P Selected Problems of the Czech Crminal Law (Police, Prosecutor and Court) Prof. Jaroslav Fenyk (2021) Authorities Active in Criminal Proceedings Øcourt Øprosecutor Øpolice bodies A2 Fundamental question – what system of criminal proceesings the Czech Republic applies? -Continental -Inquisitorial -Fair Preliminary Proceedings ØThere are three different forms of preliminary proceedings: Øverification of facts (sections 158 – 159b) Øinvestigation (sections 160 – 175) Øshortened preliminary proceedings (sections 179a – 179f). ØSpecial acts for criminal liability of Juvenile ( 218/2003 Coll.) and liability of legal persons ( 418/2010 Coll.) ØAct on Victims , Act on Witness Protection, Act on International Legal Co-operation in Criminal Matters.. – Fundamental Principles of the Czech Criminal Procedure Targeting the Role of the Prosecution Service ØAccording with article 8 par. 2 of the Charter of Fundamental Rights and Freedoms "nobody may be prosecuted or deprived of their freedoms other than for the reasons and in the manner stipulated by the law". Similar definition is under section 2 par. 1 of Criminal procedure Code. Procedural expression of the principle is presumption of innocence (article 39 of the Charter and section 2 par. 2 of the Criminal Procedure Code - "an individual may not be viewed as guilty until the court passes a legitimate conviction"). Legality prosecution (regular lawful procedure, nullum crimen sine lege) ØAccording section 2 par. 3 of the Criminal procedure Code a public prosecutor is obligate to prosecute all criminal acts that are made known to him/her, unless a code or an international agreement to which the Czech Republic is bound stipulates something different. Mandatory (legality) prosecution Officiality prosecution ØAccording with section 2 par. 4 Criminal Procedure Code (police, public prosecutor and court) are to proceed with their official duties unless CPC stipulates something different; they must deal with all criminal matters as fast as possible (especially custody cases and the cases with freezing of assets) and with a full inquiry of civil rights guaranteed by the Constitution. n Guilty beyond reasonable doubts (material truth) ØAccording with section 2 par. 5 of the CPC the authorities responsible for criminal proceedings are to proceed in a manner which will determine the real state of an affair which is beyond reasonable doubts and to the extent that is necessary for their decision. Prevailing circumstances, whether favourable or unfavourable for the accused, can also be just as detrimental in determining a situation even without the parties of submission. Even an accused‘s confession does not relieve the authorities responsible for legal proceedings of the responsibility to verify all circumstances of the case. Free evaluation of proofs/ facts ØAccording with section 2 par. 6 of the Criminal procedure Code the authorities responsible for criminal proceedings evaluate proofs according to their own internal conviction based on diligent consideration, taking into account all the circumstances individually and in total. Courts take decisions on grounds of the direct as well as circumstantial evidence. ØPrinciple of “free evaluation of evidence“ is applied in the criminal proceedings in the Czech Republic. This means that no kind of evidence is being preferred. The entire evidence is weighed by the court in its correlation. Accusatory procedure ØAccording with section 2 par. 8 of the CPC trial before court is only possible on the basis of an indictment submitted by a public prosecutor (no private / subsidiary prosecution is allowed). Prosecution Service Organization ØAct. No. 283/1993 Coll. on PPS ØOrganisation of PPS is build similar as organisation of courts. It consists from: Øthe Supreme Public Prosecutor’s Office of the Czech Republic (Brno), ØHigh Public Prosecutor’s Offices (2 – Prague and Olomouc), ØRegional Public Prosecutor’s Offices (8), ØDistrict Public Prosecutor’s Offices (86). Structure of Courts and Prosecutor‘s Offices - Districts okresy Structure of Courts and Prosecutor‘s Offices - Regions kraje Structure of Courts and Prosecutor‘s Offices – Bohemia and Moravia cechy_morava Police Body in Criminal Procedure ØThe expression “Police body” means mainly the Service of the Criminal Police and the Investigation, National Anti-Drugs Task Force, National Task Force against Organised Crime (cantralised and decentralised) Ø+ General Inspection of Security Forces, and charged specialised services (custom service, military police, prison service, inteligence service…). ØPublic prosecutor ( against GISF members) ØAct on Police no. 273/2008 Coll., Acts on GISF, PS, SIS…) n n European Public Prosecutor ( art. 86 of the Lisbon Treaty, resolution of the Council ( EU)2017/1939 nPenal protection of financial interest of the EU nSupra-national, independent EU body nCentral Office Luxembourg and decentralised national delagated prosecutor nCo-operation on national level n n Relation between the Police and PPS n- supervision n- appeal n- permission n- original decision of PPS n- transfer of motions for Judge n Examples The Coercive Measures ( role of Police, PPS and Judge) Øapprehension of a suspect (section 76) Øapprehension of an accused (section 75) Øprohibition of travel abroad (section 77a) Øcustody of an accused (section 67) Øorder for arrest (section 69) Øinternational arrest warrant (sections 384 – 387) ØEuropean arrest warrant (sections 403 – 422) Øapprehension, preliminary custody, extradition custody (sections 395 – 397) Øapprehension, preliminary custody, transfer custody (sections 410 – 411)… Øobligation to delivery thing Øseizure of an item Øsecuring of property Øsecuring of another property value Øhouse search and searching of other premises Øperson search Øseizure, track, search and replacement the undelivered mail Øinterception and a phone calls recording … Øundercover agent n In Criminal Proceeding Police body under supervision of PPS proves above all Øif was committed the act, which is the crime; Øif the act was committed by the offender; Øthe basic circumstances for evaluation of seriousness of an act; Øthe basic circumstances for personal situation of the offender; Øthe basic circumstances for termination of the effect and amount of damage caused by an act; Øthe circumstances, which lead to an act or which enabled the committing of an act. Only exemplary enumeration of evidence is adapted in Czech Criminal Procedure Code nAs evidence are specified by the code the next ones: Østatement of an accused (section 90) Øinterrogation of an accused (sections 91 - 95) Øtestimony of witnesses (sections 97 - 104) Øexpertise (sections 105 - 111) Øitems and documents (section 112) Øsearch of premises, bodies and things, exhumation of death body (sections 113 - 115) Ømental condition examination of an offender and witness (sections 116 - 118). Special investigation / undercovered means nOperational means of searching: Øfictive transfer (section 158c) Øtracking of people and things (section 158d) Øuse of covered agent (section 158e). The role of PPS within Court Proceedings (Trial) Øcriminal proceedings before the court is subject to indictment or motion for punishment represented by the public prosecutor Øpresentation of the indictment Øexamination of an accused Øcaptious, suggestive or leading questions Øexamination of witness, experts, next kinds of evidence Øthe closing statements Øjudgement Czech Court Room Soud_1 The Legal Remedies of the PPS nRegular remedies Øcomplaint (sections 141 and next) Øappeal (sections 245 and next) Øprotest (section 314g). nExtraordinary remedies Øappellate review (sections 265a and next) Øcomplaint for infringement the law (sections 266 and next) Øre-opening of the criminal proceedings (sections 277 and next). n The International Legal Co-operation in Criminal Matters Act no. 104/2013 Coll. – examples of the PPS role Øextradition proceedings, i. e. extradition of an offender from a foreign country to Czech Republic for the purpose of prosecution or execution of penalty and extradition of an offender from the Czech Republic to a foreign country for the purpose of criminal proceedings or execution of penalty imposed abroad, Øtransfer of criminal proceedings to a foreign country based on an international agreement, Øtake over of criminal proceedings from a foreign country based on an international agreement, Øhanding over of a criminal case (proceedings) to a foreign country in the instances which are not governed by international agreements, Øtaking over of a criminal case (proceedings) from a foreign country in the instances which are not governed by international agreements, Øproviding or requesting of legal assistance n criminal matters through procedural activities including delivery of documents, Øcontacts with foreign consulates in the Czech Republic in criminal matters related to foreigners, Øtaking over of offenders from a foreign country in the Czech Republic for the purpose of execution of a penalty imposed abroad (an vice versa) based on an international agreement, convention etc. Ø n The Central Authorities in the Czech Republic: n Øthe Supreme Public Prosecutor's Office Øthe Ministry of Justice Co-operation within the European Union nJudicial co-operation: ØEurojust ØEuropean Judicial Network ØEuropean Arrest Warrant ØEuropean Evidence Warrant ØEuropean Public Prosecutor n nPolice co-operation: ØEuropol n Q u e s t i o n s ? Thank you for your attention.