Časopis Státní zastupitelství 6/2018

  • Úvodník (Pavel Zeman)
  • Rozhovor s Gerardem K. Schoepem/li>
  • Doporučení pro státní zástupce jak navrhovat tresty: Je možné se inspirovat z nizozemské úpravy? (Jakub Drápal, Sigrid van Wingerden)
  • překvapivého aneb opět k otázce přezkumu napadeného rozsudku odvolacím soudem (Ivo Kouřil)
  • Musí (český) státní zástupce stíhat všechny trestné činy? (Katarína Kandová)
  • Několik polemických poznámek k pojmu „hnutí“ a k otázce podjatosti ve světle usnesení Nejvyššího soudu sp. zn. 8 Tdo 819/2015 (Vladimír Hackl)
  • Zvláštnosti výslechu dětského svědka v přípravném řízení trestním (Sandra Vareninová)
  • Peněžitá částka určená státu na peněžitou pomoc obětem trestné činnosti ve smyslu
    § 179g odst. 2 písm. b), § 307 odst. 2 písm. b) a § 309 odst. 1 písm. d) tr. řádu – teoretické a praktické aspekty (Alena Tibitanzlová)
  • Vymezení vojenského materiálu v judikatuře tuzemských soudů (Jakub Matocha)
  • Tzv. firemní psychopati v kriminální perspektivě (Jakub Chromý)

Přehled článků s perexem z časopisu Státní zastupitelství 6/2018

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.