P Czech Criminal Justice System Jaroslav Fenyk Criminal Procedure in the Czech Republic ØCommon Rules and Institutions of Criminal Procedure n Fundamental Principles of the Czech Criminal Procedure 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 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 this code 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 ØAccording with section 2 par. 5 of the Criminal procedure Code 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 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. Principle 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 Criminal Procedure Code trial before court is only possible on the basis of an indictment submitted by a public prosecutor (no private prosecution as applied). Public session, oral and immediacy principles n ØAccording with section 2 par. 10 of the Criminal procedure Code criminal matters are heard publicly so that the public may attend and watch the hearing. The public may be ruled out of court during trial and open sessions only in cases where this code expressly specifies it. Public can be excluded of the trial if a public heating of a case would threaten a secrecy which is protected by a law act, a morality or untroubled running of the trial or security or another important interest of witnesses. The public can be excluded only for a part of the trial. n ØAccording with section 2 par. 11 of the Criminal Procedure Code proceedings before court are oral; the evidence from testimony of witnesses, experts and the accused are conducted in a manner where the court itself conducts the hearing. ØAccording with section 2 par. 12 of the Criminal Procedure Code while rendering a decision in a trial, as well as in a public hearings, custody and closed sessions, the court may only take into consideration evidence which was presented during these proceedings. n Defence rights ØThe individual, against whom the criminal proceeding is taken, must be informed about laws enabling him/her the full application of defence and the possibility to choose an attorney; all authorities responsible for criminal proceedings are obligated to enable the accused with the full application of his/her rights ØEveryone is authorised to use their mother tongue in front of the authorities responsible for criminal proceedings. The authorities responsible for criminal proceedings conduct their affairs and execute their decisions in the Czech language. Right to use mother language ØEveryone is entitled to use his mother language before the authorities involved in criminal proceedings. These authorities run the proceedings and issue their decisions in the Czech language. If it is necessary to interpret the content of a statement or a written document or if the accused declares that he has no command of the language in which the proceedings are conducted, an interpreter shall be called in. The interpreter may at the same time be the recording clerk. Authorities Active in Criminal Proceedings Øcourt Øprosecutor Øpolice bodies Criminal Courts System ØThe system of criminal courts works on four levels in the Czech Republic. It is constituted of: ØDistrict Courts (86), ØRegional Courts (8), ØHigh Courts (2) and Øthe Supreme Court. Prosecution Service ØThe system of public prosecution is build similar as a system 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” means generally the Service of the Criminal Police and the Investigation, the Traffic Police, the Security Service, the Aliens and Border Police, the Task Force, the Railway Police and the Airport Service ØWithin the criminal procedure acts specialised units of Police and other kinds of services (custom service, military police, prison service, criminal police, inspection of minister of interior, etc). ØInvestigation of policemen and inteligence service stuff is lead by public prosecutor. Ø+ General Inspection of Security Forces Accused ØAn accused is a person, who has been informed by written notification on reasonable suspicion from crime committing (section 160, par. 1 of the Czech Criminal Procedure Code). ØAccording with the art.10 of the Czech Constitution (application of international treaties - ECHR), Charter of fundamental rights and freedoms ( art. 37 par.2) as well as the Czech Criminal Procedure Code ( section 33), the accused has the right to be given the time and opportunity to prepare a defence by either being able to defend himself or retain a defence lawyer. Accused must be informed on his right to be silent and to not testify. The Criminal Procedure Code stipulates for both of investigation and proceedings before the court next rights of an offender (section 33, 65): Øto plead all the charges against him and the evidence therein, however is not obliged to testify Øto indicate the circumstances and evidence for his/her defence, Ømake proposals and deliver the proposals and appeals (remedies), Øto choose a defence lawyer and consult with him/her during the actions managed by the police, prosecutor or court as well, Øcan not consult the answer after the question was asked. He/she can demand the presents of the defence lawyer during the interrogation and he can ask the presence of defence lawyer at other acts of preliminary proceedings. n ØIn the custody or in the prison an offender can talk to defence lawyer without the presence of third party. ØAccused who has not sufficient means for covering of burdens of defence has right for free defence or for the defence with reduced fees. ØThe all institutions active in criminal proceedings (police, public prosecutor and court) should always instruct an accused on his rights and provide him full possibility for theirs application. ØSection 215 states the principle that the accused and the defence have equal rights to question witnesses and to ask the court to can interrogate them. Ø The Defence Lawyer n ØThe right to a defence is one of the fundamental elements of the Czech criminal proceedings. It is guaranteed by the Constitution (art. 10 implementing ECHR) and by the Charter of Fundamental Rights and Freedoms. ØThe accused has the right to be given the time and the opportunity to prepare a defence by either being able to defend himself or retain a defence lawyer. The suspect and later the accused has the right to legal aid within criminal proceedings. n ØAn defence lawyer is a person entered in the list of attorneys kept at the Czech Bar Association. An applicant for the attorney´s profession must have law faculty degree, at least three years´ experience working as a candidate attorney, must pass the Bar examination and swear an oath to the Bar. ØThere is a difference between a chosen defence lawyer selected by the accused or selected for him by one of the persons closely related to him listed in the law, and an assigned defence lawyer. n The defence lawyer has the rights and is obliged: Øto provide to defendant necessary legal aid, Øpractically use the means and ways of defence under law for protection of his/her interest, namely to take care on to be appropriately and at the time clarified the facts for or against the defendant herewith to the good decision in the case. Øsince the preliminary proceedings to make on behalf his client proposals, requests and appeals, Øto inspect the officially file, and be present investigative acts according the criminal procedure code. He/she is authorised to Øcommunicate to defendant who is in custody Øbe present all acts which can be present defendant before the court. The defence lawyer has right Øask the copy or transcript of written protocol of any acts of criminal proceedings within all stages of criminal process. Øto file petitions on behalf of the accused, file applications, appeal on his behalf or inspect documents. Øif the accused is in custody, he may talk with him without a third party present. n n Øfrom the commencement of prosecution, he is entitled to be present during investigations the results of which may be used as evidence in proceedings before the court. Øto ask questions of any person examined and raise objections against the method of investigation. Øupon completion of the investigation, he is entitled to read through the investigation file and propose additional evidence. Øin proceedings before the court he is entitled to take part in all actions in which the accused may take part, put forward evidence and participate in its examination. n Injured Party ØAn injured party may be both a natural person as well as a corporate body. ØThe injured party in criminal proceedings according to the law has the position of a party. Without a declaration of the injured party about the fact that he/she is joining with its specific claim the criminal proceedings, or without a qualified motion of the injured party, the court in the criminal proceedings can not decide on compensation for damages. ØInjured party = person, who was caused damage to health, damage on property or person, at whose expenses the offender enriched. ØInjured party has no right to start the prosecution but may take back consent with criminal prosecution by express declaration, ØDamage means property damage, or immaterial damage (damage to health, moral as well as other injury) ØAdhesion procedure and two kinds of injured parties ØFreezing of the assets in favore of injured party ØLaw on material aid for crime victim ØProtection of witness/ victim n The Coercive Measures 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 (section 78) Øseizure of an item (section 79) Øsecuring funds in bank account (sections 79a – 79b) Øsecuring of booked securities (section79c) Øsecuring of property (section 79d) Øsecuring of another property value (section 79e) Øsecuring of alternative property value (section 79f) Øhouse search and searching of other premises (section 82, 83a) Øperson search (section 83b) Øentry to a houses, other premises and lands (section 83c) Øseizure, track, search and replacement the undelivered mail (section 86, 87, 87a, 87b), Øinterception and a phone calls recording (section 88). n The Rules of Evidence ØThere are the fundamental principles governing the evidence procedure: Ømaterial truth Øofficial duty to find an evidence Øaccusatory procedure Øpresumption of innocence Øimmediacy and oral deposition Øfree assessment of evidence. Øadequacy Ødiscretion In criminal proceeding is necessary to prove in fundamental extent 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 methods nOperational means of searching: Øfictive transfer (section 158c) Øtracking of people and things (section 158d) Øuse of covered agent (section 158e). Czech Criminal Proceedings A2 Stages of Criminal Proceedings Øpreliminary proceedings Øproceedings before court (trial) Øexecution of sentence 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). The 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 execution nThe penalties are: Øimprisonment (sections 320-334 of CPP, resp. sections 76-77 law no. 218/2003 Coll.), Øhouse arrest (sections 334a – 334h) Øcommunity service (sections 335 – 340b) Øfines (sections 341-344) Øconfiscation of assets (sections 345- 349) Øconfiscation of item (section 349b) Øprohibition of activity (section 350) Øprohibition of residence (section 350a) Ørenvoi (section 350b) ØProhibition of entry on sport, cultural and other social events (section 350i – 350j) nThe protective measures are: Øprotective treatment (sections 351-353) ØSecurity detention (sections 354 – 357) Øprotective education (section 22 Law on Juvenille) Øseizure of an item (section 358) The Legal Remedies 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. 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. Øco-operation within the European Union (the European Arrest Warrant esp.) n The Central Authorities in the Czech Republic: n Øthe Supreme Public Prosecutor's Office Øthe Ministry of Justice The reasons for denial of legal assistance Øthe request relates to an offense under military law that would not be an offense under ordinary criminal law applicable generally; Øthe request relates to a political offense; Øthe execution of the request is likely to prejudice the sovereignty, security, order public, or similar essential interests of the Requested State; or Ø Co-operation within the European Union nJudicial co-operation: ØEurojust ØEuropean Judicial Network ØEuropean Arrest Warrant ØEuropean Evidence Warrant n nPolice co-operation: ØEuropol n Q u e s t i o n s ? Thank you for your attention.