Table of Content

• Comments
  • Purpose
    1. The provision intends to economize the time to solve the process and to increase the effectiveness of the criminal justice administration, to avoid the judicial debate and the requests for the submission of new evidence.
  • Scope
    2. Article 405 of the CrPC intends to regulate the procedural reports regarding the verification of the parties, the actions in case of a failure to be present and their legitimacy, the way how the opening of the special adjudication is declared, the conditions on the admissibility and the refusal of the request as well as regarding the provision of the civil claim when the abbreviated trial is admitted.
  • Comments
    3. Recent changes to the CrPC have brought some limitations in the abbreviated trial regarding the cases of permitting and the time of filing the application. First of all, it should be noted that the request for abbreviated trial should be presented at the preliminary hearing. After completing the verification of the validity of the acts and the usability of the evidence, it is forwarded to the competent court for the adjudication of the case (Article 332/dh). As an exception to the rule, it may be presented in the hearing, before the commencement of the main trial, in the case of direct trial and when the defendant rejects the penalty order (article 403).

     

    4. The court verifies the presence of the parties and shall ensure the necessary presence of the prosecutor and of the victim or of her/his heirs (when their identity and residence result from the proceeding acts), whose absence is sanctioned with absolute invalidity of the adjudication acts. The presence of the defendant is mandatory as the court shall get his statement, after asking him if he remains with the request for abbreviated trial, presented by him in the preliminary hearing.(hyperlink article 405 par.5) When he is not present for justified reasons, the court appoints the date of the new hearing and orders the summon to be repeated for him.

     

    5. In the cases when the defence is mandatory, and the defence counsel of the defendant is not present, the court appoints a substitute defence counsel (article 49). The appointed defence counsel dismisses the functions when the defence counsel selected by the defendant is present.

     

    6. If summoning the victim is necessary, the summoning of the victim’s heirs is conditioned by the fact that they should have already been identified and their residence should be known. This rule has been decided to solve the difficulties that may be present in the case law, in the cases when the victim’s heirs and their line are not known and they do not show an interest to be involved as parties in the investigation and adjudication proceeding (when the heirs of the victims prove the legitimacy as heirs, express an interest regarding the investigation, the body who proceeds requires them to declare the residence and the address for the notification of the proceeding acts). When the victim’s heir is a child, the act is notified to the legal representative or to the guardian. This right originates not only from the CrPC but also from articles 24, 16 and 34 of law no.37/2017 “Code of Criminal Justice for Children”. The court calls and verifies even the presence of the private parties,[1] only when the civil claim has been admitted in the criminal process.

     

    7. After making sure of the presence of the parties, the court verifies their legitimacy in the trial (this verification has a special importance particularly for the defence counsel, the victim, the victim’s heirs as well as the civil claimant and defendant) and invites them to submit the preliminary requests (article 354), which are related to the jurisdiction, the competence, the jointure or the separation of the cases, as well as the legitimation of the civil claimant and defendant in the process.

     

    8. The verification of the will of the defendant on the selection of the abbreviated trial is carried out through the direct questioning if he sticks to his request addressed in the preliminary hearing. When the defendant admits that he sticks to the choice that has already been made, the court declares the judicial review opened, inviting the prosecutor to make a summarized presentation of the results of the preliminary investigation and of the evidence that supports them. The court decides to admit or to reject the request for abbreviated trial, in the same hearing, after it hears firstly the prosecutor’s submission. When the defendant changes his opinion and requires to be proceeded with the normal trial, the court declares the review opened again and invites the parties to make the respective submissions and the requests to collect the evidence (article 356), proceeding according to the rules of the normal adjudication.

     

    9. As already mentioned the first condition to admit the request for abbreviated trial is the submission of this request by the defendant in the preliminary hearing and the confirmation, that the abbreviated trial has been chosen, before the court that adjudicates the merits. When the defendant misses time limits as foreseen in the article 403 paragraph 1 of the CrPC, the court rejects the request. Moreover, his request will not be admitted also if:

     

    a) The case cannot be solved “under the existing state of the acts” in the prosecutor’s file, (including the acts ordered by the judge of the preliminary hearing).[2] We emphasise the fact that the judge of the preliminary hearing transmits to the courts that adjudicate the merits, this very file, which contains the entirety of the investigation acts and the acts before the judge of the preliminary hearing. When the court notices flaws in the investigation, which do not permit it to give a fair decision related to the existence of the criminal fact and the defendant’s responsibility, the case cannot be solved in the existing state of the acts. This means that the collection of new evidence and its review in the hearing is not necessary (article 367); 

    b) Secondly, if the defendant or his defence counsel presents claims on the invalidity of the acts or the usability of the evidence; in those cases, the court cannot solve the case “under the existing state of the acts”, as the problems raised by the defence shall be disputable, the request will not be admitted as well. The reason for it is that the court shall evaluate the type of the alleged invalidity and shall discuss the evidence, alleged to have been collected in contradiction to the law and the solution of these problems cannot be done outside the judicial debate. 

    c) Thirdly, when the defendant or his defence counsel claims the collection of other pieces of evidence, the request for abbreviated trial will not be admitted as well. The reason for it is that the new evidence requested by the defence and the way how they are collected shall be debated in the hearing. In this case, talking about the judicial economy (which is the main purpose realized through the abbreviated trial) would not make sense. But the provision sets out an exception: the evidence may be tried related to the personality of the defendant (the certificate of the judicial state, academic background documents, titles of honour, etc.) or his personal, family or economic state (certificates of the civil registry, certifications on the incomes, documents from the offices of taxes, etc.). It is believed that the debate on the collection of this evidence, of the document nature, does not impinge the principles of the economy of the process, therefore, the legislator deems that the abbreviated trial should not be refused to the defendant only for the reason that the certificate of his judicial state is not a part of the acts. We believe that these amendments will prevent opposite practice from the appeal court. [3] 

    ç) Fourthly, the request for abbreviated trial is when the court finds ex officio absolutely invalid acts or non-usable acts. The cases of absolute invalidity of the acts and of the non-usability of the pieces of evidence collected in contradiction to the law, are found even ex officio in every state and level of the proceeding (so, even before the court which reviews the request for abbreviated trial). The court has the duty to find and to declare them through a decision, even when they are not raised by the interested party.[4]  It is obvious, that in such cases, the abbreviated trial cannot be conducted as the case cannot be solved in the actual state of the acts, In its decision regarding the inadmissibility of the request, the court shall determine clearly, the acts which are absolutely invalid and the evidence that cannot be used in the adjudication. 

    d) The last reason foreseen in the Law is for non-acceptance of the abbreviated trial, that is when the defendant is accused for a respective criminal offence is punishable with the life imprisonment.

     

    10. In all the above-mentioned cases, the court decides not to admit the request for the abbreviated trial and continues the procedures of the normal trial. A special appeal is not allowed; it could be appealed together with the final decision.

     

    11. When the defendant submits a request for abbreviated trial, one of the functions of the preliminary hearing is the verification of the state of the acts, before deciding to send the case to the competent court. When the investigation is not complete, the judge of the preliminary hearing orders their completion; when invalid acts or non-usable pieces of evidence are found, they are declared through a decision; and the judge of the preliminary hearing orders them to be redone accordingly. The careful work of the judge of the preliminary hearing would help the court of the merits a lot, regarding the admissibility of the request for abbreviated trial. But the judge of the preliminary hearing may make mistakes, therefore, the court that adjudicates the case is not impacted by his decision-making; it is free to verify again the completion of the conditions to proceed with the abbreviated rite and to decide independently. This dual control is an added guarantee to avoid the judicial mistake. Thorough these norms, the legislator makes sure that the court shall make a clear and accurate decision related to the formulated charges, after a full investigation and based on the valid acts and on the pieces of evidence, which are usable in the adjudication.

     

    12. When the court does not find any of the reasons for non-accepting the abbreviated trial, the court accepts the request and the parties are invited to have the final discussion, avoiding the judicial debate. The civil claim is not reviewed, and its acts shall be returned to the claimant to be presented before the civil court. Therefore, the need for economy and efficiency of the criminal proceeding gains priority compared to the interests of the civil claimant, who does not lose the right, because he has the opportunity to resubmit his claim and to ask for damages in the competent court.

     

    [1] Civil claimant, article 61 of the CrPC and the civil defendant, article 65 of the CrPC

    [2] See the unifying decision no.2, dated 29.01.2003 (KBGJL), Zaharia, etc. See decision No.6, dated 26.2.2013 of the Constitutional Court, Braka, para 16.

    [3] On the permission of the admissibility of evidence during the adjudication at the appeal, you may see: Decision No. 00-2013-889 (163), dated 22.5.2013, Xhezo (admissibility of the medical report); Decision no. 00-2013-879 (14), dated 23.1.2013, Abeshi (decision of a foreign court).

    For different solutions, you may see: Decision No.79, dated 11.2.2004 (KPGJL), Simaku (nonaceptance).

    [4] See comments under articles 128/a and 129.

  • Historic context
    13. The amendments in the content of article 405 were dictated as a consequence of some unclarities and contradictions of the jurisprudence established during the implementation of the norms on the abbreviated trial. The main issue raised for discussion can be summarized in the question: if the defendant accepts to waive from the guarantees of the contradictory procedure through the submission of the request for abbreviated trial, does this means that he has accepted at the same time to be adjudicated based on absolute invalid acts or on the evidence collected contra legem?

     

    14. According to the broad jurisprudence of the criminal college of the High Court, admitting to be adjudicated under the state of the acts, meant to withdrew from the claims for invalidity of the acts and non-usability of the evidence.[1] According to the college, when such claims were raised, the court had to revoke the decision for admissibility of the abbreviated trial and to proceed with the normal adjudication. This was a fair solution. But the problem would get complicated when the claims for absolute invalidity and for the usability of the evidence collected in contradiction with the law were raised by the defence during the final discussion, when the abbreviated trial had already been accepted. The Unifying Decision No. 2, dated 29.1.2003, actually was not oriented to the rights that the defendant waives from, when he chooses the abbreviated trial. It is true that he waves from the guarantees of the contradictory adjudication, but his culpability at the end of the abbreviated trial cannot be based on the absolutely invalid acts and neither on the non-usable evidence,[2] which shall be identified by the court even ex officio. Furthermore, the concrete unifying decision did not use to treat the cases of non-usability at all, and it oriented towards the same solution for both the absolute as well as the relative invalidities.

     

    15. The amendments to article 405, along with the addenda in the provision of the preliminary hearing which focus on the verifications related to the admissibility of the request for abbreviated trial avoid the issues of the previous case law. Waiving from the contradictory procedure of adjudication does not mean that you are admitting being adjudicated on acts which are absolutely invalid, neither on evidence collected in contradiction to the law, which means that they are non-usable. After the request is submitted, the acts and the pieces of evidence go through the dual control (which is carried out by the judge of the preliminary hearing and by the judge of the merits of the case), which creates the necessary guarantees of the defence in this perspective.

     

    [1] Decision No.00-2013-413 (1), dated 9.1.2013 (KPGJL), Mallkuçi.

    [2] Imagine a testimony which is taken under torture, which could be evaluated as a piece of evidence of culpability only due to the fact that the defendant had chosen the abbreviated rite.

  • International acts
    No Comment
• International standards/International references/Best examples

  Decisions of the European Court of Human Rights 

  16. The ECHR does not create obligations for the contractual countries which provide for simplified procedures in their laws, including the abbreviated trial. But when these procedures exist, the principles of the fair legal process provide for that the defendant shall not be deprived arbitrarily from the opportunity to benefit from them (Hany)^[1]. In this perspective, the non-acceptance of the defendant’s request shall be reasoned and shall be based on the law. Our procedural law provides for the cases when the request for abbreviated trial should not be admitted.

   

  [1] Hany v. Italy, Application no. 17543/05, November 6, 2007.

• Legislative material
  No Comment
• Related articles
  17. Criminal Procedure Code: articles 13, 48, 49, 58, 61, 65, 128/a, 129, 130, 151, 331, 332/c, 332/ç, 332/d, 332/dh, 354, 356, 367, 378, 405.
• Sublegal acts
  No Comment
• Decisions

  Decisions of European Court of Human Rights 

  18. Hany v. Italy, Application no. 17543/05, November 6, 2007

   

  Decisions of the High Court 

  19. Decision No.00-2013-413 (1), dated 09.01.2013 (KPGJL), Mallkuçi, etc.;
  20. Decision No. 00-2013-889 (163), dated 22.5.2013 (KPGJL), Xhezo;
  21. Decision No. 00-2013-879 (14), dated 23.1.2013 (KPGJL), Abeshi;
  22. Decision No.79, dated 11.2.2004 (KPGJL), Simaku;
  23. Unifying Decision No.2, dated 29.01.2003 (KBGJL), Zaharia, etc.;

   

  Decisions of the Constitutional Court 

  24. No.6, dated 26.2.2013 (CC), Braka.

   

  Decisions of the Court of Cassation, Italy 

  25. Joined Sections, decision nr.16, dated 21.6.2000, Tammaro.
• Literature
  26. Givanni Conso, Vittorio Grevi, Compendio di procedura penale, Giuffrè editore, 2006, faqe 108-124.
  27. Paolo Tonini, Manuale di procedura penale, 8^a edizione, CEDAM 2006, faqe 589 - 616.
• Archive
  No Comment