Necessary defence is an important element of Czech criminal law. It responds to the principle that in certain cases the accused have not only the right, but even the obligation to have a lawyer. This institute aims to protect the rights of accused persons who find themselves in a difficult situation where they need professional legal assistance. What is a necessary defence and when is it mandatory?
Necessary defence is an institution of criminal law which ensures that the accused is obliged to have a defence lawyer in certain cases. The aim of the defence of necessity is to ensure a fair trial and the protection of the rights of the accused, particularly in cases where he would be unable to defend himself effectively. This institution is particularly important for persons facing complex criminal proceedings or serious charges.
For example, the necessary defence is mandatory in cases of serious offences where the accused faces a prison sentence of more than five years or where the accused is under 18 years of age. The presence of a defence lawyer is also necessary in situations where the accused is unable to understand the meaning of the proceedings or to participate in them, for example because of a mental disorder.
A practical example is the situation of an accused facing a charge of a violent crime with a threat of a heavy prison sentence. In such a case, the law requires him to have a defence lawyer to ensure that his rights are respected and that he receives expert assistance in his defence. Necessary defence is thus a key element in protecting a fair trial and ensuring equality of arms in criminal proceedings.
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The stakes are high and it is not worth going through a criminal trial without consulting a lawyer.If you are accused of a crime, you will only succeed in court if your defence is bulletproof. We will conduct a careful analysis of your case and propose a course of action for your criminal defense in which we will vigorously enforce your rights.
The institution of the necessary defence has its roots in the historical development of criminal law, when the requirements for a fair trial and the protection of the rights of the accused gradually increased. In the early days of criminal proceedings in the past, it was common for defendants not to be entitled to a lawyer or to have to provide one themselves. This led to many injustices, particularly for those who did not have the financial resources or legal knowledge to defend themselves effectively.
The history of indigent defence shows how the legal system has adapted to the need to protect individuals from unfair treatment and to ensure equality of arms in criminal proceedings. This institution reflects society’s commitment to ensuring that every accused person has the opportunity to defend himself effectively, regardless of his financial or social status.
Tip: The defence lawyer and the prosecutor have a key position in criminal proceedings. What are their powers and what is the right to defence? Can the accused defend himself and what can be done if we disagree with the prosecutor’s approach? We have answered common questions about the prosecution and the defence in our separate article.
The institution of the necessary defence is regulated in Section 36 of the Criminal Procedure Code. Here, the individual examples are precisely defined, when it is not possible to proceed in criminal proceedings without the provision of a defence. The necessity of having a defence counsel already in the preparatory proceedings is explicitly mentioned, in the situation where
A defence is also necessary where the court and the public prosecutor in pre-trial proceedings deem it necessary, in particular because, in view of the physical or mental defects of the accused, they have doubts as to his capacity to defend himself adequately.
In the case of serious offences for which the law prescribes a maximum penalty of imprisonment exceeding five years, the accused must already have a defence counsel in the preparatory proceedings.
The necessary defence is also compulsory in certain specific actions, such as the decision to impose protective treatment, with the exception of protective treatment for alcohol.
Necessary defence is also mandatory for juvenile defendants, i.e. persons under 18 years of age, where special emphasis is placed on protecting their rights and ensuring fair treatment.
In all of these situations, the aim is to ensure that the accused has adequate representation and that his defence can be conducted in full. Without the presence of counsel, the trial could be unfair and the rights of the accused could be significantly compromised.
Tip: You can be imprisoned if you are charged with a criminal offence. However, this can only be done for certain reasons, for example if there is a fear that you will abscond or continue to commit crime. In total, you could end up in custody for up to four years. In our article, we’ve looked at not only the reasons for and length of bail, but also how to defend against it, how to get out as soon as possible, and what it’s like in custody.
The main advantage is the expert legal assistance that a defence lawyer provides. A defense attorney is familiar with the law, knows the procedures of criminal proceedings, and can identify the best strategy for defending his or her client. This is especially important when the defendant is facing a complex legal situation or serious charges.
Another advantage is the protection of the rights of the accused. A defense attorney makes sure that all legal procedures are followed so that the accused is not subjected to coercion or unfair treatment. For example, during interrogations, the defence lawyer checks that fair questions are asked and that the police procedure is in accordance with the law.
The necessary defence also helps the accused to better understand his situation, the possible consequences and the available defence options. This enables the accused to make informed decisions, which increases the chances of a fair outcome.
Counsel can also suggest alternative procedures in certain situations, such as negotiating a plea bargain, which may lead to a lighter sentence. Thus, the indispensable defence provides not only professional support but also essential protection of the rights and interests of the accused.
If the accused does not have a defence lawyer in cases of indispensable defence, this can have serious consequences for the entire course of the criminal proceedings and for his own position. The law imposes a duty to defend precisely to ensure that the rights of the accused are protected and that the trial is conducted fairly. If the accused does not have a defence counsel, although he or she must have one, the court cannot proceed with the proceedings, which may lead to delays and prolongation of the proceedings.
The absence of a defence counsel in situations where his presence is mandatory may also mean that the accused will not be able to fully exercise his rights, such as the right to a qualified defence, the right to an effective defence and the right to protection against misconduct by the prosecuting authorities. Without expert assistance, the accused may make mistakes which could lead to an unfavourable decision, including the imposition of a higher sentence.
In extreme cases, where the accused does not have a defence counsel, although the law requires him to do so, the court may decide to appoint a defence counsel ex officio. This ensures that the criminal proceedings can continue and that the accused has representation to help him defend his rights.
Tip: Are you about to go to trial or are you a criminal defendant but don’t want to spend money on a lawyer? Would you like to request the appointment of an “ex officio” lawyer, but don’t know what proceedings you are entitled to and whether such a lawyer costs you anything? Let’s see when the Czech legal system allows this option and whether it is worthwhile for you.
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