admin Legal decisions are divided into those that are filed against irregular court decisions – ordinary decisions and those that are filed against final court decisions – extraordinary legal decisions. The basic feature that determines whether a party is entitled to a regular or extraordinary legal decision is the validity.
The legal validity of a court decision creates an inability to further challenge the decision by regular legal decision (formal legal validity) and resolves a certain legal situation in such a way that final legal action resolves what was previously disputed between the parties (substantive legal validity).
The possibility of declaring extraordinary legal decisions
against final decisions is, in fact, a subsequent examination of substantive
validity. This paper will deal with the request for a retrial, which in
practice has encountered some controversial issues. Make sure to schedule a free consultation today.
Request for a retrial
The current Criminal Procedure Code prescribes two types of extraordinary legal
decisions: a request for a retrial and a request for the protection of
legality.
In addition, the Code prescribes two models of a motion for retrial:
1. a request for a retrial which ended with a final court ruling
2. a request for a
retrial in absentia
Criminal proceedings concluded by a final judgment may be repeated only in
favor of the defendant. Thus, it follows from such a legal construction that
these are only criminal proceedings that ended in a conviction, since there
would be no legal interest in seeking a retrial which ended with an acquittal
or refusal. On the other hand, when a court renders a judgment in a new
proceeding, it will pronounce that the earlier verdict partially or wholly
annuls or invalidate.
It is noticeable that these two legal provisions are in conflict with each other. If the criminal proceedings can be repeated only for the benefit of the defendant, and in the repeated criminal proceedings, the court may order that the previous verdict be upheld, in whole or in part, then, proceeding from linguistic interpretation, the criminal proceedings may be repeated at damage to the defendant.
In fact, in this case, the stated provision that criminal proceedings can only be repeated in favor of the defendant should be interpreted as meaning that the defendant is given the opportunity to repeat the criminal proceedings, to present new facts and evidence, more precisely, to allow the defendant to re-present his or her own but that this does not necessarily mean that the outcome of the retrial will be significantly more favorable to the defendant than the earlier conviction, given the fact that in the retrial the court may leave the earlier verdict, in part or in whole, to power.
The only limitation that the law imposes when it comes to
the benefit of the defendant is that the court in a retrial, if it renders an
earlier judgment wholly or partly, in imposing a new sentence, must be guided
by the reformatio in peius principle.
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