Does the Opportunity for Reopening of Criminal Cases Provide Sufficient Guarantee for the Right of Fair Trail if the Court of Cassation Applied the Law on the Same or Milder Punishable Offence

Authors:

Pages: 39-43

Abstract:

The article examines the 2011 amendment of art. 422, par. 1, item 1 of the Bulgarian Criminal Procedure Code (CPC) which provides the convict with the option to request reopening of the criminal case if it falls under art. 354, par. 2, item 2 of the CPC – when the court of cassation amends the sentence by applying the law on the same or milder punishable offence. This amendment was provoked by the European Court of Human Rights judgment on the Penev vs Bulgaria case where this particular power of the Supreme Court of Cassation is viewed as a violation of art.6, §3 (а) and (b) of the ECHR. By examining the essence and the particularities of the provisions of art. 354, par. 2, item 2 of the CPC, the case law of the court related to art.6, §3 (а) and (b) of the ECHR and its motivation in the Penev vs Bulgaria judgment, the author justifies the conclusion that introducing the option for reopening of the criminal proceedings by the convict’s request in cases under art. 354, par. 2, item 2 of the CPC is a positive amendment to the CPC but it does not provide sufficient guarantee for the defendant’s right of fair trial under art.6, §3 (а) and (b) of the ECHR.

Keywords:

powers of the cassation instance; implementation of the law on the same or milder punishable offence; reopening of criminal cases; right of fair trail of the defendant in accordance with art.6, §3 (а) and (b) of the ECHR.

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