Pregledni rad
https://doi.org/10.54070/hljk.31.1.3
The Long Duration of Criminal Proceedings as a Circumstance in Sentencing for the Purpose of Protecting the Right to a Trial Within a Reasonable Time
Maja Pilić
Sažetak
This paper deals with the issue of the length of criminal proceedings, approaching it from two angles. One refers to the relevance of the duration of the criminal proceedings as an important circumstance in determining the criminal sanction on the perpetrator in domestic law. The second is the importance of this issue for the exercise of the Convention right to a fair trial, which includes the right to a trial within a reasonable time. This is due to the fact that, regardless of the presumption of innocence, the very conduct of criminal proceedings against a certain person represents an encroachment on personal rights, the right to freedom, the right to work, etc. This paper therefore attempts to answer the question of whether the long duration of the criminal proceedings is taken into account as a mitigating or aggravating circumstance when determining the criminal sanction, and whether there will be a violation of the Convention right to a trial within a reasonable time if the national court properly evaluates the circumstance of the long duration of the criminal proceedings when determining the sanction. Although not harmonised, judicial practice answers this question in the affirmative. The lack of uniformity of jurisprudence regarding considering the long duration of criminal proceedings as a circumstance important for sentencing may also be the result of the recent normative framework regarding circumstances important for sentencing from Article 47 of the Criminal Code. Therefore, as a de lege ferenda proposal, it is important to consider the need to intervene in the provision of Article 47 of the Criminal Code and to include the long duration of criminal proceedings among the listed circumstances that are particularly weighed when choosing the type and measure of punishment, or else to prescribe unequivocally that, in addition to those “special” circumstances, “other circumstances relevant to a particular criminal case are also taken into account”. Taking account of the length of criminal proceedings as a circumstance important for sentencing ultimately means that in domestic law, independently of the means for protecting the right to a trial within a reasonable time, the circumstance of the duration of criminal proceedings is taken as an “additional” means when sentencing the offender. The aforementioned “means” serve to protect the Convention right to a trial within a reasonable time and are ultimately reflected in the choice of the type and measure of punishment. More precisely, if national courts respect the rules on proper sentencing, which implies taking into account the length of the criminal proceedings as a circumstance important for sentencing, then there will be no violation of the right to a trial within a reasonable time under Article 6 ECHR.
Ključne riječi
Hrčak ID:
328272
URI
Datum izdavanja:
28.11.2024.
Posjeta: 1.229 *