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What is the role of the defense lawyer and the prosecutor in criminal proceedings?

The defense lawyer and the prosecutor have a key role in criminal proceedings. What are their powers and what is the right to a defense? Can the accused defend himself and what can I do if I disagree with the prosecutor’s approach? We have answered common questions about the prosecution and the defense in our article.

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Chapters of the article

The defense of the accused

The right to a defense is a fundamental right, and although defense lawyers may sometimes face negative reactions for “helping criminals”, the reality is somewhat different. For one thing, not all accused persons are subsequently found guilty and, more importantly, it is the role of the defense lawyer to ensure that the accused is able to use all means of defense.

Who can become a criminal defense lawyer?

Since criminal law is a complex system and ignorance of it can cause serious problems for the accused, the right to defend oneself is entrusted only to lawyers. Therefore, a neighbor who has completed four semesters of law school and has advised you on everything related to the law would not be able to fill such a role. However, a paralegal can represent the lawyer in individual acts (except in hearings before the Supreme Court, the High Court and also the Regional Court when it is deciding in the first instance, i.e. on serious offenses).

In the process of the defense, the lawyer is guided primarily by:

  • laws and other legal norms,
  • the client’s instructions – however, an instruction that is contrary to the law may be an exception. In the case of incapacitated clients, it is possible to act against their will if the lawyer considers that it is in their interest,
  • ethical rules and the rules of the Czech Bar Association www.cak.cz.

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If you are a party to a pending legal proceeding and are looking for reliable defense counsel, contact us. Our criminal law specialists will stand up for your rights in the proceedings. Contact us and we will prepare an offer for you within 48 hours.

How to choose an advocate?

If the accused does not yet have a lawyer, he or she can, of course, use the recommendations of friends or choose one online in the Czech Bar Association’s search engine. Here you can select the city of practice and the focus of the lawyer and contact someone from the selected list of lawyers to ask them to defend you.

Another professional association of defense lawyers is the Union of Defence Lawyers of the Czech Republic, which mainly brings together lawyers with a focus on criminal law.

The accused can also choose several lawyers, which can be useful, for example, in very complex economic or other cases where each lawyer is an expert in a different field.

If the accused does not have enough money for the services of a lawyer, he or she can apply for a free or reduced fee defense. All that is required is to file a request through the prosecutor, documenting the lack of funds. If the court grants the request, the accused may choose his own defense counsel.

This situation is to be distinguished from the so-called ex officio or necessary defense.

The law provides for situations where defense is necessary. If the accused is in custody, is a juvenile, is deprived of or limited in legal capacity, or the offense has a penalty of more than five years in prison. In such a case, the accused may either provide his own defense counsel or have one appointed by the court (ex officio) at the expense of the State. If, however, the accused is unsuccessful in the proceedings, he must additionally pay the costs of the defense (unless a decision has been taken to provide a free defense).

In certain cases, however, it is also possible to waive the necessary defense and defend oneself. The law allows for this in cases where there is a reason for the necessity of the defense due to the proceedings for an offense for which the law sets a maximum penalty exceeding five years, or in the same proceedings where there is an appeal, an application for leave to reopen or a complaint for violation of the law. The accused may waive counsel, unless the offense is one for which an exceptional penalty may be imposed.

What are the rights and obligations of the defense counsel?

A defense lawyer should primarily contribute to the correct clarification and decision of the case. However, the obligation applies only to the extent that he does not worsen the position of the defendant. It should therefore be primarily aimed at providing legal advice, advice on the defense, pointing out everything that exonerates the accused or at least mitigates his guilt.

In relation to the court, the defense counsel then makes various motions or requests, lodges appeals and is allowed to inspect the case file. To some extent, he has similar powers to the accused in this respect (which, of course, does not always apply, e.g. in the case of the examination of the accused or the last word).

The defense counsel has the right to visit the accused in custody or in custody and to negotiate with him alone. During the trial, he/she has the right to ask questions of witnesses or to conduct the examination of a witness or expert witness. He/she shall then make a closing speech at the main trial.

Other persons with defense rights

Certain rights of defense may be exercised by persons other than those listed above. If the accused is deprived of legal capacity or his/her capacity is limited, his/her legal representative is his/her legal representation. In the case of prosecution of juveniles, the child welfare authority must be informed and has the right to make suggestions, ask questions or lodge appeals. The relatives of the accused also have certain limited rights, for example, to appeal on his behalf or to choose a defense lawyer.

Prosecutor

The public prosecutor has a specific role in criminal proceedings. He/she is not the classic counterparty as we can see in civil proceedings. The public prosecutor is a criminal law enforcement body, and is supposed to represent the public interest, i.e. the interest of society in ensuring that crimes are properly investigated and, where appropriate, punished.

Public prosecutors are attached to individual public prosecutors’ offices, which, like courts, are divided into district, regional and chief public prosecutors’ offices. They are then controlled and managed by the Supreme State Prosecutor’s Office.

The two most important areas in which the public prosecutor is active are:

  • Criminal proceedings pending prosecution – where the prosecutor supervises compliance with the law and can decide on detention. He/she also investigates crimes committed by members of the General Inspectorate of Security Forces, BIS, Military Intelligence or Military Police, and the Office for Foreign Relations and Information.
  • Proceedings before the court – where he/she acts as a prosecutor. He or she files an indictment, or a motion for punishment, or a motion for a plea bargain. In court proceedings, the public prosecutor is essentially a party. Here his/her role is to be very active. He or she presents the indictment and the closing argument, proposes evidence and intervenes in the taking of evidence. He or she is the only one who can appeal against (but possibly also in favor of) the defendant, the interested party and the victim.

Agreement on guilt and punishment

Since 2012, the role of the prosecutor has been strengthened by an amendment to the Criminal Procedure Code, which allows the prosecutor to propose a plea bargain. It presupposes a promise by the accused to plead guilty to the offense and, in return, a proposal for a lighter sentence by the prosecutor. The agreement is prepared by the prosecutor and must be approved by the court. It speeds up and streamlines criminal proceedings and saves costs.

Complaint and review of the prosecutor’s procedure

If a defendant or victim suspects that the prosecutor’s actions have been delayed, he or she may file a request for a review of the prosecutor’s actions under the Criminal Procedure Code. The prosecutor of the immediately higher prosecutor’s office is competent to deal with the request.

The Act on Public Prosecution then allows anyone to lodge a complaint about delays in the performance of the tasks of the public prosecutor’s office, or about improper conduct of public prosecutors and other employees of the public prosecutor’s office. The chief prosecutor, who is superior to the prosecutor against whom the complaint is directed, is competent to deal with the complaint.

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Author of the article

JUDr. Ondřej Preuss, Ph.D.

Ondřej is the attorney who came up with the idea of providing legal services online. He's been earning his living through legal services for more than 10 years. He especially likes to help clients who may have given up hope in solving their legal issues at work, for example with real estate transfers or copyright licenses.

Education
  • Law, Ph.D, Pf UK in Prague
  • Law, L’université Nancy-II, Nancy
  • Law, Master’s degree (Mgr.), Pf UK in Prague
  • International Territorial Studies (Bc.), FSV UK in Prague

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