The effect of unconstitutionality of criminal provision on irrevocable judgments

This article discusses the practical issues that arise from enforcing the Supreme Constitutional Court (SCC) ruling of unconstitutionality of a criminal provision on irrevocable judgments. The legislator has addressed this issue in article 49 of the SCC law, in which the full retroactivity of such SCC rulings was emphasized. Consequently, such rulings have a nullifying effect on all convictions even if they were irrevocable, this nullifying effect was clearly illustrated in the explanatory memorandum of the SCC law. This article explains that nullifying a conviction ruling does not induce any practical issue providing that it is not irrevocable, since the conviction ruling could be appealed. However, an irrevocable conviction brings about practical issues. Such as, does irrevocable judgments become automatically null or should there be a retrial?

The preponderant opinion is that by implementing article 49 of the SCC law, SCC rulings become self-enforcing: nullifying all convictions without needing any judicial intervention. Thus, the said article established a new interpretation and application to the better law for the defendant rule, that was stipulated in article 5 of the penal code, since in this case it has different effects, as shown in the article. This article also outlines the role of the SCC in tackling the problems that result from applying the said effect , through its decisions in the cases of disputes pertaining to the implementation of its rulings. In which the SCC has dealt with various issues, such as, the effect of rendering a criminal provision unconstitutional for depriving the trial judge from using the discretionary power. Also, the effect of deeming a criminal procedural provision unconstitutional. As well as, the effect of the unconstitutionality of non-criminal provisions on irrevocable criminal rulings.