ARTICLES & NEWS [#68]

DISMISSAL OF THE INDICTMENT AND RETURN OF THE CASE TO THE PROSECUTOR

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#68Dismissal of the indictment and return of the case to the prosecutor

At the trial stage, the institution of dismissal of the indictment is a procedural means of the court's supervision of the observance of the right to defence as a fundamental human right. The legal power of the court to dismiss the indictment and return the case to the prosecutor is regulated by Act No. 301/2005 Coll. Code of Criminal Procedure as amended (Criminal Code) in the part of the review of the indictment, namely the provision of Section 241(1)(f).

Every year there are more and more publicized cases in which judges are obliged to dismiss the indictment and return the case to the prosecutor on the grounds of serious procedural errors as well as violation of the right to defence.

According to Section 241(1) of the Criminal Code, the judge is obliged to examine the indictment according to its contents and the contents of the case file. The dismissal of the indictment in the context of the examination of the indictment is mandatory in situations where the court finds serious procedural errors, in particular a violation of the rights of the defence. If a serious procedural error is found, in particular (but not exclusively) a violation of the rights of the defence, the wording of the Criminal Code implies that the court is obliged to dismiss the indictment. Thus, dismissal of the indictment in such cases is an obligation and not an option of the judge.

The person against whom a criminal prosecution is being conducted is the subject to whom the relevant rights belong. The right of defence has a privileged position and is provided for directly in the Constitution of the Slovak Republic. The important position of this fundamental human right has been repeatedly confirmed by the Constitutional Court of the Slovak Republic, for example, in its ruling, case no. III. ÚS 41/2001, is stated that "The principle of ensuring the right of defence is a prerequisite for the successful exercise of the judiciary, whose important task is the protection of the rights and legally protected interests of citizens. It is ensured in the interests of the person against whom a criminal prosecution is brought, but also in the interests of society as a whole."

The importance of the review of the indictment was also clarified by the Constitutional Court of the Slovak Republic in its ruling of 25 May 2011, Case No. IV ÚS 49/2011, according to which the purpose of the review of the indictment is to examine the content of the indictment and the legality of the evidence obtained. At this stage, it is necessary to deal with whether the content of the indictment, including its draft, has a basis in the results of the preliminary proceedings and whether the provisions safeguarding the rights of the defence have been violated or whether there were other serious procedural errors during the preliminary proceedings.

There are many reasons for returning the case to the prosecutor and dismissing the action, for example:

  1. if the witness's testimony is the only incriminating evidence or substantially decisive evidence on which the prosecutor wishes to base the prosecution's case, and the witness was interviewed prior to the indictment and was not re-interviewed after the indictment was returned,
  2. the bringing of an indictment for an offence for which no charge has been brought,
  3. infringement of the right to a final examination of the case within a reasonable time,
  4. the unlawful obtaining of material incriminating evidence on which the prosecution relies.

 

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  • AuthorAdmin
  • Date09.12.2022
  • Webwww.lexante.sk