Pregledni rad
https://doi.org/10.54070/hljk.30.2.10
The Prohibition of reformatio in peius in Criminal Procedure: A Comparative Review
Nevena Aljinović
orcid.org/0000-0001-6557-2796
; Sveučilište u Splitu Sveučilišni odjel za forenziku, Split, Hrvatska
*
Ivana Bilušić
; Općinski sud u Splitu, Split, Hrvatska
*
* Dopisni autor.
Sažetak
The prohibition of reformatio in peius is a principle of criminal procedure law that derives
from the constitutionally guaranteed right to appeal, thus representing the revival of the right
to defence, although it is not explicitly enshrined in the constitution, nor does it directly derive
from the ECHR. As a component of the rule of law, the prohibition of reformatio in peius
rests on the postulate of fairness as a guarantee to the defendant that an appeal filed only in
its favour will not result in a less favourable decision for it. In other words, it represents an
ontological limitation of the judge’s power to decide on an appeal filed only in favour of the
defendant, thereby preventing the right to appeal from being turned into an instrument that
subtly aims at discouraging its filing.The far-reaching nature of the prohibition of reformatio in peius is manifested in the circumstances that, once established, it exceeds the finality of the court decision and binds the court until the final conclusion of the proceedings. However, controversy in legal theory and judicial practice is caused by the scope of application of this ban, primarily whether it refers (only) to the amount of the penalty (and the severity of the criminal sanction) or, on the other
hand, includes both the factual description and the legal qualification of the act.In the paper, the authors analyse the normative regulation of the prohibition of reformatio in peius and judicial practice in selected countries with a continental legal tradition. The results of the conducted research, which represent a comparative basis for the implementation of the second part of the research, in which the Croatian normative system and judicial practice is analysed, indicate that the prohibition of reformatio in peius is normatively linked exclusively to the issue of sanctions. Still, judicial practice goes in the direction of (limited) recognition of right to change the legal qualification of the (criminal) act only if the amount of the sentence remains unchanged.
Ključne riječi
Hrčak ID:
313087
URI
Datum izdavanja:
5.12.2023.
Posjeta: 1.159 *