Questionnaire Czech Republic
I.19 What are the main diversionary measure(s)?
Cases when the public prosecutor must not
prosecute:
- exemption from authority of investigative, prosecuting and adjudicating bodies – exempt are persons possessing privileges and immunities pursuant to the national or international law;
- inadmissibility of criminal prosecution;
- where approval of the injured is necessary for criminal prosecution and such approval has not been given or has been revoked; and
- where stipulated by an international treaty binding theCzech Republic.
- if criminal prosecution is quite unreasonable with regard to another criminal prosecution or sentence, or the case has been decided by another body and such decision is sufficient, the public prosecutor may decide not to proceed with the case before commencement of criminal prosecution;
- after commencement of criminal prosecution, the public prosecutor may decide not to proceed with the case for unreasonability – if the sentence, to which the criminal prosecution may lead, is fully pointless in comparison with the sentence imposed or expected to be imposed on the accused for another offence;
- if the offence of the accused has been decided by another body or foreign court or agency and the decision can be considered as sufficient;
- if considering the importance of the protected interest affected by the offence, mode of committing the offence, consequence, circumstances of the offence and behaviour of the accused after committing the offence it is obvious that the purpose of criminal proceedings has been reached and further criminal proceedings are unnecessary;
- diversions of criminal proceedings – conditional discontinuance of criminal prosecution and settlement, when the public prosecutor does not decide on guilt and sentence but whether or not the accused will be brought before court.
The discontinuance of criminal prosecution is one of the ways of meritorious disposing of a case, for which criminal prosecution has been commenced. Only the public prosecutor may discontinue criminal prosecution in pre-trial proceedings. The discontinuance of criminal prosecution always concerns a concrete act, not its possible legal qualification. Final discontinuance of criminal prosecution creates a plea of res judicata – rei iudicatae.
The public prosecutor discontinues criminal prosecution for the following reasons :
a) If it is beyond doubt that the criminally prosecuted act did not happen. It must be beyond any doubt that the prosecuted offence did not happen. If further investigation cannot dispel the doubt as to whether the offence happened or not, the public prosecutor is obliged to submit an indictment and only the court may release the defendant from charges after the evidence presented at the trial.
b) If the act is not an offence and there is no reason to transfer the case. The act is not an offence if it does not accomplish all elements of any offence and does not reach the necessary degree of danger for the society. Further, the act is not an offence if committed in self-defence or extreme necessity. If the act does not accomplish the statutory elements of a crime, but could be considered by the relevant agency as an administrative infraction or violation of discipline, there is a reason for transferring the case to another agency. But if a period after which it is not possible to prosecute has lapsed from committing the administrative infraction, the case cannot be transferred and criminal prosecution must be discontinued. Administrative infractions are not subject to trial after the lapse of one year from its committing.
c) If there is no evidence that the act has been committed by the accused. Criminal prosecution is discontinued for the above reason if the results of investigation suggest that the prosecuted act happened and it is a crime but it has not been proved that the accused had committed the crime. But if the conclusion as to whether the accused is an offender of the crime or not depends on weighing of conflicting evidence, the public prosecutor has to submit an indictment. The conflicts between the contradicting evidence can only be removed before the court at the trial.
d) If criminal prosecution is inadmissible. Reasons for inadmissibility of criminal prosecution are laid down in sect. 11 CCP. If the public prosecutor finds out that there is some of the reasons for inadmissibility of criminal prosecution, the criminal prosecution must be discontinued without delay. The reasons for inadmissibility of criminal prosecution are as follows:
- amnesty or pardon by the President of the Republic;
- limitation of criminal prosecution;
- exemption of a person from authority of investigative, prosecuting and adjudicating bodies, or if criminal prosecution of the person is subject to consent and such consent has not been given;
- person is not criminally liable due to minority;
- person died or has been declared dead;
- the same person was criminally prosecuted for the same act and the prosecution resulted in a final judgment of the court or final discontinuance of the court or other competent body, and the judgment has not been cancelled;
- the same person was criminally prosecuted for the same act and the prosecution resulted in a final judgment of approval of settlement, and the judgment has not been cancelled;
- the same person was criminally prosecuted for the same act and the prosecution resulted in a final judgment of transfer of the case with a suspicion that the act was an administrative infraction or other administrative delict or violation of discipline, and the judgment has not been cancelled;
- where approval of the injured is necessary for criminal prosecution and such approval has not been given or has been revoked; and
- where stipulated by an international treaty binding the Republic.
e) Unless the accused was criminally liable on the grounds of insanity at the time of the act. There is a presumption that the act has really happened and accomplishes elements of a certain crime and was committed by the accused who was not criminally liable on the grounds of insanity at the time of the act. Insanity must be sufficiently proved and must exist at the time of the act. However, if a person got into a state of insanity through the consummation or application of an addictive substance and then committed a crime, such act should be qualified as an offence of intoxication pursuant to sect. 201 CCP.
f) Where punishability of the act has extinguished. This is extinguishment of criminal liability in the cases when dangerousness of a crime for the society has extinguished, punishability extinguished due to effective repentance or punishability extinguished during the preparation and attempt to commit a crime.
- exemption from authority of investigative, prosecuting and adjudicating bodies – exempt are persons possessing privileges and immunities pursuant to the national or international law;
- inadmissibility of criminal prosecution;
- where approval of the injured is necessary for criminal prosecution and such approval has not been given or has been revoked; and
- where stipulated by an international treaty binding the
- if criminal prosecution is quite unreasonable with regard to another criminal prosecution or sentence, or the case has been decided by another body and such decision is sufficient, the public prosecutor may decide not to proceed with the case before commencement of criminal prosecution;
- after commencement of criminal prosecution, the public prosecutor may decide not to proceed with the case for unreasonability – if the sentence, to which the criminal prosecution may lead, is fully pointless in comparison with the sentence imposed or expected to be imposed on the accused for another offence;
- if the offence of the accused has been decided by another body or foreign court or agency and the decision can be considered as sufficient;
- if considering the importance of the protected interest affected by the offence, mode of committing the offence, consequence, circumstances of the offence and behaviour of the accused after committing the offence it is obvious that the purpose of criminal proceedings has been reached and further criminal proceedings are unnecessary;
- diversions of criminal proceedings – conditional discontinuance of criminal prosecution and settlement, when the public prosecutor does not decide on guilt and sentence but whether or not the accused will be brought before court.
The discontinuance of criminal prosecution is one of the ways of meritorious disposing of a case, for which criminal prosecution has been commenced. Only the public prosecutor may discontinue criminal prosecution in pre-trial proceedings. The discontinuance of criminal prosecution always concerns a concrete act, not its possible legal qualification. Final discontinuance of criminal prosecution creates a plea of res judicata – rei iudicatae.
The public prosecutor discontinues criminal prosecution for the following reasons :
a) If it is beyond doubt that the criminally prosecuted act did not happen. It must be beyond any doubt that the prosecuted offence did not happen. If further investigation cannot dispel the doubt as to whether the offence happened or not, the public prosecutor is obliged to submit an indictment and only the court may release the defendant from charges after the evidence presented at the trial.
b) If the act is not an offence and there is no reason to transfer the case. The act is not an offence if it does not accomplish all elements of any offence and does not reach the necessary degree of danger for the society. Further, the act is not an offence if committed in self-defence or extreme necessity. If the act does not accomplish the statutory elements of a crime, but could be considered by the relevant agency as an administrative infraction or violation of discipline, there is a reason for transferring the case to another agency. But if a period after which it is not possible to prosecute has lapsed from committing the administrative infraction, the case cannot be transferred and criminal prosecution must be discontinued. Administrative infractions are not subject to trial after the lapse of one year from its committing.
c) If there is no evidence that the act has been committed by the accused. Criminal prosecution is discontinued for the above reason if the results of investigation suggest that the prosecuted act happened and it is a crime but it has not been proved that the accused had committed the crime. But if the conclusion as to whether the accused is an offender of the crime or not depends on weighing of conflicting evidence, the public prosecutor has to submit an indictment. The conflicts between the contradicting evidence can only be removed before the court at the trial.
d) If criminal prosecution is inadmissible. Reasons for inadmissibility of criminal prosecution are laid down in sect. 11 CCP. If the public prosecutor finds out that there is some of the reasons for inadmissibility of criminal prosecution, the criminal prosecution must be discontinued without delay. The reasons for inadmissibility of criminal prosecution are as follows:
- amnesty or pardon by the President of the Republic;
- limitation of criminal prosecution;
- exemption of a person from authority of investigative, prosecuting and adjudicating bodies, or if criminal prosecution of the person is subject to consent and such consent has not been given;
- person is not criminally liable due to minority;
- person died or has been declared dead;
- the same person was criminally prosecuted for the same act and the prosecution resulted in a final judgment of the court or final discontinuance of the court or other competent body, and the judgment has not been cancelled;
- the same person was criminally prosecuted for the same act and the prosecution resulted in a final judgment of approval of settlement, and the judgment has not been cancelled;
- the same person was criminally prosecuted for the same act and the prosecution resulted in a final judgment of transfer of the case with a suspicion that the act was an administrative infraction or other administrative delict or violation of discipline, and the judgment has not been cancelled;
- where approval of the injured is necessary for criminal prosecution and such approval has not been given or has been revoked; and
- where stipulated by an international treaty binding the Republic.
e) Unless the accused was criminally liable on the grounds of insanity at the time of the act. There is a presumption that the act has really happened and accomplishes elements of a certain crime and was committed by the accused who was not criminally liable on the grounds of insanity at the time of the act. Insanity must be sufficiently proved and must exist at the time of the act. However, if a person got into a state of insanity through the consummation or application of an addictive substance and then committed a crime, such act should be qualified as an offence of intoxication pursuant to sect. 201 CCP.
f) Where punishability of the act has extinguished. This is extinguishment of criminal liability in the cases when dangerousness of a crime for the society has extinguished, punishability extinguished due to effective repentance or punishability extinguished during the preparation and attempt to commit a crime.
