Is a pre-trial procedure possible in a second-instance proceeding?

In a criminal trial, it sometimes happens that the prosecutor requests one thing, the defence lawyer the opposite, and the Court has yet another idea about the case.

After a lengthy court battle, in which the client faced heavy charges, the court of first instance decided to change the legal classification of the act in favour of the client, which led to a judgment discontinuing the proceedings in view of the statute of limitations for the act so re-qualified.

In the appeal filed, the Prosecutor focused essentially on one aspect of the evidentiary proceedings, albeit important from his perspective, that is the rejection of his requests for evidence, nota bene submitted at the final stage of the case. Consequently, the prosecutor, in his appeal, requested that the judgment be set aside. Of course, the defence requested that the appeal be dismissed and the judgment upheld.

The Court of Second Instance was aware of the seriousness of the prosecutor’s plea, which objectively had some cassation potential. On the other hand, however, the defence’s arguments about the many years of trial and the problems of gathering evidence many years after the act and the prosecutor’s passive attitude almost throughout the trial were also relevant to the Court of Second Instance.

So what did the Court do?

The court committed the prosecutor, within the prescribed time limit, to present the evidence that he had requested before the court of first instance. The Court of Second Instance held that neither it nor the court of first instance is required to assist the prosecutor in collecting evidence which he should have presented at the beginning of the trial. Nevertheless, in view of the principle of material truth and the lack of unequivocal grounds for assuming that the requested evidence could not be conducted, the Court found that it had to give the prosecutor a chance.

Well, there is nothing left to do but wait for the results of the prosecutor’s work.