29 of the Constitution repeats in its introductory paragraph a stress on equality which has in essence all the attributes of equality contained in article 22 of the Constitution, thus also equality of weapons between parties to a court proceeding. The basis premise for guaranteeing the right to suitable time and possibility for preparing a defence (first indent of article 29 of the Constitution) is that an individual is acquainted with the charge - this means that he must be acquainted with all specific data of a material or legal nature, which enables him that in conformity with (this data) he may prepare his defence.

This premise represents a composite part of the right under the first indent of article 29 of the Constitution which EKČP protects specifically and explicitly in the provision of point a) of the third paragraph of article 6.

7. The cited rights correspond to the concept of a "fair trial", as also defined by EKČP in the first and following paragraphs of article 61. Under the first paragraph of this article, anyone has the right that an independent and impartial court constituted by statute shall decide on (...) criminal charges against them fairly and in public and in a reasonable time limit. The provision of the second paragraph of article 6 EKČP determines the presumption of innocence, the provision of the third paragraph of this article determines the minimum rights of a person charged with a criminal offence, including the right of an accused: a) that he be acquainted immediately and in detail, in a language which he understands, with the essence and cause of the charge made against him, and b) that he has suitable time and possibility to prepare his defence.

8. The second and third paragraphs of article 6 EKČP, represent according to the judicial practice of the European Court of Human Rights, a specific introduction of the general principle contained in the first paragraph of this article. The presumption of innocence to which the second paragraph is devoted and the various rights, cited as examples in the third paragraph ("minimum rights") are among other things a composite part of the concept of a fair trial in criminal proceedings (case of Deweer, judgement of 27.2.1980; Publications ECHR, Ser. A, Vol. 35; p. 56). In this by the established practice of the court there is also the requirement of equality of weapons in the sense of a "fair balance" between the parties in the principle of the equal both in civil and in criminal cases (case of Dombo Beheer against The Netherlands, judgement of 27.10.1993, Publ. ECHR, Ser. A, Vol. 274, p. 33). The European Court of Human Rights often stresses that the intention of the EKČP is to protect not rights which are theoretical or illusory but rights which are actual and effective; this especially applies to the right of defence from the point of view of the prominent role which the right to a fair trial has in a democratic society, from which the rights to defence derive (case of Artico, judgement of 13.5.1980, Publ. ECHR, Ser. A, Vol. 37, p.33)2.

B. II.

9. A criminal proceeding is commenced with an investigation against a specific person if there is a well-founded suspicion that he has committed a criminal offence. The investigation is directed at the collection of data required for a decision on whether to prefer a charge or halt the proceeding (article 167 ZKP). In a criminal proceeding, the so-called accusatory principle applies, which means that the proceeding is always introduced and runs on the basis and within the bounds of the demand of an authorised prosecutor. When the investigation is completed, as well as when a charge can be preferred without an investigation, the proceeding may only run on the basis of the charge of the state prosecutor or the injured party as prosecutor (first paragraph of article 268 ZKP). A criminal proceeding may also be introduced under statutory defined conditions on the proposal of a charge by the state prosecutor or an injured party as prosecutor, or on the basis of a private charge. ZKP determines in article 269 what a charge must contain. Under point 2 of the first paragraph of this article, a charge must contain also a description of the deed from which derive the statutory marks of a criminal offence, the time and place that the criminal offence was committed, the subject of the criminal offence and the means with which it was committed, and other circumstances which are necessary for the criminal offence to be defined as accurately as possible. ZKP also requires such a description of a criminal offence for a proposal of a charge or a private charge (first paragraph of article 434 in connection with article 429 ZKP). A charge must therefore contain the basis and the framework for a proper and complete ascertainment of the material circumstance which is the subject of the main hearing.

10. The requirement for a subjective and objective identification of the charge and judgement (article 354 ZKP), not respecting these rules, represents an absolutely essential violation of the procedural provision (points 7 and 9 of the first paragraph of article 371 ZKP). Since it is possible that at the main hearing the evidence introduced indicates different material circumstances than those asserted by the competent prosecutor, the Law gives him the possibility of changing the charge such that it is still based on the same historical event, but has changed facts or circumstances which represent the statutory marks of a criminal offence. This right of the competent prosecutor is not in itself in conflict with any of the above-cited constitutional guarantees, provided the prosecutor does not abuse (it) and if at the same time, it is permitted that the other party in the proceeding - in this case the accused - may still in view of the changed circumstances protect his right in principle to the same legal position as if there had been no change to the charge. The ban on the abuse of procedural rights derives from the principle of equality of protection of rights and binds both parties in the proceeding, both prosecutor and accused. It is an abuse of the right if the holder of the right derives from a legally permissible abstract justification which is concretised and materialised such that his behaviour exceeds the bounds of the justification. It creates a conflict of two rights that are mutually exclusive.

Conflict occurs because two rights are in conflict, and one of them is exercised in such a way that either partially or in whole it prevents the activation and exercise of the other. The circumstance that an entitlement is exercised in such a way that harms the other party or "makes his position more difficult", represents an abuse of the right. In conformity with the provisions of article 22 of the Constitution , in a case in which a party in a proceeding abuses their procedural rights the court must reject legally relevant acts which exceed entitlement4 and thus represent its abuse. The court must therefore at the time of passing judgement also verify a change of charge from this aspect.

11. A change of charge may not curtail an accused's right to defence. Respecting it, as derives from the above cited constitutional provisions, guarantees to an individual that 1) he is informed exactly and specifically on all material and legal circumstances of the charge which he faces, and 2) he has suitable time and opportunity to prepare his defence. The right to prior exact information does not only give an accused the opportunity of being able to prepare a defence in advance, but also guarantees that an accused will not because of a change in charge be cheated or embarrassed in relation to the preparation of his defence, and he may also not be placed in the position of being taken by surprise.

12. A judge, under the provision of article 125 of the Constitution, is bound to the Constitution and law. In this he must respect also the provisions of article 23 of the Constitution, whereby charges against an individual must be decided on without delay. However, efforts of the court to carry out proceedings without unnecessary delay may not end in violation of the accused's rights in criminal proceedings under article 29 of the Constitution (decision of the Constitutional Court no. Up-34/93 of 8.6.1995, OdlUS 129, IV). According to the provision of the first paragraph of article 15 of the Constitution, human rights and fundamental freedoms are exercised directly on the basis of the Constitution. If a judge believes that a statutory provision that he must use, or on the basis of which he must proceed in a concrete case, is anticonstitutional, he must adjourn the proceeding and commence a proceeding before the Constitutional Court (article 156 of the Constitution ). Although he must behave in conformity with law, no statutory provision may be used or interpreted such that it violates the constitutional rights of parties in a proceeding.

The impugned statutory provision gives a court authority to judge whether it is necessary to adjourn a procedural act (main hearing) or not. This authority is given to the court so that in the event of inessential changes to a charge, also because of respect for rights under article 23 of the Constitution and without detriment to other constitutional rights of parties in a proceeding, the economical procedural conduct of a criminal proceeding is assured. Such an intention of the authority is not constitutionally disputable. Whether a judge behaves in conformity with this authority and in compliance with the intention for which he has been given the authority, may always be the subject of judgement of a concrete judicial decision.

13. Whenever, therefore, a judge judges under the provisions of the second paragraph of article 344 ZKP, on whether because of a change in charge in conformity with the first paragraph of article 344 ZKP it is necessary to adjourn a main hearing, he must adopt such a decision whereby he does not encroach, in conflict with constitutional rights, on the accused's position in procedural law. He must in particular judge whether his decision respects the accused's right to defence, as determined in the first indent of article 29 of the Constitution. So a statutory provision whereby a judge is given authority to judge whether in order to protect an accused's constitutional rights it is necessary to adjourn a hearing because of a change in charge is not in itself in conflict with the provisions of articles 22 and 29 of the Constitution. Only a concrete decision of a judge in an individual case could be in conflict with them, which cannot be the subject of judgement in the context of an assessment of the constitutionality of a law, but only the subject of judgement of a concrete judicial decision on the lodging of a constitutional appeal. The initiator's constitutional appeal was rejected by the resolution cited in point 2 of this reasoning, as premature, since under the provision of article 559 ZKP, the initiator had available extraordinary legal remedy whereby the asserted violation could be validated in a proceeding before the Supreme Court. If the appellant were to be unsuccessful with this legal remedy, he could validate protection of his constitutional rights with a constitutional appeal under the provisions of articles 50 to 60 of the Constitutional Court Act (Official Gazette RS, no. 15/94 - hereinafter: ZUstS).

B. - III.

14. The Constitutional Court has already explained in the resolution cited in point 2 of this reasoning the reasons for which, in conformity with article 47 ZUstS, it commenced also a proceeding for assessing the constitutionality of the second paragraph of article 377 ZKP77. In relation to this provision, too, it was necessary for precisely the same reasons as in relation to the provisions of the second paragraph of article 344 ZKP, to reach a decision that the impugned provision was not at the time of its validity in conflict with the Constitution.

C.

15. The Constitutional Court adopted this decision on the basis of articles 21 and 47 of ZUstS, composed of: president Dr. Lovro Šturm and judges Dr. Peter Jambrek, Dr. Tone Jerovšek, Mag. Matevž Krivic, Mag. Janez Snoj, Dr. Janez Šinkovec, Franc Testen, Dr. Lojze Ude and Dr. Boštjan M. Zupančič. The resolution was adopted by seven votes against two. Judges Jambrek and Zupančič voted against, and gave a dissenting separate opinion.


P r e s i d e n t:
Dr. Lovro Šturm


Notes:
1. In the original French text of the first paragraph of article 6 EKČP, it is written that a criminal charge must be "bien- fonde". According to the interpretation of the European Court, this presupposes that a charge is well-founded both in fact and law. Thus a proceeding will not be fair if it takes place under such conditions that the accused will be placed unfairly in a worse position (case of Delcourt, judgement of 17.1.1970, Publ. ECHR, Ser. A, Vol. 11, p.34).
2. Somewhat more detailed standpoints on these questions are evident from reports of the Commission for Human Rights:
1. The Commission has thus stressed that the provision of point c of the third paragraph of article 6 must be respected in the context of all the requirements of this article and that in reality it is a logical link between points a and b of the third paragraph of article 6, that is between the right "to be promptly ... informed about a charge" and the right "to have sufficient time and opportunity to prepare a defence" ... (Dec. Adm. Com. Ap. 4080/69, Digest of Strasbourg Caselaw relating to the ECHR, Vol 2 (Article 6), 1984, p. 772).
2. As part of the right to a fair trial, guaranteed by the provisions of article 6 as a whole, an accused person has the right to be informed not only of the basis of a charge, that is not only on the acts of which he is accused and on which the charge is based, but also the nature of the charge, namely about the legal definition of the acts and questions. Since it is in fact a logical link between points a and b of the third paragraph of article 6, the information may consequently contain such particulars as will enable the accused to prepare his defence in conformity with them. (Dec. Adm. Com. Ap. 524/59, Digest of Strasbourg Caselaw relating to the ECHR, Vol 2 (Article 6), 1984, p. 776).
3. The commission believes that what is generally called "equality of weapons", is the procedural equality of the accused and the public prosecutor, and it is an important element of a fair trial. Whether this equality has its legal basis in the third paragraph depends on the interpretation of points b and c. It is unnecessary for the Commission to take an explicit stand on this since it is indisputable that, in any case, the wider and more general provision on a fair trial under the first paragraph of article 6 contains the concept of "equality of means" (Op. Com, Case of Ofner and Hopfiger, Digest of Strasbourg Caselaw relating to the ECHR, Vol 2 (Article 6), 1984, p. 786).
3. Marijan Pavčnik: Argumentacija v pravu, CZ, Ljubljana 1991, p. 215-217.
4. Pavčnik, ibid, p. 225.
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
statute
Applicant:
Milan Ličina, Borovnica
Date of application:
01.02.1994
Date of decision:
04.12.1997
Type of decision adopted:
decision
Outcome of proceedings:
establishment – it is not inconsistent with the Constitution/statute
Document:
AN01391