Questionnaire Czech Republic
I.33 Under which circumstances?
If the facts found during investigation suggest
that a crime was committed, and if the conclusion that the crime had been
committed by a certain person is sufficiently justified, the police or public
prosecutor decide to commence criminal prosecution of that person as an accused.
Criminal prosecution of the accused starts by a resolution that must be
delivered in own hands of the accused. The resolution to prosecute the accused
becomes effective upon delivery of the resolution. Only after the resolution is
delivered to the accused it is possible to perform those acts of criminal
proceedings that involve or could involve the presence of the accused or his
counsel. The resolution to prosecute must contain identification of the
accused, description of the act, which has to be defined in a way preventing
confusion for another one, legal qualification of the crime seen in that act,
justification and instruction of remedial measure.
Critical for determination whether or not the resolution started criminal prosecution is the description of the act, not its legal qualification.
If another act is found, for which criminal prosecution was not commenced and which was not mentioned in the original resolution, the police or the public prosecutor commence criminal prosecution again by a new procedure for another act. A similar procedure should be followed, if it transpires that there is a new attack of a continuing crime, to which the original resolution to prosecute did not apply. The police or public prosecutor follow the same procedure, if it transpires during investigation that another person participated in the crime.
If it transpires during investigation that the prosecuted act is another crime (another legal qualification, not another act) than as legally qualified in the resolution to prosecute, the police or public prosecutor warn the accused of this fact and record it. The same procedure is followed both in the case of a stiffer legal qualification, for which the accusation was notified, and in the case of a more lenient legal qualification of the act as well as in the case of a joinder of offences, when there are more or fewer legal qualifications.
If the public prosecutor intends to consider the act in the indictment as another crime, the public prosecutor has to warn the accused and his counsel before submitting an indictment.
As mentioned above, the court may only decide on the act mentioned in the statement of claim. But the court is not bound by the legal qualification of the act in the indictment or motion for punishment. If the court reaches a different legal qualification of the act than that of the public prosecutor, the following procedure shall apply:
- if the court in preliminary hearing of indictment, i.e. before the trial order, arrives at conclusion that the act being the subject-matter of indictment should be qualified according to another provision of the penal law than as qualified in the indictment, the case shall be sent back to the public prosecutor for additional investigation, unless it is necessary to clarify the case due to divergent determination of law. But if the case does not need further clarification, the court shall warn those persons, to whom a copy of the indictment is served, of the possibility of divergent determination of law.
- based on the results of the trial, the court may diverge in legal qualification of the sued act from that contained in the indictment either in favour or to the detriment of the defendant. In any case, the deviation of legal qualification must be in the limits of identification of the sued act. A harsher qualification of the act against the indictment always means more severe consequences for the defendant. That is why in order to respect the right to counsel, the court may adjudge the defendant guilty according to a harsher provision of the penal law only if the defendant had been warned of the possibility of such harsher qualification.
- in appellate proceedings the court must not ascertain the defendant guilty of a more serious crime than the court of first instance could have ascertained the defendant guilty in the challenged judgment.
During the court session, including the closing speech, the public prosecutor may propose the court to change legal qualification of the act stated in the indictment.
Critical for determination whether or not the resolution started criminal prosecution is the description of the act, not its legal qualification.
If another act is found, for which criminal prosecution was not commenced and which was not mentioned in the original resolution, the police or the public prosecutor commence criminal prosecution again by a new procedure for another act. A similar procedure should be followed, if it transpires that there is a new attack of a continuing crime, to which the original resolution to prosecute did not apply. The police or public prosecutor follow the same procedure, if it transpires during investigation that another person participated in the crime.
If it transpires during investigation that the prosecuted act is another crime (another legal qualification, not another act) than as legally qualified in the resolution to prosecute, the police or public prosecutor warn the accused of this fact and record it. The same procedure is followed both in the case of a stiffer legal qualification, for which the accusation was notified, and in the case of a more lenient legal qualification of the act as well as in the case of a joinder of offences, when there are more or fewer legal qualifications.
If the public prosecutor intends to consider the act in the indictment as another crime, the public prosecutor has to warn the accused and his counsel before submitting an indictment.
As mentioned above, the court may only decide on the act mentioned in the statement of claim. But the court is not bound by the legal qualification of the act in the indictment or motion for punishment. If the court reaches a different legal qualification of the act than that of the public prosecutor, the following procedure shall apply:
- if the court in preliminary hearing of indictment, i.e. before the trial order, arrives at conclusion that the act being the subject-matter of indictment should be qualified according to another provision of the penal law than as qualified in the indictment, the case shall be sent back to the public prosecutor for additional investigation, unless it is necessary to clarify the case due to divergent determination of law. But if the case does not need further clarification, the court shall warn those persons, to whom a copy of the indictment is served, of the possibility of divergent determination of law.
- based on the results of the trial, the court may diverge in legal qualification of the sued act from that contained in the indictment either in favour or to the detriment of the defendant. In any case, the deviation of legal qualification must be in the limits of identification of the sued act. A harsher qualification of the act against the indictment always means more severe consequences for the defendant. That is why in order to respect the right to counsel, the court may adjudge the defendant guilty according to a harsher provision of the penal law only if the defendant had been warned of the possibility of such harsher qualification.
- in appellate proceedings the court must not ascertain the defendant guilty of a more serious crime than the court of first instance could have ascertained the defendant guilty in the challenged judgment.
During the court session, including the closing speech, the public prosecutor may propose the court to change legal qualification of the act stated in the indictment.
