Section 157a Request for Review of Procedure of Police Authority and Public Prosecutor
(1) The person, against whom are conducted criminal proceedings, and the aggrieved person have the right to ask the public prosecutor to eliminate delays in the proceedings or any defects in the procedure of the Police authority at any time during the pre-trial proceedings. This request is not bound by a time limit. The request must be submitted to the public prosecutor immediately and the public prosecutor must handle it immediately. The applicant must be notified of the outcome of the review.
(2) The request for eliminating delays in the proceedings or any defects in procedure of the public prosecutor shall be handled by a public prosecutor of the immediately superior public prosecutor’s office.
CHAPTER NINE
Procedure Prior to Initiation of Criminal Prosecution Section 158
(1) The Police authority is obliged, based on their own findings, criminal reports, and incentives from other persons and authorities, which may lead to conclusions on a suspicion that a criminal offence has been committed, to make all necessary investigations and take measures to reveal the facts indicating that a criminal offence has been committed and aimed towards identifying the offender; they are obligated to take the necessary measures for prevention of criminal activity. The appointed authorities of the Prison Service of the Czech Republic shall inform the General Inspection of Security Forces without undue delay after they initiate such investigation.
(2) The public prosecutor and the Police authority are obliged to accept reports of facts suggesting that a criminal offence has been committed. At the same time, they are obligated to instruct the reporting person about the liability for knowingly false statements, and if the reporting person requests it, to inform him within one month from the notification about the measures taken.
(3) The Police authority shall draw up a record about initiation of acts of criminal proceedings for clarification and verification of the facts reasonably implying that a criminal offence has been committed, which shall state the matters of facts, for which the proceedings is being initiated, and the manner of their discovery. They shall send a copy of the record to the public prosecutor within 48 hours after the initiation of criminal proceedings. If there is a danger of delay, the Police authority shall make the record after making the necessary urgent and unrepeatable actions. The Police authority shall gather the necessary evidence and necessary explanations, and secure traces of the criminal offence to clarify and verify the matters of
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facts reasonably implying that a criminal offence has been committed. Within this scope, they are entitled, besides the actions referred to in this Chapter, to
a) require an explanation from natural persons and legal entities and public authorities, b) require professional statements from the competent authorities and, if it is necessary
for the assessment of the matter, also expert opinions,
c) secure the necessary documents, in particular files and other written materials, d) conduct examinations of items and the crime scene,
e) require, under the conditions provided for in Section 114, undertaking a blood test or other similar actions, including collection of the required biological material,
f) make audio and video records of persons, under the conditions provided in Section 114 take fingerprints, perform corporal examinations and take external measurements by a physician or a member of the same sex, if it is necessary to identify a person or to identify and capture traces or consequences of an act,
g) detain the suspect under the conditions provided for in Section 76,
h) make decisions and take actions outlined in these provisions under the conditions provided for in Section 78 through 81,
i) perform urgent or non-repeatable actions in the manner referred to in Chapter IV, if its performance does not lie within the exclusive competence of another authority involved in criminal proceedings according to this Code.
(4) Individual acts of criminal proceedings aimed at clarifying and verifying matters of facts that reasonably indicate that a criminal offence has been committed may also be carried out by other police authorities upon a request.
(5) Everyone has the right to legal assistance of an attorney when providing an explanation. If an explanation is required from a minor, it is necessary to notify their statutory representative thereof in advance; this does not apply, if performance of the act cannot be deferred and notification of a statutory representative cannot be secured.
(6) An official record shall be made of the contents of the explanations that are not of urgent or non-repeatable nature. The official record serves the public prosecutor and the accused person for consideration of a petition, that the person who filed the explanation should be heard as a witness, and it serves the court for deliberation whether such a piece of evidence will be produced. The official record may be used in trial proceedings as evidence only under the conditions prescribed by this Code. If the person who submitted an explanation is subsequently heard as a witness or the accused, the record cannot be read or its contents revealed to them in any way.
(7) The Police authority is entitled to summon a person to appear to give an explanation within the stated time and at the designated place; in proceedings on a felony, the person is obliged to comply with the summons immediately. If a person, who was duly summoned to give an explanation, does not appear without a sufficient excuse, they may be compelled to appear. Such a person must be instructed thereof and other of consequences of failing to appear (Section 66).
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(8) An explanation pursuant to sub-section (3) cannot be requested from persons, who would violate an obligation of silence, explicitly imposed or recognised by the State, unless they were relieved of this obligation by the competent authority or the person, for whose benefit was this obligation imposed. A person giving an explanation, with the exception of a suspect, is obliged to tell the truth and not withhold anything; an explanation may be refused if it would cause a danger of criminal prosecution to the person himself or to persons referred to in Section 100 (2); the person, from whom is the explanation required, must be instructed thereof in advance. If the ascertained circumstances imply that the person giving the explanation will require witness protection, it is necessary to proceed according to Section 55 (2) when making the official record.
(9) If a testimony of a person is of urgent or non-repeatable nature, the Police authority shall question him as a witness under the conditions provided in Section 158a. They shall also question a person under fifteen years of age as a witness, whose ability to properly and fully perceive, remember or reproduce is in doubt with regard to his psychological state. If it can be expected that further examination of a criminal report or another incentive for criminal prosecution will take a longer time, especially because the person, concerning who it has been sufficiently established that he committed the criminal offence, has not been identified and therefore the criminal prosecution cannot be initiated and there is a danger of loss of probative value of the testimony, it is possible to question as a witness even a person, whose testimony is reasonably assumed to be crucial for initiation of the criminal prosecution, if the ascertained matters of facts indicate that such a person could be subject to coercion due to his testimony, or if there is a risk that his testimony could be affected for other reasons. If the interrogation of such persons was not conducted again pursuant to Section 164 (4) after the initiation of criminal prosecution, the protocols of their interrogation may be read and the audio or visual records made on their questioning conducted by the means of a video-conference device may be played in the trial only in accordance with Section 211 (1), (2) a), (3) b) and c); otherwise only protocols of their questionings may be presented according to Section 212.
(10) Those who appear upon the summons to give an explanation are entitled to reimbursement of the necessary costs under a special legal regulation regulating the reimbursement of travel costs and proven loss of income under the same conditions as a witness. Those who were summoned for their illegal conduct do not have such rights.
(11) If the measures or actions under the previous sub-sections are performed by a Police authority other than the department of the Police of the Czech Republic, they shall immediately notify the department of the Police of the Czech Republic that would otherwise be competent in the matter about the subject of the investigation. If a dispute for jurisdiction arises between the department of the Police of the Czech Republic and another Police authority, the matter shall be submitted to the public prosecutor for assessment. The opinion of the public prosecutor is binding.
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(12) If the verification of facts indicating that a criminal offence has been committed reveals that the authority competent to conduct the proceedings is the General Inspection of Security Forces, the Police authority shall notify it of the subject of the investigation and submit the matter to it without undue delay. Until the time when the General Inspection of Security Forces takes over the matter, the Police authority is entitled to carry out only urgent and non- repeatable acts. In the event of a dispute over competence between the Police authority and the General Inspection of Security Forces, the Police authority shall submit the matter to the competent public prosecutor for assessment. The opinion of the public prosecutor is binding. Sub-section (1)1 shall not apply.
Section 158a
If it is necessary to perform an urgent or non-repeatable action that involves questioning a witness or identification by recognition in the course of verification of the facts indicating that a criminal offence has been committed and identification of the offender, such an action shall be performed upon a motion of the public prosecutor in the presence of a judge; in such a case, the judge is responsible for the legality of execution of the action and for that purpose they may interfere with the action. However, the judge does not have the right to review the conclusion of the public prosecutor that the action is urgent or non-repeatable according to the law.
Operative-Search Means and Conditions of their Use Section 158b
(1) Unless further stipulated otherwise, the Police authority, provided they were authorised by a competent Minister, or in the case of a department of the Police of the Czech Republic, the Police President, or in the case of the General Inspection of Security Forces, its director, or in the case of a department of Military Intelligence, its director, or in the case of a department of the Security Information Service, its director, or in the case of a department of the Office of Foreign Relations and Information, its director, shall be entitled to use operative-search means in proceedings on an intentional criminal offence, which shall be understood as
a) simulated transfer,
b) surveillance of persons and items, c) use of an agent.
(2) Operative-search means shall not be used for any other purpose than for acquiring matters substantial for criminal proceedings. These means may be used only when the purpose in view may not be reached in other ways or if its reaching would otherwise be considerably more complicated. Rights and liberties of persons may be restricted only in an absolutely necessary extent.
(3) Audio, visual and other records acquired by using operative search means pursuant to provisions o this Code may be used as evidence.
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Section 158c Simulated Transfer
(1) A simulated transfer shall be understood as simulation of purchase or other means of transferring the object of consideration, including transfer of an item
a) for possession of which is required a special permit, b) possession of which is inadmissible,
c) derived from a criminal activity, or
d) intended for commission of a criminal offence.
(2) A simulated transfer may be performed only on the basis of a written authorization of the public prosecutor.
(3) If the matter is urgent, the simulated transfer may be performed even without an authorization. However, the Police authority is obliged to immediately request a post facto authorization, and if not granted within 48 hours, the Police authority is obliged to terminate execution of the simulated transfer and not to use information so acquired in any way.
(4) The Police authority shall draw up a record on the simulated transfer and deliver it to the public prosecutor within 48 hours.
Section 158d Surveillance of Persons and Items
(1) Surveillance of persons and items (hereinafter referred to as “surveillance”) shall be understood as acquiring knowledge on persons and items conducted in a classified manner by technical or other means. If a Police authority ascertains that the accused person is communicating with his defence counsel, it is obliged to destroy the record containing this communication and not to use facts learned in this connection in any way.
(2) Surveillance, during which shall any audio, visual or other records be made, may be performed solely on the basis of a written authorization of a public prosecutor.
(3) If the surveillance should interfere with inviolability of residence, inviolability of letters or if it should investigate the contents of other documents and records kept in privacy by use of technical means, it can be performed solely on the basis of a prior authorization of a judge. When entering residences, only steps related to placement of technical devices may be made. (4) Authorization according sub-sections (2) and (3) may be issued only upon a written request. The request must be reasoned by a suspicion of a specific criminal activity and if known, also by data on persons or items that are to be monitored. The authorization shall state a time limit, for which shall the surveillance be conducted and that cannot exceed six months. The authority that authorized the surveillance may prolong the time limit by a written order issued on the basis of a new written request, always for a time limit not exceeding six months.
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(5) If the matter cannot be delayed and if cases referred to in sub-section (3) are not concerned, the surveillance may be initiated even without an authorization. However, the Police authority is obliged to immediately request the authorization, and if it is not granted within 48 hours, it is obliged to terminate the surveillance, destroy any eventual records and not to use information so ascertained in any way.
(6) Without fulfilling the conditions according to sub-sections (2) and (3) may the surveillance be conducted if the person, whose rights and liberties are to be interfered with, grants his explicit consent therewith. If this consent is post facto withdrawn, the surveillance shall be immediately terminated.
(7) If a record made in the course of surveillance should be used as evidence, it shall be accompanied by a protocol with requirements referred to in Sections 55 and 55a.
(8) If no matters of fact substantial for criminal proceedings are ascertained during the surveillance, it is necessary to destroy records thereof in a prescribed way.
(9) Telecommunication operators, whose employees and other persons participant in operating telecommunication services, as well as postal service or a person conducting transportation of consignments are obliged to cooperate in a necessary extent with the Police authority conducting the surveillance, according to its instructions and free of charge. Therein they cannot invoke their obligation of silence provided for by special laws.
(10) In another criminal case than the case in which a surveillance was authorized under conditions referred to in sub-section (2), may the records made in course of the surveillance and attached protocol be used as evidence only if a proceeding for intentional criminal activity is conducted in this case or if the person, whose rights and liberties were interfered with, consents with it.
Section 158e Use of Agent
(1) If criminal proceedings are conducted for a crime, for which the law prescribes a sentence of imprisonment with the upper limit of at least eight years, for a criminal offence committed for the benefit of an organized criminal group, for a criminal offence of Machinations in insolvency proceedings according to Section 226 of the Criminal Code, Breach of regulations on rules of economic competition according to Section 248 (1) e) and (2) to (4) of the Criminal Code, Arranging advantage in commission of public contract, public contest and public auction according to Section 256 of the Criminal Code, Machinations in commission of public contract and public contest according to Section 257 of the Criminal Code, Machinations in public auction according to Section 258 of the Criminal Code, Abuse of competence of a public official according to Section 329 of the Criminal Code, Corruption (Section 331 of the Criminal Code), Bribery (Section 332 of the Criminal Code), Indirect bribery (Section 333 of the Criminal Code) or for another intentional criminal offence, to prosecution of which is the Czech Republic bound by a promulgated international treaty
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binding the Czech Republic, the Police authority is entitled, provided that it is a unit of the Police of the Czech Republic, to use an agent.
(2) An agent is a member of the Police of the Czech Republic fulfilling tasks assigned to him by a directive police body, who is in principle presenting himself with concealing the true purpose of his activity. If it is necessary for using an agent, for his preparation or protection, in respect of concealing his identity, it is possible to
a) create a legend of a personal existence of another person and implement personal data deriving from this legend to information systems operated according to special laws, b) conduct economical activities for which is required a special permit, license or
registration,
c) conceal his membership in the Police of the Czech Republic.
(3) Authorities of the public administration are obliged to immediately provide the Police of the Czech Republic with their full cooperation in performing tasks referred to in sub-section (2).
(4) Use of an agent is authorized, upon a motion of the High Public Prosecutor’s Office, by the High Court, in whose jurisdiction is operating the public prosecutor, who submitted the motion. The authorization shall state the purpose and time of using the agent and data enabling identification of the agent. The time limit of the authorization may be prolonged, even repeatedly, on the basis of a new motion that contains evaluation of previous activities of the agent.
(5) An agent shall not require additional authorization for surveillance of persons and items