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.
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.
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:
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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 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.
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.
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.
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:
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.
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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