Are you about to go to trial or are you a criminal defendant but don’t want to spend money on a lawyer? Would you like to request the appointment of an attorney “ex officio” but do not know what proceedings you are entitled to and under what conditions? Let’s see when the Czech legal system allows this option and whether it is worthwhile for you.
An ex officio lawyer is a legal adviser who is mandatorily assigned to a criminal defendant if the defendant does not have a lawyer of his own and is under custody or charged with an offence punishable by a heavy prison sentence (see below for a more detailed definition of the statutory conditions). The term “ex officio” comes from Latin and means “out of obligation”, which means that the lawyer is not appointed by choice and agreement with the client.
An ex officio lawyer has the same qualifications and capabilities as any other lawyer and can therefore provide comprehensive legal advice and defence in criminal proceedings. He is mandatorily assigned in order to fulfil the idea of the right to a fair trial and to guarantee the defence of the rights of the accused, especially in cases where heavy penalties are imminent.
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Ordinary civil disputes, such as disputes with a (former) employer or spouse, arguments with a neighbour or claims against a business partner, are not covered by the obligation to have a lawyer. However, it is always preferable and avoids potential mistakes. If you do not have the money for legal representation, you can of course study and build your legal argument yourself. However, if the opposing party has an attorney with five or more years of training and years of experience in court and in a law firm, he or she will be at a significant advantage.
In fact, what discourages many clients from choosing an attorney is the concern about increasing hours and opaque billing, where you have no idea in advance whether a case will require five or twenty-five hours of attorney work. The ideal solution, therefore, is to seek out a service where you know the price up front and there are no unpleasant surprises. This is the approach we have taken to mutual satisfaction with the Affordable Lawyer service. The client chooses from a package of services, knows the price in advance and is not surprised by anything.
Another option is to ask the court to appoint a representative at the same time as applying for exemption from court fees. However, you must prove that your financial circumstances are not sufficient to pay for the representative yourself. You must provide precise proof of these facts and attach them to the application.
Unlike civil proceedings, there are a number of situations in criminal proceedings in which the accused must have a lawyer. These are set out in the Criminal Procedure Code.
Already in pre-trial proceedings, this applies, for example, to defendants who are currently in custody or serving a custodial sentence, who have limited legal capacity, or in proceedings against a fugitive.
Another important situation which requires the presence of a lawyer is proceedings for an offence for which the law provides for a maximum penalty of more than five years’ imprisonment.
If the accused does not have a defence counsel in these so-called “indispensable defence”cases, a time limit for the appointment of a defence counsel is first set. If he fails to do so even then, a defence counsel shall be appointed by the court.
The two basic myths circulating among the general public are that an ex officio lawyer works for free (pro bono) and that the defendant never pays for his services. The reality is that an ex officio attorney is paid from public funds and charges the state for his or her services according to the attorney fee schedule. However, an important moment occurs when the accused is found guilty by the court. In such a case, the State will claim the costs of the defence, including the costs of the ex officio lawyer. If the state fails to recover the debt on a more or less voluntary basis, then it resorts to enforcement proceedings and the problems of the convicted grow exponentially.
Tip: The only remedy against a criminal order is a complaint. A complaint against the initiation of criminal prosecution is usually the key, but in other situations it may also be justified for an effective defence. In what situations is a complaint appropriate? We have addressed this in our separate article.
The question in the title may not be entirely appropriate if the accused has no resources and therefore no choice. However, it is often more a question of little willingness to seek or spend resources on defence. In such a case, it would be useful to consider the following arguments.
The ex officio defence counsel is appointed by the court according to a list of lawyers without further specialisation, which may pose a problem for the accused. As we have stated above, such a lawyer may have the same qualifications as any other, but he does not necessarily specialise in the area of the offences of which the accused is guilty or subsequently charged.
Thus, the defence provided may not be as precise as that which could be provided by a defence counsel specialising in the subject matter. Moreover, the number of ex officio defence lawyers is limited.
As we have also mentioned, the myth of free counsel does not apply either. If the charges are proven and the accused is found guilty, he or she will be required to pay the costs associated with the criminal proceedings, including legal fees.
Another factor to consider is the motivation of the ex officio attorney. Unlike a regular attorney who must win clients and retain their favor, an ex officio attorney may not have the same motivation to devote himself or herself 100 percent to the case. In practice, this can sometimes mean that while ex officio attorneys will take all the necessary steps to defend the case and thus satisfy the statutory requirement for a fair trial, they may not be willing to put their maximum energy into the case. On the other hand, such an approach cannot be generalised and there are certainly many exceptions.
Tip: The work of an ex officio lawyer is also often demanding and unenviable. For example, in a situation where he takes on cases from which other colleagues are taking their hands off. The top lawyer and renowned attorney JUDr. Ressler, who was responsible for the ex officio defence of the “executioner of the Czech nation”, K. H. Frank, knew this. Despite the fact that no one could suspect Ressler of being a Nazi sympathizer, he managed to free himself from personal feelings and conduct a brilliant and precise defense, thanks to which some of the unfounded accusations against Frank were refuted. He put maximum energy into the case, even when it was clear that the main points of the prosecution’s case were reliably sufficient for a death sentence. In 1998, a film was made about this famous trial, aptly titled Ex Offo and starring Viktor Preiss.
Overall, the accused very often does not spend more money by choosing their own lawyer. However, they will choose a lawyer who has their trust and specialises in that area of law. It is also good to know that the accused or defendant has this choice at any time, even if he or she has already been assigned a lawyer.
The Code ofCriminal Procedure allows the accused to waive counsel in most cases of so-called necessary defence. In a case where a sentence of more than five years’ imprisonment is imminent, this can only be done in a situation where no exceptional punishment is imminent. However, it is considered very reckless not to avail oneself of the opportunity to defend oneself with the assistance of a lawyer in criminal proceedings.
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