The co-accused: how does co-operation work and when does it pay?

Who’s a cooperating defendant?

A co-operating defendant is a person who has been charged with a crime but has decided to actively co-operate with law enforcement in order to contribute to the discovery of the crime or to the detection of other offenders (and also to gain certain benefits for themselves). This institution is primarily designed for cases where investigators need to obtain key information to uncover more complex and organised criminal activities such as corruption, organised crime or serious economic offences. The institution of the cooperating defendant can be applied to all crimes which are offences for which the Criminal Law provides for a maximum penalty of five years’ imprisonment.

As already mentioned, the co-accused approach is based on the principle of mutual benefit. The accused provides important testimony or information in exchange for the possibility of a lighter sentence or other benefits. It is crucial that the accused’s cooperation is truthful, relevant and beneficial to the criminal proceedings.

A practical example might be where a corruption accused provides information to investigators about other persons involved or the way in which money was transferred. With this information, law enforcement authorities can proceed more efficiently and convict the main perpetrators.

History of the Institute of the Cooperating Accused

The Institute of the Co-operating Defendant has its roots in foreign legal systems, where it was introduced as a means to effectively combat organised crime and corruption. The first references to a similar approach can be found in Anglo-Saxon law, where the practice of entering into plea bargains between the state and defendants to obtain evidence against major offenders was introduced. This approach gradually spread to other countries where it became an important tool in uncovering complex criminal structures.

In the Czech Republic, the institution of the cooperating defendant was introduced in 2001 by an amendment to the Criminal Procedure Code. The change was a response to the growing need to fight organised crime more effectively, especially in cases where traditional investigative methods were insufficient. The introduction of the institution of the co-operating accused made it possible to obtain important witness statements directly from persons involved in criminal activities.

Over time, the rules for the use of this institution have been further refined to prevent its abuse.

Legal status of the accused vs. cooperating accused

The legal status of the accused and the co-operating accused differs primarily in the extent of the rights and benefits that the co-operating accused receives as a result of his or her willingness to assist the law enforcement authorities.

As is well known, an accused is a person against whom a criminal prosecution has been initiated because there are reasonable grounds to suspect that he or she has committed a criminal offence. He has the right to a defence, the right to remain silent and other procedural rights that protect his interests during criminal proceedings.

A co-operating accused is then a special category of accused. His status is regulated in Section 178a of the Code of Criminal Procedure. An accused who:

(a) informs the public prosecutor of facts which are capable of making a significant contribution to the clarification of a crime committed by members of an organised group, in association with an organised group or for the benefit of an organised criminal group and undertakes to give a full and truthful statement of these facts both in the preparatory proceedings and in the proceedings before the court,

(b) confesses to the offence for which he is prosecuted, there being no reasonable doubt that his confession was freely, seriously and definitely made; and

(c) declares that he agrees to be designated as a co-accused.

At the same time, the public prosecutor must take into account, inter alia, the nature of the offence alleged in the accused’s confession, the personality of the accused and the circumstances of the case in general.

The accused may then receive certain benefits, such as a reduction of the sentence, a mitigation of the charge by a conditional suspension of the prosecution or even a waiver of punishment.

A co-operating accused is sometimes referred to in the media as a Crown Witness, a term familiar to the public, referring to a key witness who has made a substantial contribution to the clarification of the case. However, they are not synonymous. For one thing, the term ‘Crown Witness’ is not a legal term and, more importantly, a Crown Witness does not necessarily have to be in the role of the accused; indeed, they can be ‘merely’ a witness.

Why does it pay to be a cooperating defendant?

The institution of a co-operating defendant brings significant benefits to defendants that can significantly affect the outcome of their criminal proceedings. The main motivation for cooperation is the possibility of receiving a lighter sentence or even avoiding prison.

Another advantage is that a cooperating defendant often receives witness protection, which may include special measures to protect his identity or physical safety. This reduces the risk of retaliation by other offenders against whom the defendant testifies.

On the other hand, cooperation also carries risks. A cooperating defendant must provide truthful and complete information or he may lose the benefits he has been offered and even face further legal penalties. Moreover, he may be perceived as a “traitor” by his original co-conspirators, which may expose him to further dangers.

Overall, the institution of the co-accused represents a chance for a better legal outcome for the accused, but requires careful consideration of all the benefits and risks associated with this step. It is always worth consulting with your legal counsel.

Practical examples of the use of the institute in criminal proceedings

Typical areas of use are cases involving organised crime, corruption, drug trafficking or serious economic offences, where evidence is often beyond the reach of investigators and it is difficult to obtain witnesses willing to testify.

An example would be an organised drug trafficking group. If one of the accused decides to cooperate with the police and provides detailed information about the structure of the group, the way drugs are transported or the identities of key members, this can make a major contribution to breaking up the network and subsequently convicting the main organisers.

Another example could be a case of public corruption where a cooperating defendant helps to uncover a complex bribery scheme between businessmen and officials. His testimony may help prove the guilt of other perpetrators and curb corrupt behaviour in the area.

In our legal practice we have also encountered a large-scale fraudulent scheme based on fictitious invoices and unauthorised VAT deductions within a certain company. Several other persons were involved in the fraud, including the main organisers who were in charge. However, the structure of the fraud was unclear and all the actors tried to develop and blame others. The company accountant faced up to five years in prison and took the opportunity offered to become a co-accused. By subsequently identifying the main organisers and detailing how the fraud was carried out, he significantly improved his position in the criminal proceedings. His sentence was subsequently reduced to a suspended sentence of two years’ imprisonment suspended for four years.