Lodging a Supreme Court appeal in criminal cases
The Supreme Court is the highest court in criminal cases. The appeal before the Supreme Court must generally be lodged within 14 days of the final judgment of the lower court (usually a Court of Appeal). Although it is advisable to seek an opinion on cassation in advance, it is not mandatory to do so – unlike in civil proceedings. Obtaining an opinion on cassation is nevertheless wise, since preparing a sound appeal before the Supreme Court requires a technical analysis of the judgment and a realistic assessment of the prospects of success. Houthoff’s Supreme Court Team has the expertise and experience to carry out this analysis carefully and to advise the defendant and other parties involved.
A criminal law appeal in cassation can be brought by the Public Prosecution Service or by the defendant. The appeal is instituted by filing a statement with the registry of the court – usually a Court of Appeal – which handed down the judgment against which the appeal in cassation is being brought. The statement must generally be filed within 14 days of the final judgment of the Court of Appeal. A criminal law appeal in cassation can be lodged without legal assistance.
Cassation statement and mandatory legal representation
Once the appeal has been lodged before the Supreme Court, the party bringing the appeal may submit a ‘cassation statement’ setting out the complaints against the judgment. This can only be done with the assistance of a lawyer. Legal representation is also mandatory for the remainder of the proceedings, but the representative need not necessarily be a ‘Supreme Court lawyer‘. Nonetheless it is, of course, advisable to engage a lawyer who specialises in appeals in cassation.
Procedural disparities between the Public Prosecution Service and the defendant
In Supreme Court proceedings in criminal cases, there are a number of procedural disparities between the parties (the Public Prosecution Service and the defendant). For example, the Public Prosecution Service is not entitled to present its appeal and cassation complaints orally, whereas the defendant does have that option. In practice, however, defendants rarely make use of it. Another distinction is that, unlike the defendant, the Public Prosecution Service, as the respondent, cannot lodge its own cassation complaints (cross-appeal). In addition, where the Public Prosecution Service lodges the appeal, the defendant is entitled to contest the appeal in writing. However, the reverse does not apply where the appeal was lodged by the defendant. Finally, while the defendant can respond to the procurator general’s opinion, the Public Prosecution Service is not allowed to do so if the defendant lodged the appeal.
Opinion of the procurator general and judgment of the Supreme Court
The procurator general at the Supreme Court issues independent advice (an ‘opinion’) in all criminal cases, unless the matter falls under Article 80a of the Judiciary (Organisation) Act. The Supreme Court will then render judgment. Although the Supreme Court is not bound by the opinion, it frequently concurs with it. The average processing time for criminal cases is around eight months.
Costs of the proceedings
If the defendant or the Public Prosecution Service loses a criminal case, no order for costs will be made. If criminal proceedings against a defendant are concluded without a sanction or measure being imposed, the defendant may, under certain circumstances, be entitled to have certain costs reimbursed, including lawyers’ fees. In addition, if a claim by the injured party is awarded, the defendant may be ordered to pay the injured party’s legal costs. That order for costs will be made according to the same criteria as in civil proceedings.
