When we talk about criminal procedure in general, we must note that, following its importance, this kind of procedure, regardless of what its object is, must be at all costs highly formal, just, and controlled. This balance-checking of such procedure is often acquired by a procedure within that is guaranteed by the law, and it is known as: retrial. This essay compares the retrial in Kosovo with Albania, Croatia and Montenegro.

1. What is retrial?

By the term "retrial" we mean the repetition of the criminal trial, which has already ended with a court decision. Since ancient times, there has been a need for the final judgments of the courts to be checked by a higher body and in case of any eventual error, the case should be judged anew; that is, from the beginning, in order to avoid the shortcomings that could have resulted from the first trial.1 Given the mistakes that can occur in legal practice, the institution of retrial of the criminal case has recently gained great importance and application.

In its most basic definition, a retrial is a second (or further) trial on the same issues with the same parties. It is not treated as an extension of the first trial, as the parties may present new evidence.

The second-instance trial is initiated by appeal. This legal remedy is presented by authorized persons when they consider that a factual or legal error has been made with the given judgment. The error of factual nature exists when the judgment has proven the factual situation incorrectly or incompletely, while the error of legal nature exists if the judgment violates any provision of criminal legislation or criminal procedure.

2. Retrial procedure regulated in the States of Western Balkans

Balkan states in general, respectively the Western Balkans, have a similar justice system, moreover they are acquitted to the Continental Judicial System. Thus, the laws conceded in such states, have a similar structure, but of course differ on specific parts of the body of laws, meaning that while Albania may have a higher sentence for a specific criminal offense, Croatia may have a lower one. For this topic, all of the states mentioned have a thing in common: retrial is regulated by the Criminal Code of each state.

2.1. Retrial in Kosovo

In Kosovo, regarding the retrial of the criminal case, the court of second instance decides, namely the Court of Appeal in Pristina. According to the appeal of the parties exercised against the decision of the court of first instance, regardless of whether the decision of the court of first instance is convicting or acquittal, the parties can present their appeal according to the legal deadline of thirty days to the court which has made the decision.

After the interested party files a complaint, the court of first instance sends a copy of the complaint to the opposing party, who has the right to submit an answer to the complaint within eight days.

Parties dissatisfied with the Court's decision may file a complaint due to:

1. Wrong and incomplete verification of the factual situation;
2. Essential violations of the provisions of the Code of Criminal Procedure;
3. Violations of the Criminal Code;
4. The amount and type of criminal sanction.2

The legislation of the Republic Kosovo foresees these possibilities on which an appeal against a decision of the court of first instance would be based, regarding the submitted appeal the court of second instance decides, but that the appeal is first directed to the court of first instance, meaning the court that made the decision first.

The appeal procedure is regulated according to the provisions of article 388-429 of the Criminal Procedure Code of the Republic of Kosovo. The procedure related to the appeal is divided into two parts:

1. In the procedure in the court of first instance (judex a quo); and
2. In the procedure in the court of second instance (judex ad quem).3

The course of the criminal procedure according to the complaint is significantly different from the course of the procedure which takes place in the basic court. Thus, the subject matter of the trial and the limits of the review before the basic court are determined by the state prosecutor with his indictment. Meanwhile, the procedure according to the complaint before the Court of Appeal takes place within the limits defined by the complaint, because this procedure is a procedure according to the complaint and not a procedure according to the plaintiff's act.

The provisions of Article 389 regulate the initiation of the procedure before the Court of Appeal. Upon receipt of the appeal, together with the case documents at the Court of Appeal, they are submitted to the president of the college. After that, the president of the panel of the Court of Appeal, after receiving the documents of the case, sets the session of the panel. The reporting judge has the duty to study the documents of the case and present their content in the collegium session (Article 390, paragraph 3) or in the judicial review (Article 392, paragraph 1).4

The reporting judge for the collegium session prepares the case himself or through other subjects. Thus, the reporting judge can request from the basic court a report on violations of the provisions of the criminal procedure.

In addition, through the basic court, the verification of data related to the new facts and evidence presented in the complaint may be requested. The reporting judge verifies the assertions related to the new facts presented in the complaint through the basic court or in some other way by examining whether the new facts and evidence exist, as presented in the complaint, etc. Thus, the reporting judge collects the documents and data necessary to decide on the timeliness and admissibility of the appeal (e.g. ensures the delivery of forms, return of forms, etc.).

Finally, the reporting judge can ask other bodies and legal entities for necessary reports and various documents. These and other actions taken by the reporting judge are in function of the progress of the collegium session, the appointment of which must be made, in a different order. This means that the collegium session should be scheduled only after the reporting judge has made the necessary preparations, including securing documents and other data necessary for the collegium session to proceed.

According to Article 391 of the Code of Criminal Procedure, the Court of Appeal makes a decision in a panel session or in a review. The Court of Appeal in the panel session decides whether to hold the review.

The Court of Appeal, regarding the appeal, decides in two ways: in a panel session or in a judicial review. Before making a decision on the appeal, the panel of the Court of Appeal removes the parties and the defender. This decision is taken by the panel of the Court of Appeal in the non-public part of the session of the Court of Appeal and after oral consultation and voting. The panel of the Court of Appeal may take one of the decisions related to the appeal, provided for in Article 398. The decision of the Court of Appeal is in principle irrevocable from the moment when the decision is included in the minutes for consultation and voting.

2.2. Retrial in Albania

The Criminal Procedure Code of Albania regulates the issue of retrial with articles 447-448. According to these articles: "Discussion of the competence recognized by the demolition decision is not allowed in the retrial. The trial court adheres to the decision of the Supreme Court on any question of law decided by it. In the retrial, invalidities proven in previous trials or during preliminary investigations cannot be raised. The cancellation of the decision also applies to the defendant who did not appeal, except when the reason for the cancellation is personal".5

As well as the issue of the complaint, it has been arranged as follows; "The decision of the retrial court can be appealed with recourse to the Supreme Court when it was given by the court of appeal and by appeal when it was given by the court of first instance. The decision of the retrial court can be appealed only for reasons not related to the points decided by the Supreme Court or for non-compliance with Article 447, paragraph 2".6

2.3. Retrial in Croatia

According to the Criminal Procedure Code of Croatia, the issue of retrial according to the appeal, belongs to the Court of Appeal as the highest court, while it is within its competence to decide on the appeal, whether to reject the appeal or validate the appeal and return the case to retrial.

The Court of Appeal can reject the appeal as untimely or inadmissible or approve it, when it decides on the appeal as unfounded and confirms the judgment of the first instance, or cancels it (judgment) and refers the court to a retrial or even decide to change the Judgment. For all appeals against the same judgment, the Court of Appeal decides with a decision.7

As for the reasons why a case can be retried, the reasons are the same as in the criminal procedural law of Kosovo. In fact, the Code of Criminal Procedure of Croatia provides: that upon the acceptance of the appeal or ex officio, the Court of Appeals by decision annuls that judgment of first instance, and refers the case to the court of first instance for retrial and decision, if finds that there is a material violation of the provisions of the criminal procedure, except for the cases from Article 486, paragraph 1 of this law, or if it considers that due to incorrect or incomplete certification, a new hearing should be ordered before the court.8

The second-instance court ex officio revokes the first-instance judgment by which the accused is declared guilty under Article 402 paragraph 3 of this law if he is deprived of his liberty.

As for the procedure after the retrial, the Code of Criminal Procedure of Croatia offers the following solutions: If the final judgment is revoked and the case is returned to a retrial, the previous indictment or that part of it that refers to the revoked part of the judgment will be taken. In the retrial, the court of first instance is obliged to carry out all procedural actions and to discuss all issues for which he has drawn attention.9

According to the Criminal Code of Croatia, before the court of the first instance or the second instance, the parties can present new facts and evidence. In the case of taking a new decision, the court is bound by the prohibition reformatio in peius. Croatian law determines the cases when the decision of the lower court is annulled, and a retrial is ordered. The case is sent to the court of first instance, through the court of second instance.

2.4. Retrial in Montenegro

Also, in the state of Montenegro, the issue of retrial is regulated by the Code of Criminal Procedure, which regulates the appeals that are presented to the court that has given the decision in the first instance, in a sufficient number of copies for the court, for the party opponent and defender. The delayed and inadmissible complaint according to articles 404 and 405 of the Criminal Procedure Code of Montenegro is abolished by the decision of the president of the first instance panel.10

According to the Code of Criminal Procedure of Montenegro, the court of second instance examines the part of the decision that is contested by appeal. The court always examines the appealed decision based on the following criteria:

1. If there was a violation of the provisions of the criminal procedure from Article 386;
2. If the Criminal Code has been violated to the detriment of the defendant from Article 387;
3. If the complaint presented in favor of the defendant does not contain the data from Article 385 of this Code and its justification, then the court of second instance limits its review to the violations defined in paragraph 1, points 1 and 2 of this article and the review of the decision on punishment, security measures and confiscation of the property profit mentioned in Article 389.11

The second-instance court, when deciding on the appeal, annuls the first-instance decision by ruling, and returns the case to a retrial if it proves a substantial violation of the provisions of the criminal procedure, with the exception of the cases mentioned in Article 409 paragraph 1 of the Criminal Code, or if he considers that for the reason that the state of facts has been wrongly established by the court of first instance.

The court of second instance, taking into account the appeal, or ex officio, shall annul the judgment of the first instance by decree if it finds an essential violation of the criminal procedure and shall instruct the court of first instance to correct the said violation and to issues a new judgment. The court of second instance may order a new main hearing before the court of first instance before a completely different panel.

If the defendant is in detention, the court of second instance examines the reasons for the detention. and may take a decision on the continuation or termination of detention. When a first-instance judgment has been annulled once, the second-instance court can decide on its own, in a court hearing or without holding a hearing.

The court of first instance to which the case was sent for trial will proceed based on the previous indictment. In the retrial, the parties may present new facts and new evidence. According to the Law of Montenegro, the court of first instance shall undertake all procedural actions and consider all contested issues which are specified by the decision of the court of second instance. When taking a new decision, the court of first instance is bound by the prohibition reformatio in peius.12

• 1. A. Hajdari, F. Hasani, "E Drejta e Procedures Penale", Prishtine 2022.
• 2. The Criminal Procedure Code of Kosovo
• 3. Sahiti Ejup, Murati Rexhep, Elshani Xhevdet, “Komentari i Kodit të Procedurës Penale”, Prishtine 2014.
• 4. Sahiti Ejup, Murati Rexhep, Elshani Xhevdet, “Komentari i Kodit të Procedurës Penale”, Prishtine 2014, fq. 910.
• 5. The Criminal Procedure Code of Albania
• 6. The Criminal Procedure Code of Albania
• 7. The Criminal Procedure Code of Croatia
• 8. The Criminal Procedure Code of Croatia
• 9. The Criminal Procedure Code of Croatia
• 10. The Criminal Procedure Code of Montenegro
• 11. The Criminal Procedure Code of Montenegro
• 12. The Criminal Procedure Code of Montenegro