Constitutionality Review

Contested Provision

The contested provision, Article 226 § 4 of the Code of Criminal Procedure no. 5271, regulates the procedures to be followed in case of a reclassification of the offence during the course of the proceedings. It is provided therein that, where appropriate, written notification shall be given to the defence counsel, who shall also enjoy the rights granted to the accused.

Ground for the Request for Annulment

It was maintained in brief that the contested provision mentions written notifications but the paragraph it refers to lacks any mention of notification. In addition, while the provision refers to the rights granted to the accused, it fails to clarify the scope of the relevant rights. The lack of specificity regarding the rights to be exercised by the defence counsel was alleged to contravene the principle of legal certainty. It was further claimed that the provision substitutes the legal assistance of the defence counsel for the defence of the accused, thereby rendering the provision unconstitutional.

The Court’s Assessment

In certain cases, the legal assessment of the offence by the public prosecutor may not align with the assessment of the trial court. Additionally, the public prosecutor may alter its own legal characterisation of the offence during the proceedings. In such cases, the offence may be requalified. When the offence is reclassified during the proceedings, the accused must be notified of this requalification to modify their defence accordingly and present it to the court. Such notification is a prerequisite of the right to be informed of the accusation and is integral to ensuring a fair trial in accordance with the principles of equality of arms and adversarial proceedings. Therefore, in instances where the offence is reclassified, the accused must be afforded the right to be informed of the requalification, as well as the associated rights to be present at the hearing and to defend themselves. However, under the contested provision, it is possible for the defence counsel to be notified of the requalification, without any notification being made to the accused. In other words, the accused may remain unaware about the reclassification of the act for which they are being held liable or the sentence that may be imposed, while the proceedings may be finalised based on the defence submitted by the defence counsel, leading to any judicial decision, including a conviction.

In the criminal procedural law, it should be noted that although right to fair trial safeguards of the right to be personally present at the hearing and to submit one’s own defence can be waived by the accused, this is not possible in terms of the initial defence stage. However, without consideration of this point, it is deemed sufficient at the latter stage for the defence counsel alone to conduct the additional defence, without any examination of whether the accused has waived this right. However, it would be rather difficult to suggest that the interests safeguarded by the right to defence against a reclassified offence during the proceedings are of lesser significance than those associated with the defence against the initial offence. In fact, in circumstances where the penalty is aggravated or a conviction may be ordered for a more serious offence, much more interests safeguarded by the additional right to defence may be at stake.

Failure to inform the accused of a reclassification of the offence, and thus preventing him from participating in the proceedings, effectively deprives the person who has the best knowledge of the facts of the case of any opportunity to influence the court’s decision. Moreover, it appears that the contested provision, which allows the proceedings to be concluded without hearing the accused’s defence on the requalified offence, provides no safeguard for the accused to request a review by claiming that they have not waived these rights.

In this regard, it has been found that the provision deprives the accused of any opportunity to influence the court’s decision, and therefore imposes a disproportionate restriction on the right to a fair trial in terms of pursuing a legitimate aim.

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