The defence lawyer and the prosecutor have a key position in criminal proceedings. What are their powers and what is the right of defence? 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 defence in our article.
The right to a defence is a fundamental right, and although defence 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 defence lawyer to ensure that the accused is able to use all means of defence.
Defence services offer various forms of legal representation, from free defence in cases of financial hardship to indigent defence. The Czech Defenders’ Union focuses on professionalism and ethics, which ensures that the accused receives a qualified defence in accordance with the law.
In addition to selecting a defence lawyer from the list of lawyers maintained by the Czech Bar Association, defendants can apply for a free defence through the public prosecutor. This process guarantees the right to defence even for those who do not have the financial means to pay for a lawyer.
Since criminal law is a complex system and ignorance of it can cause serious problems for the accused, the right to a defence is only granted 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 offences).
In the course of the defence, the lawyer is guided primarily by:
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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 lawyer finder. Here you can select the city of practice and the focus of the lawyer and contact someone from the selected list of lawyers to request a defence.
Another professional association of defence 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 defence. 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 defence counsel.
This situation is to be distinguished from the so-called ex officio or necessary defence.
The law provides for situations where defence is necessary. If the accused is in custody, is a juvenile, is deprived of or limited in legal capacity, or the offence has a ceiling of more than five years. In such a case, the accused may either provide his own defence 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 defence (unless a decision has been taken to provide a free defence).
In certain cases, however, it is also possible to waive the necessary defence and defend oneself. The law allows for this in cases where there is a reason for the necessity of the defence due to the proceedings for an offence 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 offence is one for which an exceptional penalty may be imposed.
You can find out more about complaints about breaches of the law and how to make one in the next article.
A defence 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 defence, pointing out everything that exonerates the accused or at least mitigates his guilt. In relation to the court, the defence 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 defence 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 shall then make a closing speech at the main trial.
The Defence Counsel’s Union promotes a professional approach to the defence, which contributes to the fair and just conduct of criminal proceedings.
Tip: We have discussed the remedies in criminal proceedings in more detail in our article.
Certain rights of defence may be exercised by persons other than those listed above.If the accused is deprived of legal capacity or his capacity is limited, his legal representative is his legal representative. 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 defence lawyer.
The public prosecutor plays a key role at all stages of the criminal proceedings, from the filing of the indictment to the drafting of the sentence. His or her activities fall under the administration of the regional prosecutor’s office, the chief prosecutor’s office and, at the highest level, the Supreme State Prosecutor’s Office. These institutions oversee legality and fair decision-making in the public interest.
During court proceedings, the public prosecutor acts as a prosecutor, representing the interests of society in ensuring that crimes are properly investigated and, where appropriate, punished. His powers include not only making motions and applications, but also the ability to influence the outcome of the proceedings through plea bargaining and sentencing.
Public prosecutors are attached to the various prosecution offices, which, like the courts, are divided into district, regional and chief prosecutors’ offices. They are then controlled and managed by the Supreme State Prosecutor’s Office.
Tip: We have discussed the division and jurisdiction of courts in a separate article.
The two most important areas in which the prosecutor is active are:
Tip: we have described the different stages and the course of the criminal proceedings in a separate article.
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 offence 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.
Under the Criminal Procedure Code, 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. The prosecutor of the immediately higher prosecutor’s office is competent to deal with it.
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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