Imposing of an Administrative Penalty by the Court of Cassation or Court of Appeal (in the Case of Resumption of Criminal Proceedings) When the Act Does Not Constitute a Criminal Offense

Authors:

Pages: 186-198
DOI: https://doi.org/10.54664/ECTC2069

Abstract:

The article examines the two new powers of the court, introduced in 2017 (with the Amendment to the Penal Procedure Code, promulgated in State Gazette No. 63 of 4 August 2017, effective as of 5 November 2017) regarding cassation proceedings (under Article 354(1)(3) of the Penal Procedure Code) and the reopening of criminal cases (Article 425(1)(3) of the Penal Procedure Code)—to overturn the sentence or decision, acquit the defendant, and impose an administrative penalty when the act committed is punishable under administrative law in the cases provided for in the special part of the Criminal Code or when the act constitutes an administrative offense as defined by law or decree. The option for the court to confirm an acquittal or decision and to impose an administrative penalty for the first time in cassation proceedings or in proceedings for the resumption of criminal cases (similar to the power of the appellate court under Article 337, paragraph 2, item 4 of the Penal Procedure Code) is also analyzed. The unclear and inconsistent legislative position on the application of the prohibition of reformation in pejus when exercising these powers is also discussed. Based on a critical analysis of legislative provisions and judicial practice, this study seeks answers to complex theoretical and practical problems and proposes changes to the Penal Procedure Code de lege ferenda.

Keywords:

criminal proceedings, administrative penalty proceedings, cassation proceedings, reopening of criminal cases, jurisdiction, prohibition on worsening the defendant’s position

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