Constitutionality Review

Contested Provision

The contested provision sets forth that the simplified trial procedure, which has a bearing on the length of sentence to the advantage of the offender in cases which are at the trial stage but have not been concluded yet by a decision, shall be applied being limited to the cases proceeded to trial after a given date. 

Ground for the Request for Annulment

It is maintained that the contested provision is unconstitutional as the legal arrangements concerning the simplified trial procedure, which embody a more favourable provision, must be applied to all cases.

The Court’s Assessment

As a requisite of the legal certainty and legal security, Article 38 of the Constitution, which sets forth that “… no one shall be given a heavier penalty for an offence other than the penalty applicable at the time when the offence was committed”, precludes the retrospective application of criminal law to the detriment of the offenders. This provision concerning the ratione temporis application of criminal norms is described as the prohibition of retrospective application of criminal law to the detriment of the accused, which is a sub-principle of the principle of lawfulness. This prohibition is a safeguard introduced for the sake of personal liberty.

In cases where a law enacted subsequent to the date of offence decriminalise the same act or prescribes a more lenient sentence for the same offence, the principle of application of a more favourable criminal law, another sub-principle, comes into play.

The Constitution explicitly prohibits the retrospective application of a given law -prescribing a more severe sentence- to the offences committed before its effective date. This prohibition, emanating from the principles of legal certainty and legal security, also entails the application of a subsequent law that is more favourable than the one in force on the date of the offence. If the provisions of the abolished law, which are to the detriment of the accused, are allowed to be applied to cases where an act constituting an offence at the time of its commission is decriminalised by a subsequently-enacted law, or where the subsequent law prescribes a more lenient sentence than the abolished law for the same criminal act, it would lead to the individuals to face a sentence that could not be foreseeable by them, despite the principle of nullum crimen, nulla poena sine lege which requires the offences and corresponding penalties to be clearly defined by law. This is by no means considered to comply with the said principle intended for affording constitutional safeguard to ensure legal certainty in criminal law.

Pursuant to Article 141 of the Constitution, the State is to take effective measures so as to preclude the unnecessary prolongation of the proceedings. In this sense, it is a requisite of the right to be tried within a reasonable time to organise the legal system and notably the trial procedure in a way that would ensure the conclusion of the proceedings within a reasonable time. Accordingly, it is within the legislator’s discretionary power to determine the trial procedures that would ensure conclusion of the proceedings for certain offences within a shorter period of time. However, the statutory steps to be taken to that end must not undoubtedly hamper the issuance, at the end of the proceedings, of a fair and equitable decision on the merits.

In this sense, certain rules on trial procedures may have a bearing on the length of sentences prescribed for the criminal acts under prosecution. The prevention of retrospective application of the provisions having a bearing on the length of the relevant sentence to the advantage of the offender falls foul of the principle of nullum crimen, nulla poena sine lege.

It is set forth in the Code of Criminal Procedures that in case of a conviction decision rendered at the end of the simplified trial procedure, one-quarter of the given sentence shall be deducted. The contested provision provides for that the simplified trial procedure shall not be applied to the cases proceeded to trial before a particular date. Accordingly, the contested provision is in breach of Article 38 of the Constitution for allowing for the application of the simplified trial procedure, which has a bearing on the length of sentence and is therefore more favourable to the offender, merely to the cases proceeded to trial after a certain date.

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