Časopis Státní zastupitelství 5/2015

  • Struktura trestní justice v Rakousku (Werner Pleischl)
  • Pravomoci nejvyššího spolkového státního zástupce v Německu se zaměřením na vyšetřování trestních činů proti státu (Harald Range)
  • Kariérní růst v německé justici – modelový případ (Peter Frank)
  • Systém trestní justice v Německu (Klaus Fleischmann)
  • Vztahy mezi ministerstvem spravedlnosti a státním zastupitelstvím (Ralf Rother)
  • Státní zastupitelství ve Spolkové republice Německo (Thomas Janovsky)
  • Činnost soudcovských rad a rad státních zástupců (Christoph Strötz)
  • Diskuze v rámci semináře Elektronizace justice a systém německé a rakouské justice (Jiří Pavlík)
  • O nefunkčnosti peněžitých trestů v podobě denních pokut (a co s tím) (Jakub Drápal)
  • Ohledání (místa činu) v kontradikci s ústavní konformitou (Jan Chmelík)
  • K problematice provádění prohlídek v německém trestním řízení, zejména pak s akcentem na provádění prohlídek v advokátních kancelářích (Vladislav Hřebíček)

Přehled článků s perexem z časopisu Státní zastupitelství 5/2015

What public prosecutors are not allowed to do and what are their duties in terms of professional ethics with emphasis on their role in criminal proceedings

JUDr. Lenka Bradáčová, Ph.D., High Public Prosecutor in Prague, email: podatelna@vsz.pha.justice.cz

 

The professional ethics of lawyers are sometimes denoted as professional liability and it is not without reason. Public prosecutors encounter with ethical conduct standards at the very start of their professional career when one of the preconditions for their employment as public prosecutors of the Czech Republic is to take an unconditional pledge before the minister of justice. The pledge contains, among other commitments, an undertaking that the public prosecutor shall safeguard the dignity of their profession in both their professional and private life. Dignity is perceived as an attribute of high social prestige, with which respect and regard of others are associated. It may be perceived as a projection of a special complex of moral values into attitudes and behaviour, whether they are internalised values or institutional values.

Ethics in criminal proceedings – lawyer

JUDr. Tomáš Sokol, lawyer, email: TSokol@akbsn.eu

When contemplating ethics in criminal proceedings, the first thing that comes to mind is the question of whether the term itself has any specific content. According to one of many definitions, ethics are a science examining the values and principles guiding human conduct in situations where there is a possibility of choice based on one’s free will. Thus, the ethics of criminal proceedings should deal with choosing a procedure from among procedural alternatives specified for a particular case by the Code of Criminal Procedure. The above stated question is thereby modified to whether situations may arise in criminal proceedings that legally permit several options for further procedure, yet only one or only some of them are ethical. The logical question then is who or what determines the “correct” ethical procedure.

A brief commentary on the progress and the results of the first year the Olomouc Discussion Forum

Doc. JUDr. Filip Ščerba, Ph.D., Head of the Department of Criminal Law, Faculty of Law, Palacký University Olomouc, email: filip.scerba@upol.cz

In criminal law, there have always been controversial issues, to which the members of individual criminal-law professions (lawyers, public prosecutors, judges, police officers) find an acceptable solution with great difficulty, mainly due to the different tasks fulfilled by them in criminal proceedings and the resultant different angle of view, from which they perceive the given problem. To make matters more complicated, there are only a few opportunities that would allow these individuals to share their arguments on the given topic and to clarify their opinions. There is hardly space for such discussions within concrete criminal-law cases and, as a rule, scientific conferences are not conceived to fulfil such purpose.

Definition of materiel in the case law of Czech courts

JUDr. Jakub Matocha, email: Matocha@osz.pha6.justice.cz

What can be considered as materiel is an important question not only for army contractors but primarily for state bodies evaluating the lawfulness of individual transactions involving materiel since the conceivable liability of the army contractor depends upon the correct evaluation of the traded commodity. With a view to the fact that the definition of materiel is not exhaustive and, at the same time, it is necessary for adjudging the objective aspect of selected criminal offences, this article attempts to familiarise with the case law of higher-level and namely criminal courts that have been dealing with this topic, as well as to bring attention to other aspects associated therewith.

A pecuniary amount designated to the state to provide financial aid to criminal activity victims within the meaning of Section 179g(2)(b), Section 307(2)(b), and Section 309(1)(d) of the Code of Criminal Procedure – theoretical and practical aspects

JUDr. Alena Tibitanzlová, Ph.D., Department of Criminal Law, Faculty of Law, Charles University, email: Tibitanzlova.Alena@seznam.cz

On the outside, the deposition of a pecuniary amount designated to the state to provide financial aid to criminal activity victims may seem as a certain covert form of punishment. However, it is not so even though it does contain a certain sanction element. Financial performance provided by the accused represents a specific form of reparation or compensation of injury, which is recognised by public interest as a result of the committed criminal act. In principle, public interest is affected by any criminal offence, namely in the extent corresponding to its social harm. Concurrently, the pecuniary amount deposited by the accused also serves as a source of financial means for providing financial aid to criminal activity victims.

 

The particularities of examining a child witness in preparatory criminal proceedings

Mgr. Sandra Vareninová, Postgraduate student at the Department of Criminal Law, Faculty of Law, Palacký University Olomouc, judicial candidate at the Regional Court in Ostrava, email: sandra.vareninova@centrum.cz

As the issue of protecting the rights and interests of children in preparatory criminal proceedings and their procedural position in the process is extensive, the article focuses only on the particularities of examining a child witness. In a criminal process, in which a child is involved as a witness of criminal activity, it is always necessary to proceed with regard to the child’s age and immature personality. Likewise, it is necessary to correctly apply the legal regulation in a manner ensuring that the criminal prosecution does not inflict additional injury upon the child, which is often more severe than the injury perceived by the child as a witness of a criminal offence. All these tasks fall upon bodies active in proceedings involving children, on bodies providing social and legal protection, the Probation and Mediation Service, psychologists, educators, as well as upon the child’s parents. The responsibility for protecting the child also rests upon our entire society.

 

A few polemic comments to the term “movement” and the question of bias in the light of the resolution of the Supreme Court, file No. 8 Tdo 819/2015

Mgr. Vladimír Hackl, Deputy of the Municipal Public Prosecutor in Prague, email: VHackl@msz.pha.justice.cz

The purpose of this article was not to dispute, at any cost, the legal conclusions of the Supreme Court expressed in the case, file No. 8 Tdo 819/2015. The author mainly sought to emphasise certain aspects and impacts thereof, which substantially aggravate, without any material grounds, the position of prosecution in future, namely with respect to criminal activity sanctions pursuant to Section 403 and 404 of the Criminal Code.

 

Should the (Czech) public prosecutor prosecute all criminal offences?

Mgr. Katarína Kandová, Assistant to the chairman of the senate of the Criminal Collegium of the Supreme Court, assistant at the Department of Criminal Law, Faculty of Law, Masaryk University in Brno, email: 378907@law.muni.cz

 

The objective of the presented text was to answer the question of whether the public prosecutor should prosecute all criminal offences, namely within the scope of the valid legal regulation, application practice and, last but not least, at the level of recodification contemplations. Primarily, I presented my own view of the principle of legality and opportunity of criminal prosecution, which is directly associated with the “prosecuting obligation” of the public prosecutor. Based on my theoretical contemplations, I stated that Czech criminal procedural law de lege lata is founded on the principle of legality, whereas an exceptional deviation from the legality procedure by suspension of a case or the discontinuance of (pending) criminal prosecution is permitted only subject to the reasons stipulated in Section 172(2) of the Code of Criminal Procedure. Subsequently, I focused on the application of these “opportune exceptions” in the practice of Czech bodies active in criminal proceedings, while the collected statistical data confirmed the sporadicity of the opportune procedure among public prosecutors (they even allowed to determine a more frequent opportune procedure on the part of police bodies although the reasons behind this may be solely relative). In the last chapter, I contemplated the adequacy or necessity of changing the current legal regulation in order to support the application of the “manifestations” of the principle of opportunity in the Czech criminal process, whereas my contemplations led to the exclusion of absolute opportune reasons defined de lege lata in Section 172(2)(c) of the Code of Criminal Procedure (with a view to their overlapping with other criminal material and procedural law institutes) and to their conceivable replacement with other (more “utilisable” in practice) aspects and, furthermore, to the eventual definition of specific criteria for the opportune procedure in criminal proceedings initiated against legal persons (with a view to the findings of application practice as regards their difficult prosecution), and the needlessness of special reinforcement of opportune exceptions with respect to the criminal prosecution of juveniles.

On the decision of the appellate court considered as a “surprising decision” or on retackling the issue of the review of a contested judgement by the appellate court

JUDr. Ivo Kouřil, Judge of the Supreme Court of the Czech Republic, email: Ivo.kouril@nsoud.cz

The contextual meaning of the term “surprising decision” was defined by resolutions of the Constitutional Court. It primarily denotes a decision that could not have been predicted based on the ascertained facts of the case. It is a decision, the factual and legal conclusions of which differ to such a degree that the party to the proceedings was unable to presume (unable to anticipate) such decision with a view to the progress of the hearing of the case and, in consequence thereof, was unable to exercise necessary defence. Such decision violates the right of the accused to due process. Thus, it may lay fulfil the appellate ground set forth in Section 265b(1)(g) of the Code of Criminal Procedure.

 

Recommendation to public prosecutors on how to propose punishment: Is it possible to draw inspiration from Dutch legal regulation?

Mgr. Jakub Drápal
Postgraduate student at the Department of Criminal Law, Faculty of Law, Charles University, assistant to Constitutional Court judge, 

email: jakub.drapal@gmail.com

Doc. Sigrid van Wingerden, Ph.D., LL.M.
Institute of Criminal Law and Criminology, Faculty of Law, Leiden University

Over the past few years, several articles have criticised the practice of imposing and deciding on punishment in the Czech Republic from a theoretical and empirical point of view. One of the mentioned issues evolved around the existence of significant differences between courts and judges when imposing and deciding on punishment. We do not consider it necessary to eliminate all differences as this would be impossible. We are of the opinion that judges should be allowed to use their discretion when imposing punishment in order to take into account the specifics of individual cases. A deterrent example of excessive limitation of such discretion are the United States Federal Sentencing Guidelines issued as mandatory for judges in the 1980s, which introduced a sentencing table to determine adequate punishment based on the severity of the criminal activity and any previous criminal record. We along with the overwhelming majority of academics specialising in punishment imposition are convinced that such guidelines are not the right way to help judges impose punishment.

 

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