Information regarding the regulatory resolution of the Constitutional Court
(№ 13 dated 16 May 2023)
The Constitutional Court has examined a citizen's appeal concerning the constitutionality of paragraph 6) of first part of Article 489, paragraph 2) of first part, second part of Article 490 and fifth part of Article 491 of the Code of Criminal Procedure (hereinafter - the CCP) related to the preliminary consideration by judges of the Supreme Court of an application for review of judicial acts that have entered into legal force.
The subject of the appeal, comparing these norms of the CCP with their previous versions before the following amendments, sees an infringement of the constitutional right to access to justice when appealing against a court verdict: the Law of 31 October 2015 removed from article 490 of the Code of Criminal Procedure the provisions on the compulsory seizure of the criminal case file when considering an application and on the preliminary consideration of the application by a court in an open court session consisting of three judges; the law of 27 December 2021 increased the number of judges in the preliminary examination of applications from one to three, except for applications previously rejected by a single judge, and abolished the right of the President of the Supreme Court to make submissions to the cassation court.
The Constitutional Court considers that the Constitution does not expressly stipulate the number of courts and the procedure for their operation. The constitutionally guaranteed right of everyone to judicial protection of their rights and freedoms implies that the State should ensure conditions for a fair trial in a court of first instance, with the possibility of re-examining the case on the merits as part of the review of judicial acts that have not entered into legal force on appeal. The amendment of a judicial act that has entered into legal force in the cassation procedure should be carried out in exceptional cases, if the activities of local courts are properly organised. The preliminary consideration by cassation instance judges of applications for review of judicial acts that have entered into legal force on the grounds provided for in the Code of Criminal Procedure, without requesting the materials of the criminal case, may entail a violation of constitutional principles of justice, which is inadmissible.
The Constitutional Court recognised paragraph 6) of the first part of Article 489, the second part of Article 490 and the fifth part of Article 491 of the Code of Criminal Procedure as being in conformity with the Constitution, while paragraph 2) of the first part of Article 490 of the Code of Criminal Procedure was found to be in conformity with the Constitution in the following interpretation: preliminary examination of an application for review of judicial acts that have entered into legal force is carried out with the compulsory request for the materials of the criminal case.