What are the principles and rules in criminal proceedings?

Chapters of the article

• Basic principles of criminal law
• Other important principles
• Who can be prosecuted?
• Error in criminal law
• Analogies in criminal law

Criminal proceedings are not a common thing in most of our lives, so logically we don’t care much about them and don’t know much about them. We read about how a major politician’s corruption case is developing and how a senior “terrorist” was caught, but that is usually the end of our interest. But what if a large sum of money went missing in your company and you were (albeit wrongly) accused of embezzlement? And what if your 14-year-old child gets involved in some illegal activity with the gang? Can he or she even be prosecuted? We have attempted to summarise the basic principles and principles of criminal prosecution in our article, supplemented by illustrative examples from both substantive and procedural criminal law.

Basic principles of criminal law

The fundamental principles of criminal law are certain principles on which criminal law is based. Some of them are derived from the Charter of Fundamental Rights and Freedoms. Many of them are described in the theory of criminal law, we will mention at least the most important ones, which include:

• The principle of legality, according to which you may be punished only for what is described in the law. In Anglo-Saxon law, for example, more discretion is left to judges in this respect, so do not look to American series for inspiration.
• Related to this principle is the so-called prohibition of retroactivity, which means that an act is a criminal offence provided that it is already punishable under the law at the time of its commission and remains so until the conviction becomes final. For example, in the case of the offence of sexual abuse, coitus with a child under the age of fifteen is punishable under the current legislation. If, for example, a famous singer found a fifteen-year-old girlfriend, had an affair with her, and the legislators raised the age of the child for that offence to sixteen, the celebrity would have to stop having intimacy until the partner was sixteen, but there would be no retroactive punishment. Conversely, if the person in question had begun the affair at the age of fourteen, and criminal proceedings were brought against him, but at the same time the legislature lowered the age for the offence to fourteen, he would again escape punishment.
• The principle of humanism – permeates criminal law at multiple levels. First of all, it is enshrined that no one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment. And human dignity must not be degraded by the execution of a sentence. In accordance with this principle, the death penalty has also been abolished.
• Theprinciple of individual responsibility of natural persons – according to this principle, a specific person is always criminally responsible. Therefore, we cannot speak of collective guilt. However, this does not exclude the criminal liability of legal persons.
• Theprinciple of culpability – this means that the perpetrator can only be punished if he or she caused a certain consequence. For example, if several accomplices went together to rob an apartment and one of them murdered the owner, the punishment of all of them cannot be based only on the overall consequence (robbed apartment and murder), but must be determined individually what each of them did.
• The principle of substantive truth applies in civil uncontested proceedings in addition to criminal proceedings. It means that the law enforcement authorities must seek to establish the facts accurately, regardless of the activities of the parties. The accused or his defence counsel need not be active in this respect (the counterbalance is the principle of formal truth, applied in civil litigation, where, on the contrary, emphasis is placed on the activity of the parties and the evidence presented, and it is up to the parties to convince the court of ‘their truth’).

Other important principles of criminal procedure

• No one can be prosecuted twice for the same thing. If a trial has already been finally concluded, it must not be resumed. The exception is if there are completely new material facts in the case and there is a retrial. However, the principle is not contradicted, for example, by a situation where, in the context of certain conduct of an offender, a criminal offence and an offence under another law are committed at the same time. In such a case, there are two separate acts which can be punished twice.
• Theprinciple of the presumption of innocence, which states that the accused is to be regarded as innocent until the conviction becomes final. In practice, however, this principle sometimes lapses, as people tend to base their decisions on the saying “there is not a speck that does not have a little truth on it”. However, this is certainly not a principle of criminal procedure.
• Theprinciple of formality requires law enforcement authorities to act ex officio. The public prosecutor is therefore obliged to prosecute all crimes of which he becomes aware.
• The principle of impeachment provides that prosecution before the court is only possible on indictment and for the act for which the charge was communicated to him. Although a change of legal qualification is allowed, the accused should have similar rights as at the beginning of the proceedings. In exceptional cases, however, judges simplify the process and may convict for a crime other than the one for which the person was charged.
• The principle of non-self-incrimination states that the accused must not be compelled in any way to provide evidence of his or her guilt.
• Principle of orality and publicity of the trial.

Who can be prosecuted?

The Criminal Code sets out several conditions that must occur simultaneously for a prosecution to be brought.

The offender may be: a natural person who has reached the age of fifteen and is of sound mind.

A person who, because of mental disorder, did not understand the wrongfulness of his or her actions or could not control them would be classified as insane. If such capacity is only diminished, we speak of diminished sanity.

Persons under 15 years of age are not criminally responsible. If a child under the age of 15 commits a misdemeanour or a crime, the competent authority would of course investigate him or her, but the matter would then be dealt with by the youth court, which may decide on certain measures such as placement in an educational programme or protective treatment.

Juveniles, i.e. those between 15 and 18 years of age, are further examined for their intellectual and moral maturity. The point is that if the juvenile could not recognize the illegality or control his or her actions, then he or she is not responsible for such an offence.

The law also speaks of the possible criminal liability of legal persons. Of course, a legal entity cannot commit an illegal act itself, but it can be held liable for a certain range of criminal offences if they are attributable to it, i.e. if they are committed by a member of the statutory body or management of the company, or even by an employee in the course of performing his or her work tasks. It is also a condition that the conduct takes place within the scope of the activities of the legal entity or in its interest.

Of course, a legal person cannot, by its nature, become the perpetrator of the offence of drunkenness or bigamy, but it can be held liable, for example, for animal cruelty or damage to a creditor.

To err is human

We speak of mistakes in the context of criminal law in a twofold context. We are familiar with the concept of a “miscarriage of justice“, when a court makes a mistake in assessing a case, for example, misjudging the evidence and convicting an innocent person. Such errors are rather exceptional, but cannot be completely ruled out.

Another situation is the so-called error of fact or law, which is described in the criminal law.
A mistake of law is, for example, a situation where ignorance of the law causes the perpetrator to commit a crime without knowing it. Such a fact may be relevant, for example, in the case of juveniles, who would still be criminally responsible for such an act, but the court may refrain from punishing them.
Rather rarely, the opposite situation may arise, where someone thought they were committing a crime, but the law would not prosecute the act (for example, thinking that throwing rubbish in the street is a crime). Such actions will then be sanctioned at most by bystanders, but not by the courts.

Amistake of fact is a situation in which the perpetrator is unaware of a circumstance that would make the act a criminal offence. And here, too, the opposite variant can be found, where the offender may think that he is committing a crime when in fact he is not because of certain factual circumstances. This second variant has often been invoked in criminal cases related to the recently released film In the Net. Its actors had many reasons to believe that they were communicating in a very inappropriate way with 12-year-old children, when in fact they were adult actresses. In similar cases, the law allows for punishment if the perpetrator believes that he is committing a more serious intentional offence when this is not actually the case. He may be punished for attempting that more serious offence.

What if the law does not regulate a certain thing in detail?

If, in the context of a criminal trial, it happens that a certain legal norm does not precisely regulate a given matter (relating to the trial or the act itself), the law allows so-called analogy. This means the application of another legal norm to a case to which that norm does not directly apply, but which is closest to it.

The use of analogy is rather exceptional in criminal law and must never be used to the disadvantage of the perpetrator. This means, for example, that it is not possible to describe “by analogy” as a criminal offence something that is not directly regulated in the criminal law.