When to defend myself with a complaint in criminal proceedings?

Chapters of the article

• The role of the complaint in criminal proceedings
• Complaint against the initiation of criminal proceedings
• Who is allowed to file a complaint?
• Complaint procedure
• Adjudication of the complaint

The role of the complaint in criminal proceedings

The complaint is the only proper remedy against the order in criminal proceedings. It is usually used to deal with minor decisions in criminal proceedings. However, not every order is subject to a complaint.

In general, a complaint is admissible:

• against all orders of a police authority,
• against orders of the court and the public prosecutor where they rule at first instance and where the Code of Criminal Procedure expressly allows it.

Complaint against the initiation of criminal proceedings

A complaint against the opening of criminal proceedings is the most common and very fundamental type of complaint. It is a relatively significant act which can set the defence strategy from the outset and significantly influence the prosecution or lead to its termination. The paradox is that such a fundamental act is legally subject to only three days from the date of notification of the order to the accused. It is therefore essential to approach it responsibly and not to skip consulting a lawyer who can help you choose an appropriate argument. By filing a complaint, the accused will make it clear to the law enforcement authorities that he or she does not agree with the initiation of criminal proceedings.

The complaint does not have suspensive effect and the effects of the initiation of the prosecution continue until the decision on the complaint is made. The decision on the complaint is within the competence of the public prosecutor supervising the pre-trial proceedings. You may state the grounds for your complaint in writing immediately upon filing it. In practice, however, it is often the case that a blank complaint is filed and its detailed justification is given only after the file has been consulted.

If the suspect does not succeed, he or she becomes the accused when criminal proceedings are initiated and the proceedings move to the investigation phase.

Mr. Radim, against whom criminal proceedings have been initiated, contacted the office of the Accessible Lawyer. According to the information we received from Mr. Radim, the criminal proceedings had been initiated two days before he called us. Therefore, there was only one day left before a complaint could be filed. We therefore agreed together to file a complaint without detailed justification. We accompanied Mr Radim to see the file, made a copy of it and then together prepared a proper statement of reasons. The accusation appeared to be unfounded, as although it was obvious that a criminal offence had been committed (it concerned the embezzlement of money by Mr Radim’s employer), there was no indication that he had committed a criminal off ence, apart from the fact that Mr Radim was employed by the company in question. We have very carefully written the reasons in this respect. The public prosecutor upheld the complaint and the prosecution against Mr Radim was eventually discontinued.

Who is allowed to file a complaint?

According to the law, only a person who has a legitimate interest in the content of the decision may file a complaint. Such a person may be:

• theaccused – who is most often the person affected by the decision and who is entitled to lodge any complaint,
• thevictim (e.g. in the case of a decision to discontinue criminal proceedings at the pre-trial stage),
• thedefence counsel – who may lodge a complaint on behalf of the accused,
• thelegal representative – if the accused’s legal capacity is limited,
• thepublic prosecutor – may lodge a complaint against the court’s decision, regardless of whose favour it is,
• thechild welfare authority – may lodge a complaint in favour of the juvenile,
• other persons who may have an interest in the content of the decision – for example, the prison director, a forensic expert.

Complaint procedure

The complaint must be lodged with the authority against whose decision it is directed within three days of notification of the decision or its delivery. You may submit your complaint in writing, or orally on the record or in electronic form. It shall have suspensive effect only where the law expressly so provides.

The authority that issued the decision will only decide on the complaint in the case of so-called self-medication, i.e. in the situation where it fully upholds the complaint. In all other cases, the superior authority decides. The Code of Criminal Procedure determines who that is.

The public prosecutor who supervises a complaint against a police authority is competent to deal with it. In the case of a decision by a public prosecutor, the superior authority is the superior public prosecutor or the court.

Adjudication of the complaint

The authority deciding on the complaint shall first of all consider whether it is admissible and whether it has been lodged by a person entitled to do so and in good time. The individual statements may then be examined.

The complaint shall again be decided by way of an order. In that decision, the complaint may be rejected on substantive or formal grounds, or the superior authority may annul the contested decision and either decide the matter afresh itself or order the authority against whose decision the complaint is directed to rehear and decide the matter afresh.