Table of Content

• Comments
  • Purpose
    1. The provision aims at making economical use of the time for concluding the proceedings and enhancing the effectiveness of the administration of criminal justice, thus avoiding the judicial debate and the requirements for the submission of new evidence.
  • Scope
    2. The scope of Article 403 of Criminal Procedure Code is determining the circle of persons being legitimised to submit a request for abbreviated trial, regulating the procedural moment of submission of the request and the instances of rejection.
  • Comments
    3. Our Code of Criminal Procedure relies on the basic principles of adversarial proceedings: equal standing of the accusation and defence, and conducting the criminal proceedings orally, thus debating the evidence submitted by the accusation and defence before the adjudication panel. The abbreviated trial is a type of trial which circumvents these principles, since the court resolves the case based on the written acts being contained in the file of the prosecution (currently also the acts being ordered by the judge of preliminary hearing are contained)[1]. Thus, the evidence is established in writing at the stage of preliminary investigation and not being subject to the objection of parties during the debating judicial hearing. Thus, the statements of persons that are aware of the circumstances of the fact, act of questioning of the person against whom investigation are being carried out (article 296) or the report of judicial police (article 303) etc. - are admitted as evidence. This means that the defence loses the possibility of questioning their veracity by way of the judicial debate. On the other hand, the defence loses the possibility to seek from the court to take other evidence (article 356), in support of their requests. Due to these reasons, the abbreviated proceeding might be considered as a trial favourable to the accusation and not favourable to the defendant. However, it has to pointed out that favourable to the defendant stands to the fact that in case of conviction, the court reduces the fine or the prison by one third (article 406).

     

    4. Due to the reasons referred to above, the right to be tried under the rules of the abbreviated proceedings cannot be but just a personal right of the defendant.[2] This is the reason why the Code provides for such a request to be submitted by them; just the defendant is entitled to waive the guarantees being granted to his defence by the adversarial proceedings, thus conceding to be tried under a trial type not being favourable to them. The request of abbreviated proceedings maybe submitted even by the defence lawyer, however, being provided with a special power of attorney from the defendant and be explicitly authorised to seek to be proceeded against, under this type of trial. The defence lawyer being appointed by the family members of the defendant (article 48 paragraph 3) does not have the standing to submit a request for abbreviated proceedings. If the request is submitted by a person lacking such standing the court shall decide to reject the request for abbreviated trial.

     

    5. As already mentioned the defendant is benefiting to such trial also: first, in the event of being convicted, the main sanction shall be reduced by its one third (article 406 paragraph 1) and second, he/she avoids the costs (being moral or material) of proceedings and its duration, as long as he/she thinks that the file of the prosecutor does contain enough evidences supporting the accusation pressed against him/her. On the other hand, the abbreviated proceedings, aim at economising the criminal proceedings (thus decreasing the number of cases under adjudication and reducing the respective cost), and enhancing the effectiveness of administration of criminal justice.

     

    6. In cases where the prosecutor decides to pursue the ordinary trial procedure, requesting to send the case to court, the request for the shortened trial must be filed in the preliminary hearing, consequently, its rejection if presented at the later stages of the proceedings. The rationale of the provision relies not only on the logic of the economy of the process, but also on the need of preliminary verification of the acts of the prosecutor contained in the file in terms of eventual formal flaws (absolute invalidity) or contents (non-utilisation of the evidence obtained contra legem).[3]

     

    7. By way of an exception to the rule, the request for abbreviated trial may be submitted also in two specific instances: first, upon the initiative of the prosecutor to proceed with direct trial (Article 400) and, second, upon the defendant objecting to the court decision to uphold the conviction penal order (article 406/ç par 1).

     

    8. If the court decides to uphold the initiative of the prosecutor to proceed with the direct trial, the defendant shall be entitled to be tried according to rules on abbreviated trial Article 402 par 3. Thus, the law provides for the possibility of converting the direct trial into an abbreviated trial. The logic of the lawmaker is the economization of the process by way of shortening the phase of preliminary investigation and the phase of judicial examination of the case. The conversion of the type of trial may be admitted only if the defendant requested it (or his/her defence lawyer, being specifically authorised). The request has to be submitted, prior to the start of judicial examination[4]; thus, prior to the parties being invited to make their introductory submission and the request for evidence. (article 356). In the case the request for abbreviated trial comes later, it will be rejected.

     

    9. Where the defendant objects to the decision of the court upholding the penal order, the case shall, as a rule, be passed over for examination in the judicial hearing, under the rules of the ordinary trial (article 406/ç par 3). In such a case, the law again provide the opportunity to the defendant to proceed under the rules of abbreviated proceedings. Even in such a case the request shall be submitted facing the consequence of non-admission, prior to the judicial examination starting.

     

    10. The prosecutor is not entitled to object the request of the defendant. At the same time, even the victim is not able to object the initiative of the defendant to be tried in abbreviated trial. Referring to the rationale of the provisions, the need for economic use and effectiveness of criminal proceedings has priority to the interests of the accusation and victims of the criminal offence, as long as the court deems that the conditions for admitting the request of the defendant for abbreviated trial are met.

     

    11. The request for abbreviated proceedings shall not be admitted as long as the defendant is accused of a crime wherefore the criminal law provides for a life imprisonment sanction (Article 403 par 2 of CrPC).

     

    [1] See No 00-2013-651 of Decision (123), dated 10.04.2013 (CCHC), Hodaj; No 00-2013-413 of Decision (1), dated 09.01.2013 (CCHC), Mallkuçi, etc.; No 00-2013-507 of Decision (68), dated 27.02.2013 (CCHC), Beqiraj.

    [2] See no 00-2013-632 (101) of Decision, dated 20.03.2013 (CCHC), Medinaj, par D.23; Unification Decision no 1, dated 10.03.2014, par C.51 (CCHC), Nurkaj.

    [3] Article 332/c par 3 of CrPC

    [4]Unification decision No 2, dated 29.01.2003 (UCHC), Zaharia, etc.

  • Historic context
    12. The amendments to paragraph 1 of Article 403 were imposed as a consequence of the adoption of the new institute of preliminary hearing and its respective functions, to the effect of paving the way for conducting the abbreviated proceedings. The amendments pave the way for the abbreviated trial to be applied even where the defendant objects to the court decision for approving the penal order.

     

    13. With the amendments effected to paragraph 2 of Article 403, the abbreviated trial shall not be admitted in the instances where the charge being pressed against the defendant provides for a life imprisonment sentence. Prior to the recent amendments, such a ban did not exist: if the defendant were convicted, the life imprisonment sentence was replaced with the maximum of imprisonment sentence provided for by the Criminal Code. The historical rationale of the lawmaker for the approval of this amendment seems to emerge from the need of strengthening the guarantees and restricting the possibilities of judicial error, in the event of specifically serious charges. In the perspective of the lawmaker, the guarantees of the adversarial trial shall, in cases of this nature, obtain priority over the need to benefit in the context of judicial economy and effectiveness of criminal prosecution.
  • International acts
    No Comment
• International standards/International references/Best examples

  Decisions of the European Court of Human Rights 

  14. Choosing the abbreviated type of proceedings incurs the weakening of the procedural guarantees being offered by the law of the country, specifically regarding the publicity of the judicial debate, the possibility to seek taking of new evidence and summoning the witnesses. In the case (Scoppola)[1] the ECtHR has stated that abbreviated trial entails undoubted advantages for the defendant: “if convicted, he receives a substantially reduced sentence... However, the summary procedure also entails a diminution of the procedural safeguards afforded by domestic law, particularly public hearings and the possibility to adduce evidence and have witnesses summoned” (paragraph 134). Right for court hearing and right for summoning and question the witnesses are the fundamental rights according to the Article 6 of the ECHR. Therefore, the defendant should be aware of which rights he is waiving from. That is why the CrPC requires that the defendant, after expressing the will to be tried according to the abbreviated rite, personally or by the defense counsel provided with a special power of attorney, should be present at the abbreviated trial. Having in mind above mentioned, we could state that provisions of CrPC as amended, regarding the abbreviated proceedings are in compliance with the above principles.

   

  [1] Scoppola v. Italy (no 2), Application no 10249/03, 17 September 2009.

• Legislative material
  No Comment
• Related articles
  15. Criminal Procedure Code: Articles 48, 332 and the following, 332/c, par 3, 356, 405, 406, 406/ç, par 3;
  16. Criminal Code: Articles 78, 78/a, 79, 79/a, 79/b, 79/c, 100, par 3, 109, par 3, 109/b, par 3, 109/c, par 4, 110/a, par 5, 141, 208, 209, 219, 221, par 2, 230, 230/a.
• Sublegal acts
  No Comment
• Decisions

  Decisions of ECHR 

  17. Scoppola v. Italy (no 2), Application no 10249/03, Decision of Grand Chamber, 17 September 2009, http://hudoc.echr.coe.int/eng?i=001-94073 (Last visit 27 January 2018);

   

  High Court Decisions 

  18. No 00-2014-1935 of Decision (175), dated 16.07.2014, Berisha (CCHC), etc.;
  19. No 00-2013-651 of Decision (123), dated 10.04.2013(CCHC), Hodaj;
  20. No 00-2013-413 of Decision (1), dated 09.01.2013, (CCHC), Mallkuçi, etc.;
  21. No 00-2013-507 of Decision (68), dated 27.02.2013(CCHC), Beqiraj;
  22. No 00-2013-632 of Decision (101), dated 20.03.2013(CCHC), Medinaj;
  23. Unification decision No 2, dated 29.01.2003 (UCHC), Zaharia, etc.;
  24. Unification decision No 1, dated 10.03.2014 (UCHC), Nurkaj, etc.
• Literature
  25. Givanni Conso, Vittorio Grevi, Compendio di procedura penale, Giuffrè editore, 2006, page 108-124.
  26. Paolo Tonini, Manuale di procedura penale, 8^a edizione, CEDAM 2006, page 589 - 616.
• Archive
  No Comment