The first procedural act in the judicial phase of criminal proceedings is the preliminary hearing, at which the presence of the defendant is mandatory. Given that this is a particularly important procedural act for the subsequent course of the proceedings, it is advisable to arrive prepared and be familiar with the key rules of the preliminary hearing.
The preliminary hearing serves two main purposes: on one hand, it lays the foundation and sets the framework for the subsequent evidentiary process, since at this stage, motions to present evidence or to exclude evidence can be made without restriction; on the other hand, it also aims to expedite the proceedings, as the defendant has the opportunity to confess in accordance with the indictment, in which case they cannot receive a more severe punishment than what is proposed in the so-called sentencing recommendation included in the indictment.
Following the opening of the preliminary hearing, the prosecutor will present the indictment, which usually includes a so-called sentencing recommendation—this is a proposed specific punishment in the event that the defendant confesses in accordance with the indictment during the preliminary hearing. In such case, a legally binding verdict may even be delivered at the preliminary hearing, and the defendant cannot receive a more severe sentence than that proposed in the sentencing recommendation.
This requires that the confession aligns with all factual elements in the indictment and that the court is convinced the confession is made voluntarily and not for tactical reasons. The depth of the court's examination of voluntariness can vary depending on the judge's approach: sometimes only a few questions are asked, while in other cases the court may conduct a detailed inquiry regarding all key elements of the indictment.
If the court finds the confession to be without concern, it will accept it and proceed to hear evidence only regarding the defendant’s personal circumstances in order to determine any mitigating or aggravating factors. After that, the prosecutor and then the defense counsel may make their closing statements, followed by the defendant’s final statement before sentencing. Naturally, when delivering the sentence, the court may impose the same or a more lenient penalty than that proposed in the sentencing recommendation.
If the defendant does not confess to the charges in the indictment at the preliminary hearing, or if the court does not accept the confession for any reason, the case will be referred to trial, and the parties will be invited to submit motions for evidence or motions to exclude evidence.
Considering that the preliminary hearing is the last procedural opportunity to submit motions without any restrictions or financial penalties, it is advisable to prepare thoroughly for this stage based on the case files—especially if one intends to deny the charges.
If you plan to propose the hearing of witnesses, it is worth considering what you wish to prove by their testimony and to obtain their addresses for summons. If you wish to request expert evidence, prepare a list of questions you intend to ask the expert. For documentary evidence, bring the documents to court, or if they are not in your possession, determine how the court might obtain them.
If you have any questions or would like to enlist the help of an experienced defense attorney, contact our law firm for expert legal assistance!
