The procedure for reopening criminal cases is regulated as a method for reviewing final judgments or decisions. When initiated by the convicted person, it begins with the submission of a legally substantiated request for the reopening of criminal proceedings to the court with jurisdiction in the matter.
In today’s article, we will answer the following questions:
1. What are the grounds for filing a motion to reopen a criminal case?
2. Who can file such a motion and within what time frame?
3. Which court has jurisdiction to hear the request?
4. Is it possible to reopen a criminal case that has been concluded with an agreement?
Acts that are subject to verification in accordance with the order of proceedings for the reopening of criminal cases
Firstly, these are final convictions, decisions confirming them, and decisions overturning acquittals.
In second place, the verification under the commented order shall apply to the following other acts:
- definitions by which confiscated in favor of the state motor vehicles means, seized as material evidence, when it is not established to whom they belong and within a five-year period from their seizure they have not been claimed;
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the definitions, issued on the occasion of the ruling of the court on the appeal against the termination of the criminal proceedings by the prosecutor, whereby the termination is confirmed or whereby amends the grounds for termination and disposal of material evidence;
- the definitions by which approves the agreement;
- decisions and orders by which termination of criminal proceedings by a court is ordered;
- sentences imposing a single penalty for several crimes and those ordering the confiscation of property in favor of the state;
- the definitions that determine the initial regime of execution of the punishment deprivation of liberty;
- definitions used to resolve issues regarding the imposition of punishment for breach of probation sentence or in the event of non-compliance with the specified probationary measures;
- the definitions for the application of compulsory medical measures;
- the rulings by which the court decides on matters of rehabilitation;
- the rulings by which the court decides on matters concerning the replacement of probation with imprisonment;
- definitions related to issues concerning the enforcement of the sentence of a person who has been transferred to Bulgaria after being convicted abroad.
Grounds for reopening criminal proceedings
The law regulates four groups of grounds on which convicted persons may file requests for the reopening of criminal cases.
The first such ground for reopening criminal proceedings exists when a decision of the European Court of Human Rights has established a violation that is of material significance to the criminal proceedings. Such material significance would be, for example, a violation of the right to a fair trial, insofar as it also constitutes a material violation of the procedural rules for conducting criminal proceedings.
Silvia Petkova Sole Proprietorship Law Firm provides specialized legal assistance in matters related to representation before the Court in Strasbourg on issues related to violations of fundamental human rights. Currently, there are numerous cases pending before this court for violations of the right to a fair trial.
The second and most common ground on which a request for the reopening of criminal proceedings is made is when the judgment or decision has been made in violation of the law, in material violation of procedural rules, or in manifest injustice of the punishment (Article 422(1)(5) of the Penal Procedure Code). With regard to this second ground, the law provides for an additional condition, namely that the judgment or decision must not have been reviewed on appeal.
What does this mean?
The Supreme Court of Cassation is the court of cassation in criminal cases. Access to it is possible in cases where two different judgments have been handed down in the first and second instances, e.g. when the first instance has acquitted the defendant but the second instance has convicted him.
Conversely, when two convictions have been handed down in the first two instances, they cannot, by definition, be reviewed on appeal, and it is precisely for this reason that it is possible to initiate proceedings for the reopening of criminal cases.
1. the procedural rights of the defendant or the defense are restricted and this restriction is not removed; such a violation would be, for example, not allowing the defense counsel to participate in the proceedings at all, to examine witnesses, to familiarize themselves with the case materials, etc. – in practice, this is the most common ground on which courts grant requests for the reopening of criminal cases;
3. when the judgment or decision has been rendered by an unlawful panel: this ground will be present, for example, when the procedure for random assignment of cases has not been followed or when there were grounds for recusal of a judge and he did not recuse himself or refused to recuse himself at the request of the defendant or the defense;
4. when the secrecy of the deliberations was violated during the rendering of the judgment or decision.
1. when it clearly does not correspond to the public danger of the act and the perpetrator, when the mitigating and aggravating circumstances are not taken into account or are incorrectly taken into account, as well as when it contradicts the objectives of the punishment for correction, re-education, and warning to the perpetrator;
2. when a suspended sentence has been incorrectly applied or incorrectly refused. You can find out when there are grounds for imposing such a sentence in the article “Suspended sentence. How and when?”.
Who can file a request for the reopening of criminal proceedings, within what time frame, and before which court?
Resumption of criminal proceedings in relation to final judgments a6> conviction judgments and decisions which they confirm or a12> repeal acquittal such it is possible to be a18> made by the convicted person within a six-month period, counting from:
1. learning of the decision of the European Court on human rights;
2. the entry into force of the judgment or decision, in which there are admitted violations of the law, substantial violations of procedural rules or a penalty has been imposed, which is manifestly unfair.
Възобновяване на наказателни дела на третото основание е възможно в едноседмичен срок от узнаване за допускането на екстрадицията.
The law stipulates that the competent authorities for reviewing requests for the reopening of criminal cases are the relevant territorially competent appellate court or the Supreme Court of Cassation.
Is it possible to request the reopening of criminal cases that have been concluded with an agreement?
An interesting question concerns the possibilities for reopening criminal cases that have been concluded with a settlement.
In fact, reaching an agreement is one of the most common ways to conclude criminal cases, and they are often approved even in cases where there are no legal grounds for doing so. Since concluding an agreement is an extremely easy and quick way to conclude a criminal case for the prosecution, the defense, and the court, it is not unusual for the court to approve it formally without thoroughly reviewing its parameters.
How usually does one reach the point of concluding and approving an agreement which does not meet the legal grounds for this?
A crime has been committed and charges have been brought. An investigating police officer or prosecutor “advises” the defendant that it is better to enter into a plea bargain in order to receive a lighter sentence. The defendant is misled and makes a statement to that effect. A public defender is appointed, who simply signs the plea bargain, and the court formally approves it, paying attention to the case materials and the parameters of the plea bargain in extremely rare cases. Subsequently, however, it turns out that there are such serious violations in the case that there was a possibility of an acquittal.
It is precisely in these cases that the reopening of criminal cases concluded with an agreement may be requested—when the agreement is contrary to the law or morality.
Contradiction with the law exists when, for example, there is no crime (the act is insignificant, it was committed under conditions of self-defense or extreme necessity, etc.), the accused is not the perpetrator, etc.
With regard to contradiction with morality, insofar as the latter is an extremely broad category, its existence will be assessed in light of the circumstances of the specific case, and it should be noted that the use of this ground is extremely rare in practice.
In addition to the grounds specified above, on which the reopening of criminal cases concluded with an agreement may be requested, the general grounds specified above are also valid, namely violation of the law, substantial violation of procedural rules, and manifest unfairness of the punishment.
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You can find more interesting topics related to the rights, obligations, and legal options of defendants and convicted persons in the section “Criminal Law”.
Sylvia Petkova Sole Proprietorship Law Firm provides qualified legal assistance in retrial proceedings by experienced criminal lawyers.
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