What is cassation of a criminal judgment?
Which criminal judgments may be challenged by cassation?
Who has the right to seek the cassation of a criminal judgment?
What is the deadline for cassation and how is it filed?
For the service of the cassation declaration, the following documents are required:
- Cassation declaration, original pleading and three (3) simple copies, as well as one (1) copy attached to the bailiff’s certificate of service (in the cassation declaration a process agent lawyer must mandatorily be appointed, with address and telephone number).
- A simple copy of the contested judgment.
- Details of the cassation applicant (VAT number (AFM) – tax office (DOY), national ID number (ADT), home address), which may be stated either in the cassation declaration or in a separate declaration.
- One court stamp duty (megarosimo) of three (3) euros, if the cassation is signed by the party, or one appearance fee before Areios Pagos and an advance fee receipt (in the amount of 534 euros), if it is signed by a lawyer.
- Power of attorney in three (3) copies, if the lawyer signing the cassation had not appeared at the original hearing.
Cassation declarations are filed at office 422, at the Prosecutor’s Office of Areios Pagos, on the 4th floor of the Areios Pagos building, tel. 210 6419349-350.
How do I file additional grounds for cassation of a criminal judgment?
Additional grounds are filed with the Prosecutor’s Office of Areios Pagos no later than 15 days before the hearing of the case, at office 422, on the 4th floor of the Areios Pagos building, tel. 210 6419349-350. The required pleadings are: a pleading of additional grounds and three (3) copies thereof.
One court stamp duty (megarosimo) of three (3) euros, if the additional grounds are signed by the party, or one appearance fee before Areios Pagos, a power of attorney for the filing of additional grounds, as well as an advance fee receipt (534 euros), if they are signed by a lawyer.
The filing of additional grounds may be made:
- By the cassation applicant
- By the lawyer who appeared at the hearing
- By another lawyer, with a power of attorney from the cassation applicant for signing and filing them (the power of attorney in three copies).
How does the defendant appear at the hearing?
If the defendant is present, then only their national ID card is needed for the verification of their details and for the appearance of their lawyer.
If the defendant is absent, then their lawyer must hold either an authorisation with a certified signature or a notarial power of attorney in order to appear.
What are the grounds on which the cassation of a criminal judgment may be sought?
The grounds for cassation are exhaustively enumerated in the law:
1) Absolute nullity during the proceedings before the court. Such a case arises, by way of example, where the fundamental rights of the defendant are violated, the impartial composition of the court is undermined, as well as in cases of erroneous initiation of the criminal prosecution.
2) Relative nullity during the proceedings before the court, which has not been cured (under Article 172 of the Code of Criminal Procedure (KPD)), as well as denial of a hearing. A characteristic example is the denial of a hearing which simultaneously also infringes the right of defence, namely the right to be heard, which is also constitutionally enshrined.
3) The breach of the provisions concerning the public nature of the proceedings. According to Article 329 KPD: “The hearing in court, as well as the pronouncement of the judgment, shall be public in all criminal courts, and everyone is allowed to attend the sessions without hindrance. However, the presence in the courtroom of persons who, in the free judgment of the person presiding over the hearing, have not completed their 17th year of age is prohibited. If the trial is likely to attract a larger than usual number of spectators, who, due to the inadequacy of the space in which the trial is being held, may impede the orderly conduct of the proceedings, the president of the court, in consultation with the prosecutor, shall determine the number of spectators, in which case entry shall be allowed without distinction to everyone, until that number is reached.“
4) The lack of specific and well-substantiated reasoning. Indeed, sufficient reasoning is of paramount importance for the review of judicial decisions and for transparency. In essence, it reflects the line of reasoning and the legal sequence of the arguments in conjunction with the facts that lead to each judgment.
5) Erroneous interpretation or application of a substantive provision. This ground covers cases where the court did not apply the law because it considered that some additional condition was required, or applied the law without the necessary conditions being present. Under no circumstances is the assessment of the facts reviewed.
6) Breach of res judicata or of lis pendens. Res judicata has both a positive and a negative function. The positive function concerns its application in any further determination of the same issue, and the negative function acts as a bar to the re-evaluation of the same issue. Res judicata arises between the same parties with identity of legal and historical cause. Lis pendens prevents another court from taking on the case and establishes the exclusive jurisdiction of the particular court until judgment is issued.
7) The lack of subject-matter jurisdiction of the court that tried the case. Indeed, the legislator’s provision that cases be brought before the competent courts in accordance with procedural rules cannot be circumvented. The more serious categories of offences require a different level of procedural maturity, and for that reason there is an express provision in the code on the subject-matter jurisdiction of each court, as well as differentiation in age and number among the judges and jurors who make up each adjudicating body. Moreover, persons of special jurisdiction, such as lawyers, may only be tried by the Three-Member Court of Appeals.
8) The unlawful rejection of the appeal as inadmissible or unsupported.
9) Excess of authority. The court exceeds its authority when: a) it decides on a case which does not fall within its jurisdiction, or b) it has dealt with and resolved an issue falling within the competence of the civil courts, or c) it has ruled on the civil claim in breach of the provisions of the law, or d) it has convicted for an offence without the required application, formal complaint, or authorisation being in place.
If the cassation is formally in order and the cassation applicant (the defendant) appears, Areios Pagos also examines, of its own motion, most of the above grounds, and likewise whether, after the issuance of the judgment, a more lenient law has been enacted which must be applied.
Can cassation be sought against an acquitting judgment?
Cassation may also be sought against acquitting judgments. In addition to the prosecutor, who derives a legal interest from his position as guardian of justice, the defendant in certain cases also has the right to seek cassation not only of convicting judgments but also of acquitting ones, where he was acquitted on the ground of active repentance. This option is granted because active repentance does not remove the unlawful character of the act, but is a ground for extinguishing punishability. If the cassation is granted, the court sets aside the contested judgment and remits the case for retrial before the competent court with a different composition.
What are the possible outcomes of the cassation proceedings before Areios Pagos?
The cassation may be dismissed as unfounded.
One ground may be accepted and the prosecution may cease, if in the meantime the statute of limitations has been completed (very likely).
Areios Pagos may itself acquit, if there has been an erroneous application of the law or a change in the law in the meantime, or finally
It may grant the cassation and remit the case for a new trial, with, of course, a different composition of the court this time.
What is cassation in favour of the law?
Finally, it should be noted that the well-known (and, of course, ex officio) “cassation in favour of the law” is also provided for, lodged by the Prosecutor of Areios Pagos, without being bound by deadlines, where he considers that a provision has been infringed, whether of substantive criminal law or of pre-trial procedure, provided that the rights of the parties are not adversely affected.
Where can I obtain information on the progress of a cassation?
You will find the entire course of the case, with the result and the stages of finalisation of the judgment text, here, or call Areios Pagos at office 209 (registry of the criminal section) at telephone numbers 210 64.19.129-130-131, to obtain information on: the issuance of the judgment, the finalisation of its text, and the certification of the judgment by the rapporteur and the president.
- See also article on Appeal
- See also article on Criminal Record
- See also article on Cassation before Areios Pagos
FREQUENTLY ASKED QUESTIONS ON CASSATION OF A CRIMINAL JUDGMENT
1. I was convicted by the Court of Appeals — what can I do now?
When the judgment of the Court of Appeals is a conviction, the defendant has the right to file an application for cassation before Areios Pagos. This is a legal remedy that reviews the judgment only on formal and legal grounds, not on the merits of the case. If Areios Pagos accepts a ground of cassation, it remits the case for a new trial before the Court of Appeals, with a different panel of judges. A significant advantage is that, while the cassation is pending, suspension of execution of the sentence may be requested. Moreover, during the cassation proceedings the limitation period is often completed, resulting in the definitive cessation of the prosecution.
2. What are the grounds that can lead to cassation?
The law exhaustively provides for nine grounds of cassation. The most common in practice are the lack of specific and well-substantiated reasoning of the judgment, the erroneous interpretation or application of a substantive criminal provision, the absolute nullity of the proceedings before the court, and the excess of authority by the court. Furthermore, breach of res judicata, lack of subject-matter jurisdiction, unlawful rejection of the appeal as inadmissible, as well as breach of the public nature of the proceedings, may be invoked. The correct selection and substantiation of the grounds is decisive, since Areios Pagos does not re-examine the facts of the case.
3. What is the deadline for filing a cassation?
The deadline is 20 days from the registration of the judgment in the special book of the court that issued it. A corresponding deadline of 20 days applies to the service of the cassation declaration on the Prosecutor of Areios Pagos. Very importantly, the month of August is not counted in the deadlines, so if service is effected on 31 July, the deadline expires on 10 September. In parallel, additional grounds of cassation may be filed no later than 15 days before the hearing. If the deadline expires, the judgment becomes final and irrevocable, and the possibility of challenging it is permanently lost.
4. What documents and what costs are required for the cassation?
For the filing, the following are required: the original of the cassation declaration with three copies, a copy of the contested judgment, the details of the cassation applicant (VAT number (AFM), tax office (DOY), national ID number (ADT), address), a power of attorney where the lawyer had not appeared at the Court of Appeals, as well as the mandatory appointment of a process agent lawyer. When the cassation is signed by a lawyer, an advance fee receipt of 534 euros and an appearance fee before Areios Pagos are required. If it is signed by the party themselves, a court stamp duty (megarosimo) of 3 euros suffices. Filing takes place at office 422 of the Prosecutor’s Office of Areios Pagos. At the hearing, representation by a lawyer is mandatory, with a certified signature authorisation or a notarial power of attorney where the defendant is absent.
5. What are the chances of the cassation succeeding?
The chances depend mainly on the quality of the contested judgment and the substantiation of the grounds of cassation. The lack of sufficient reasoning and the erroneous application of the law are, in practice, the most effective grounds. It is important that the principle of non-deterioration of the position of the cassation applicant applies, so the defendant is not at risk of a more severe sentence. In addition, Areios Pagos examines, of its own motion, most grounds when the cassation applicant appears, as well as the possible enactment of a more favourable law. In any case, the completion of the limitation period is also examined, which leads to the cessation of the prosecution. The assessment is made after a careful study of the judgment.
6. Why do I need a specialist lawyer for cassation?
Cassation is one of the most technical legal remedies in criminal law and requires specialist knowledge. The drafting of the pleading must accurately identify the legal errors of the judgment and substantiate them on the basis of the case-law of Areios Pagos. Incorrect wording or insufficient invocation of the grounds leads to dismissal as vague or inadmissible. Our firm undertakes the study of the contested judgment, identifies the well-founded grounds of cassation, drafts the declaration and the additional grounds, represents the client at the hearing before Areios Pagos, and also handles the application for suspension of execution of the sentence until the issuance of the judgment.