Guide to the Proceedings of the Criminal Division (sorted by individual types of proceedings)
1. Extraordinary Appeal1.1. Essence and Grounds of the Extraordinary Appeal
An extraordinary appeal is an extraordinary remedial measure by which may be challenged only a final judicial decision on the merits if the court decided as a court of second instance (i.e. the contested decision was issued by a regional court or a high court in appeal proceedings or in complaint proceedings), where allowed by law (Code of Criminal Procedure).
An extraordinary appeal may be lodged only on the grounds provided for by law (the so-called extraordinary appeal grounds), as defined in Section 265b of the Rules of Criminal Procedure, while an extraordinary appeal challenging merely the grounds of the decision is not admissible.
1.2. Persons Entitled to Lodge the Extraordinary Appeal and Legal Representation
In addition to the Prosecutor General, an extraordinary appeal may be, if the statutory conditions are met, lodged in particular by the accused on the grounds of incorrectness of the statement of the judicial decision directly relating to the accused. However, the accused must always lodge the extraordinary appeal through counsel – a lawyer (a person who has been admitted to the Bar having his name recorded in the Register of Lawyers maintained by the Czech Bar Association). If the accused had counsel already during the proceedings preceding the filing of the extraordinary appeal, and if the power of attorney granted to such counsel does not apply only to the filing of an extraordinary appeal, the counsel may represent the accused in the extraordinary proceedings before the Supreme Court of the Czech Republic (hereinafter referred to as “the Supreme Court”).
If the accused does not fulfil the obligation to lodge the extraordinary appeal through counsel, the Supreme Court will not decide such a motion and instead will send it, depending on its content, either to the court having jurisdiction as a motion for reopening of a case or to the Minister of Justice as a motion for the lodging of a complaint on the violation of the law, or the Supreme Court may return the motion to the accused with the instruction that an extraordinary appeal may be lodged only through counsel.
1.3. Period Within Which the Extraordinary Appeal May Be Lodged
An extraordinary appeal must be lodged within two monthof delivery of the decision contested by the extraordinary appeal (i.e. of delivery of the decision of the court of appeal or the court hearing the complaint) with the court that decided the case as the court of first instance (i.e. with a district court or a regional court, respectively). If said decision is to be delivered both on the accused and on their counsel and guardian, the above period will run from the date on which the decision was delivered to the last of them.
The period within which an extraordinary appeal may be lodged will begin to run on the date following the date of delivery of the contested decision. This period will end upon the expiry of the date whose numerical identification is identical with the date on which the contested decision is delivered. If there is no such date in the last month of the period, the period will end upon the expiry of the last day of such month. If the last day of the period is a Saturday, Sunday or public holiday, the last day of the period will be advanced to the immediately following business day.
The time limit for the filing of an extraordinary appeal will also be deemed to have been met if the extraordinary appeal is filed within the above period with the Supreme Court or with the court that decided the case as a court of second instance (i.e. with the respective regional court or high court), or if the extraordinary appeal is sent by post before the lapse of the above period to the address of the court with which it is to be filed (i.e. the court of first instance) or to the address of the court which is to decide the case (i.e. the Supreme Court).
Failure to meet the time limit for the filing of an extraordinary appeal cannot be waived. Any late extraordinary appeal will be rejected by the Supreme Court without meritorious examination.
1.4. Essential Elements of the Extraordinary Appeal
An extraordinary appeal must be submitted by a lawyer, and in addition to the general essential elements, it must also contain the special essential elements, as defined in Section 265f(1) of the Code of Criminal Procedure.
Besides other things, an extraordinary appeal must contain, in addition to the reference to any of the extraordinary appeal grounds listed in Section 265b of the Code of Criminal Procedure, also specific challenges fulfilling the selected extraordinary appeal grounds in terms of content. The Supreme Court is bound by such challenges during the course of extraordinary appeal proceedings and the challenged decision, or the proceedings preceding the issue of the challenged decision, will therefore be reviewed only to the extent and with respect to the grounds specified by the appellant in the extraordinary appeal.
No court fees are collected for the filing of an extraordinary appeal. The accused who filed an extraordinary appeal that was rejected or dismissed is obligated to reimburse the State for the costs of the extraordinary appeal proceedings, which are defined as a lump-sum amount of CZK 10,000.
1.5. The Filing of the Extraordinary Appeal and Its Effects
On principle, an extraordinary appeal is to be filed with the court that decided the case as the court of first instance. After the filing of an extraordinary appeal, a part of the extraordinary appeal proceedings takes place before the court of first instance. The purpose of this part of the proceedings is to provide the court of extraordinary appeal with full information required to decide the extraordinary appeal. The court of first instance, among others, takes measures to correct deficiencies in the essential elements of the extraordinary appeal. Once the period within which an extraordinary appeal must be filed lapses for all the entitled parties (or the period within which errors in the extraordinary appeal must be corrected), the court will submit the files to the extraordinary appeal court.
An extraordinary appeal per se does not have a suspensive effect; hence, the decision of the court of second instance continues to be enforceable, irrespective of the fact that it has been challenged by an extraordinary appeal. However, a filed extraordinary appeal has a centralized devolutive effect, since it is always decided by the Supreme Court, even if the extraordinary appeal may be rejected, be it for formal reasons under Section 265i(1) of the Code of Criminal Procedure, i.e. without examination of the contested decision and without a hearing on the merits.
1.6. Proceedings Before the Supreme Court
After an extraordinary appeal is delivered to the Supreme Court, it is, first of all, assigned to the respective Panel in accordance with the Work Schedule. Subsequently, the Panel will hear the extraordinary appeal and decide in open or closed session, depending on the method by which the Panel intends to decide the extraordinary appeal. Nevertheless, the case may also be disposed of partly in open and partly in closed session.
The primary form of the hearing of an extraordinary appeal is an open session, in which may be made all decisions relating to an extraordinary appeal, as provided for by the Code of Criminal Procedure [Section 265r(1)]. Some of them may be made exclusively in an open session, while other decisions may be made, at the discretion of the court of extraordinary appeal, in a closed session as well. As far as the preparation of open sessions, presence of entitled persons, procedure of open sessions or other issues relating to open sessions are concerned, the court of extraordinary appeal will apply the general provisions of Sections 232 to 238 of the Code of Criminal Procedure, with specific variations defined in Section 265r of the Code of Criminal Procedure. The publicity, procedure and beginning and adjournment of open sessions in extraordinary appeal proceedings are analogously governed by the provisions concerning the trial (Section 238).
As far as the procedure of open sessions of the court of extraordinary appeal [Section 265r(6)] is concerned, after the beginning of the open session when formal conditions for the commencement of an open session (presence of persons, meeting the time limits for preparation) are ascertained, the Head of Panel of the panel or another member of the Panel authorized by the President of Panel will read the contested decision and present the facts of the case. The report on the facts of the case focuses on questions that are to be resolved in the extraordinary appeal proceedings and it is not allowed to take any position on the contested decision or its errors challenged by the extraordinary appeal. The appellant will then read the extraordinary appeal and its justification. The public prosecutor and persons which may be directly affected by the decision of the court of extraordinary appeal, unless they are appellants, will provide their opinions afterwards. Evidence is generally not presented in open sessions of the Supreme Court. Only exceptionally the Supreme Court may add evidence necessary to decide the extraordinary appeal [Section 265r(7) of the Code of Criminal Procedure].
Closed sessions of the court of extraordinary appeal are optional. They allow acceleration and simplification of the extraordinary proceedings, but they may take place only where it is not necessary to hear the case in open session, i.e. if the extraordinary appeal is not heard on the merits or if the discovered error cannot be corrected in the extraordinary appeal proceedings or if the parties agree to the hearing of the case being held in closed session. The procedure of closed sessions is governed by the general provisions of Sections 240 to 244 of the Code of Criminal Procedure, and – unlike in the case of open sessions – the Rules of Criminal Procedure do not provide for any variations specific for extraordinary appeal proceedings. The limited extent of evidence is analogous to open sessions. The court of extraordinary appeal decides in closed session and always in the form of a resolution.
1.7. Extent of the Reviewing Activity of the Extraordinary Appeal by the Supreme Court
The extraordinary appeal proceedings apply the principle of bindingness of the lodged extraordinary appeal and its grounds for the court of extraordinary appeal [Section 265i(3) of the Code of Criminal Procedure]. Therefore, the mandatory essential elements include also information on which decision and which statement of the decision the extraordinary appeal challenges and to what extent and on what grounds, including a reference to statutory identification of the extraordinary appeal grounds [Section 265f(1) of the Code of Criminal Procedure].
The bindingness of the lodged extraordinary appeal and its grounds for the court of extraordinary appeal means that the court of extraordinary appeal will:
a) review the lawfulness and justification only of those statements of the contested decision which are challenged by the extraordinary appeal, and the correctness of the procedure of the proceedings preceding the issue of the decision;
b) perform the reviewing activity generally only to the extent and on the grounds specified in the extraordinary appeal [Section 265i(3) of the Code of Criminal Procedure], and review only the legal, not factual, aspects of the case;
c) If the extraordinary appeal challenged only a part of a decision concerning only one of several persons who were the subject of the same decision, will review only that part of the decision and the preceding proceedings which concerns that person [Section 265i(5) of the Code of Criminal Procedure].
1.8. Decision on the Extraordinary Appeal by the Supreme Court
An extraordinary appeal will be decided by the Supreme Court by:
a) rejecting the extraordinary appeal without a hearing on the merits, i.e. for
formal reasons, or
b) dismissing the extraordinary appeal after hearing the case on the merits if
the Supreme Court finds that the extraordinary appeal is not substantiated, or
c) quashingthe contested decision and
- remanding the case for a new determination,
- deciding on the merits,
- partly deciding on the merits and partly remanding the case for a new determination,
d) remanding the case for amending an incomplete or missing statement without
quashing the contested decision,
e) amending an incomplete or missing statement withoutquashing the contested decision.
2. Complaint on the Violation of the Law
2.1. Essence and Characteristic Features of the Complainton the Violation of the Law
A complainton the violation of the law is an extraordinary remedial measure challenging only a final decision of a court or public prosecutor. The purpose of a complaint on the violation of the law is the correction of legal errors in final decisions or the correction of erroneous procedure in proceedings preceding the issue of a final decision. Factual shortcomings of a decision may only be dealt with by this extraordinary remedial measure if they are a consequence of erroneous determination of law or of erroneous procedure. In any other case, changes in factual circumstances are a reason to file a different extraordinary remedial measure – the reopening of a case, which is, however, not heard by the Supreme Court but the court which issued the last decision in the respective case, provided that the factual circumstances are based on new facts or new evidence which was not known before.
2.2. Persons Entitled to Lodge the Complaint on the Violation of the Law
A complainton the violation of law, as another extraordinary remedial measure, may be lodged only by the Minister of Justice. Therefore, the accused themselves cannot file it. However, they have the right to turn to the Minister and initiate the lodging of a complaint on the violation of the law. They can do so at the following address:
Ministry of Justice of the Czech Republic
Vyšehradská 16
128 10 Prague 2
The motion can be addressed directly to the Minister of Justice or to the Department for Complaints on the Violation of the Law. In addition, the motion for the lodging of a complaint on the violation of the law may be also addressed to the public prosecutor’s office that is immediately superior to the public prosecutor’s office which was involved in the last instance of the original proceedings. This public prosecutor’s office will examine the motion and submit it, along with its opinion, to the Minister of Justice, who will decide whether to lodge a complaint on the violation of the law or not. If the Minister of Justice decides to lodge a complaint on the violation of the law, the Minister will file it directly with the Supreme Court, which has the jurisdiction to decide it.
2.3. Period Within Which a Complaint on the Violation of the Law May Be Lodged
The lodging of this extraordinary remedial measure is not constrained by any time limit.
2.4. Essential Elements of the Complaint on the Violation of the Law
The applicable legislation does not define any special form for a complainton the violation of the law, and therefore it may be lodged in any form defined for motions in general in Section 59(1) and (2) of the Code of Criminal Procedure.
A complaint on the violation of the law must contain [Section 267(1) of the Code of Criminal Procedure]:
a) general elements of a motion [Section 59(4) of the Rules of Criminal Procedure],
b) information on which decision and which statement of the decision the complaint on the violation of the law challenges and to what extent and on what grounds, and what the Minister of Justice seeks, including the requested wording of the decision of the Supreme Court,
c) whether the Minister of Justice lodges the complaint on the violation of the law for the benefit or to the detriment of the accused.
Moreover, the complaint must be justified. If the complaint does not contain justification at the time of its lodging, the Minister of Justice is obligated to justify it within 14 days of the lodging [Section 266a(1) of the Code of Criminal Procedure].
However, mere failure to meet the above requirements cannot lead to dismissal of the complaint, since, unlike in the case of extraordinary appeals, the law does not allow the Supreme Court to draw unfavourable consequences from the failure to meet such requirements [cf. Section 268(1) of the Code of Criminal Procedure].
2.5. The Filing of the Complaint on the Violation of the Law and Its Effects
This extraordinary remedial measure is lodged, along with the relevant files, by the Minister of Justice to the Supreme Court. Therefore, a filed complaint on the violation of the law has a centralized devolutive effect. However, the filing of a complaint on the violation of the law per se does not have a suspensive effect and the final decisions it challenges continue to be enforceable irrespective of the fact that they were challenged by a complaint on the violation of the law.
The grounds on which a complaint on the violation of the law may be lodged is defined by the Rules of Criminal Procedure only generally – either the contested decisionviolated the law or the decision was issued on the basis of erroneous procedure. The applicable legislation does not provide for any specific definition of errors in a final decision.
2.6. Proceedings Before the Supreme Court
After a complaint on the violation of the law is delivered to the Supreme Court, it is, first of all, assigned to the respective Panel in accordance with the Work Schedule. Subsequently, the Panel will hear the complaint and decide in an open or closed session. The regular form of hearing is an open session. In an open session, the Supreme Court may declare violation of law, make any other consequential decision, if necessary, as well as dismiss the complaint on the violation of the law for any statutory reason. General provisions are applicable for an open session. Evidence is generally not presented in open sessions. Only if it is necessary to clarify some important circumstance, the President of Panel may carry out the required examination pursuant to Section 276 of the Code of Criminal Procedure, or the President of Panel may request another authority involved in criminal proceedings or the police to do so.
Optionally, the Supreme Court may also decide a complaint on the violation of the law in a closed session, however only in the manner specified in the third sentence of Section 274 of the Code of Criminal Procedure, i.e. dismiss the complaint pursuant to Section 268(1) of the Code of Criminal Procedure if it is not admissible of substantiated. General provisions are applicable for a closed sessions, the Code of Criminal Procedure do not provide for any variations specific for proceedings on complaints on the violation of the law.
2.7. Extent of the Reviewing Activity of the Complaint on the Violation of the Law by the Supreme Court
The proceedings on complaints on the violation of the law apply the principle of bindingness of the filed complaint and its grounds for the Supreme Court in accordance with Section 267(3) of theCode of Criminal Procedure. This means that the Supreme Court will:
a) review the lawfulness and justification generally only of those separable statements of the contested decision which are challenged by the complaint on the violation of the law, and the correctness of the procedure of the proceedings preceding the issue of the decision;
b) perform the reviewing activity only to the extent and on the grounds specified by the Minister of Justice in the complaint [Section 267(3) of the Code of Criminal Procedure]; hence, the Supreme Court may review not onl legal, but also factual aspects of the case;
c) If a complaint on the violation of the law challenges a part of a decision concerning only one of several persons who were the subject of the same decision, the Supreme Court shall review only that part of the decision and the preceding proceedings which concerns that person [Section 267(5) of the Code of Criminal Procedure].
2.8. Decision of the Supreme Court
The Supreme Court will decide a complaint on the violation of the law in a manner which is included in the exhaustive enumeration of Sections 268 to 271 of the Code of Criminal Procedure.
A complaint on the violation of the law will be decided by the Supreme Court by:
a) dismissing the complaint without a hearing on the merits, i.e. for formal reasons, or if the complaint is not admissible, or if the complaint was not filed within the respective time limit, or if the complaint is not substantiated;
b) declaring under Section 268(2) of the Code of Criminal Procedure in the form of a judgmeviolated the law.
If the law was violated to the detriment of the accused, the Supreme Court must provide other statement or statements. In such statements following the declaration of the violation of the law, the Supreme Court may decide to:
a) correct the discovered errors by a cassation decision. If the law was violated to the detriment of the accused, the Supreme Court will, along with the respective statement,quash the contested decision or its part and either limit itself to suchquashing if the error is thereby corrected or order the authority involved in criminal proceedings which issued the decision in question to hear and decide the case to the necessary extent again, or the Supreme Court may refer the accused to civil proceedings,
b) order the authority which issued the decision in question, without quashing the contested decision, to decide on a missing statement or to amend such an incomplete statement, if the violation of the law consists in an incomplete or missing statement of the contested decision, or the Supreme Court may decide on the missing statement by itself or amend the incomplete statement.
3. List of the Relevant Legislation
- Act No. 40/2009 Coll., the Criminal Code, as amended
- Act No. 140/1961 Coll., the Criminal Code, as amended, in force until 31 December 2009
- Act No. 141/1961 Coll., the Code of Criminal Procedure, as amended
- Act No. 218/2003 Coll., on Liability of Juveniles for Illegal Acts and on Juvenile Justice and on Amendment to Certain Acts (the Act on Juvenile Justice)
The institutes of the criminal law are also governed by a number of other laws:
- Act No. 6/2002 Coll., on Courts and Judges, as amended
- Act No. 283/1993 Coll., on Public Prosecution, as amended
- Act No. 7/2002 Coll., on Proceedings Concerning Judges and Public Prosecutors, as amended
- Act No. 283/1991 Coll., on the Police of the Czech Republic, as amended
- Act No. 169/1999 Coll., on Imprisonment, as amended
- Act No. 293/1993 Coll., on Custody, as amended
- Act No. 279/2003 Coll., on Seizure of Property and Assets in Criminal Proceedings
- Act No. 36/1967 Coll., on Certified Experts and Interpreters, as amended
- Act No. 257/2000 Coll., on Probation and Mediation Service, as amended
- Act No. 119/1990 Coll., on Judicial Rehabilitation, as amended
- Act No. 129/2008 Coll., on Protective Detention and on Amendment to Certain Related Acts
- Act No. 184/1964 Coll., on Exclusion of Time Bar on Criminal Investigation of the Most Serious Crimes and Crimes against Humanity Committed for the Benefit or under the Command of Occupants (in Relation to the Second World War),
- the provisions of Section 5 of Act No. 198/1993 Coll., on Unlawfulness of the Communist Regime and Resistance against It
- General Pardons of the President of the Republic issued under the provisions of Article 63(1)(j) of the Constitution of the Czech Republic
- international treaties approved for ratification by the Parliament of the Czech Republic and by which the Czech Republic is bound, and which are therefore part of the law of the Czech Republic