Замечания de lege lata и de lege ferenda на тему возобновления производства по делу во вред обвиняемому

Abstract

This paper aims at analyzing the grounds for the reopening of proceedings in criminal cases to the disadvantage of a defendant (in malam partem). First of all the author presents arguments for and against the reopening of criminal cases. The author agrees that the principle of legal certainty is one of the fundamental aspects of the rule of law, which requires, among other things, that where the courts have finally determined an issue, their ruling should not be called into question. Reopening a case undermines the authority of the judiciary and therefore there is a need for balancing legal certainty with legality. The main part of the article concerns comparative analysis of the reopening of criminal procedure to the disadvantage of the defendant, as occurs in some systems of criminal law (e.g. the United Kingdom, France, Belgium, German, the Netherlands, Russia, Italy, Portugal, Spain and Poland). The paper indicates that, in special cases, a closed criminal procedure can be reopened, and the defendant is acquitted or dismissed of all charges, if evidence is presented containing new facts (e.g. DNA tests) which could have infl uenced significantly the outcome of proceedings had they been disclosed at the time of the trial. Such departures from the principle of legal certainty are justified only when made necessary by circumstances of a substantial and compelling character.