In 2020, new provisions introduced by the Act of 19 July 2019 amending the Act – Code of Criminal Procedure and certain other acts entered into force. One of the changes concerned the appeal procedure.
Art. 454 of the Code of Procedure contains the ne peius rule, which limits the different adjudication by the appellate court on the merits of the case. This solution is a manifestation of the privileged position of the accused in the trial. The accused may not be convicted for the first time on appeal. The provision applies to the issuing of judgments by the appellate court in connection with an appeal only to the detriment of the accused. This prohibition absolutely excludes the possibility of convicting an accused who has been acquitted or the proceedings against him have been discontinued.
As a consequence, the appellate court may only quash the judgment under appeal and refer the case to the court of first instance for reconsideration. Therefore, the ne peius rule does not exclude the possibility of convicting the accused when he was acquitted or discontinuing the proceedings conditionally or unconditionally, or imposing a sentence of life imprisonment when an appeal was lodged against the accused.
The amendment narrowed the scope of the ne peius rule by excluding conditional discontinuation of proceedings. This means that if a judgment is challenged to the detriment of the defendant containing such a decision, the appellate court may change the judgment under appeal and convict the defendant.
Moreover, § 3 was deleted from the new wording of the Code, which means that now, in the event of an appeal applying for the imposition of a life imprisonment, the court of appeal may order such a penalty.
This change deprives the accused of the possibility to question the decision on the penalty in the instance control. It also makes it impossible to lodge a cassation appeal on general terms – it cannot be filed solely because the penalty is disproportionate.
This amendment aroused great controversy in the legal community. Adam Bodnar, the Ombudsman for Human Rights, spoke about the possibility of violating the Constitution by these provisions.
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