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Proposal for Amendment of Certain
Provisions of the Criminal Procedure Code (submitted by the
Counselling Centre)
The Counselling Centre for Citizenship,
Civil and Human Rights, a non-governmental organization, is
respectfully submitting this proposal for amendment of those
provisions of the Law No. 141/1961 of the Collection of Laws,
the Criminal Procedure Code that are governing
I. appointment of legal defense and
II. imposition of penal order
Reasoning
Executive Summary
The purpose of this proposal is to eliminate certain deficiencies
of the Law No. 141/1961 of Coll., the Criminal Procedure Code
(further only "the CCP"). The CCP in its current form lacks
a positive procedural implementation of certain rights guaranteed
by the Chapter V of the Charter
on Fundamental Rights and Freedoms (further only "the
Charter") and the Article 6 para 3 c) of the c (further only
"the ECHR"), as it does not implement these rights in adequate
and effective manner.
First of all, the attached proposal is
addressing the lack of implementation of the right to legal
assistance pursuant to Article 37 para 2 of the Charter 1.
Although this provision does not relate exclusively to the
criminal procedure but to any proceedings before courts, other
state bodies, or public administrative authorities, it has
a crucial importance for the criminal procedure, especially
in regard to the following provision of the Article 40 para
3 2. The latter
is a specific provision guaranteeing the right to legal assistance,
the right to obligatory defense and the right to free legal
assistance in criminal procedure.
The Charter differentiates between the legal assistance in
judicial proceeding in general and the right to select a defense
attorney in the criminal procedure that is specifically governed
by the Article 40 para 3 of the Charter. The Article 40/3
refers to the laws governing obligatory defense and the free
legal assistance. Concerning the law on the obligatory defense,
the Charter imposes an obligation of courts to appoint a defense
attorney if the defendant does not make use of his right to
select an attorney for himself. At the same time, this article
states that the specific law should regulate when the defendant
is entitled to defense free of charge
The right to legal assistance pursuant to the Article 37 para
2 can be exercised through the Article 18 para 2 3
of the Law on Legal Profession, Law No. 85/1996 Coll. This
regulation is absolutely insufficient as it is limited to
a mere statement that the one who cannot secure legal assistance
can request the Bar Association of the Czech republic to appoint
a defense attorney for him. However, the law does not establish
any obligation of the Bar to do as stated.
The right of the defendant to legal assistance as such, obligatory
defense and free legal assistance is further implemented through
the Article 33 and following of the CCP. The Article 36 (and
following) of the CCP establishes rather precisely possibilities
and conditions for obligatory defense. However, the implementation
of the right to free legal assistance pursuant to the Article
33 para 2 and the appointment of a defense attorney in cases
of the obligatory defense pursuant to the Article 39 appear
highly insufficient. In the case of free legal assistance
pursuant to the Article 33 para 2, the law is limited only
to a declarative formulation. Moreover, the CCP is completely
lacking procedural provisions implementing this right because
it does not state who should decide whether the defendant
is entitled to free legal assistance, or does not establish
any remedies of the defendant in such a case. As for the obligatory
defense, the CCP only states that a defense attorney is appointed
by a lone judge or by the chairman of senate, and it does
not regulate the process of the selection of attorneys. In
the current legislation, the selection procedure is only very
vaguely governed by the Rules on the Court Administration
that is an internal regulation issued by the Ministry of Justice.
In regard to the requirement of independent judiciary, it
seems questionable that the chairman of the senate or lone
judge are appointing defense attorneys based on their own
and rather free consideration that is limited only by vague
recommendations of the Rules on Court Administration. It has
to be stress out that appointment of defense attorneys in
obligatory defense cases is the right guaranteed by the Charter
which is a part of the constitutional order of the Czech Republic.
Thus, it does not appear as sufficient to govern the implementation
of this right only by the internal rule of the Ministry of
Justice. The Charter does not expressly imposes any obligation
to implement it through the law, however, it is more than
probable that it intended to establish the procedural details
through the law, eventually through the decree based on the
law.
Proposed changes attempting to eliminate these deficiencies
are designed as amendment of relevant provisions of the CCP.
They do not require substantive changes in the CCP conception
and it is possible to include them into the proposal for amendment
of the CCP that is currently being prepared by the Ministry
of Justice.
The proposal is also addressing the problems related to imposition
of penal orders: current regulation on penal orders enables
to impose a sentence to imprisonment penalty. In regard to
importance of the protection of personal freedom and procedural
rights of persons accused of crime as guaranteed by the Charter,
it is unbearable that the defendant can be sentenced by penal
order to a definite sentence of imprisonment penalty. That
means that the current regulation enables to imprison the
defendant without a public hearing, without having an opportunity
to comment on all facts he is accused of as well as on any
relevant evidence or without an oral hearing. Eight-day deadline
for lodging an appeal against the penal order is clearly disproportionate
to the gravity of interference to personal liberty that the
defendant would face in case of imposition of the imprisonment
penalty. It is true that an appeal lodged in the deadline
can result in a regular public hearing free of mentioned deficiencies,
however, the court is entitled to impose a higher sentence
than in a penal order. Thus, the remedy of appeal against
a penal order is debased as in some cases it might serve as
a sanction for lodging an appeal. The solution is to cancel
a possibility to impose a sentence of imprisonment penalty
by a penal order.
Discussion
Ad I.)
Interpolation of two new paragraphs aims to secure procedurally
an availability of the free legal assistance to those defendants
who do not have sufficient financial means to pay for their
legal defense. Herewith, the proposed modification will establish
a legal remedy against the decision on the request of free
legal assistance that could be lodged by the defendant and
by the state prosecutor.
Ad II.)
The proposal regulates the situation if there was decided
that the defendant has the right to free legal assistance
but he has not selected a defense attorney on his own. Unless
there are specific provisions of the CCP addressing this situation,
there would be a question whether to apply the provision of
the Article 18 para 2 of the Law on Legal Profession. However,
the provisions of the Law on Legal Profession do not sufficiently
secure the access to free legal assistance. In such a case,
the conditions for granting legal assistance would be established
by the Bar Association. At the same time, the cited provisions
do not impose any obligation of the Bar Association to appoint
a defense attorney. Thus, including the free legal assistance
among the obligatory defense cases seems systematic and reasonable.
Moreover, the provisions of the Article 36 para 1 attempted
to provide free legal assistance in cases when the position
of the defendant is especially aggravated. If the state covers
the expenses of legal assistance fully or partially, as it
is in the case of free legal assistance, the expenses are
covered to the amount established by the Tariff of Legal Profession
and they are not reimbursed immediately after they appear.
Thus, the defendant in obligatory defense case is objectively
disadvantaged compared with the defendant who can pay costs
of legal assistance on his own.
Ad III.)
The purpose of the proposed amendment is a systematical regulation
and lucidity of the legislation. Although systematically,
the provision would belong to the Article 37 that rules on
a selected attorney, in a current legal regulation it is places
into the Article 38 that deals with an appointed attorney.
The proposed amendment would stress out the priority of the
defendant's right to select attorney which seems highly desirable.
Ad IV.)
See discussion to the Part III.
Ad V.)
Paragraph 2 of the current regulation is excessive and it
is hardly used. If applied in its current form, it can create
a danger in the criminal procedures where the interests of
co-defendants did not collid at the beginning of the procedure
they will collid later, and there will be a reason to reject
legal assistance by the appointed counsel based on the provisions
of the Article 19 of the Law on Legal Profession. At least,
in application of the procedure pursuant to the Article 38
para 2, there is a danger of unnecessary postponement of the
criminal procedure that is supposed to be speedy and effective.
Ad VI.)
The proposed amendment attempts to eliminate current deficiencies
in cases where the selection of the defense attorney is regulated
by the internal instruction of the Ministry of Justice. The
instruction, moreover, gives the judge on the case disproportionately
wide choice to select a counsel from all attorneys who reside
in the court district. Direct connection between judge's decision
and selection of appointed counsel should be excluded to the
highest possible extent, especially in regard to necessary
independence of judiciary. Some attorneys residing in the
court district do not wish to represent defendants in the
criminal procedure and they practice in other areas of the
law.
It is more than desirable to give an option to attorneys to
express their interest to represent cases of obligatory defense
at the given court without the relation to specific defendant
to whom they will be appointed. On the other hand, there should
be created a mechanism for judges to appoint attorneys in
obligatory defense. The Charter and the CCP do establish an
obligation of the judge to appoint a counsel, not the right
to select the attorney on their own choice. Possibility to
create a waiting list based on supportive criteria can result
in a sufficient number of attorneys available to the judge
that he will be able to appoint as the counsel. This regulation
would suffice even in cases where there will not be enough
applicants from attorneys to represent in obligatory defense
cases.
As the rules on waiting-list mechanism do not have any direct
connection to the criminal procedure, they could be established
by the decree.
Ad VII.)
The possibility to impose an imprisonment penalty by the penal
order is waived in accordance with the Recommendation of the
Committee of Ministers on Simplification of Criminal Justice
4. The proceeding
without public hearing in connection with the possibility
of further increase of the imposed sentence in a regular proceeding
if the defendant lodged an appeal, disproportionately limits
the rights of defendant to judicial protection in cases of
imposed imprisonment. Current legal regulation does not respect
the prohibition of reformation in peius requirement. Side
effect of proposed amendment could be a higher percentage
of defendants sentenced to alternative sentences that is desirable
in regard to overcrowdness of prisons.
Ad VIII.)
It is proposed to extend the deadline for lodging an appeal
against the penal order from 8 to 15 days. Legal deadline
of 8 days exceeds only in one day a deadline that the European
Court on Human Rights declared insufficient from the point
of sufficient time for appeal.5
Attachment to the Proposal
Proposal:
I.
The provisions of the Article 33 para 2 of the Criminal Procedural
Code are nullified. Instead, there is inserted a new paragraph
No. 2 and paragraph No. 3 stating as follows:
2) If defendant proves that he does not have sufficient financial
means to pay for his legal defense, the senate's chairman
or based on the defendant's request in the pre-trial procedure
the judge or the state prosecutor will decide that the defendant
has a right to free legal assistance, or that he has a right
to legal assistance for reduced fee, or will reject the request.
In granting the legal assistance, the expenses for defense
are fully or partially covered by the state.
3) Request for the decision pursuant to the paragraph 2 including
attachments justifying the request is lodge by the state prosecutor
of by the via the state prosecutor in preliminary procedure
to competent court and in court proceeding to the court who
is deciding as the first instance court. A complaint can be
lodged against the decision on the request pursuant to the
paragraph 2. The complaint has a suspensive effect.
Current paragraph 3 of the Article 33 is listed as paragraph
4.
II.
In the Article 36 paragraph 1, there is inserted a new letter
e) that states as follows
e) if there was legitimately decided that the defendant has
a right to free legal assistance or to assistance for reduced
fee (Article 33 para 2).
The term "or" that was place after the letter c) is moved
after the letter d).
III.
Into the Article 37, there is inserted a new paragraph No.
3 that states as follows
3) If the defendant has no attorney in a case where he must
have one (§ 36 and 36a), a deadline is set for him to select
an attorney.
IV.
In the paragraph 1 of the current article 38 the wording:
If the defendant has no attorney in a case where he must have
one (§ 36 and 36a), a deadline is set for him to select an
attorney. If no attorney is selected by this deadline, is
nullified and instead of it there is inserted as follows
If the defendant has no attorney in a case where he must have
one (§ 36 and 36a) or he does not select him in a deadline
pursuant to the article 37 para 3,
and further continues in a current wording.
V.
The current paragraph 2 of the Article 38 is nullified.
VI.
Into the Article 39, there is inserted a new paragraph 2 and
paragraph 3 that state as follows:
2) For these purposes, the court is keeping an alphabetically
organized waiting-list of attorneys (further only "the list")
who wish to provide legal defense as appointed attorneys at
this particular court. If this list is not fulfilled the court
is keeping instead of it the list of attorneys who wish to
provide legal defense as appointed attorneys and they reside
in the district of the court. If such a list is not fulfilled
the court is keeping the list of attorneys who reside in the
district of the court. Details on minimum number of attorney
for fulfillment of the list, means of attorneys' enrollment
to the list and the strike out of the list will be established
by a decree of the Ministry of Justice.
3) Attorneys listed in the list are appointed as defense counsel
to individual defendants in alphabetical order as their name
follow in the list. If in this manner there was established
an attorney at whom there are reason for exclusion from performing
defense, the judge will appoint the first following attorney
from the list at whom those reasons do not exist.
Current paragraph 2 of the Article 39 is listed as paragraph
4.
VII.
Paragraph 2 letter a) of the Article 314e is nullified. Current
letters from b) to e) are listed as letters from a) to d).
In the Article 314g para 1, the number 8 is changed to number
15.
After the implementation of proposed changes, the relevant
provisions of the criminal code would state as follows (the
changes are highlighted)
§ 33
Rights of the defendant person
(1) The defendant has the right to comment on all facts he
is defendant of as well as on any relevant evidence but he
is not obliged to provide testimony. He may describe any circumstances
and present any proofs while defending himself; he can make
proposals and file petitions and corrective instruments. He
has the right to choose a counsel and consult his counsel
even during operations performed by criminal authorities.
However, he cannot consult his counsel when providing testimony,
asking him how to answer a pronounced question. He can ask
to be interrogated in presence of his lawyer and request that
his lawyer takes part also in other pre-trial operations (§
165). If the indicted is in custody or in prison, he can talk
to his lawyer without a third person being present. The specified
rights can be enjoyed by the indicted even if he has been
deprived of legal capacity or if his legal capacity has been
reduced.
(2) If defendant proves that he does not have sufficient financial
means to pay for his legal defense, the senate's chairman
or based on the defendant's request in the pre-trial procedure
the judge or the state prosecutor will decide that the defendant
has a right to free legal assistance, or that he has a right
to legal assistance for reduced fee, or will reject the request.
In granting the legal assistance, the expenses for defense
are fully or partially covered by the state.
(3) Request for the decision pursuant to the paragraph 2 including
attachments justifying the request is lodge by the state prosecutor
of by the via the state prosecutor in preliminary procedure
to competent court and in court proceeding to the court who
is deciding as the first instance court. A complaint can be
lodged against the decision on the request pursuant to the
paragraph 2. The complaint has a suspensive effect.
(4) All criminal authorities are obliged always to instruct
the indicted about his rights and to ensure full possibility
of applying them.
Obligatory defense
§ 36
(1) The defendant must have an attorney already in the preliminary
proceeding
a) if he is in custody, in prison or under a medical observation
in a hospital (§ 116, par. 2);
b) if he is deprived of his legal capacity or if his legal
capacity has been limited;
c) if it is a proceeding against a juvenile person;
d) if it is a proceeding against a runaway, or
e) there was legitimately decided that the defendant is entitled
to free legal assistance or to assistance for reduced fee
(article 33/2).
(2) ...
§ 37
Selected defense attorney
(1) If the defendant does not make use of his right to select
an attorney and if no attorney is selected by his legal assignee,
the defendant's direct lineage relative, sibling, adopter,
adoptee, spouse, partner or an involved person can do so.
If the defendant is divested of legal capacity or if his legal
capacity is restricted, these people can do so even against
the defendant's will.
(2) The defendant can select another attorney instead of the
one who was appointed or selected for him by an entitled person.
(3) If the defendant has no attorney in a case where he must
have one (§ 36 and 36a), a deadline is set for him to select
an attorney.
Appointed defense attorney
§ 38
(1) If the defendant has no attorney in
a case where he must have one (§ 36 and 36a) or he does not
select him in a deadline pursuant to the article 37 para 3,
an attorney shall be immediately appointed for the defendant
for a period during which the obligatory defense requirement
is applicable.
§ 39
(1) The defense attorney is appointed by the senate's chairman,
in the pre-trial procedure by the judge; they also cancel
the appointment if the obligatory defense requirement is no
longer applicable.
(2) For these purposes, the court is keeping an alphabetically
organized waiting-list of attorneys (further only "the list")
who wish to provide legal defense as appointed attorneys at
this particular court. If this list is not fulfilled the court
is keeping instead of it the list of attorneys who wish to
provide legal defense as appointed attorneys and they reside
in the district of the court. If such a list is not fulfilled
the court is keeping the list of attorneys who reside in the
district of the court. Details on minimum number of attorney
for fulfillment of the list, means of attorneys' enrollment
to the list and the strike out of the list will be established
by a decree of the Ministry of Justice.
(3) Attorneys listed in the list are appointed as defense
counsel to individual defendants in alphabetical order as
their name follow in the list. If in this manner there was
established an attorney at whom there are reason for exclusion
from performing defense, the judge will appoint the first
following attorney from the list at whom those reasons do
not exist.
(4) If more cases are combined to be heard and decided together
and in each of these cases an attorney was appointed for the
defendant, the senate's chairman, in the pre-trial procedure
the judge, shall cancel appointment of those attorneys who
were appointed later. If the attorneys were appointed at the
same time, he shall cancel appointment of those attorneys
who were appointed in a less serious crime procedure.
Penal order
§ 314e
(1) The lone judge can issue a penal order without adjudicating
the case in the main trial if the factual state of affairs
is well proved by collected evidence.
(2) The penal order can be used to impose; a) the penalty
of community service; b) the prohibited activity penalty of
up to five years; c) a fine; d) the penalty of an object forfeiture;
(3) ...
§ 314g
(1) The defendant, individuals entitled to lodge an appeal
on his behalf, and the state's attorney can lodge an appeal
against the penal order. The appeal is lodged with the court
that issued the penal order within 15 days after its reception.
The deadline is the same for the individuals entitled to lodge
an appeal on the defendant's behalf, with the exception of
the state's attorney. If the penal order is delivered both
to the defendant and to his attorney, the time period starts
on the later date of reception. The provisions of § 61 shall
be applied analogously for assigning a new deadline.
(2) ...
simplified judgements in the criminal procedure (note of translator)
Notes:
1 Article
37/2 of the Charter: "In proceedings before courts, other
state bodies, or public administrative authorities, everyone
shall have the right to legal assistance from the very beginning
of such proceedings."
2 Article
40/3: "An accused has the right to be given the time and opportunity
to prepare a defense and to be able to defend herself, either
pro se or with the assistance of counsel. If she fails to
choose counsel even though the law requires her to have one,
she shall be appointed counsel by the court. The law shall
set down the cases in which an accused is entitled to counsel
free of charge."
3
Article 18/2 of the Law on Legal Profession: "If someone cannot
secure provision of legal services pursuant to this law, he
is entitled to require that the Association designate an attorney
for him. Unless there is a reason for refusing as set in §
19, the attorney designated by the Bar Association is obliged
to provide legal services under conditions specified in the
designation."
4
Recommendation R (87)18 from September 17,1987
5
Hennings v. Germany, No. A 251-A (1992)
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