IV Spr 64/11 – 2                                                                       Bratislava the 16 February, 2011

COUNCIL OF EUROPE

CONSULTATIVE COUNCIL OF EUROPEAN PROSECUTORS

(CCPE)

via

Office of the Prosecutor General of the Slovak Republic

Head of Office Ms Katarína Laiferová

Re:      Questionnaire on the relationships between prosecutors and prison administration  with the view  to preparation of the CCPE Opinion

            Referring to your request for answering questions concerning Public Prosecution Service and included in the Questionnaire, I can provide replies to different questions in relation to powers and competencies of Public Prosecution Service of the Slovak Republic  in the area of prison administration as well as in the related area of enforcement of sentence of deprivation of liberty pursuant to the legal order of the Slovak Reublic; the replies are as follows:

                                                           

Answer to question no. 2

Powers of the Public Prosecution Service are defined in the Act no. 301/2005 (i.e. Code of Criminal Procedure, hereinafter referred to as CCP). It follows from its Section 85, par. 1 and subs. that an individual suspected of commission of criminal offence may be detained (apprehended) by the Police if there is one of the grounds for custody pursuant to the Section 71, par. 1 CCP or if he is considered suspected individual pursuant to the Section 204, par. 1, CCP even if he still was not charged with accusation. Prior consent of prosecutor is necessary in order to apprehend a person unless a case is urgent and the consent is impossible to be obtained in advance especially if person was caught in the very act of crime or while escaping.

A Police agent (who apprehended a person or to whom a person was handed over after apprehension pursuant to separate law or caught in very act of crime pursuant to the par. 2) has the obligation to immediately notify a prosecutor and to write record thereon including place and time of arrest or taking-over as well as detailed circumstances and relevant reasons for it and also identification data of apprehended individual. The original version of this record shall be forwarded to the prosecutor without delay.

A Police agent who apprehended a person or to whom a person was handed over after apprehension pursuant to separate law or caught in very act of crime pursuant to the par. 2, has the obligation to immediately inform that person of reasons for arrest and to hear/interview the apprehended; if suspicion is ungrounded/unjustified or if grounds for arrest cease to exist for any other reason, apprehended person shall be released at liberty without delay by means of measure issued in writing. In case that a person is not released, the Police shall charge him/her with accusation and shall interview him/her. After questioning, the dossier/file shall be forwarded to a prosecutor for decision on motion to take in custody or on procedure pursuant tot he Section 204, par. 1. Police or prosecutor shall proceed so that apprehended person is referred to the Court at the latest within 48 hours since arrest or arrest pursuant to separate law or since he/she was handed over pursuant the par. 2, otherwise the person shall be released at liberty by means of prosecutor’s order (in writing) including adequate justification.

If one of reasons for custody does exist pursuant to the Section 71, CCP and the case is urgent and decision on custody is impossible to be obtained beforehand, the Police itself may provisionally arrest a suspect person. Without delay, apprehended person shall be informed by the Police about reasons for arrest and shall be interviewed. The Police has the obligation to immediately inform prosecutor about arrest and to forward him the original version of the records written after arrest as well as to forward to the prosecutor other dossier for decision on motion to take in custody. That motion has to be filed so that the accused may be referred to the court within 48 hours otherwise he/she must be released at liberty.

If it is established after arrest that the grounds for arrest pursuant to the Section 71 CCP ceased to exist, the Police may release at liberty the accused by means of measure issued in writing and upon prosecutor’s consent.

            If prosecutor refers the acused to the Court, he has to refer also the accusation or the motion to take into custody with all relevant files obtained up to that moment; otherwise prosecutor shall issue written order including appropriate justification and release the person at liberty.

Pursuant to the Section 79, par. 1 subs., if grounds for custody cease to exist or if grounds for further custody cease to exist, or if the legal time period defined in the CCP expires the accused must be immediately released at liberty. Decision thereon shall be taken by prosecutor within preliminary (pre-trial) proceedings.

The Police, prosecutor and judge for pre-trial proceedings have the obligation to review in every stage of criminal prosecution whether the grounds for custody still exist or whether they changed. Judge for pre-trial proceedings shall act so only while deciding on prosecutor’s motion to extend the time period of custody or to change grounds for custody and while deciding about accused person’s application for release from custody. If prosecutor establishes within pre-trial proceedings that grounds for custody changed, he shall file his motion to decide on changement of grounds for custody, that motion shall be submitted to the judge for pre-trial proceedings. Judge for pre-trial proceedings shall decide on this motion without delay.

In any time, the accused has right to request for release at liberty. If prosecutor does not grant such application within pre-trial proceedings, he has the obligation to forward it (together with his opinion) without delay to the judge for pre-trial proceedings for decision and to inform the acccused and his/her defence lawyer. This application shall be decided  without delay. If the application is dismissed and the accused shall not include new reasons for his application, it may be submitted again after 30 days since the decision on previous application came into force.

If prosecutor gives his consent to release the accused at liberty, the presiding judge may issue written order (including justification) to release at liberty the accused within proceedings before the court; the sme applies to prosecutor  if he proceeds pursuant to the Section 79, par. 1, second sentence.

Within the context of the above said, it is necessary to mention that it is exclusively the court that shall decide on custody as security measure within criminal proceedings.

Pursuant to the Section 18, par. 1, Act no. 153/2001 on Public Prosecution Service as amended (hereinafter referred to as APPS) prosecutor has the obligation to supervise whether any person was deprived of liberty only by court decision or by decision of any other authorized state body as well as to supervise observance of laws and other generally binding legal rules in places where police detention, custody, sentence of deprivation of liberty, disciplinary punishments of members of Armed Forces, protective treatment, protective young offenders rehabilitation (social retraining), in-patient treatement, special medical treatment are enforced.

Prosecutor has the obligation to perform inspection visits in order to verify whether laws are observed in the above mentioned institutions and

a)      to issue written order to release at liberty a person kept in such institution unlawfully, without court decision or contrary to court decision or contrary to decision by any ohter authorized state body

b)      to issue written order to cancel or suspend enforcement of decision, order or measure taken by administration of such institutions or by their superior authority if such decision is contrary to law or any other generally binding legal rule

c)      to supervise that any complaint and information submitted by persons kept in these institutions are delivered without delay to authorities of officials which they were addressed to.

While performing his supervisory competencies the prosecutor is authorized to visit places concerned and to have free acess to any premises therein and

a)      to inspect any documents related to deprivation or restriction of personal freedom

b)      to speak in private with individuals kept in such places

c)      to examine whether decisions and measures taken by administration bodies in these insitutions are in accordance with laws and other generally binding legal rules

d)     to request staff and administration personnel for any explication, submission of files   and decisions concerning deprivation or restriction of personal freedom of persons kept in places within scope of their administration.

Answer to question no. 3

            The means of action used as regards prisons result from the answer to question no. 2.

Answer to question no. 4

Powers available to prosecutor in prison matters result from the answer to the question no. 2.

Answer to question no. 5

In cases specified in the law, the Public Prosecution Service has the status of independent state body which has authority to release at liberty any unlawfully imprisoned individual. In relation to places where persons restricted in their liberty are kept, prosecutor has authority to visit such places in any time and to have free access to any premises therein, has authority to suprevise observance of law in such places, review disciplinary punishments imposed to prisoners. There is also very important possibility for the prosecutor to talk to imprisoned individuals in private.

            Answer to this question can be found also in the answer no. 2.

Answer to question no. 6

I do not think necessary to make any changes to the existing system of protection in the context of the Slovak Republic. The valid legal regulation  applicable to the field concerned meets all conditions as may be necessary in order to  enable the Public Prosecution Service to take effective measures to protect law in cases where human rights might be interfered with. As for further mechanisms of control/supervision especially in relation to the „national mechanism of prevention“ resulting from the Article 3, part I., Optional Protocol to the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment adopted the 18 December, 2002 in the 57th UN General Assembly by the Resolution A/RES/57/199 which entered into force the 22 June, 2006, the General Prosecutor’s Office recommends that the mission of the national mechanism for prevention is taken over by the Office of the Ombudsman upon consent of the Government of the Slovak Republic and subsequent consent of the National Council of the Slovak  Republic – this would correspond with the legal regulations of the neighboring countries.

           

Answer to question no. 7

            Yes they do. Please see also the answer to question no. 2.

Answer to question no. 8

            Yes, he/she can. In the institutions for enforcement of sentence of deprivation of liberty the competent prosecutor performs regular and systematic inspections concerning observance of legality; within the scope of this mission he deals also with applications and complaints of imprisoned persons, these complaints and suggestions are put into locked box available in every institution and accessible only to competent prosecutor.

Answer to question no. 9

            Yes, they do. The accomodation of prisoners is examined within the scope of regular inspections concerning observance of laws, inspections are carried out 4 times per year, monitoring visits also may be performed upon complaint or request of a prisoner. If a breach of law is detected, competent prosecutor may inform administration of these places in order to provide remedy.

                       

Answer to question no.10

            Answer to question no. 10 (first and second sentence) results from answer to question no. 1. As for question no. 10 (third and fourth sentence) we need to explain that pursuant to the Section 3, par. 1 and par. 2 in the APPS, the Public Prosecution Service protects rights and interests protected by law in respect to natural persons, legal entities and the State. Within the scope of its competence the Public Prosecution Service has the obligation in public interest to take any measure as may be necesary in order to prevent breaches of law, to detect and remove breaches of law, to restitute infringed rights and to draw responsibility for such infringments. While exercising its competencies, the Public Prosecution Service is obliged to make use of any legal means in order to ensure consistent, efficient and quick protection of rights and legally protected interests of natural persons, legal entities and the State.

            The missions and competencies of the Public Prosecution Service are performed by individual prosecutors also in cases of criminal prosecution of persons suspected of commission of criminal offences and also within prosecutorial competence to supervise observance of laws prior to commencement of criminal prosecution in the extent defined in the CCP and also within pre-trial proceedings.  In case that a prosecutor learns of any acting substantiating suspicion of commission of a crime, he is obliged to take measures aiming to criminal prosecution. Criminal prosecution may be initiated by a prosecutor or by Police agent upon prosecutor’s instruction.

            In case that prosecutor learns of acting substantiating suspicion of commission of breach of discipline, he has the obligation to inform the body competent to execute disciplinary proceedings. Further powers and competencies of prosecutor result from the answer to question no. 2.

Answer to question no.11

            Monitoring visits are carried out regularly every 3 months. Answer to question 11, second sentence is included in the answer to question no. 2 and 9.

Answer to question no. 12

            Yes, they have such powwer.

Answer to question no.13

            Yes, prosecutors may commission experts to assist them.

Answer to question no. 14

            Answer to first sentence: Yes.

            Answer to second sentence: Prosecutor deals with complaints and problems that fall within his competence pursuant to the law. Complaints and problems are also forwarded for dealing to superiors of the persons subject of complaints if law provides so.

Answer to question no.15

            Prosecutor has authority to investigate the mentioned acts since he is independent state authority. If such acts are under police investigation the prosecutor carries out supervision over investigation.Tasks of prosecutor in relation to investigation are included in the Section 230, CCP according to which the prosecutor carries out supervision over observance of laws prior to commencement of criminal prosecution as well as within pre-trial proceedings. While performing supervision the prosecutor has power to give binding instructions to the Police, to direct the investigative procedure and to impose time limits to investigations, to request files, dossiers, documents and materials from the Police as well as reports on stage of criminal proceedings, to monitor whether the Police started criminal prosecution in due time and whether they progress properly, to participate in the Police acts, to perform any act in person, to carry out whole investigation in person, to issue decision in any matter; while doing so, he is obliged to proceed according to the CCP. Complaint is admissible against prosecutor’s or Police decision. Furthermore, prosecutor may return back the matter to the Police for supplementary investigation together with his instructions, to impose deadline for supplementary investigation. If a case is returned back to the Police for supplementary investigation, both the accused and injured party are informed thereof. Prosecutor may cancel unlawful or ungrounded police decision and replace it by his/her own decision. If resolution is issued to discontinue criminal prosecution, to suspend criminal prosecution or to transfer the matter, the prosecutor may do so within 30 days since service thereof. If police decision is replaced by his own decision otherwise than on the basis of complaint made by entitled person, complaint is admissible against both prosecutor’s and police decision. Prosecutor may withdraw a case from a Police agent and order it to another Police agent (even without local jurisdiction) or to take a measure with the aim to order the case to other police agent or police agents.

 Answer to question no. 16

            Prosecutor has supervisory and monitoring (inspection) powers pursuant to the CCP and Criminal Code. These powers are described in the answer to the question 2, 5, 10 and 15.

Answer to question no. 17

            They are autonomous while performing monitoring. They are obliged to submit their report on monitoring results to superior prosecution office.

            We need to remark in this context that pursuant to the Section 6, par. 1 APPS, superior prosecutor has power to give instructions to subordinated prosecutor concerning tasks and proceedings he is carrying out and he also has power to execute subordinated prosecutor’s acts himself or to decide that other subordinated prosecutor shall act.

            Instruction given to subordinated prosecutor must be in writing. Subordinated prosecutor is obliged to discharge the instruction unless provided otherwise in the APPS and within proceedings before the court the subordinated prosecutor is bound by the superior prosecutor’s instructions unless changes occur in the evidence in the course of proceedings.

Subordinated prosecutor is obliged to refuse execution of instruction if discharge of it would be commission of criminal offence, delict, other administrative delict or breach of discipline. Refusal must be in writing and justified.

Subordinated prosecutor may refuse execution of instruction if discharge of it would endanger his life and health or life and health of a person in close relation to him. If subordinated prosecutor supposes that discharge of instruction would cause a damage he is obliged to inform his superior prosecutor.

If subordinated prosecutor considers instruction as contrary to legal rule or to his own legal opinion, he may submit written application to his superior prosecutor in order to request  for removal of the case from him. Request must be justified. Superior prosecutor shall grant the application and he shall commission antoher prosecutor or he shall deal with the case himself.

Answer to question no. 18

            Prosecutor is not involved in granting pardon and amnesty.

            He is involved in proceedings on conditional release at liberty of a convicted person, within these proceedings he expresses his opinion in respect to statutory conditions of release and is competent to lodge appeal against decision of the court within such proceedings.

            Criminal Records Department is a part of the General Prosecutor’s Office and is governed by it. The General Prosecutor’s Office fulfils the tasks of Central Authority for reception of and requests for information on final decisions and related decisions and measures from Central Authorities of other EU Member States and it also provides such information to Central Authorities of EU Member States pursuant to special regulation. Information is sent abroad in the official language.

Answer to question no. 19

No, they are not required. According to the law, competent prosecutors are commissioned to fulfil tasks in this area either by the General Prosecutor of the Slovak Republic or by the Regional Prosecutors.

The General Prosecutor’s Office of the Slovak Republic organizes trainings and seminars on regular basis for prosecutors; some of these trainings are prepared in co-operation with Directorate-General of Prison and Judicial Guard and with Prison Directors.

The General Prosecutor’s Office of the Slovak Republic issues methodological guidelines and carries out monitoring of prosecutorial supervision over prisons; these tasks are also fulfilled by competent Regional Prosecutor in the extent defined in internal rules of the Public Prosecution Service.

Answer to question no. 20

            In general, prosecutor has right to lodge appeal against court decision concerning execution of sentence. In trial held in public  and concerning execution of sentence,  prosecutor has right to attend, to make specific motions and to closing speech and to suggest how the court should decide.

Answer to question no. 21

            In some individual cases prosecutor co-operates with ombudsman.

Answer to question no. 22

            No. Any relevant and important fact was described in the above stated answers to the questions of the questionnaire.

           

                                                                            JUDr. Tibor Šumichrast

                                                               Head of the Department for Criminal Matters