Questionnaire on alternatives to prosecution in Council of Europe member States

QUESTIONNAIRE

1.  Concerning the legal framework: does your country follow a system of mandatory or discretionary prosecution? Has the situation changed during the last two years or is a change envisaged? In your c ountry, what is the percentage of criminal law responses to offences perpetrated by identified offenders in the years 2005 and 2006? Amongst those, what is the proportion of alternative to prosecution responses?

Introduction - general  information

Criminal proceedings in the Czech Republic are part of public law. No private action may be brought as part of criminal proceedings as in some other countries such as Germany and Austria, but there exists what is referred to as public action brought by the State against the person accused of committing a crime (although in some cases with the consent of the injured person – see below).

Under Article 80 of the Constitution of the Czech Republic, public action is brought by the Public Prosecutor’s Office, which is systematically seen as part of the Executive. The exclusive position of the Public Prosecutor’s Office in criminal proceedings is also based on the legality principle (Section 2, Paragraph 3 of the Criminal Procedure Code), according to which it is the public prosecutor is obliged to prosecute all the crimes he/she has a cognisance of, and on the accusatorial principle (Section 2, Paragraph 8 of the Criminal Procedure Code), according to which a trial in court is only possible after an action is brought by the public prosecutor.

            Prosecution process - the principle of legality

Section 2 para. 3 of the Czech Criminal Procedure Code stipulates that public prosecutors are obliged to prosecute in all cases of criminal acts of which they learn, unless an act of Parliament or promulgated international convention to which the Czech Republic is bound states otherwise. The principle of legality, which is in question here, is a consequence of the principle of public office (Section 2 para. 4 of the Criminal Procedure Code) regarding the initiation of criminal proceedings.

            The obligation of a state prosecutor to prosecute in cases of criminal acts arises from Section 4 para. 1 (a) of the Act on Public Prosecutors, which defines the powers of public prosecutors in criminal proceedings (prosecution by the State and the performance of further duties in criminal proceedings). A public prosecutor can however prosecute a person for committing a criminal offence provided that the lawful reasons for this have been met (Section 2 para. 1 of the Act on Public  Prosecutors).

            The principle of legality in the Czech Republic does not describe a situation whereby the sole entity capable of bringing criminal prosecution is a public prosecutor, who empowers police bodies to perform individual tasks or entire preparatory proceedings. It concerns the obligation of the public prosecutor to insist on the use of instruments provided by the law for the timely and proper prosecution of every perpetrator of a criminal offence (with a few exceptions which are given below).

            The principle of legality does not mean that public prosecutors are obliged to prosecute each person concerning whom they receive arbitrary and possibly irrelevant information that the said person is imagined to have committed a criminal offence. In order to ascertain whether prerequisites exist for investigation and instigation of criminal prosecution for a criminal offence against such a person (Section 160 para. 1 of the Criminal Procedure Code), there is a procedure used prior to the commencement of criminal proceedings (Ninth Heading of the Criminal Procedure Code). The work of the police plays an absolutely essential role during this stage of proceedings (comp. Section 2 para. 1 (d) of the Act on the Police). This provision establishes the tasks of the police in investigating criminal offences.

The Czech Republic has a system in which the public prosecutor plays a decisive role. He/she controls the activities of the police performing investigative work on criminal acts, both from the standpoint of guaranteeing human rights and basic freedoms, as well as respecting laws and other legal regulations[1].

In preparatory proceedings, a public prosecutor holds the dominant position and is responsible for the course of proceedings in regard to legality, facility, and speed. He/she conducts supervision over police activities, deciding on corrective measures directed against the decisions by police organs.

After completing preparatory proceedings, all important decisions lie with him/her – submitting indictments, discontinuing criminal prosecution, approving settlements, withdrawing from criminal prosecution of youth, relegating matters to an infraction or some other administrative delinquency or disciplinary (punitive) offence.

In proceedings before the court, the public prosecutor assumes the position of a party. But it cannot be said that this involves an entirely equal position to the party of the defendant. This does not mean that these two parties to the process should not be equal (then the justice system would not work or the proceedings would be contradictory), but it means the public prosecutor also performs the role of defender of the public interest in proceedings before the court. He/she may not conceal evidence favourable to the accused. In justifiable cases, he/she must even propose the issuance of a plea of not guilty of a criminal act. This takes into account, for example, the fact that the public prosecutor (particularly necessary for youth) may propose the application of some sort of departure, i.e. the conditional cessation of criminal prosecution, settlement, or withdrawal from criminal prosecution of youth.

The Czech procedural system is continental, not Anglo-American (adversarial). In matters before the court, the public prosecutor has increased responsibility acting in the position of a party and must proceed toward the accused with an unbiased and open mind.

The criminal prosecution in the court proceedings takes place based on the action filed and represented in the court by the public prosecutor only (accusatorial principle).

            According to the Czech adjustment the public prosecutor is the “dominus litis” of the preliminary stage of the proceeding. This means that he/she assumes responsibility that in the preliminary stage of the proceeding conclusions of facts necessary for submission of an indictment or another decision to conclude the preliminary stage will be made, that nobody will be prosecuted for criminal act without reason and that the police authority will proceed according to law and the actions taken by them will be fast and continuous. The public prosecutors also share responsibility (jointly with the court or the judge who adjudicates in the cases concerning serious interferences with human rights and fundamental freedoms) that the police abide with the fundamental rights and freedoms. The fact that the public prosecutor is the “dominus litis” of the preliminary stage of proceeding does not imply any reduction of the responsibility of the police for due performance of the investigation (examination – measures taken before initiation of the criminal prosecution). Through his/her supervision of the police procedures the public prosecutor obtains the necessary grounds for submission of an indictment (unless the preliminary stage is concluded by another meritorious decision – on discontinuance of criminal prosecution, transfer the case to another authority on the ground of suspicion of an administrative infraction, another administrative delict or disciplinary wrongdoing) and, hence, the fulfilment of the public prosecutor’s principal role – representation of the prosecution in the court.

Thus, an injured person, although an independent party to proceedings, is not empowered to bring an action with this right being "monopolised" by the State.[2]

Thus an injured person is not empowered to bring an action or represent it in court.

However Section 163 of the Criminal Procedure Code permits, for criminal offences which are exhaustively listed and provided that a specified kind of relationship exists between the injured party and the person who is to be accused, that the perpetrator will not be prosecuted in the case that injured party does not expressly give his/her consent for criminal prosecution.[3]

            Consent of the injured person with the criminal prosecutionfor one of the criminal offences referred to under section 163 subsection 1 of the Criminal Procedure Code is not required if

a) such offence causes death;

b) the injured person is unable to give his/her consent due to a mental disease or deficiency for which he/she has been deprived of the capability to execute legal acts, or for which his/her capability to execute legal acts has been restricted;

c) the  injured person is a person less than fifteen years old;

d) it is obvious based on the existing circumstances that the consent has not been given, or has been withdrawn, under duress provoked by threats, pressure, dependence, or subordination.

If the injured person does not respond immediately to the invitation of the agency involved in the criminal proceedings, whether he/she agrees with the criminal prosecution in accordance with section 163 of the Criminal Procedure Code, he/she will be granted by such agency an adequate term to give his/her statement depending on the nature of the case, however, maximum 30 days. After the fruitless elapsing of such term, consent with the criminal prosecution cannot be given any more. The injured person must be informed thereof in writing.

General Remarks on Alternatives pursuant to the Czech Criminal Legislation

Activities heading to an alternative settlement of criminal cases are running in two levels in our country. In part within the system of the effective criminal law, in part out of this system and within a milieu which is not regulated by law.

Amongst the substantive legal alternatives (respectively the alternatives within the system of substantive criminal law) are included:

- alternative punishments

- alternatives for punishment

Amongst the alternatives of procedural criminal law (respectively alternatives within the system of procedural criminal law) are included the so-called diversions within the frame of the criminal procedure - diversion.

Amongst the alternative procedures heading to the settlement of criminal cases executed out of the system of criminal law (alternatives to the system of criminal law) especially mediation[4] is belonging. Mediation is defined as a special non-procedural legal form of alternative settlement of criminal cases whereof the results may involve the meritorious decision, however, mediation is not regulated or determined by law.

Alternative punishments mean all punishments which are not connected to the imprisonment as well as the offender’s isolation from the society. In this regard those types of punishment prevail within the system of criminal law pursuant to Section 27 of the Criminal Code which are not connected with the imprisonment as well as the offender’s isolation from the society. The legal updates to the Criminal Code done from 1990 to 1997 have significantly extended the number of alternative punishments whereto we have to count suspension of sentences which has a special nature since it may lead to an immediate execution of the imprisonment due to the convict’s behavior within his trial period. Further, punishments for offences against property (money penalty, forfeiture of an item or of other property value) as well as punishments prescribing prohibitions, (i.e. prohibition of action of diverse kind, prohibition of stay and expatriation). In 1995 a new alternative punishment – community service, further suspended sentence to an imprisonment with supervision (probation) have been instituted. The Criminal Code there through includes ten diverse types of penalty. Concerning the imprisonment suspended sentence and suspended sentence to imprisonment with supervision may be included. We have to take into consideration the institute of suspended withheld sentence with supervision.

            We classify as the alternative punishments in a more detailed manner in particular the punishments done within a community (the so-called community penalties). These community penalties are represented in our country through the community service, suspended sentence together with prescription of appropriate duties or appropriate restrictions, further punishments having probation elements of a suspended sentence to imprisonment with a convict’s supervision, a suspended sentence to imprisonment with a subsequent supervision as well as a monetary penalty. We classify the following penalties against juvenile offenders: the remedy of community service, the monetary remedy, the monetary remedy connected with the suspended sentence, the imprisonment being suspended for a trial period (suspended sentence of imprisonment) and suspended sentence of imprisonment suspended for a trial period and secured by the convict’s supervision[5].

Under the alternatives to penalties we understand the traditional withheld sentence and a suspended withheld sentence secured by convict’s supervision (probation). We classify the following institutes related to the juvenile offenders: a suspended penalty precaution and a suspended prescription of a penalty precaution.

            Under the procedural alternatives to the default criminal procedure (the so-called diversions in the criminal procedure - diversion) we count the compensation (settlement), the suspended supersedeas in the criminal case and a criminal order. In addition to the compensation (settlement) and the suspended supersedeas in the criminal case the withdrawal from the criminal case may apply as well.

The Proposition of a Criminal Code[6]

           

The proposition of a Criminal Code serves in part as a specification of the penalties not connected with the convict’s imprisonmentand in part it deals with the expansion of the penalty system of the penalty of house arrest as the another one alternative to the imprisonment and further it deals with the expansion of enumeration of preventive measures of the detention.

            Hereinafter, in addition to the suspended withheld sentence secured by the convict’s supervision, the proposition of the new Criminal Code serves with the completion of the demonstrative enumeration of appropriate restrictions and appropriate duties. As a matter of fact, restrictions and duties dealing with the abstention of any unauthorized actions into either the rights or the interests covered by law, abstention of enjoyment of any alcoholic beverages or any other habit forming substance, in addition hereto the duty to compensate the due alimony or any other due amount of money and the duty to apologize in public to the injured person or the duty to provide him an appropriate compensation are concerned.

            System of penalties for property offences shall be completed through the monetary penalty in a form of the so-called daily fines. The nature as well as the relevancy of a criminal action is expressed through the number of daily rates whereas a certain monetary amount must be paid for each day of delay following a careful evaluation of offender’s property relations.

            The house arrest (including the option of electronic monitoring)[7] as an alternative to the suspended imprisonment should be imposed to persons who are supposed to be inflicted by the penalty of imprisonment following the nature as well as the relevancy of their criminal action and following the characteristics of the offender as well as his abilities for resocialization, if a suspended imprisonment is judged as insufficient, however, a significantly minor intensity of intervention against them is sufficient due to their personal properties as well as their family relations. Their supervision shall be covered by the officers of Probation Service or by the electronic monitoring by the means of the so-called handcuffs.

            It is resulting out the wording of the explanatory report to the proposition of the criminal code that no other alternative penalties having a diverse mode for the execution as well as the intensity of repression and punishment, e.g. weekend imprisonment, are proposed on the ground of difficulties with the execution of the so-called communitary penalties.

            The proposition of the criminal code deals with the extension of protective measures using the so-called convict’s detention whereof the use is assumed for a certain type of inadaptable convicts (e.g. sexual sadists, aggressors etc.).

The proposition presumes that the court of justice imposes compulsorily a detention mainly for cases whenever the offender committed an action considered as a criminal act of gross nature, however the offender is not held responsible due to his insanity and at the same time the offender being unapprehended is dangerous and it is impossible that the protective treatment following upon the purpose hereof and the nature of the offender’s mental disorder would result into a sufficient protection of the society.

            Unlike the protective treatment the durability of detention is not limited due to the inadvisability of offenders who are imposed with this protective measure. The law imposes to the court of justice to investigate at least once in two years whether the reasons for the continuance of the detention are still given.

            Diversions build a permanent trend of the reform of current criminal legislation. These types of procedure are initiated to enable to avoid the traditional criminal procedure at court. The authors are following the efforts to accelerate and to simplify the criminal action and at the same time to give preferential treatment to the victim and to influence educatorily the defendant. Several elements of opportunity come into being by the implementing of diversions. The principle of opportunity (which is a contradiction to the principle of legality) enables to the public prosecutor not to prosecute an offender in particular on the ground of its inexpediency or of any other reason even though the general conditions for the offender’s prosecution are satisfied. For the present it is just an exception to the principle of legality.

            The principle of opportunity does not apply generally in the Czech criminal procedure. However, its elements can be found in legal cases where criminal actions can be prosecuted but needn’t be prosecuted. The cases are as follow:

a) in the event the criminal prosecution is not efficient on the grounds determined in Section 172 Subsection 2 of the Criminal Procedure Code and whenever the legal case can be dismissed before the criminal prosecution starts or the started criminal prosecution can be stopped;

b) in the event conditions are satisfied for the suspended abortion of the criminal procedure (Section 307 of the Criminal Procedure Code);

c) in the event conditions are satisfied for the compensation - settlement (Section 309 of the Criminal Procedure Code);

d) in case of a crime committed by a juvenile offender the criminal prosecution may be aborted (pursuant to Section 70 of Act on Justice in Juvenile Cases)

Observations for the implementation of the suspended abortion of the criminal procedure, compensation (settlement), withdrawal from the prosecution of juvenile offenders, suspended abortion of the punishment and abortion of the legal case at the concurrent approval of compensation (settlement)  within the simplified preliminary procedure – data related to the decision passed by the public prosecutor within the preliminary procedure only

year 2005

            In 2005 the suspended abortion of the prosecution has been applied in total 6,892 legal cases, the compensation (settlement) in 53 legal cases, the abortion of the criminal procedure of a juvenile offender in 77 cases and a suspended abortion of punishment in 473 legal cases.

            In 2005 the total number of prosecuted persons as well as persons who were told of suspicion amounted up to 108,100 persons. The total amount of all persons who were included into the diversion procedure within their criminal procedure (see the aforesaid decisions) amounted up to 7,495. At that time, the diversions, respectively the alternatives to the criminal procedure were 6,93 %.

year 2006

            In 2006 the suspended abortion of the criminal case has been applied in total 7,387 legal cases, the compensation (settlement) in 38 legal cases, the abortion of the criminal procedure of a juvenile offender in 96 legal cases and a suspended abortion of the punishment in 663 legal cases whereof 3 legal cases terminated by the abortion of the criminal case at the concurrent approval of the compensation (settlement).

            In 2006 the total number of prosecuted persons as well as of persons who were told of their suspicion amounted up to 110,339 persons. The total amount of all persons who were included into the diversion procedure within the criminal procedure (see the aforesaid decisions) amounted up to 8,184. At that time, the diversions, respectively the alternatives to the criminal procedure were 7,42 %.

            To find other statistic data – see the source Statistic Yearbook in 2005 issued by the Ministry of Justice of the Czech Republic and focusing on numbers of convicts as well as numbers of imposed main penalties and protective and educational measures. The data of 2006 are not available yet, therefore it cannot be presented.

2. In the event of an offence, are your judicial authorities able to choose between criminal law measures and other responses? If so, please specify which. Is that choice definitive or can it be challenged?

Choice between the criminal precaution and a different (alternative) measure

            The instrument for achieving the purpose of the Criminal Code is: threat of punishment, implementation as well as execution of punishments and the protective measures. Pursuant to Article 39 of the Charter of Fundamental Right and Freedoms the penalties may be imposed only upon the law (nulla poena sine lege – the principle of legality). Only the penalties exhaustively determined in Section 27 of the Criminal Code may be imposed: the imprisonment, the community service, the loss of honours and distinctions, the loss of a military rank, the prohibition of an action, the loss of property, the monetary penalty, the forfeiture of an item or of any other property value, the expatriation, the prohibition to reside in the country[8]. In addition hereto an exceptional punishment (pursuant to Section 29 of the Criminal Code) – the imprisonment from fifteen to twenty-five years and the life penalty, may apply.

            The protective measures are an individual penalty which may be imposed not only against the persons held liable for criminal actions but also against persons who are not held liable for criminal cases (either due to their insanity or to their insufficient age). The protective measures may be imposed either individually or in addition to a penalty.

            The imprisonment represents a universal type of punishment for it may be imposed for every criminal action and against every offender (the imprisonment may be imposed only to the extent of fifteen years). At the same time, the imprisonment is the strictest type of punishment. Its implementation is taken into consideration just then if the other penalties executed unapprehended are not sufficient to satisfy the purpose of the punishment. The amendment of the Criminal Code effective since January 1st, 2002 has determined that the imprisonment may be imposed for criminal acts where the superior limit does not exceed three years only under the proviso that following the characteristics of the offender no other punishment would satisfy the purpose of the penalty.

            The imprisonment specified in the Criminal Code has three forms:

-       The imprisonment whereof its execution has been suspended or whereof its execution has been suspended at the present implementation of convict’s supervision;

-       The imprisonment;

-       The exceptional punishment.

As said above, as the alternative penalties may be indicated all kinds of punishments which even if not connected to the offender’s imprisonment grant the satisfaction of the purpose of punishment much like the imprisonment would be imposed against the offender. From this point of view within the system of punishments determined under Section 27 of the Criminal Code those kinds of penalties prevail which are not connected to the imprisonment and the offender’s isolation from the society. Further we have referred to the fact that in addition to the term of alternative punishment determined in the criminal law we have to distinguish the government reactions to a criminal act which is not connected to any penalty - it is the so-called abortion of the punishment (pursuant to Section 24 of the Criminal Code) and the suspended abortion from the punishment secured by the convict’s supervision (pursuant to Section 26 of the Criminal Code). The alternatives within the procedure criminal law are usually known as the diversions (it means the ways of settlement of a legal case out of a default criminal procedure).

            The aforesaid system of punishments de lege lata is based on the nature, respectively on the relevancy of the committed criminal act and the necessity for an appropriate legal reaction hereto. 

            The primary principles of punishment as well as legal presumptions for implementation of individual types of penalties are coming into being whereas the penalties for committed criminal acts are imposed. The primary principles represent a certain universal environment for implementation of punishments. The legal presumptions for implementation of punishments represent conditions determined by laws for their imposition. 

            The defendant has the right to submit ordinary as well as extraordinary legal remedies against decisions passed by criminal courts of law.

            From the point of view of the criminal procedure, respectively of the preliminary procedure, the public prosecutor has fundamental competences related to the abortion or termination of the preliminary procedure. Exclusively the public prosecutor is entitled to file a criminal charge, eventually a petition for the punishment after the simplified preliminary procedure is over. These decisions passed by the public prosecutor are conclusive for further criminal procedure since the prosecution at court of law may be performed only upon the criminal charge and the court of law passes its decisions only on the act described in the criminal charge.

            The prosecution may be terminated within the preliminary procedure otherwise than by starting a criminal charge (the petition for punishment). The public prosecutor may declare his will not to continue the criminal case or forward it to another authorized body or stop the prosecution, eventually interrupt it.

           

            In advisable cases the public prosecutor is also entitled within the preliminary procedure (and under the conditions determined by law) to suspended abortion of the prosecution or to a decision on the approval of compensation (settlement) and hereinafter the supersedeas of the procedure. In case of a juvenile offender the public prosecutor may withdraw from the prosecution as well (see the diversion within the criminal procedure).

The suspended abortion of the prosecution[9] and the compensation (settlement)[10] represent the fundamental types of the diversion within the criminal procedure. Both types assume the engagement of parties into the settlement of the criminal case and are not related to the imposition of sentence (even though a certain kind of penalty is included).

Generally we must mention first that all types of procedure determined by the Czech Criminal Procedure Code are basically equivalent in the sense of the procedural settling of the case. The defendant has certainly the right for the hearing of his legal case within a default main procedure and other possible procedures are formulated as an optional alternative thereto. The choice of the particular procedure is not left to the will of the court of law. The law specifies explicitly conditions for the option to use each particular type of procedure. The role of a mediator of the conflict between the defendant and the injured person may be granted to the clerk of the Probation Service. This clerk as a mediator may be active at the preparation of an agreement on the compensation of the caused damage and the settlement of consequences caused by the committed criminal act between the defendant and the injured person, he may prepare other needed documents for the suspended abortion of the criminal prosecution or compensation and hereinafter he may supervise its performance.[11]

The suspended abortion of criminal prosecution[12] can be defined as an interim decision related to the determination of the trial period subject to the satisfaction of certain terms and obligations imposed to the defendant. Pursuant to the effective legislation the implementation of this institute is taken into consideration within the criminal procedure where the law determines the imprisonment with the superior limit not exceeding five years. The Criminal Procedure Code specifies other conditions for the suspended abortion of criminal prosecution, namely the defendant’s agreement as well as the defendant’s confession, at the same time the defendant is supposed to compensate the damage, if the damage has been caused by the criminal act, or the defendant is supposed to conclude an agreement upon its compensation or the defendant must adopt other necessary precautions for its compensation, and such a decision can be reasonably considered as sufficient with respect to the offender’s characteristics and to his up to now life as well as the circumstances of the legal case.

The praxis accepts a suspended abortion of the criminal prosecution also in case when no damage of property has been caused by the criminal act. In such a case, however, the court of justice (or eventually the public prosecutor within the preliminary procedure) must take reasonably into consideration whether the suspended abortion of criminal prosecution may be considered as a sufficient manner of the settlement of the legal case with respect to its circumstances and to the offender’s characteristics.

 

The compensation (settlement)[13] likewise the suspended abortion of criminal prosecution shall contribute to the settlement of the conflict between the offender and the injured person in the frame of their sociable relations. The institute of compensation has been adopted with accordance to the Recommendation of the European Council No. R. /87/ 18 from September 17th 1987 on the simplification of the criminal procedure. The compensation may be used at delicts which have the nature of a conflict between the defendant and the injured person. In such cases we shall place emphasis basically on the settlement of disputes between these parties and hereinafter we may admit the offender’s punishment, respectively the incidence towards the offender.

            The amendment of the Czech  Criminal Procedure Code executed by the Act No. 265/2001 Coll., newly enables that the public prosecutor passes a decision on the approval of compensation within the preliminary procedure. So we can say that compensation (likewise the suspended abortion of criminal prosecution) is an extrajudicial way of solving the legal case. The purpose of the compensation consists mainly in the defendant’s satisfaction of all harmful consequences caused to the injured person by the defendant’s criminal act and therefore there is a bigger emphasis placed on this interest than the offender’s punishment. A certain element of the criminal repression is that the defendant is imposed by a duty to further property satisfaction exceeding the extent of damage whenever the satisfaction serves to beneficial purpose.

            The amendment to the Czech Criminal Procedure Code executed by the Act No. 283/2004 Coll., introduced the institute of the suspended petition for punishment[14]. It is a form of warning addressed to the suspect before his case is handed over to the court of law for further prosecution, in case the suspect would not learn herefrom and fails to comply with the imposed conditions or eventually the suspect would repeatedly commit an unlawful act. The mentioned institute approaches from the point of its nature as well as its contents the provision of Section 307 of the Czech Criminal Procedure Code on the suspended abortion of the criminal prosecution.

            Last but not least the Act No. 218/2003 Coll., on the Juvenile Liability for Unlawful Acts and on Justice in Juvenile Cases, is adding the institute of the withdrawal from the punishment of the juvenile offender to the existing kinds of diversions. This type of diversion consists in the public prosecutor’s withdrawal from the prosecution on the ground of the absence of public interest for further prosecution of the juvenile offender under the conditions stipulated by law within the preliminary procedure as well as within the court procedure[15].

            All aforesaid decisions may be passed by the court of justice within the main hearing and by the public prosecutor within the preliminary procedure. The defendant is obliged to file an ordinary legal remedy – a complaint - against these court decisions or decisions adopted by the public prosecutor, too.  The complaint has a dilatory effect.

3.  Who decides on this choice? What is the specific role of the prosecutor?

From the point of view of the criminal procedure, respectively of the preliminary procedure, the public prosecutor has fundamental competences related to the abortion or termination of the preliminary procedure. Exclusively the public prosecutor is entitled to file a criminal charge, eventually a petition for the punishment after the simplified preliminary procedure is over. These decisions passed by the public prosecutor are conclusive for further criminal procedure since the prosecution at court of law may be performed only upon the criminal charge and the court of law passes its decisions only on the act described in the criminal charge.

            The prosecution may be terminated within the preliminary procedure otherwise than by starting a criminal charge (the petition for punishment). The public prosecutor may declare his will not to continue the criminal case or forward it to another authorized body or stop the prosecution, eventually interrupt it.

           

In advisable cases the public prosecutor is also entitled within the preliminary procedure (and under the conditions determined by law) to suspended abortion of the prosecution or to a decision on the approval of compensation (settlement) and hereinafter the supersedeas of the procedure. In case of a juvenile offender the public prosecutor may withdraw from the prosecution as well (see the diversion within the criminal procedure). The suspended abortion of the prosecution and the compensation (settlement) represent the fundamental types of the diversion within the criminal procedure. Both types assume the engagement of parties into the settlement of the criminal case and are not related to the imposition of sentence (even though a certain kind of penalty is included).

            Generally we must mention first that all types of procedure determined by the Czech Criminal Procedure Code are basically equivalent in the sense of the procedural settling of the case. The defendant has certainly the right for the hearing of his legal case within a default main procedure and other possible procedures are formulated as an optional alternative thereto. The choice of the particular procedure is not left to the will of the court of law. The law specifies explicitly conditions for the option to use each particular type of procedure. The role of a mediator of the conflict between the defendant and the injured person may be granted to the clerk of the Probation Service. This clerk as a mediator may be active at the preparation of an agreement on the compensation of the caused damage and the settlement of consequences caused by the committed criminal act between the defendant and the injured person, he may prepare other needed documents for the suspended abortion of the criminal prosecution or compensation and hereinafter he may supervise its performance.

4. Are there criteria for abandoning the criminal prosecution approach?

In this respect we repeatedly point out that in acceptable cases the public prosecutor is obliged within the preliminary procedure (and under the conditions determined by law) to a suspended abortion of the prosecution or to a decision on the approval of compensation (settlement) and hereinafter to an abortion of the prosecution. In case of a juvenile offender the public prosecutor may also withdraw from the criminal prosecution (see the diversion within the criminal procedure). The legal conditions for a solving of a legal case by its withdrawal are given for the criminal procedure under the Czech Criminal Procedure Code as well as under the Act on Justice in Juvenile Cases. For additional information see the answer to question No. 2. Further we must make a note that even a judge is entitled to adopt a decision on the resolution of legal case by the means of diversion within the main hearing in front of the court.

            The public prosecutor is further entitled to an optional abortion of the criminal prosecution if the prosecution is inappropriate by the reasons stipulated in Section 172 Subsection 2 of the Czech  Criminal Procedure Code  (if the punishment whereto the prosecution can lead, has no meaning in comparison to the penalty which has been imposed to the defendant for another criminal act or which shall be imposed against the defendant as expected; or if another authorized body has approved a decision on the defendant’s act, either discipliner, punitive or by a foreign court of justice or foreign body and this decision can be considered as sufficient; or if with respect to a protected interest which has been affected by the defendant’s criminal act or with respect to the way how the criminal act has been committed and to its consequences or with regard to the defendant’s behavior after he has committed the crime it is obvious that the purpose of the criminal prosecution has been satisfied).

            The aforesaid decisions adopted by the public prosecutor within the preliminary procedure may be challenged by the means of a complaint. The filed complaint has a dilatory effect.

           

5. Could it happen that a serious offence escapes any prosecution because of alternative measures?

            Pursuant to the effective legislation the use of institutes of suspended abortion of prosecution and the compensation (settlement) is taken into consideration in case of a criminal act where the law determines an imprisonment of a superior limit not exceeding five years. The withdrawal from the criminal prosecution is taken into consideration within the juvenile trial where the law determines an imprisonment of a superior limit not exceeding three years. Therefore their use is inter alia limited by the extent of the rate.

            In relation to all these forms of diversion there is generally a restrictive condition formed that their use comes into being only if 

- with respect to the defendant’s characteristics and to his up to now life and with respect to the circumstances of the legal case such a decision may be reasonably considered as sufficient (a suspended abortion of criminal prosecution and a suspended abortion of the petition for punishment within the simplified preliminary procedure),

- such a way of solving the legal case can be considered as sufficient with respect to the nature as well as the relevancy of the committed criminal act and with regard to the extent which of the criminal act affected a public interest, with respect to the defendant’s characteristics and the defendant’s personal as well as the property relations (compensation including the abortion of the legal case under the condition of the concurrent approval of compensation within the simplified preliminary procedure),

- in case of the compensation (settlement) this condition is integrated directly into the conditions of the stipulated procedure - the absence of a public interest for a further prosecution of a juvenile offender, taking into consideration the classification of inadvisability for the entire society and the characteristics of the juvenile offender whereas the prosecution is not reasonable and the punishment is not necessary to avert other criminal acts committed by the offender.

            Since these institutes are adopted within the criminal procedure (not completely out of the criminal procedure) so it is practically excluded that a gross criminal act (namely a criminal act punished by the rate exceeding five, respectively three years of imprisonment) would be solved by the means of the aforesaid instruments. Even a relatively large practice of courts is excluding that (e.g. in cases of traffic accidents having a serious deadly consequence when the driver’s significant duty has been broken the suspended abortion of a criminal prosecution is excluded).

6. Are victims informed beforehand, consulted, and can they challenge the decision in the case when criminal prosecution was dropped, and how are their rights preserved?

Position of the injured person in the Czech penal proceedings

The legal definition of the injured person[16] is given in the regulation of section 43 of the Criminal Procedure Code.

According to the Criminal Procedure Code the injured person is supposed to be the one who was hurt through a crime as far as his health  is concerned or who was caused property, moral or other damage. The position of the injured person is granted to everyone who was damaged by a crime being the subject of penal proceedings. 

Such person shall not be considered to be the injured person who rather feels to be morally or otherwise injured in consequence of the criminal offence, however, the resulting loss of which has not been caused by the offender, or its origin is not in direct consequence with the criminal offence.

The injured person caused property damage by the given criminal act can require its compensation in the penal proceedings.

An injured person may also waive the procedural rights. Injured person has  a  position a party of the penal proceedings (independent of the other parties, namely the public prosecutor).  An injured person may also waive the procedural rights which have been acknowledged to him/her as the injured person under this law through his/her explicit statement communicated to the agency involved in the criminal proceedings.

If the injured person who has claimed in accordance with the law damages proves that he/she has not sufficient means to pay the cost resulting from including an attorney, the chairman of the bench of the court which sits in the first instance, and the judge in the preparatory proceedings,  decide based on the injured person's suggestion that the injured person is entitled to legal assistance provided by the attorney free of charge or at a reduced fee; this does not apply if the representation by an attorney  is in view of the nature of the claimed damages or value thereof obviously unreasonable.

The proposal for the decision incl. attachment, by means of which its justified grounds are to be proven, is submitted by the injured person in the preparatory proceedings by means of the state attorney who adds thereto his/her own comments.

The chairman of the bench and the judge in the preparatory proceedings appoint as the injured person's attorney an advocate. The cost resulting from including such attorney shall be paid by the state.

As mentioned above, an injured person is a party to the criminal proceedings with broad process rights. An injured person (regardless of its option to claim damages) is entitled to file a motion for additional evidence, at the beginning of the preparatory proceedings and later on during the trial or appellate trial. During the entire proceedings, an injured person is also entitled to inspect the documents, attend the trial and appellate trial. During the trial, the injured person may, the presiding judge permitting, put questions to the persons interrogated. At a hearing in court, such a person may voice his/her opinion before the hearing is closed. Last but not least, an injured person is entitled to propose remedial measures against the decisions of investigative, prosecuting and adjudicating bodies.

When supervising the preparatory proceedings, a public prosecutor must see to it that the injured persons may exercise their rights. Pursuant to Sec. 46 of the f Criminal Procedure Code, the investigating, prosecuting and adjudicating bodies are obliged to warn of rights of the injured and provide the injured a full possibility to enforce them.

The injured person must be instructed about the nature of the instrument called the suspended abortion of the criminal prosecution (pursuant to Section 307 et sequentia of the Czech Criminal Procedure Code) and the compensation (settlement) (pursuant to Section 309 et sequentia of the Czech Criminal Procedure Code).

The defendant, the injured person and within the court procedure the public prosecutor may file a complaint against the decision on the suspended abortion of the criminal prosecution and the approval of compensation, this complaint has a dilatory effect. The injured person in such a case is immediately involved into the result of the criminal procedure and into the way of damage compensation therefore he has the right to file a complaint against all aforesaid decisions and in addition hereto the approval of compensation may be decided only upon his consent.

A complaint is permissible against a court resolution on the withdrawal from the criminal prosecution (pursuant to Section 70 of the Act No. 218/2003 Coll., on Justice in Juvenile Cases). The injured person is supposed to be informed about the withdrawal from the criminal prosecution, in such a case he has no right for complaint.  If the juvenile offender shall declare within three days after he has been informed about the resolution on the withdrawal from the prosecution that he insists upon the criminal procedure so the prosecution shall go on. If the prosecution is carried on because the juvenile offender insisted in the prosecution and if the court does not find any reason for the absolution of the juvenile offender so the court shall find the juvenile guilty, however, no punishment shall be imposed against the offender. 

In case the public prosecutor has aborted the prosecution within the preliminary procedure (see the reasons stated under Section 172 Subsection 2 of the Czech Criminal Procedure Code) the defendant, and if the injured person is known, the injured person, too, may  file a complaint which has a dilatory effect.

The public prosecutor must always inform the injured person about the way of solving the criminal act. The defendant may file a complaint against a resolution on the abortion of the criminal case adopted by a police department, the public prosecutor is authorized to decide upon this complaint. The injured person may – since the adoption of an amendment to the Czech Criminal Procedure Code in 2001 – file a complaint against a resolution on the abortion of the criminal procedure or against a resolution on delegation of the criminal case due to the suspicion it is a wrong-doing, a disciplinary or a punitive delict or another administrative delict.

The injured person who has claimed the damage may challenge the court sentence by the means of an appeal due to its inaccuracy or due to the absence of the sentence on damage.

Within the scope of duties imposed to the defendant by the  means of alternative penalties as the suspended sentence, the suspended sentence secured by the defendant's  supervision, the suspended withdrawal from his punishment secured by the defendant's  supervision or a suspended discharge from  the execution of punishment, the court of law may impose to the defendant to compensate the damage caused by his criminal act.

The public prosecutor sees to it that a police body has duly instructed the injured person in compliance with the provision of Section 14 of Act no. 209/1997 Coll., on the compensation of crime victims.

An injured person is entitled to free representation or representation at a moderate price if he/she claims damages and if this is justified by his/her property situation. In cases where the entitlement of a minor to free representation by an authorised person is judged, the financial situation of the minor's family will be assessed. In a vast majority of cases, the role of an injured person in criminal proceedings also involves being a witness. Under these circumstances, he/she is entitled to the protection granted to an endangered witness.

An injured person has a right to condition the initiation of prosecution of crimes enumerated by Section 163 by his/her consent. If he/she declines to give this consent or revokes it, the prosecution cannot take place. Newly, however, this right of an injured person may only be exercised by a person over 15 years of age. Act no. 265/2001 Coll., which amends the Criminal Procedure Code, formulates the relevant provision in quite a new way by stating that if a minor under 15 years of age has been injured by a crime, the consent of such a child has no legal relevance and prosecution must be initiated in any case. Similarly, the provision of consent to prosecution will not be applied if it is clear from the circumstances that consent has not been given or has been revoked under duress as a consequence of threats, pressure, dependence, and subordination.

The public prosecutor is not empowered to mediate between the accused and the injured person. It is the Probation and Mediation Service that is in charge of this mediation.[17]

Mediation means out-of-court mediation to settle the dispute between the accused and the injured person and efforts to settle a conflict situation made in connection with criminal proceedings. Mediation can only be done if approved both by the accused and the injured person.

The Probation and Mediation Service also provides assistance and cooperation in the preparatory procedure. Public prosecutors make use of the assistance and cooperation offered by the Probation and Mediation Service mostly to uncover the causes of crimes and to settle a dispute between the accused and the injured person.

The assistance and cooperation offered by the Probation and Mediation Service in criminal proceedings should help

a)    replace remand in custody by an alternative measure,

b)    the matter in question to be handled in proceedings of a special type,

c)    the punishment to be one not connected with imprisonment.

The activities of public prosecutors making use of the assistance and cooperation offered by the Probation and Mediation Service are based on the principle that such assistance and cooperation

a)                   helps remove the consequences of a crime for the injured persons and other persons affected by the crime,

b)                   provides special care for juvenile persons and accused persons of an age close to that of juvenile persons,

c)                   contributes to the protection of the rights of persons injured by crime and to coordination of social and therapeutic programmes working with the accused, especially with juvenile persons and narcotic and psychotropic substance addicts,

d)                   participates in the prevention of crime.

When supervising the legitimacy of the preparatory proceedings, the public prosecutors require that the Probation and Mediation Service should create conditions for conditional discontinuance of criminal prosecution and for the approval of a compromise and discontinuance of criminal prosecution. In this case, the Probation and Mediation Service is authorised to mediate a compensation agreement or compromise agreement between the accused and the injured person or conditions for further process procedures of this type.

7.  Given that the response chosen gives rise to obligations in respect of the persons subjected to it – such as the reparation of damage – are they able to lodge an appeal with an impartial authority (for example, for validation by a judge of a restraining order or an obligation to undergo training  proposed by way of settlement?

           

As said above, the defendant as well as the injured person and within the court procedure the public prosecutor may file a complaint against the resolution adopted by the public prosecutor (or by the court of law within the court procedure) on the suspended abortion of the prosecution or on the approval of compensation (settlement), this complaint has a dilatory effect. This way everybody can come into the ordinary procedure including the regular court procedure as well as the main hearing and the meritorious decision. In addition hereto, the defendant is supposed to agree upon the suspended abortion of the criminal prosecution as well as upon the compensation.  This way the instruments comply with the requirements adopted by the European Convention on Protection of Human Rights and Primary Freedoms which imposes the principle to gain the defendant’s right for a fair as well as public hearing of his case in front of an independent and impartial court of justice. 

            Likewise the suspect as well as the injured person may file a complaint against the resolution on the suspended withdrawal from the petition for punishment within the simplified preliminary procedure, this complaint has a dilatory effect.

            Likewise the juvenile offender, his direct relatives, his brother or sister, the adoptive father, the spouse or partner, the authorized body of the social and legal protection of children and within the court procedure the public prosecutor may file a complaint against the resolution on the withdrawal from the prosecution in juvenile cases, this complaint has a dilatory effect.

8. Can you give specific examples of alternatives to prosecution which you see as particularly well suited to the prevention of reoffending by the perpetrator and consideration of victims interests?

The fundamental meaning for the area of procedural alternatives has the Recommendation of European Council No. R/87/18 adopted by the Committee of Ministers of the European Council on September 17th, 1987, regarding the simplified criminal procedure. This document includes five ways of dealing with criminal cases

-       the principle of opportunity within the criminal prosecution (the suspended abortion of the criminal prosecution or the suspension of the criminal case),

-       the simplified (summary)  procedure, the compensation (mediation) and the simplified procedure within the less significant cases with respect to the circumstances of the case (i.e. a procedure drawn up in writing and executed by a judicial body out of an oral hearing and resulting into a resolution similar to a decision as e.g. the criminal order),

-       the simplified ordinary judicial procedure (the conviction „guilty plea“ and the procedure of dispute).

Further, the recommendation appeals to the member countries which apply the principle of legality of the criminal prosecution in order to introduce and to extent the implementation of further methods which are focusing on the same target, i.e. to extent the categories of cases where the initiation of a criminal prosecution is bound to a certain condition, mainly the petition or the injured person's consent may become the preliminary conditions for a public prosecution when the public interest does not prevail and which are focusing on the option for judges to suspend a criminal procedure or to abolish it under certain circumstances by the means of a procedure similar to a procedure known by the police bodies as the  principle of opportunity.

The suspended abortion of a criminal prosecution can be defined as an interim decision related to a trial period arising out of the satisfaction of certain conditions and duties imposed to the defendant. From the point of the substantive law the offender’s liability persists, from the point of the procedural law the police bodies are still involved into the case. Further, the defendant has the option to require an ordinary hearing of his case at the relevant court of law. The implementation of this instrument can be taken into consideration only if in the circumstances of the case and with respect to the defendant’s characteristics it is obvious that in the event of a verdict of guilty a suspended penalty would be imposed and in all probability the defendant would acquit well within the trial period. To a large extent it is redundant to carry on the whole criminal procedure when the purpose of the punishment can be satisfied by a significantly easier way.

Compensation (settlement) – likewise the suspended abortion of the criminal prosecution, the compensation represents a way of diversion within the criminal procedure.  Likewise the suspended abortion of the criminal prosecution it shall contribute to the settlement of conflicts rising between the offender and the injured person within the frame of social relations. The instrument of compensation has been adopted in accordance with the Recommendation of the European Council No. R. /87/ 18 on September 17th, 1987, on the simplification of the criminal procedure. The compensation shall come into consideration at delicts having the nature of a conflict between the defendant and the injured person. In such cases the emphasis shall be placed first of all on the settlement of the dispute between those parties and hereinafter the offender’s punishing, respectively the incidence towards the offender, shall be carried on.

The amendment to the Czech Criminal Procedure Code adopted by the Act No. 265/2001 Coll., newly enables that the public prosecutor approves the compensation within the preliminary procedure. So we can claim that even the compensation (likewise the suspended abortion of the criminal prosecution) is an extrajudicial solution to the case (the public prosecutor shall be authorized to approve the compensation in the stage of preliminary procedure). The purpose of the compensation is that the defendant reasonably undoes all harmful impacts which have been caused to the injured person by his criminal act and this interest prevails the interest for the offender’s punishing. A certain element of repression insists in the fact that an obligation shall be imposed to the defendant for further property satisfaction exceeding the scope of the damage and if the said satisfaction fully serves for beneficial reasons. However, the compensation has a wider nature than the fact that it would head towards the reparation of damage and the payment of a certain amount for beneficial reasons. At the same time, it fulfils an important role of restitution of harmed relations between the offender and the victim of a criminal act. The defendant as well as the injured person actively participating in the settlement of the conflict which has occurred between them after the criminal act has been committed. At the same time, the compensation is a meaningful instrument of prevention since the defendant is involved into the victim’s troubles and has to witness the extent, the relevancy as well as the impacts of his criminal act caused to the injured person. The compensation immediately motivates the offender to an active participation in the elimination of these unfavourable impacts and it motivates him to realize the falsity of his behaviour and to avoid it for the future.

The compensation is further heading towards the reinforcement of elements of the opportunity in comparison to the otherwise applied principle of legality and the decriminalization of less gross forms of criminal behaviour. We cannot explicitly result from the hypothesis that the compensation leads towards a simplification of the criminal procedure even though this is mentioned in the Recommendation of the European Council No. R (87) 18 on September 17th, 1987, on Simplification of the Criminal Procedure. In many cases there will be a very difficult procedural settlement between the country (respectively in particular the victim to the criminal act) and the offender, dealing with the abortion of the criminal prosecution when the offender satisfies the conditions determined by law and when this procedure will be made possible by particular conditions of the legal case and the person of the offender.

            The amendment of the Czech Criminal Procedure Code adopted by the Act No. 283/2004 Coll., established the instrument of the suspended petition for punishment[18]. It is a form of warning addressed to the suspect before his case will be handed over to the court for the purpose of criminal prosecution in case the suspect does not learn from his mistakes and does not comply with the stipulated conditions or eventually the offender has repeatedly committed an unlawful action. The aforesaid instrument in its nature as well as its contents approaches matches the provisions of Section 307 of the Czech Criminal Procedure Code on the suspended abortion of the criminal prosecution.

            Last but not least the Act No. 218/2003 Coll., on the Juvenile Liability for Unlawful Acts and on Justice in Juvenile Cases, is adding to the existing types of diversions the instrument of the withdrawal from the criminal prosecution of the juvenile offender. This type of diversion insists in the withdrawal from the criminal prosecution from the part of the public prosecutor within the preliminary procedure and from the part of the judge within the court procedure under the satisfaction of conditions determined by law and on the ground of the absence of public interest for further prosecution of the juvenile offender.[19]

            At the same time, options are extended for the sentencing of penalties related to the probation supervision pursuant to Section 26a of the Criminal Code. The penalty not related to the imprisonment (alternatives to imprisonment) as a rule include the convict’s duty to compensate the damage caused to the injured person within the trial period and within the offender’s abilities. The supervision as well as the restrictions within the trial period may contribute to a more effective safeguarding of the damage compensation and the elimination of the detriment caused to the victim of the criminal act.

9.  Is there a method in your country for assessing the effectiveness of alternatives to prosecution and what is it?

            The issues of rational criminal policy are the object of worldwide attention of criminology, criminal theory, police practice and judicial practice.

            The research and development system of the Ministry of Justice of the Czech Republic is focused especially on applied research and partially also on fundamental research with regard to the character and tasks of the ministry.

            The basis for institutional coverage of the system is the specialised ministerial department – Institute of Criminology and Social Prevention , which is according to its statute a theoretical, analytical and research establishment of inter-department focus covering major part of research assignments of the ministry. The institute is engaged especially in study, research and analytical activities in the sphere of law and justice to meet the needs of the Ministry of Justice of the Czech Republic, in issues of criminal and security policy and criminality monitoring both as to criminal repression and prevention aspects including penological issues, and investigates the manifestation and causes of crimes and the related socio-pathological phenomena.

            Also other existing establishments and departments of the ministry take part in the research performed as a systematic creative work focused on collecting new information and expanding the knowledge, i.e. Judicial Academy that provides education to persons operating within the scope of competence of the Ministry of Justice and analyses and examines the needs and requirements of judges, public prosecutors and other professional groups, and the Prison Service of the Czech Republic, which includes also a research establishment.

            Institute of Criminology and Social Prevention (ICSP) is a theoretical, analytical and research establishment of inter-department focus. Ministry of Justice of the Czech Republic is the founder and managing body of the ICSP. The ICSP activities concentrate on forming, maintaining and updating the fundamental scope of knowledge concerning the situation and trends in criminality, socio-pathological phenomena and criminal policy in the Czech Republic, on making available the latest relevant empirical and theoretical knowledge from abroad and on development of criminology.

            The Institute works at:

-           Research of manifestations and causes of crime and the relevant socio-pathological phenomena, and prognostication of the development of crime;

-           Research, study and analysis in the field of law and justice to meet the needs of the Ministry of Justice of the Czech Republic;

-           Issues of criminal and security policies and crime monitoring from the point of view of both penal repression and prevention, particularly the efficiency of punishments and alternative measures, treating offenders and other penological issues, social prevention of crime and prevention from the point of view of crime victims at the level of primary, secondary and tertiary prevention.

            The main mission of the Institute is to contribute (through research, theory-making, analytical, consulting, publishing and other activities) to the monitoring of crime and related socio-pathological phenomena, which may function as criminogenic factors, as well as to the improvement of the judicial code of the Czech Republic. The research and other activities of the ICSP have been traditionally utilised, above all, by the organisations and institutions of the judiciary sector (Ministry of Justice of the CR, judiciary authorities, Prison Service, Re-codification Commission of the Ministry of Justice of the Czech Republic and Probation and Mediation Service), and also the Ministry of Interior, especially the bodies and services of the Czech Police, by inter-department bodies and others.

            Pursuant to the provisions of Sec. 12 clause 7 of the Act on Public Prosecutor's Offices, the Supreme Public Prosecutor will submit Report on Activities of Public Prosecutor's Offices in the preceding year to the government through the Minister of Justice until half of the calendar year. Submitting reports on activities of the Public Prosecutor's Offices in the preceding year to the government through the Minister of Justice is an important method of informing about the activities of the Public Prosecutor's Offices as well as about the situation and trends in criminality and pathological phenomena, and about the situation and legality within the scope of competencies of the Public Prosecutor's Offices.

            The annual reports regularly pay attention to the situation and trends in the monitored criminality, the activities of the Public Prosecutor's Offices in the criminal proceedings and the activities of the Public Prosecutor's Offices in the sphere of legal communication with foreign countries. In the non-criminal sphere, it is petitioning and intervention activities of the Public Prosecutor's Offices, supervision of the Public Prosecutor's Offices in places where custody and imprisonment, treatment in special institutions or protective training are executed.

            The annual report may be an important source of information for the government in implementing the governmental and executive functions. It may also serve as an important document for coordination of measures to limit, restrict and prevent crimes and other illegal activities and to implement unified processes of application of legal regulations.

Pursuant to Section 12g Subsection 2 of the Act on Public Prosecutors the General Public Prosecutor’s Office is authorized within its competence from any public prosecutor’s office a special report on the procedure of public prosecutors at the execution of the sphere of action of the public prosecutor’s office or the General Public Prosecutor’s Office may impose to any public prosecutor’s office to proceed towards the lower public prosecutor‘s office within its sphere of action.

            E.g. in 2004 a Special Report including the evaluation of efficiency of using the instruments of suspended abortion of criminal prosecution as well as the compensation and the coincidence with the Probation and Mediation Service in 2003 and in the first half-year of 2004 has been executed. The report has found out that a principle difference between the two ways of diversion - the suspended abortion and the compensation (settlement) can be found in conditions for exercise of both ways of diversion being stipulated likewise. However, the handling of documents for the approval of compensation (settlement) is difficult and time-consuming. Further it is pointed out that the atractivity is lower even for the defendants with respect to the fact that the compensation (settlement) is always connected to an unfavourable property impact for the defendant. 

            The public prosecutor’s office of a lower rank conforms that even in 2005 the concurrence among the public prosecutor’s offices and the Probation and Mediation Service was carried out without any major problems.

In 2005 a Special Report including the evaluation of the procedures undertaken by the public prosecutor’s offices whereas they applied the Act No.  218/2003 Coll., on Justice in Juvenile Cases (in the criminal departments as well as in the non-criminal departments) has been executed. The report on the withdrawal from the prosecution of a juvenile defendant claimed that the number of juvenile offenders is relatively low (this instrument is specified in the Act on Justice in juvenile Cases which came into effect since January 1st 2004). A more frequent implementation of the instrument of withdrawal from the criminal prosecution is prevented by the failure to satisfy all the conditions stipulated by law. The durability of this way of diversion shall appear after a longer period, then.

10. Can you provide the contact details (with their consent) of someone clearly identified as a specialist on these questions and supply examples of their work to back up your choice?

The sources:

Válková, H., Kuchta, J. a kol.: Základy kriminologie a trestní politiky, C. H. Beck: Praha, 2005;

Karabec,Z. - Diblíková,S. - Zeman,P.: Systémy trestní justice v Evropě a Severní Americe: Česká republika - anglická a česká verze. Institut pro kriminologii a sociální prevenci, Praha 2002, ISBN 80-7338-006-4;

Zpráva o činnosti státního zastupitelství za rok 2005 a rok 2006. Report on Activities of Public Prosecutor's Offices 2005 and 2006.

11. Other comments