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23.01
2020

The concept of "Serious Error" in the Criminal Procedure Code

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On 23 January 2020, the Constitutional Court ruled on the exception of unconstitutionality of some provisions of Article 6 para. 111) of the Criminal Procedure Code (Judgement no. 2 of 23.01.2020). 

The Court held that if the appellate court had committed a serious error of fact as a result of the examination of a criminal case, then the participants in the trial could appeal the decision in question.

Article 6 para. 111) sentence I of the Criminal Procedure Code sets out the definition of the concept of “serious error of fact”, i.e. the erroneous determination of the facts, in their existence or non-existence, by disregarding the evidence confirming them or by distorting their substance.

However, the same Article states in para. 111) sentence II that “the serious error of fact does not constitute a misjudgment of the evidence”.

The Court pointed out that the serious error of fact concerns the erroneous determination of the facts and consists in the erroneous confirmation of their existence or non-existence. In essence, the determination of the facts seeks to find out the truth, which is possible by assessing the evidence from the perspective of their veracity. Therefore, the determination of the facts is inextricably linked to the assessment of the evidence.

The legislator provided two ways of committing a serious error of fact: 1) the failure to take into account the evidence; and 2) the distortion of the evidence.

With regard to the failure to take into account the evidence, the Court held that both the first instance and the appellate court could admit or, as the case may be, reject the requests for evidence-gathering. Failure to take the evidence into account may entail, inter alia, unjustified rejection of the evidence proposed by the parties. This was sufficient for the Court to find that the first way of committing the serious error of fact may be related to the incorrect assessment of the evidence, from the point of view of its relevance.

With regard to the distortion of evidence, the basis of this form of serious misconduct is the intentional change in the meaning, nature or characteristics of factual evidence. Therefore, the distortion of the substance of the evidence, committed by a court, can only take place in the process of assessing them.

In those circumstances, the Court noted that there was an inconsistency between the second sentence of Article 6 para. 111) of the Criminal Procedure Code (according to which “the serious error of fact does not constitute a misjudgment of evidence”) and the first sentence of the same Article (according to which the serious error of fact means “the erroneous determination of the facts, in their existence or non-existence, by disregarding the evidence confirming them or by distorting their substance”). This normative inconsistency creates legal uncertainty and is likely to affect the person's right to a fair trial.

 

Therefore, the Court concluded that the text “the serious error of fact does not constitute a misjudgment of the evidence” in Article 6 para. 111) of the Criminal Procedure Code is contrary to Article 20 in conjunction with Article 23 of the Constitution.

 
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