ECtHR establishes a procedural violation: applying for renewal before the Supreme Court

The ECtHR judgment must assign the Convention or Protocol violation to a decision or order of a criminal court. Preparation therefore begins with a close reading of the relevant passage. It should show which national measure was examined and what the violation consisted of.

The national measure may concern the content of the criminal judgment itself. Under the wording of the provision, it may also be a criminal court order if the established violation could have had an adverse influence on a criminal court decision. The application should identify this connection instead of describing the entire history of the criminal case without focus.

The applicant must also be affected by the established violation. This involves the person’s role in the proceedings, the decision concerned and the specific disadvantage. A clear chronology helps explain the link between the ECtHR judgment and the domestic act.

The Supreme Court decides every application for renewal. Section 363a(2) StPO names the person affected by the established violation and the Generalprokurator as persons entitled to apply. The application is filed with the Supreme Court.

An application by the affected person should set out the Convention violation, the ECtHR judgment, the national decision and the possible adverse influence in an orderly way. The reasons should make the connection between the established violation and the content of the criminal court decision clear.

Section 363a(2) StPO provides for the corresponding application of Section 282(1) StPO to an application by the affected person. The Generalprokurator is also to be heard. For an application by the Generalprokurator, the affected person is to be heard and Section 35(2) StPO applies correspondingly. This participation must be included in the procedural planning.

Section 363a(1) StPO limits renewal to the extent that an adverse influence of the established violation on the content of a criminal court decision cannot be excluded. The provision therefore requires a connection between the Convention violation and the specific decision.

It is insufficient to place the ECtHR judgment and the domestic file side by side. The application should identify which procedural act or decision was criticised, which findings depend on it and why the content of the criminal court decision could have been different. This is a case-specific question.

Renewal does not mean an automatic acquittal. Section 363a StPO defines access to renewal and its substantive scope. The consequences within the renewed proceedings depend on the decision concerned and the further proceedings. The application should therefore state the concrete objective of renewal.

Reopening under Section 353 StPO and renewal under Section 363a StPO are different remedies. Section 353 StPO is based on statutory grounds for reopening. In the situation addressed here, Section 363a StPO requires an ECtHR judgment establishing a Convention or Protocol violation caused by a criminal court decision or order.

The procedural history determines the first classification. If the issue is a new fact, new evidence or another statutory ground for reopening, the assessment must start with Section 353 StPO. If the issue is implementation of an established Convention violation, Section 363a StPO must be compared with the ECtHR judgment.

Ordinary remedies such as an appeal or a plea of nullity have a different function. They challenge an appealable national decision within the ordinary remedy system. Our article on the plea of nullity under Section 281 StPO explains that route separately.

For a review under Section 363a StPO, gather the complete ECtHR judgment and the national decision considered in it. The relevant decisions from the criminal proceedings, your procedural position and a chronological overview of the key steps should be added.

Mark the passage in the ECtHR judgment that establishes the violation. Assign the national decision or order to that finding. Then describe which finding, assessment of evidence or legal consequence may have been adversely influenced. This description does not replace legal advice, but it prepares the review in a focused way.

The previous domestic remedy history also matters for classification. Record which remedies were filed, how the courts decided and when the decisions were served. This helps clarify whether Section 363a StPO or another remedy should be considered first.