What are the roles of the defense attorney and the prosecutor in criminal proceedings?

What is the difference between a defense attorney and a prosecutor?

Are you facing criminal charges and need to understand what steps to take next? As part of our representation of the accused, we will review the situation with you and discuss your defense options.

Defense of the Accused

The right to a defense is one ofthe fundamental rights, and although defense attorneys may sometimes face negative reactions for “helping criminals,” the reality is somewhat different. For one thing, by no means are all accused individuals subsequently found guilty; and more importantly, a defense attorney’s primary role is to ensure that the accused can make use of all available means of defense.

Defense attorneys offer various forms of legal representation—ranging from free legal aid in cases of financial hardship to representation provided under mandatory defense provisions. The Union of Defense Attorneys of the Czech Republic focuses on professionalism and ethics, which ensures that the accused receive qualified defense in accordance with the law.

In addition to selecting a defense attorney from the list maintained by the Czech Bar Association, defendants may request free legal representation through a public defender. This process guarantees the right to a defense even to those who lack the financial means to pay for an attorney.

Example from court practice: Enforcement proceedings alone are not sufficient

In its ruling, Case No. 8 Tdo 40/2025, the Supreme Court noted that ongoing debt enforcement or insolvency proceedings do not automatically entitle a person to free legal representation. The specific circumstances and financial situation of the accused are decisive. Therefore, it is not enough to simply state in your application that you have debts; it is important to provide evidence of your financial situation.

Who Can Serve as a Defense Counsel in Criminal Proceedings?

Given that criminal law is a complex system and ignorance of it can cause serious problems for the accused, the law stipulates that only an attorney may serve as a defense counsel in criminal proceedings. However, the accused also has the right to defend themselves if the law does not require mandatory representation.

In conducting a defense, the defense attorney is guided primarily by:

• laws and other legal norms,
• the client’s instructions —though instructions that conflict with the law may be an exception. In the case of clients who lack legal capacity, the attorney may act against their will if the attorney determines that it is in their best interest,
• ethical rules and the rules of the Czech Bar Association www.cak.cz.

How do you choose a defense attorney?

If the defendant does not yet have a defense attorney, they can, of course, rely on recommendations from acquaintances or choose one online from the list of defense attorneys onthe Czech Bar Association’s search engine. There, you can select the city where the attorney practices and their area of expertise, and then contact someone from the selected list of defense attorneys to request their representation.

Another professional association of defense attorneys is the Union of Defense Attorneys of the Czech Republic, which primarily brings together attorneys specializing in criminal law.

The accused may also choose multiple defense attorneys, which can be beneficial, for example, in highly complex economic or other cases where each attorney specializes in a different area.

If the accused does not have sufficient financial resources to pay for legal representation, they may apply for free legal representation or representation at a reduced fee. To do so, they must provide proof of their financial and income circumstances. During the preliminary proceedings, the request is filed through the public prosecutor, and a judge decides on it. In court proceedings, the request is filed directly with the court conducting the first-instance trial. The defendant may choose their own defense attorney or, under certain legal conditions, may request that one be appointed. The rights of a defense attorney in preliminary proceedings include, for example, the ability to participate in investigative actions, ask questions of persons being questioned, propose evidence, or inspect the case file under the conditions set forth in the Criminal Procedure Code.

This situation must be distinguished from what is known as “ex officio defense” or “mandatory defense.”

The law specifies when an accused person must have a defense attorney, even if they would prefer to defend themselves. So-called mandatory defense in criminal proceedings applies, for example, when the accused is in custody, has limited legal capacity, or is being prosecuted for a crime for which the law prescribes a maximum prison sentence exceeding five years. Special rules also apply to juveniles. The accused may choose a defense attorney on their own; however, if they fail to do so within the prescribed time limit, one will be appointed by the court. The costs of the appointed defense attorney are initially covered by the state. However, if the accused is found guilty by a final judgment, they may be required to reimburse the state for these costs. This does not apply to the extent that they were granted the right to free legal representation or representation at a reduced fee.

Although the law specifies when a defendant must have a defense attorney, in some cases the defendant may waive this right and defend themselves. This applies in particular when the requirement for legal representation in criminal proceedings arises solely from the fact that the offense being prosecuted carries a maximum prison sentence exceeding five years, unless it is an offense for which an exceptional sentence may be imposed. The law also allows for waiving the right to a defense attorney under certain conditions in some other proceedings. However, the defendant must make an explicit statement in writing or orally for the record, in the presence of a defense attorney and after prior consultation with him or her. The defendant may later withdraw this statement.

The Role of a Defense Attorney in Criminal Proceedings: Rights and Responsibilities

A defense attorney’s actions should primarily contribute to the proper clarification and resolution of the case. However, this obligation applies only to the extent that it does not worsen the defendant’s position. Therefore, the defense attorney’s efforts should primarily focus on providing legal advice, offering defense strategies, and highlighting any circumstances that exonerate the defendant or at least mitigate the charges. In relation to the court, the defense attorney makes various motions or requests, files appeals, and is permitted to review the case file. To a certain extent, the attorney has rights similar to those of the defendant in this regard (though this does not always apply, of course; for example, during the defendant’s examination or final statement).

The defense attorney has the right to visit the defendant in pretrial detention or while serving a prison sentence and to speak with the defendant in private. During the trial , the defense attorney has the right to ask questions of witnesses and, if necessary, to cross-examine a witness or an expert witness. At the conclusion of the trial, the defense attorney delivers a closing argument.

The Union of Defense Attorneys promotes a professional approach to defense, which contributes to the proper and fair conduct of criminal proceedings.

Other Persons with the Right to Defend

Certain procedural rights on behalf of the accused may also be exercised by other persons. If the accused has limited legal capacity, a legal representative or guardian may exercise his or her rights under the conditions prescribed by law. Special rules apply in the criminal prosecution of juveniles, where the social and legal protection of children authority also plays a significant role. Relatives and other close associates of the accused also have certain procedural rights defined by law. For example, they may choose a defense attorney for the accused or, under specified conditions, file an appeal on the accused’s behalf.

The Role of the Public Prosecutor in Criminal Proceedings

The public prosecutor plays a key role in all stages of criminal proceedings, from filing an indictment to proposing a sentence. Their activities fall under the jurisdiction of the regional public prosecutor’s office, the high public prosecutor’s office, and, at the highest level, the Supreme Public Prosecutor’s Office. These institutions oversee the legality and fairness of decision-making in the public interest.

During court proceedings, the public prosecutor acts as the prosecutor, representing the interests of society in ensuring that criminal offenses are properly investigated and, where appropriate, punished. His or her powers include not only filing motions and requests but also the ability to influence the outcome of the proceedings through plea agreements.

Prosecutors work within individual prosecutor’s offices, which, like the courts, are divided into district, regional, and high prosecutor’s offices. The Supreme Public Prosecutor’s Office exercises oversight and control over them.

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

• criminal proceedings prior to the filing of an indictment —one of the public prosecutor’s main duties during an investigation is to oversee compliance with the law in the preliminary proceedings. The public prosecutor may issue binding instructions to law enforcement agencies, request the collection of evidence, and decide on certain procedural matters. However, the decision to remand the accused in custody is made by a judge upon the public prosecutor’s motion. During preliminary proceedings, the public prosecutor may, for example, decide to release the accused from custody. In cases specified by law, the public prosecutor also personally conducts investigations into criminal offenses committed by members of selected security and intelligence agencies.
• Court proceedings —where thepublic prosecutor acts as the prosecutor. The public prosecutor files the indictment, proposes a sentence, or proposes a plea agreement. In court proceedings, the public prosecutor essentially has the status of one of the parties. Here, the public prosecutor’s role is intended to be very active. He or she presents the indictment and the closing argument, proposes evidence, and participates in the presentation of evidence. He or she is the only one authorized to file an appeal against (but, where appropriate, also in favor of) the defendant, a party to the proceedings, or the victim.

Plea Agreement

The plea agreement was introduced into the Czech Criminal Procedure Code in 2012. It allows the prosecutor and the defendant to negotiate a plea agreement, which must then be approved by the court. The defendant must admit to committing the offense for which they are being prosecuted, and the results of the investigation must provide sufficient grounds to conclude that this admission is true. The agreement also includes provisions regarding the sentence and, where applicable, other matters prescribed by law. The agreement may lead to a more lenient sentence and a faster conclusion to the proceedings; however, a more lenient sentence is not an automatic entitlement of the defendant. In this case, the prosecution’s role in court consists primarily of submitting the negotiated agreement for approval. The court assesses whether the statutory conditions have been met and may refuse to approve it.

Complaints and Review of the Prosecutor’s Conduct

If a defendant or an injured party suspects delays in the public prosecutor’s actions, they may, under the Criminal Procedure Code , file a request for a review of the public prosecutor’s conduct. The public prosecutor at the immediately higher public prosecutor’s office is responsible for handling such a request.

The Act on the Public Prosecutor’s Office then allows anyone to file a complaint regarding delays in the performance of the Public Prosecutor’s Office’s duties or, as the case may be, regarding inappropriate conduct by public prosecutors and other employees of the Public Prosecutor’s Office. The chief prosecutor, who is the superior of the prosecutor against whom the complaint is directed, is responsible for handling such complaints.

Summary

A defense attorney protects the rights and interests of the accused, while the prosecutor oversees the legality of the preliminary proceedings and represents the prosecution in court. The court decides on guilt and punishment and also approves plea agreements. The accused may choose a defense attorney; in cases where defense counsel is mandatory, the court will appoint one if the statutory conditions are met. However, having a court-appointed defense attorney does not automatically mean that the defense is free of charge. There are various remedies available against delays, procedural irregularities, and specific decisions, and it is important to distinguish between them.