[ccje2004/docs/CCJE(2004)23e] English only
CONSULTATIVE COUNCIL OF EUROPEAN JUDGES
QUESTIONNAIRE ON MANAGEMENT OF CASES,
JUDES’ ROLE IN THE PROCEEDINGS,
AND USE OF ALTERNATIVE DISPUTE SETTLEMENT METHODS
the delegation of the Czech Republic
A. ACCESS TO JUSTICE
Have measures been taken, by legislatures and/or the court system, in order to inform the public on the functioning of the judicial system? If so, please comment on the impact of such actions on the amount of cases brought before courts.
The websites of judiciary are available (most of district courts, all higher courts), using a template developed by the Ministry of Justice, where plenty of information is made available on their competences and agenda, as well as on where to obtain further information. The impact may be seen in more frequent and more informed proposals by the public.
Have measures been taken, by legislatures and/or the court system, in order to reduce the costs of bringing actions before the courts (e.g., by simplifying and/or standardizing legal documents to commence or continue litigation; by waiving, at least in some circumstances, the need to employ a lawyer; etc.). If so, please comment on the impact of such actions on the amount of cases brought before courts.
As regards civil proceedings, the Ministry of Justice has published non-binding forms of proposals for entry into the Commercial Register. Representation by lawyer is necessary only if one makes recourse to the third instance or if the case is heard by the Constitutional Court.
In criminal proceedings, such representation is not, in general, obligatory in less serious cases, which form majority of judicial agenda.
Have measures been taken to ensure an effective "legal aid" system? If so, please describe the system, with specific reference to:
(a) eligibility requirements;
(b) identification of authorities entitled to grant the aid;
(c) budgetary arrangements.
As regards civil proceedings, the court may, under Section 138 of the Civil Procedure Code (CiPC), free the party of judicial fees (even retroactively), if it is justified by the situation of such party and if it does not concern capricious or apparently unsuccessful assertion of a right. Under Section 30 CiPC the court may grant such a party a representation, a lawyer if so required by the nature of proceedings. Therefore, if a party is freed from judicial fees, it is also freed to the same extent from expenses made by representative and from his remuneration. Such expenses are paid by state budget.
In criminal proceedings the legal aid may be provided for free in case of poor defendants. The defendant must prove that his claim is reasonable to the court. Such expenses are paid by state budget.
4. Have other measures been taken? For example,
a) conditional fee agreements (“CFAs”), whereby a party does not have to pay his or her lawyers if he or she loses, but his or her lawyers are entitled to charge the losing party up to a multiple of the normal fee if her or she wins;
b) legal costs insurance for
- a party’s own legal costs and/or
- any costs which if her or she loses he or she has to pay to the winning party;
c) fixed costs, so that the winning party can only recover a limited amount from the losing party, whatever he or she may have chosen to pay to his or her own lawyers.
In civil proceedings, except in cases mentioned in A.3., the lawyers must be paid, but the court decides, based on success in the proceedings, which party shall bear the costs incurred by the other party, or whether both parties shall bear their respective costs.
Legal costs insurance is regulated by Section 42 of law No. 37/2004 Coll., on insurance contract. The extent of insurance is subject to specific insurance contracts.
Court determines the costs of representation pursuant to Section 151(2) CiPC according to fixed rates set by decrees of the Ministry of Justice.
B. REDUCTION OF EXCESSIVE WORKLOADS IN THE COURTS
Have measures been taken to relieve judges from non‑judicial tasks such as those listed, as examples, in the Appendix of Rec. No. R (86) 12 concerning measures to prevent and reduce the excessive workload in the courts? Please give comments as to any other tasks performed by judges that, according to the particular circumstances of the country, could be assigned to other persons or bodies; please identify tasks that could be entrusted to administrative court staff, whose jobs would thus be enriched.
The Act on Higher Court Officials No. 189/1994 Coll. made it possible for higher court officials to perform certain legal steps on behalf of the court in e.g. civil and criminal proceedings (but cannot take e.g. judgment on the merits). They study for three years in the Judicial School. There are about one thousand of them at district, regional and high courts, making the workload of judges significantly more manageable. There are also judicial candidates, judicial secretaries and executors, who can perform certain legal steps.
Are there bodies, outside the judicial system, at the disposal of parties to solve specific "small claims" disputes? If so, please comment on the impact of the availability of such procedures on the amount of cases brought before courts.
Petty offences are dealt with by administrative bodies (Police, municipalities, etc.) rather than by judiciary. In criminal cases, Mediation and Probation Service is available to prepare grounds for alternative resolution of less serious crimes. Such concept is being drafted to apply in civil cases as well (see below D.c.).
Is there a regular review of court workloads, and are consequent measures (i.e. changes in courts' geographical distributions; variations in the territorial, monetary and subject matter competence of courts; variations in the court personnel) taken to ensure a balanced distribution of the workload? Please identify bodies responsible for such review and for consequent policy choices; please also describe the role of the judiciary in this process.
The Ministry of Justice performs yearly review of workload of courts according to established criteria. The performance of judges is evaluated at district level (by chairpersons of district courts), at regional level (by chairpersons of regional courts) and by Ministry at state level. The chairpersons are competent to take measures with respect to agenda schedule (i.e. setting rules how cases will be divided among the sections and chairpersons of panels).
What role do judges (especially chief judges) play in the management of judicial infrastructures, human resources, information and technology equipment? Do they receive regular training in management techniques? What role, on the contrary, is played by administrative top officials?
Law No. 6/2002 Coll. on courts and judges establishes the rules of administration of the courts. Basically, the chairpersons of the courts (i.e. professional judges) may request increase in human and other resources. Final decision is made in state budgetary process (Ministry of Justice, government, Chamber of Deputies of the Parliament).
C. QUALITY OF JUSTICE AND ITS ASSESSMENT; QUANTITATIVE STATISTICAL DATA; MONITORING PROCEDURES
Is there any system in operation in your country having the aim of assessing quality of judicial activity? Please comment on indicators chosen for such assessments, as well as on results obtained.
The quality of judicial decision-making may be measured by percentage of successful appeals or by length of proceedings. The Ministry evaluates the quality based on statistical data on judicial decision making and processing of agendas.
Please describe the operation of quantitative statistical data collection concerning judicial activity. Please identify, in particular:
(i) institutional subjects (centralised and/or decentralised) in charge of data collection, data analysis, as well as receiving follow‑up;
There are established forms for statistical reporting on cases by judges, prosecutors and courts to the responsible department in the Ministry.
(ii) judicial activities that form the object of data collection and analysis;
All courts submit data concerning criminal and civil and commercial cases (including on length of proceedings, including appeals), and on results of cases in second instance. These data are processed quarterly. Twice a year, minister of justice holds council with chairpersons of regional and high courts, where analysis of courts’ performance is discussed.
(iii) relevance of statistical data in professional evaluation of individual judges;
Statistical data (especially on length of proceedings) are used as indications for inspections. Such data are relevant also for remuneration of other judicial personnel.
(iv) relevance of statistical data in evaluation of performance of judicial offices and/or chief judges.
Only the results of inspections, where subjective longer inactivity of a judge is proven, may lead to disciplinary proceedings.
Please describe monitoring procedures in operation in your country that, employing assessment data as above, may result into actions aimed at a better control of reasonable duration of proceedings or better allocation of resources (such as variations of judicial and/or administrative staff, revision of territorial or subject matter distribution of cases, "performance contracts" and the like);
These monitoring procedures are set by law 6/2002 Coll., on courts and judges. The most important tool is supervision of speed of handling criminal and civil/commercial cases, and complex inspections of judicial bodies.
In case that some or all of the above actions are the task of agencies other than the judiciary, what is the role played by the judiciary in the same actions?
D. ALTERNATIVE DISPUTE RESOLUTION
a) in general
Please produce a list of ADR schemes in operation in your country, identifying private and public schemes, generalist and specialised schemes (both according to qualities of litigants and subject matter, with especial reference to family mediation, criminal mediation, administrative and civil mediation), voluntary and mandatory schemes (please clarify whether your system bars access to a court or allows a judge to stay court proceeding, in respect of some disputes, either in favour of ADR or pending ADR). Please specify if the parties or the State bear the costs of ADR.
Pursuant to law No. 216/1994 Coll., on arbitration, there is an option of arbitration, subject to arbitration clause. Bankruptcy cases and executions falling under courts’ jurisdiction are excluded. The law also stipulates requirements for arbitrators and for setting up permanent arbitration courts. If court finds that the case should be, pursuant to arbitration clause/contract, handled by arbitrator, it cannot proceed unless both parties agree. The court may cancel the arbitration award upon motion of a party, if it is not valid or if it was not based on valid grounds (competency of arbitration court, arbitration clause etc.). The costs are regulated by CiPC as well, unless statute of arbitration court provides for otherwise.
Pursuant to law No. 229/2002 Coll., on financial arbitrator, this official is, beside a court (which has primary jurisdiction), competent to decide cases regarding financial transfers of no more than 50 000 EUR by financial institutions, or by electronic means. He and his deputies are elected by Chamber of Deputies of the Parliament for 5 years. The costs of proceedings and remuneration of personnel are paid by the Czech National Bank. Each party bears its costs.
Are there legal provisions ensuring State supervision over ADR agencies, as well as training of mediators?
Is legal aid applicable to all or some ADR procedures?
Is confidentiality protected? Is any document of the ADR procedure apt to be produced in court, in case mediation failed?
There is duty of confidentiality of judges, arbitrators or financial arbitrator (and his deputies) regarding facts that came into their knowledge in the course of performance of their functions, unless they are relieved of this duty by parties or other body or law (e.g. in criminal proceedings).
May the judge consider refusal to access ADR or to accept an amicable settlement when making orders relating to trial expenses or costs?
No. Parties are not obliged to accept settlement procedure.
b) in‑court ADR
What is the role of the judge in mediation during a court proceeding? May the judge recommend or order that the parties appear before a mediator, even without their consent? May the judge serve himself or herself as a mediator or a conciliator, or is a conflict of role envisaged? If so, please indicate solutions found. Please give details as to costs of the in‑court mediation.
In civil proceedings, the CiPC provides that, if possible with regard to the subject matter, a court may attempt a peaceful settlement and approve such, if compatible with law. Unless peaceful settlement covers costs, no party is entitled to reimbursement of these according to success. There is three-year period for appeal on the grounds that settlement is not compatible with substantive law.
If the judge is entitled, by law or court practice, to appoint a mediator or a conciliator, what qualifications do these subjects have? What training have they received? What responsibilities do they incur? How is their independence guaranteed? Is equality among the parties guaranteed, so that no unfair agreement is concluded?
What legal relevance does an in‑court conciliation or mediation agreement have (in particular, as to its enforcement)? Are there specific provisions for agreements reached before certain accredited mediators and/or endorsed by a judicial homologation?
c) out‑of‑court ADR
What kind of judicial control is possible on out‑of‑court ADR agreements?
Project aiming at introduction of mediation into civil law area in form of out-of-court ADR is currently being prepared by the Ministry of Justice and foundation Open Society Fund Praha.
d) ADR in administrative law disputes
Is it possible under your system that a public entity participates in an ADR procedure? Does the person representing the entity have the power to settle the dispute, or is an administrative proceeding needed to conclude the amicable settlement?
e) criminal law and ADR
Please describe the role and extent of ADR proceedings vis‑à‑vis criminal investigations and/or criminal proceedings in your country. What are the respective roles of police, public prosecution and the judge?
In criminal proceedings, prosecutor must prosecute all cases, except law provides for otherwise. These matters cannot be solved by other body than court. There is, however, possibility of partial diversions in form of simplified criminal proceedings with important participation of mediator. Two forms are available:
- conditional stay of criminal prosecution (only if maximum sanction does not exceed 5 years of imprisonment, the accused must plea guilty, make reparations, and this solution must be deemed sufficient with regard to his character and circumstances of the case).
- reconciliation (only if maximum sanction does not exceed 5 years of imprisonment, the accused must pronounce that he committed the offence, make reparations, make donation for publicly beneficial purposes, the victim must agree, this solution must be deemed sufficient).
Mediation may be initiated on request of many persons involved; law enforcement authorities may terminate mediation. Mediation is performed by Probation and Mediation Service, which is a state agency (law No. 257/2000 Coll.) under supervision of the Ministry of Justice. The role of mediator is to create conditions for such partial diversion, in agreement with both defendant and victim. Mediators must pass exam regarding their qualification. Mediator prepares report on results of mediation, which is presented to the court/state prosecutor for further decision in a case. If agreement is not reached, mediator informs the court/state prosecutor as well. Presumption of innocence must be respected. Judge or prosecutor may issue directions for mediators, but not in relation to manner and result of mediation. The results of mediation (including agreement on reparations) are subject to control by judge or prosecutor (depends on stage of proceedings).
The costs are paid by state, except costs incurred by defendant. If the defendant is guilty, he must pay small flat fee and normally also the costs incurred by victim, under normal rules pertaining to criminal proceedings. The court cannot render its decision on costs on grounds that defendant refused or accepted mediation.
E. CASE MANAGEMENT
a) in general
Please give details as to the average duration of a civil and a criminal proceeding (where charges are brought against an identified individual) in your country, with separate figures as to first degree and appellate proceedings, as well as Supreme Court proceedings. Please provide relevant information as to data used to calculate the average. Please also give details as to duration of simplified and accelerated procedures. Please state the source of data.
Criminal proceedings in 2003 (all cases state-wide average):
- since institution of criminal proceedings to proposal for state prosecutor to file indictment: 105 days.
- since indictment is filed to district court to final judgment: 262 days.
- appeal procedure at regional court: 93 days.
- first instance agenda at regional courts: 758 days.
Civil proceedings in 2003 (all cases state-wide average):
- first instance proceedings at district courts: 558 days.
- first instance proceedings at regional courts: 290 days.
Neither proceedings at high courts and Supreme Court nor simplified and accelerated procedures are documented separately. The same applies for appeals in civil cases.
Source of data is judicial statistics maintained by the Ministry of Justice.
Does in general the judge have sufficient powers to control the parties' activities, to choose between written or oral procedures, to resort to a summary judgement, to determine the calendar and the time‑limits for presentation of arguments and evidence, to sanction delaying tactics and/or abusive behaviours?
The chairman of panel manages hearing and ensures its dignified and effective running. As a rule, proceedings are oral. On details see below.
It is not clear what is meant by “control of parties”. Judge has sufficient tools to prevent delays and to focus the proceedings, with possible exception of sometimes dubious excuses by defendant/defence lawyer due to health reasons. Fines and law enforcement may be used to disciplinary effect. The criminal proceedings is oral, with one exception – penal order (minor cases, where evidence is sufficiently established). If party disagrees, oral proceedings must take place.
Have measures been taken to assure that most cases are adjudicated by a single judge, rather than by a panel?
As a rule, single judge hears most cases in district courts (except notably labour cases). At regional courts, single judge hears first instance cases, panel hears second instance cases.
Single judge hears most cases in district courts, unless maximum penalty is higher than 5 years of imprisonment. At regional courts, a panel hears appeals (3 professional judges) and most serious cases in first instance (1 professional judge, 2 lay judges). Even so, many legal steps may be taken by chairman of the panel on behalf of the panel.
b) in civil disputes
Please describe, in general, implementation in your country of Recommendation No. R (84) 5 concerning principles of civil procedure designed to improve the functioning of justice. Some specific aspects will be dealt with by following questions.
Judge shall prepare a hearing in order to decide in one session. Disciplinary fines and imposition of deadlines are possible. Costs of proceedings may be attributed to party which caused such unnecessary costs or termination of proceedings. Judgment by default (in absentia) is possible under circumstances specified by CiPC, as assertions on circumstances of the case made by claimant in action are deemed uncontested. Parties have duty to assert all important facts and offer evidence before first instance court renders its decision. Otherwise, such evidence is admissible only under strict conditions (related to exclusion of judge, jurisdiction etc.).
Please specify characteristics of procedures existing in your country that may qualified as accelerated, simplified, and/or summary. Please refer to materials (available on the Council of Europe's website) presented during the European Conference of Judges on the theme "Early settlement of disputes and the role of judges" held in Strasbourg, 24‑25 November 2003.
Payment order procedure is accelerated and simplified. Proceedings in small monetary claims (less than 2000 CZK, i.e. 60 EUR) is not subject to appeal.
As to simplified procedures, please indicate (and provide details) if law or court practice, even if on the basis of "protocols", allow in your country:
(i) simplified methods of commencing litigation;
(ii) no hearing or convening of only one hearing or, as the occasion may require, of a preliminary preparatory hearing;
Payment order – without hearing of defendant.
(iii) exclusively written or oral proceedings, as the case may be;
Exclusively written proceedings are possible, if parties agree, and available written evidence is sufficient. There are exceptions (e.g. proceedings regarding civil status).
(iv) prohibition or restriction of certain exceptions and defences;
(v) more flexible rules of evidence;
(vi) no adjournments or only brief adjournments;
Judge decides on running the case.
(vii) the appointment of a court expert, either "ex officio" or on application of the parties, if possible at the commencement of the proceedings;
(viii) an active role for the court in conducting the case and in calling for and taking evidence;
Always active role of judge.
(ix) the rendering on the part of the judge of a mere "oral" judgement.
As to summary proceedings (in which the examination of the case on the part of the judge is done on the basis of what is only evident), please indicate if in your country:
4.1 the judge has the power to decide summarily on:
(i) disputes on which an early decision is required (urgent cases procedure);
(ii) disputes concerning recovery of certified uncontested debts;
(iii) small claims (please specify monetary limit);
(iv) employer‑employee relations;
(v) landlord and tenant relations;
(vi) questions of family relations (divorce, custody of children, maintenance);
(vii) disputes involving consumers;
(viii) disputes relating to road accidents;
(ix) manifestly ill‑founded claims.
See E.b.2. on monetary limit.
4.2 a summary judgement has or does not have the force of "res judicata";
4.3 a summary judgement is liable to determine rights and obligations of the parties even if a procedure on the merits is not initiated.
Please describe the extent to which injunction relief is available in your system (judicial orders of payment or to perform contractual obligations).
See E.b.2. and E.b.3.ii. on payment order.
Please describe the relevance of time‑limits and interlocutory judgements to assure a reasonable duration of ordinary proceedings.
There are time-limits imposed on court in relation decision regarding Commercial Register (15 days), child custody (24 hours), other preliminary measures (7 days). The court may impose time-limits on participants, not less than 15 days.
What protective measures are available in your system? You may refer to protective measures aimed to protecting the practicability of enforcement, or to anticipate enforcement; protective measures aimed to "freezing" a certain situation of fact pending the trial, e.g. through appointment of a receiver; measures that can be indicated as protective in a very broad sense, since they aim at anticipating the decision in the substance of the case. Please specify the cases in which urgency is required, and cases in which remedies may be granted without both parties having been heard.
CiPC makes it possible to decide on preliminary measures to establish provisional solution or protect practicability of enforcement. In proceedings on execution against bank account court freezes appropriate amount, etc. Special regulation applies to declaration of bankruptcy.
Does your system provide, besides protective measures in view of the taking of evidence (provisional hearing of witnesses, experts reports, site inspections, taking of samples), also measures that enhance the possibility for the plaintiff to gather information before the trial (see the Anton Piller order in the English experience)?
In what circumstances is a first degree judgement provisionally enforceable? If provisional enforcement is granted by the judge or by the law, upon which conditions the party filing an appeal may obtain suspension of enforcement?
Judgment may order payment of alimentation or of employee remuneration concerning last three months. Otherwise provisional enforcement is only available if party is endangered by significant harm or harm difficult to remedy. Time-limit for debtor to perform runs since service of judgment. Judgment which imposes duty other than duty to perform is enforceable once it is served to the debtor.
Submission of an appeal has no influence over these facts.
Please describe implementation in your country of Recommendation No. R (95) 5 concerning the introduction and improvement of the functioning of appeal systems and procedures in civil and commercial cases. Under what circumstances, if any, is a court decision not subject to appeal? Is in your country in force a system that admits appeal, at least for some disputes, only upon court leave? If not, would such a system be desirable?
The appeal is always possible, except the small claims procedure (see E.b.2).
The court shall give reasons for judgment in a compelling way: what was sought by plaintiff and why; what was the statement of defendant (or other parties); what facts are (not) considered proven; what were deliberations in examining the evidence; why no other evidence was examined; what conclusion on the fact is; what is legal qualification.
There is 15 days time-limit for appeals, which have to present what is deemed wrong and what should be decided. The first instance court may itself settle an appeal e.g. against duty to pay court fee or against ruling which conferred so far rights only on the person making appeal.
The extraordinary recourse (to the third instance) is not available in cases involving monetary payment of less not more than 20 000 CZK (about 600 EUR) or, in commercial matters, not more than 50 000 CZK (about 1700 EUR); or in matters regulated by Family Act, unless it concerns limitation of parental responsibility, determination of parentage or irrevocable adoption. The extraordinary recourse is available only if (a) the proceedings suffer from mistake, which might cause wrong decision in subject matter, or (b) the ruling is based on wrong legal qualification. The extraordinary recourse (to the third instance) is also possible if the second instance court confirms the ruling of the first instance but decides that it is a legal question of fundamental importance.
Please express your view concerning measures to improve:
(i) enforcement of court judgements and effectiveness of the activity of enforcement agents;
Significant measures were taken in last years to improve the enforceability of judgments, such as the establishment of private bailiffs.
(ii) transparency of information concerning assets of debtors;
According to CiPC a plaintiff may, if he has an enforceable title regarding monetary payment, ask the court to order a debtor to submit a declaration of property. The correctness and completeness of such a declaration is protected by criminal sanction of imprisonment up to one year. The debtor may evade duty to make such declaration by making respective payment.
(iii) recognition of judicial decisions rendered by judges from another Member State of the Council of Europe.
The Czech Republic is, at present time, party to bilateral treaties on legal assistance with France, Italy, Portugal, Greece and Spain. Those treaties make it possible, under set conditions, to recognize and execute a decision rendered by the courts of that states in civil and commercial matters. There are no serious problems in recognition of such decisions, if the proposal is complete, the person entitled annexes the requested documents and the decision is final and enforceable in the state of origin. Czech laws No. 97/1963 Coll. (as amended), on international private and procedural law, and No. 99/1963 Coll. (as amended), the Civil Procedure Code, enable the courts to proceed quickly. There is only one proceeding and judgment relating to both recognition and enforcement of foreign decision.
Since 1st May 2004 the Czech courts will proceed exclusively according to Council regulations No. 44/2001/EC and No. 1347/2000/EC. These regulations will establish the “exequatur” procedure and longer periods for appeals; therefore the proceedings will be longer. Thus, the Czech Republic welcomes newly prepared draft regulations, which aim to remove the exequatur procedure in order to establish simpler and faster mechanism.
From practical point of view it would be beneficial if both claimant and debtor could be represented by lawyer, and if free legal aid could be provided in cases of recognition and enforcement of foreign decisions.
c) in criminal matters
Please describe, in general, implementation in your country of Recommendations No. R (87) 18 concerning the simplification of criminal justice and No. R (95) 12 on the management of criminal justice. Some specific aspects will be dealt with by following questions.
In general, the policy of the Czech legislator is to simplify, accelerate and de-formalize proceedings.
In addition to procedures described below there is a simplified (or shortened) criminal proceedings, performed by police authorities in cases where maximum punishment does not exceed 3 years and suspect was apprehended during commission of the offence, or it can be otherwise expected that suspect will be in 14 days indicted before court. State prosecutor may propose simplified hearing before court as well. The procedure is significantly less formal. See also D.e.
In addition to points made under other question, other measures mentioned in R(95)12 are taken as well, such as greater involvement of judicial officials in the activity of judges, improving the electronic access of judges to various official databases, or fine-tuning of the management of judicial agenda, so that the cases are more swiftly assigned to appropriate section or panel.
As far as R(87)18 is concerned, most of issues are discussed under other questions. Most of the requirements were implemented (such as shortened preparatory proceedings, preliminary discussion of indictment, special procedures, ability of victim to claim damages, possibility of merge proceedings concerning related matters, duty to inform defendant of his rights etc.).
Please specify characteristics of procedures existing in your country that may qualified as accelerated, simplified, and/or summary. Please refer to materials (available on the Council of Europe's website) presented during the European Conference of Judges on the theme "Early settlement of disputes and the role of judges" held in Strasbourg, 24‑25 November 2003 (although these materials mainly concern civil justice).
Simplified/shortened proceedings are:
conditional stay of criminal prosecution (Section 307-308 CrPC);
reconcilliation (Sections 309-314 CrPC);
criminal order (proceedings heard by single judge) (Sections 314a-314e CrPC).
(a) If offender conforms to conditions set for probationary period, the prosecution will be terminated definitively. Therefore, there is no decision on guilt and no punishment. (See D.e.).
(b) Agreement between offender and victim, which has to be approved by court/prosecutor, and thus has the effects of terminated criminal proceedings. It replaces verdict on guilt and punishment. (See D.e.)
(c) Concerns less serious crimes (see E.a.3). Single judge does not conduct preliminary discussion of indictment. He can, in some cases (not e.g. in case of juvenile offender) decide without hearing, if the facts of the case are reliably documented, and punishments are up to one year of conditional imprisonment.
Since 1st January 2002 also “shortened criminal proceedings” may be used (see E.c.1 on first stage, so called “simplified preparatory proceedings”). Simplified preparatory proceedings may result in simplified proceedings heard by single judge. State prosecutor may hand over the proposal for punishment and the offender in the same time. Then, a judge will interrogate the offender in 24 hours and decide on further procedure – either to decide immediately or to institute standard main hearing. The court may refrain from taking evidence regarding facts uncontested by both parties. Explanations given by other persons etc. may be read. If both parties so agree, single judge may issue simplified judgment, which does not contain reasons.
In case of juvenile offenders, conditional withdrawal of criminal prosecution is also possible in cases where maximum punishment does not exceed 3 years and there is not public interest in prosecution and punishment and if punishment is not purposeful and necessary for averting the offender from committing further crime.
Please indicate (and provide details) if in your country:
(i) discretionary decisions to waive or discontinue proceedings are possible, although adequate evidence of guilt has been found (please identify cases and competent authorities);
State prosecutor/court may terminate prosecution if prospective punishment is completely insignificant in relation to other punishment (for another offence) already imposed or likely to be imposed. Another reason for termination of prosecution is when sufficient disciplinary punishment was already imposed; or if it is clear from the circumstances of the case and importance of the protected interest, that the purpose of criminal proceedings was already fulfilled (e.g. the offender committed petty offence and is deterred and reformed enough by preparatory proceedings etc). It is also possible to issue a sentence but refrain from carrying it out for the same reasons. The offender may require that the proceedings be completed, however.
(ii) mass offences such as road traffic, tax and customs law, if they are minor, are decriminalised;
Completely minor and insignificant cases, which are negligibly dangerous to the society, are not prosecuted. Road traffic and other administrative offences are not dealt with by judiciary. Typical sanction is fine or prohibition of certain activity.
(iii) out‑of‑court settlements are possible;
Out-of court settlement is not possible, but see “reconciliation” under E.c.2.
(iv) penal orders such as those described in Recommendation No. R (87) 18, or equivalent simplified proceedings are employed (please provide information as to percentage of crimes so tried);
There were 49 745 penal orders issued by Czech courts in 2003 (opened to resistance); that is 49,7 per cent of offenders tried before courts. If state prosecutor or defendant resists penal order, however, this penal order is cancelled and judge has to order a hearing in the case. In such a case a judge is not bound by penal order in subsequent regular procedure. It is possible to impose conditional imprisonment of up to 1 year, public benefit works; prohibition of certain activity for up to 5 years; fine; confiscation of a thing; expulsion for up to 5 years; prohibition of residence for up to 5 years.
(v) the procedure of "guilty plea" (whereby the alleged offender is required to appear at an early stage to declare whether he or she accepts charges, and court may decide the case in an accelerated way without investigations), or equivalent procedures are employed;
One of the conditions for conditional stay of criminal prosecution (see E.c.2) is “confession of defendant”. If the conditional stay of prosecution is not approved, such confession may be used as evidence. In contrary, “declaration of commission of an offence”, which is precondition for reconciliation (see E.c.2) is not a confession and cannot be used as evidence.
(vi) declarations of voidness of proceedings are limited to cases in which failure to comply with procedural requirements have caused real damage to the interest of the defence or prosecution;
The proceedings shall be declared void in such a case (an appeal is not, however, limited to such cases). Otherwise, the second instance court shall concern itself with uncontested mistakes only if they influence contested parts of judgment.
Extraordinary recourse (to the third instance) is possible only against procedural mistakes which may influence the substance of decision (such as subject matter competence of the court, judge should be excluded, defendant did not have a lawyer in specified cases, particular punishment is illegal in that particular case etc.). The court may refuse extraordinary recourse, if it is clearly without significance for the offender and it is not fundamental legal question.
(vii) notification of summons and decisions of the court is done through simple, rapid procedures, including by mail;
Service of documents is typically done either in framework of criminal proceedings or by mail, sometimes or in urgent matters by Police, community official, courier service or Judicial Guard. If the defendant has a lawyer, documents are normally served only to this lawyer. Summons to defendant and judgment must be delivered to his hands only.
(viii) trial court is exempted, when parties agree or the case is not serious, from issuing the decision in writing (please also refer to simplified forms of written decisions).
Every judgment must be written. Single judge may, however, issue simplified judgment, which does not contain reasons provided that state prosecutor and defendant both made declaration that they refrain from appeal. Some court decisions (conducting a hearing or taking evidence) need not be written (or are written only in court protocol).
4. Please describe the role of the bench in the several stages of investigations (concentrating on the three stages referred to Principle III, a.6 of Recommendation No. R (87) 18). Please also describe the role of the bench as to "guilty pleas" and sentencing, if such phases may take place out of court. Please describe the respective role of professional judges and juries in findings of guilt and determination of penalties, in those cases that are tried before a jury.
In preparatory proceedings the state prosecutor supervises the procedures, issues instructions pertaining to investigation, may take part in activity of Police, or take steps on his own, make decisions in all matters, return the file for additional investigation etc. The court concerns itself with most important matters: takes part in non-suspensible and unrepeatable steps (the interrogation of witness, recognition etc.); authorizes the use of agent; authorizes the search of home, phone-tapping; decides on engagement of defence lawyer if such lawyer is necessary according to law, hears complaints against freezing of property etc.
Restraint of offender, custody:
The court issues arrest warrant pursuant to proposal of state prosecutor (Police has to hand over the offender to the court in 24 hours), has to interrogate the offender immediately, decide on custody and communicate such decision to the offender in 24 hours. The court decides on release from custody.
Single judge/chairman of panel conducts proceedings, examination of evidence, interrogations etc., and may take all decisions available to state prosecutor or to court in preparatory proceedings. The panel decides on subject matter, and some other more serious decisions (such as that additional evidence must be secured).
Lay judges take part in first instance proceedings only, in panels composed of 1 professional judge and 2 lay judges. They consider the case as far as factual circumstances are concerned, professional judge explains them legal considerations. They are equal in deciding the questions of guilt and punishment. They vote before the professional judge. There is no “classical” jury in the Czech legal system.