Czech Republic
From Criminal Defense Wiki
Jump to navigationJump to search
 |
English |
|---|
⚠️ THIS PAGE IS CURRENTLY UNDER LEGAL REVIEW.
If you are a practicing attorney in this jurisdiction and can provide corrections, please get in touch with us at internationalbridges@ibj.org.
Legal Resources for Czech Republic
E-Learning Resources |
Background
The Czech Republic is a small country based in Central Europe. Its neighbour countries are Germany (West), Poland (North), Slovakia (East), and Austria (South). It counts about 10.87 million people (in 2023, World Bank). The capital of the Czech Republic is Prague. The currency used is still the Czech crown, even though the Republic committed to adopt the single European currency. The official language spoken there is Czech.
In November 1989 the people of Czechoslovakia held a series of non-violent demonstrations against the communist government, causing the regime to collapse. This event is called the Velvet Revolution.
The federated Czechoslovakia was divided into the Czech Republic and Slovakia on the 1st of January 1993 through a bilateral political decision ; due to its peaceful course this event is called the Velvet Divorce.
The Czech Republic has been a part of the European Union since 2004. The Republic assumed the Presidency of the Council of the European Union from January 2009 to June 2009, and from July 2022 to December 2022. The Republic has also been a part of the North Atlantic Treaty Organization since 1999.
The Legal system
The Czech Republic legal system is a civil law system, it is linked to the Germanic legal culture.
Legal Aid
The Czech Bar Association is a self-governing organization performing public administration in the area of the legal profession. It is a separate category of aid defined by the Act on the Legal Profession. If the applicant meets the conditions included in the Act on the Legal Profession, they are provided with free legal advice for a minimum of 30 minutes, up to a maximum of 120 minutes of legal advice for each calendar year.
The Act on the Legal Profession allows for the provision of a single session of legal advice to an unspecified number of persons placed in detention facilities for third-country nationals under the Act on the residence of foreign nationals in the Czech Republic or in a reception centre under the Act on Asylum, at the initiative of their operator. Legal aid under the Code of Civil Procedure applies to all proceedings governed by the Code of Civil Procedure. The provision of legal aid by the Czech Bar Association applies to situations other than proceedings before public authorities in the form of legal advice, and to criminal and administrative proceedings and proceedings before the Constitutional Court.
Source of Defendants Rights
The Constitution and Constitutional Law are on top of the pyramid. The Constitution of the Czech Republic was adopted on the 16th of December, 1992. The Czech Republic constitutional order includes the Charter of Fundamental Rights and Freedoms; it has the same constitutional force as the Constitution.
The principal areas of the law are codified (civil and criminal law codes, codes of Criminal, Civil and Administrative Procedure). The written law (statutes adopted by the Parliament and the derived legislation adopted by the government, ministries and other authorities of state administration; the legislative acts of territorial self-governing units) is the only recognized formal source of national law.
The same article of the Constitution provides for the application priority of treaties. International Customary Law is also recognized by the Czech Republic.
Rights of the Accused
Any person suspected of having committed a crime shall be considered as accused only after they were charged with the crime. The accused has the right to give their opinion on any allegation of their guilt and the supporting evidence without having the obligation to testify. They may state the circumstances and give evidence for their defence, file motions and petitions and apply for legal remedies. They have the right to elect and consult a defence lawyer also in the course of procedures carried out by the bodies active in criminal proceedings. The accused who cannot afford to pay the defence costs shall have the right to a free counselor to the defence for a reduced legal fee.
The accused has the right to be given the time and opportunity to find a defence lawyer. There is a difference between a chosen defence lawyer and assigned (mandatory) defence lawyer. The accused has counsel already during pre-trial proceedings if they are remanded in custody, serve an imprisonment sentence or are held for observation at a medical institution, are deprived of legal capacity or their legal capacity is restricted, are a juvenile or an escaped prisoner.
- Generally: Article 36(1) of the Charter of Fundamental Rights and Freedoms states that "Everyone may assert, through the prescribed procedure, his rights before an independent and impartial court or, in specified cases, before another body." Article 38(2) of the Charter of Fundamental Rights and Freedom states that "Everyone has the right to have her case considered in public, without unnecessary delay, and in her presence, as well as to express her views on all of the admitted evidence."
- Right to a Trial by Jury: The Czech legal system does not provide for trial by jury. Cases are adjudicated by professional judges. In some instances, assessors participate in the trial alongside professional judges.
- Right to a Speedy Trial: Article 38(2) of the Charter of Fundamental Rights and Freedoms states that "Everyone has the right to have her case considered in public, without unnecessary delay". On the other hand, the Criminal Procedure Code mandates that criminal proceedings be conducted without undue delays, ensuring timely administration of justice.
- Right to an Impartial Judge: Article 36(1) of the Charter of Fundamental Rights and Freedoms states that "Everyone may assert, through the prescribed procedure, his rights before an independent and impartial court". Article 38(1) of the Charter of Fundamental Rights and Freedoms states that "No one may be removed from the jurisdiction of her lawful judge. The jurisdiction of courts and the competence of judges shall be provided for by law."
- Right to Language Interpretation: If the accused does not understand Czech, they are provided with an interpreter at all stages of their criminal proceedings for free. Interpretation for confidential communication between the accused and their lawyer is not paid for by the state. If the accused is not found guilt they can claim the cost of the interpretation back from the state.
- Right to Habeas Corpus: The Czech legal system provides equivalent protections to the Habeas Corpus. Article 8 of the Charter of Fundamental Rights and Freedoms ensures personal liberty and states that any deprivation of liberty must adhere to legal grounds and procedures. It mandates that individuals arrested or detained must be promptly informed of the reasons and any charges against them. Additionally, anyone deprived of liberty is entitled to a court proceeding to swiftly determine the lawfulness of the detention and to order release if the detention is unlawful.
There is a possibility to appeal against the sentence in the case. If the court ordered compensation to the victim there’s also a possibility to appeal against that decision.
Rights of Counsel
Means of Protecting and Enforcing Rights
Pre-Trial Procedure
Police procedures
- Stops and Frisks:
The stops and frisks is an aspect regulated by the Police Act and the Criminal Procedure Code. - Arrests:
According to the Criminal Procedure Code, arrests can be made with a warrant or in cases where an
individual is caught in the act of committing a crime. It establishes the conditions under which arrest
can occur, and it governs the procedure for issuing arrest warrants.
Section 69 of the Criminal Procedure Code outlines the issuance of an arrest warrant when it's not possible to summon or bring in a charged person for questioning, provided there are grounds for detention, such as concerns about flight risk, interference with proceedings, or continuation of criminal activity.
Section 75 of the Criminal Procedure Code specifies that an arrest can be conducted by the police based on the warrant. Following the arrest, the police must, within 24 hours, either hand the arrested person over to the nearest court or release them. The court is then required to immediately interview the arrested person, who has the right to have an attorney present. The court has 24 hours from receiving the person to either order remand or release them.
Section 76 of the Criminal Procedure Code allows for arrest without a warrant if an individual is caught in the act of committing a crime or immediately thereafter, especially if their identity is unknown, they are attempting to flee, or there are concerns they may continue their criminal activity. - Pre-trial detention:
Pre-trial detention can be imposed in certain circumstances if there is a risk that the individual might
flee or obstruct justice. The Criminal Procedure Code defines the process for pre-trial detention,
including how long someone can be held and the criteria for release.
The time limit on your pre-trial detention depends on the reasons why the individual is being held in detention. If the detention has been ordered solely on the basis that the individual might interfere with investigations, the maximum period of detention is three months. If the detention is justified for other reasons, the detention can last up to one year, if the individual is facing a prison sentence of up to five years, or two years if the individual is facing more serious accusations. In exceptional cases, there could be detention for up to four years.
There is a presumption that people should be released pending trial, but in many cases suspects, particularly when they are foreign nationals, are kept in detention.
There are several alternatives to detention pending trial. There can be a release if a citizens’ interest association or an individual provides assurance that the individual will attend future court hearings and not avoid their criminal proceedings. There’s a possibility to provide a written promise that the individual will comply with the conditions of the release, and that they will attend future court hearings. They could be released under supervision of a probation officer. They may be able to secure release by depositing bail money with the court. This is not an option if this is the case of an accusation of a violent offence, or other serious offences. - Searches: Section 84 of the Criminal Procedure Code highlights the conditions under which searches can be conducted.
- Enforcing the Rules (Exclusionary Rule, Nullity and other procedures to protect against illegal police procedures): In the Czech legal system, evidence obtained unlawfully is generally inadmissible in court proceedings. This principle ensures that individuals' rights are protected during the collection of evidence. For instance, evidence obtained through illegal searches or without proper authorization may be excluded from consideration in both civil and criminal cases. According to section 89 of the Criminal Procedure Code on the exclusion of evidence, the Exclusionary Rule is applied in criminal proceedings in the Czech Republic. Evidence obtained in violation of an individual’s rights is inadmissible in court, in line with European human rights standards. The concept of "nullity of procedure" refers to situations where procedural errors are so significant that they render the proceedings invalid. In the Czech Republic, if a party to the proceedings lacked legal capacity or was not duly represented, a final court decision may be challenged on these grounds. This ensures that the legal process is fair and that parties have the necessary legal standing. Section 229 of the Civil Procedure Coded addresses nullity in civil proceedings, whereas section 265 addresses nullity in criminal proceedings.
- Other identification procedures:
There is the photographic identification, the law enforcement may present a witness with photographs
for the purpose of identification if a physical lineup is not feasible.
The identification of a suspect based on their voice may also be conducted, where witnesses or
victims may listen to audio recordings and attempt to recognize a voice associated with the crime.
Handwriting and signature analysis is also used if relevant, to determine the identity of a person.
DNA identification is also used, as well as fingerprint analysis. The technical identification, with video or audio evidence, may be used to identify suspects or confirm witness accounts.
Section 104(d) allows for a reconstruction of the crime scene to verify the testimony of witnesses or victims.
- Before formal charge in court: Section 34 of the Criminal Procedure Code stipulates that a suspect's rights must be respected, including the right to remain silent and the right to legal counsel.
- After Defendant is formally charged: Section 36 of the Criminal Procedure Code states that once charges are filed, the interrogation process has more procedural safeguards, ensuring the accused's rights are protected, and no coerced confessions are made.
- Enforcing the Rules (procedures to protect against illegal interrogation): There are strict laws to prevent torture or coerced confessions. Suspects must be informed of their rights, and legal counsel must be present during interrogations if required.
Court Procedures
- Initial Court Appearance: Section 90 of the Criminal Procedure Code specifies that after an indictment is filed, the court must
inform the accused of the charges and their rights, ensuring they understand the allegations and the
legal process.
Charging Instrument: Section 176 of the Criminal Procedure Code details the requirements for an indictment, including the necessity for a precise description of the act, its legal classification, and the evidence supporting the charges. - Preliminary Hearing: This stage allows the court to assess whether the indictment provides a reliable basis for proceeding to
trial. The court evaluates the evidence and may decide to proceed, dismiss the case, or request further
investigation. Section 186 of the Criminal Procedure Code describes the procedure for the preliminary
hearing of an indictment, allowing the court to assess whether the case is ready for trial or if further
investigation is needed.
- Pre Trial Motion: Both the defense and prosecution can file motions before the trial begins. These motions may address issues like the admissibility of evidence, procedural matters, or requests for specific legal actions. Section 160 of the Criminal Procedure Code deals with the subject of the initiation of Criminal Prosecution. This section outlines the procedures for initiating criminal prosecution, including the rights of the accused and the responsibilities of law enforcement authorities.Section 166 of the Criminal Procedure Code deals with the completion of investigation. This section details the process for concluding the investigation phase, during which parties may file motions concerning procedural matters or evidence.
- Discovery: The discovery is the process during which both parties exchange information relevant to the case. This includes sharing evidence, witness lists, and other pertinent materials to ensure a fair trial. Section 65 of the Criminal Procedure Code states the right to inspect files. This right grants the accused and their defense counsel the right to examine case files, including evidence and witness statements, facilitating the discovery process. Section 166 of the criminal procedure is about the completion of investigation. It specifies that upon completing the investigation, the accused and their defense counsel must be informed and allowed to propose additional evidence or motions, ensuring both parties have access to pertinent information before trial.
- Nature of the Trial:
Criminal trials in the Czech Republic are conducted publicly, with the court reviewing evidence,
hearing witness testimonies, and making determinations regarding the defendant's guilt or innocence.
- Defendant:
According to the Charter of Fundamental Rights and Freedoms, article 40(2) states that “anyone
accused of a crime shall be presumed innocent until proven guilty by a final court decision.” Article
40(3) protects the right of the accused to a defence. Section 33 of the Criminal Procedure Code
defines the rights of the accused.
- Lawyers:
Section 34 of the Criminal Procedure Code regulates the role of the defence counsel. Section 37 is on
the mandatory defence. The Act on the Legal Profession covers the definition of the profession and
the rights of the lawyers. It states principles such as client confidentiality or legal representation.
- Expert Witnesses:
The Act on Experts and Interpreters of 1967 organizes the appointment, roles and duties of the expert
witnesses during a trial. Section 105 of the Criminal Procedure Code ensures the possibility of an
appointment of expert witnesses, in order to give opinions on a criminal case.
- Judges:
Professional judges: Article 82 of the Constitution of the Czech Republic states the independence of the judges, and that they are only bound by the law. The Act on Courts and Judges covers the organization of the court and its duties, but also its responsibilities, and reminds of the independence of the judge.
Lay judges: The lay judges, in the Czech Republic, are the “People’s judges”. Section 60 of the Act on Courts and Judges offices the participation of those lay judges during trial.
- Victims: Section 2 of the Act on Victims of Crimes defines who can be considered as a victim, and their rights in criminal proceedings. Section 3 states in detail the victim’s rights. Section 43 of the Criminal Procedure Code ensures the right for the victim to participate in criminal proceedings, to request compensation, and to provide evidence.
In order to properly sentence, the Court has guidelines such as statutory ranges, which means that each offense has a sentencing range, or aggravating and mitigating factors, which means that the Court considers specific factors in order to adjust sentences according to the statutory limits. The Court can also suspend the execution of a prison sentence, which means that the offender is placed on probation.
On the contrary, the Court can impose cumulative sentences if an offender is found guilty of multiple offenses. In this case, the Court bases its decision on the most severe offense.
- Right to Counsel: Article 37(2) of the Charter of Fundamental Rights and Freedoms guarantees the right to legal assistance from the beginning of proceedings such as proceedings before courts, other state bodies, or public administrative authorities. Therefore, there is a right to counsel safeguarded by a constitutional text.
- Ineffective Assistance of Counsel:
There is a possibility to raise the issue of the ineffective assistance of counsel during proceedings. In
that case the individual can replace their lawyer, inform the court or request an adjournment if the
lawyer's assistance has prevented proper preparation.
There is also the possibility to submit a complaint with the Czech Bar Association, which may impose disciplinary sanctions on the lawyer. There’s a possibility to appeal or seek a retrial. In criminal cases, if the ineffective assistance affects the conviction or sentencing, there’s a possibility to file an appeal in a higher court.
There’s a possibility to file a complaint with the Constitutional Court if the ineffective assistance violated the right to a fair trial.
As a last resource, there is a possibility to take the case to the European Court of Human Rights if domestic remedies are exhausted, and if the right to a fair trial as stated in article 6 of the European Convention on Human Rights has been violated. If the ineffective assistance caused financial or reputational harm, there is a possibility of filing a civil lawsuit for damages.
- Other Grounds for Appeal: In the Czech Republic there is a ground to appeal in case of procedural error, incorrect application of the law, incorrect evaluation of evidence, or new evidence.
- Collateral Remedies (Habeas etc...): Article 8 of the Charter of Fundamental Rights and Freedoms guarantees personal freedom and highlights the conditions under which individuals may be detained or arrested. It mandates prompt judicial oversight to prevent unlawful deprivation of liberty. Sections 67 to 71 of the Criminal Procedure Code detail the grounds for taking a person into custody, the procedural safeguards in place, and the rights of detained individuals. They ensure that any deprivation of liberty is conducted lawfully and with respect for individual rights. Individuals also have the right to file complaints against decisions related to custody. Those complaints are reviewed by higher courts to ensure the legality of detention, and they then provide a judicial remedy.
Rights in Prison
- Women: Most women in Czech prisons don’t benefit from good hygiene conditions and immediate access to appropriate facilities, or access to specialized and appropriate medical staff. Pregnant women have the right to ask the prison director to allow her to keep and care for her child for one year after the birth. A woman who gives birth to a child in prison may have the child with her, unless the child has been entrusted by the court to the care of another person.
- LGBT Prisoners: Since 2001, the Czech Republic has granted same sex couples prison visitation rights similar to heterosexual couples. Transsexual people serving a punishment in prison do not have reasonable access to the appropriate hormonal and surgical care.
- Mentally Ill Prisoners: In the Czech Republic, young offenders who are drug addicts or mentally ill are automatically assigned to therapeutic programs, provided they consent. This approach aims to address their specific needs within the prison system
- Juveniles: The Czech Republic is struggling to take care of the juveniles in the prison system. In 2017, the International Commission of Jurists filed a complaint against the state, citing violations of children's rights under the European Social Charter. The Committee found that the Czech Republic failed to provide adequate protection for children under 15 in the justice system.
Resources
- https://www.nyulawglobal.org/globalex/czech_republic1.html (context and recent history /)
- https://www.czechbusinessguide.com/content-of-book-the-czech-republic-basic-information/ (context and recent history / type of legal system)
- https://legal.un.org/ilc/sessions/66/pdfs/english/icil_czech_republic.pdf (international sources of the defendant’s rights)
- https://e-justice.europa.eu/37129/EN/legal_aid?CZECHIA&init=true&member=1#tocHeader1 (state sponsored legal aid)
- https://www.ccbe.eu/fileadmin/speciality_distribution/public/documents/Statistics/EN_STAT_2f020_ Number-of-lawyers-in-European-countries.pdf (number of lawyers)
- https://www.ondrejova.cz/docs/141231_handbook-criminal-law-in-the-czech-republic.pdf (rights of the accused)
- https://verejnazaloba.cz/en/more-about-public-prosecution/all-about-criminal-proceedings/who-is-wh o-in-criminal-proceedings/the-accused-person/ (rights of the accused)
- https://www.fairtrials.org/app/uploads/2022/01/Criminal-Proceedings-and-Defence-Rights-in-the-Cze ch-Republic-.pdf (rights of the accused)
- https://www.state.gov/reports/2020-country-reports-on-human-rights-practices/czech-republic/ (rights of the accused)
- https://www.state.gov/reports/2021-country-reports-on-human-rights-practices/czech-republic/ (rights of the accused)
- https://antislaverylaw.ac.uk/wp-content/uploads/2019/08/Czech-Republic-Criminal-Code.pdf (rights of the accused)
- https://www.amnesty.org/en/location/europe-and-central-asia/western-central-and-south-eastern-europ e/czech-republic/ (rights of the accused)
- https://www.ohchr.org/en/press-releases/2018/05/committee-against-torture-examins-report-czech-rep ublic (rights of the accused)
- https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-219779%22]} https://documents.un.org/doc/undoc/gen/g13/466/87/pdf/g1346687.pdf
- https://www.usoud.cz/fileadmin/user_upload/ustavni_soud_www/Pravni_uprava/AJ/Listina_English_ version.pdf (right to no be tortured or ill-treated, right against unlawful detention, right against unlawful arrest, searches, procedures)
- https://spcp.prf.cuni.cz/aj/169-99en.htm (right to medical procedure)
- https://www.echr.coe.int/documents/d/echr/convention_ENG (right to medical procedure)
- https://policehumanrightsresources.org/content/uploads/dlm_uploads/2017/07/Czech_Republic_Criminal_Procedure_Code_2012.pdf?x86271 (right against unlawful arrests searches and seizures, right against unlawful detention, right to be informed of charges, right against self incrimination)
- https://www.fairtrials.org/ (right to counsel and effective assistance)
- https://mv.gov.cz/mvcren/ (complaint/information)
- https://verejnazaloba.cz/en/more-about-public-prosecution/all-about-criminal-proceedings/stages-of-criminal-proceedings (court procedures)
- https://www.infovictims.cz/en/who-is-who (court procedures during trial)
- https://www.vertic.org/media/National%20Legislation/Czech_Republic/CZ_Police_Act.pdf (Police act, stops and frisks)
- https://www.gov.uk/government/publications/czech-republic-prisoner-pack/czech-republic-legal-and-prison-systems#:~:text=Shared%20cells%20are%20most%20common,for%20his%2Fher%20personal%20belongings. (rights of the prisoners)
- https://is.muni.cz/el/1422/podzim2016/SOC004/Erasmus_Prison_System.pdf (rights of the prisoners)
- https://uprdoc.ohchr.org/uprweb/downloadfile.aspx?filename=10487&file=EnglishTranslation (rights of the prisoners - special population)
- https://www.nyulawglobal.org/globalex/czech_republic1.html (legal sources) https://www.apt.ch/sites/default/files/2024-12/czechia_country_report.pdf (rights of the women in prison)
