مرکز منطقه ای اطلاع رساني علوم و فناوري

Abstract :

Our subject of analysis is – as it is commonly referred to – “the rule concerning prohibition on reformation in peius”. The rule concerning the prohibition on reformatio in peius applied with regard to appeals (Art. 326 (4)) and retrial (Art. 341 (2)) in the former Penal Procedure Code. The rule has now been adopted with regard to appeal on facts and law (Art. 283), appeal on law (cassation- Art. 307 (4)), reversal in favour of the administration of justice (Art. 309 (4) (b)) and retrial (Art. 323 (2)) in the new Penal Procedure Code no. 5271. This prohibition is a legal command and requirement. The prohibition only applies when legal remedies in favour of the defendant are pursued. The rule concerning prohibition on reformatio in peius only applies in case of the defendant, lawyer for the defendant, the defendant’s spouse or legal representative having recourse to legal remedies against the judgment. Further, it is provided amongst the general rules concerning legal remedies that the rule also applies in case of the public prosecutor having recourse to legal remedies in favour of the defendant (Art. 265). The prohibition on reformatio in peius is a mandatory consequence of the right to a fair trial, and of the principles of “a democratic state” and “the supremacy of law”. The legislator has provided for the rule taking into account the fact that those, including the public prosecutor, having recourse to legal remedies in favour of the defendant do so with the purpose of improving the situation of the defendant. Hence, it did not find it appropriate to put in a worse situation than the previous judgment, to harm and to aggravate through the newly established judgment the situation of the defendant who had recourse to legal remedies on account of the legal interest he held. The court sitting in judgment over the case where the legal recourse shall be heard and the court of first instance which will establish a new judgment based on the trial following a reversal decision shall only avoid to aggravate to the detriment of the defendant the sentence and its legal consequences. However, they may change the denomination, that is, the qualification of the act under penal law.