Magazine Státní zastupitelství 5/2013

Doc. JUDr. Tomáš Gřivna, Ph.D., advokát v Praze, Katedra trestního práva Karlovy univerzity v Praze, email: tomas@grivna.cz

The paper discusses the issue of the use of the audio- or video recording as evidence in criminal proceedings in case these recordings have not been made by prosecuting and adjudicating bodies. These recordings are mainly made without consent of the accused person. Therefore, there are quite frequent objections that they interfere in the right to the protection of a personality and privacy. Referring to the established practice of the law, the author examines the question of whether these recordings can be used or not, or whether it is necessary to respect certain unsurpassable limits which must be considered in each concrete case.

Doc. JUDr. Zdeněk Khün, Ph.D., LL.M., soudce Nejvyššího správního soudu, Katedra teorie práva Právnické fakulty UK, email: zdenek.khun@nssoud.cz

The article deals with private audio and video recording used as evidence in criminal, civil and administrative procedures. The author argues in favor of the possibility to use the evidence notwithstanding it has been made according to the law on protection of privacy. The issue whether the camera installed on the house has been allowed by the respective authority is the issue for procedure before that authority, which might impose penalty on the person managing the house. The recording made thereof shall, however, be used in respective procedures without any limits.

Doc. JUDr. Jozef Čentéš, PhD., prokurátor, Generálna prokuratúra SR, Právnická fakulta Univerzity Komenského v Bratislave, email: jozef.centes@genpro.gov.sk

The use of wiretapping technology is a phenomenon closely watched by professionals from va-rious fields, as well as lay public. This phenomenon is particularly related to wiretapping of the communication by public authorities, and it mainly pertains to the activities of organized crime.A different situation occurs when the context of a telephone conversation is tapped by one of the participants without the consent of the other participant. This case does not pertain to the act of public authorities under § 115 of Penal Code. It means that the conditions under § 115 of Penal Code do not apply to this sound recording (not even analogically). These participants can require privacy protection especially under Article 8 paragraph 1 of the Convention on the Protection of Human Rights and Fundamental Freedoms, Article 17 paragraph 1 of the International Pact on Civil and Political Rights, Article 13 paragraph 4, Article 16 paragraph 1 and 3 of the Constitution of the Slovak Republic. This paper deals with selected aspects of the legislation and the possibilities of the use of such acquired recording as the evidence in criminal proceedings.

Doc. JUDr. Jan Kysela, Ph.D., tajemník stálé komise Senátu pro Ústavu ČR, Katedra politologie a sociologie Právnické fakulty UK, email: kyselaj@prf.cuni.cz

The recent Supreme Court decision interpreting Article 27 Paragraph 2 of the Constitution has been exposed to heavy criticism. The Supreme Court has namely explained the so far non problematic term „statement“ made in the Chamber of Deputies or in the Senate or in their bodies as an „act“ related to the exercise of the office of a Member of Parliament or a Senator. In this way the Supreme Court has dramatically extended the scope of indemnity of a Member of Parliament to the extent that is comparatively quite unique, whereby it cannot be established which arguments have supported this view. It is relevant also from the point of view of general postulates of the proper interpretation of the law: if they are not observed judges can become absolute creators of law.

JUDr. Michal Basík, státní zástupce OMOP, Nejvyšší státní zastupitelství, email: basik@nsz.brn.justice.cz

The article briefly reports on the new legislation on the status of crime victims as embedded in the new Act No. 45/2013, Coll. It focuses especially on new elements of the Act, reflecting its impact on criminal proceedings. It points to problematic features that can cause considerable complications in the practice of criminal proceeding bodies and, as a consequence, cause prolongation of criminal proceedings, or negatively influence the finding of relevant facts, or weaken the position of the accused and simultaneously increase the costs of criminal proceedings borne by the state. The expected impact of the new legislation in relation to the course of criminal proceedings is generally assessed rather negatively. The aim of the article is also to warn of unpremeditated changes of the rules of procedure.

JUDr. Zbyněk Žďárský, státní zástupce OTŘ, Nejvyšší státní zastupitelství, email: zdarsky@nsz.brn.justice.cz

The article warns of a problem related to the correct assessment of one of the conditions required by the Criminal Code concerning criminal liability and protection of official person – that is committing crime in relation to his/her power and responsibility. The article mentions various views coined by criminal law theories and practice pertaining to the condition of acting of an official person in the so-called superior position, such as the mayor of a city when deciding about the municipal property. The article mentions various views on the problem as illustrated by legal practice.

PhDr. Jiří Závora, Ph.D et Ph.D., soudní znalec, Katedra psychologie, Právnická fakulta UJEP v Ústí nad Labem, email: respondeo.dicendum@gmail.com

The paper discusses the relationship between the scientifically correct procedure of formulating the case-specific conclusion identifying the writer and the defense of the convention which has no foundation in critical thinking and contradicts the objectivity, as well as the scientific and legal consequences of case-specific conclusions of expert opinions. The correlations between scientific and legal implications of case-specific conclusions, the communicative act of the writer, the principle of nemotenetur se ipsumaccusare, the competence to make the written test (handwriting experiment) and the court evaluation of expert opinions is examined. The author uses the current scientific methodology and the principles of critical thinking to argue the existing procedures and practices that are declaratively defended by graphology expert Jiri Straka. The study of the case-specific expert conclusions thus reveals deeper meanings which are reflected in the principal foundations of both of these contradictory approaches. The paper presents emerging implications for the legal theory and practice.

JUDr. Bystrík Šramel, PhD., Fakulta sociálnych vied, Univerzita sv. Cyrila a Metoda v Trnave, email: bystrik.sramel@gmail.com

The article deals with the constitutional status of the public prosecution service in the Czech Republic and Slovakia. It analyses the public prosecution service as a constitutional institution in general and then by comparison it focuses on the constitutional regulations of the Slovak and the Czech public prosecution services. The final section contains a brief assessment of the current legal status and some possible de lege ferenda suggestions.