Section 113 Purpose of Examination and its Protocol
(1) Examination is performed if there are matters of fact substantial for criminal proceedings to be clarified by a direct observation. An expert is generally included in an examination. (2) A protocol of examination must provide a complete and accurate picture of the object of examination; therefore it should be provided with photographs, schemes and other utilities. Section 114 Corporal Examination and other Similar Acts
(1) Any person is obliged to undergo a corporal examination, if it is necessary to establish, whether his body bears marks or after effects of a criminal offence. If a body check is not performed by a doctor, it may be performed only by a person of the same sex.
(2) If it is necessary for evidentiary purposes to perform a blood test or another similar act, the person concerned is obliged to tolerate blood withdrawal or other necessary act to be performed by a doctor or a specialized medical worker, if it is not associated with endangering his health. Withdrawal of biological material not associated with interference with physical integrity of the person concerned by such an act may be performed also by this person or with his consent by an authority involved in criminal proceedings. Upon a request of an authority involved in criminal proceedings may this withdrawal be performed even without the consent of the suspect or accused person by a doctor or specialized medical worker.
(3) If it is necessary for evidentiary purposes to identify a person that was present at the crime scene, the person concerned is obliged to bear the acts necessary for this identification.
(4) If the acts referred to in sub-section (1) to (3) cannot be performed due to resistance of the suspect or accused person and if blood withdrawal of other similar act associated with interference with physical integrity is not concerned, the authority involved in criminal proceedings is entitled, after a prior futile bidding, to overcome this resistance; a Police
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authority needs a prior consent of the public prosecutor to overcome the resistance of a suspect. The manner of overcoming the resistance must be proportional to the intensity of resistance.
(5) The person concerned shall be instructed about obligations according to previous sub- sections and about the consequences on non compliance (Section 66), a suspect and accused person shall also be instructed about the procedure according to sub-section (4).
Section 115 Examination and Autopsy of a Corpse and its Exhumation
(1) If there is suspicion that death of a person was caused by a criminal offence, the corpse must be examined and an autopsy must be performed. In such event, the corpse may be buried only with the consent of the public prosecutor. The public prosecutor shall decide on the matter with utmost urgency.
(2) Exhumation of a corpse may be ordered by the presiding judge and in pre-trial proceedings, by the public prosecutor.
Examination of Mental Condition Section 116
(1) If the mental state of the accused person requires examination, an expert in the field of psychiatry is always invited thereto.
(2) If the mental state cannot be examined otherwise, the court and in pre-trial proceedings the judge upon a motion of the public prosecutor may order that the accused is subject to observation in a medical facility or, if he is in custody, in a special department of a correctional facility. A complaint is admissible against this resolution, which has a dilatory effect.
(3) If the expert finds symptoms suggesting insanity or diminished sanity of the accused person, he shall also pronounce whether the accused person poses a threat to the public, should he remain free.
Section 117
Observation of the mental state should not last more than two months; by this time an opinion must be submitted. Upon a justified request of experts may the court and in pre-trial proceedings the judge upon a motion of the public prosecutor extend this period, but no more than by a month. A complaint is admissible against the extension of this period.
Section 118
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If there are serious doubts as to whether the capacity of a witness, whose testimony is especially important for the decision, to correctly perceive or testify is substantially reduced, it is possible to have their competency and mental state examined by an expert. However, observation of the mental state of a witness according to Section 116 (2) is not permissible.
CHAPTER SIX
Decision
Section 119 Decision Making Process
(1) The court decides by a judgment where the law expressly provides so; in other cases it decides by a resolution, unless the law provides otherwise.
(2) The public prosecutor and the Police authority decide by a resolution, unless the law provides otherwise. SUBDIVISION ONE Judgment Contents of a Judgment Section 120
(1) After the introductory words "In the name of the Republic", the judgment must include a) indication of the court whose judgment is concerned and the full names of the judges
who participated on the decision, b) date and place of the judgment,
c) verdict of the judgment with the declaration of the applied statutory provisions, d) justification, unless the law provides otherwise, and
e) instructions on an appeal.
(2) The defendant must be indicated in the judgment by his name and surname, date and place of birth, his occupation and residence, and other information necessary to prevent his confusion with another person. If a member of the armed forces or armed corps is concerned, the rank of the defendant and the unit, he is a member of, shall also be indicated.
(3) A verdict, by which the defendant is found guilty or which acquits him of the indictment, must indicate the exact criminal offence the verdict relates to, not just by a legal designation and stating the appropriate statutory provision, but also by an indication of whether it is a felony or a misdemeanour, and the time, place and manner of its commission, eventually also by stating other matters necessary to avoid confusion of the act with another, as well as by stating all the legal characteristics, including the ones justifying a specific term of sentence.
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(4) If the court approves an agreement on the guilt and punishment, a part of the judgement is also a verdict on approving an agreement on the guilt and punishment.
Section 121
The judgement of the court, which decides on the question of guilt, shall also contain a verdict a) on monetary compensation of damage or non-material harm or on surrender of unjust
enrichment, provided the claim for monetary compensation of damage or non-material harm or for surrender of unjust enrichment was duly applied (Section 43 (3)),
b) on a protective measure, if it was decided in the trial or public session held on an appeal.
Section 122
(1) The convicting judgment must include a verdict on the punishment stating the statutory provisions, under which the punishment was imposed or under which the punishment was waived and in the case of a conditional waiver of punishment with supervision, also the verdict on the probation period and its duration. If supervision over the offender was declared, the verdict of the judgment must be clear as to whether the supervision should be exercised in the extent covered by the Criminal Code, or whether it also imposes other adequate restrictions or duties to the offender. If a punishment, performance of which can be conditionally suspended, was imposed, the judgment must also include a verdict on whether the conditional suspension was granted and under what conditions. In case an unconditional sentence of imprisonment was imposed, the judgment must include a verdict on the manner of the execution of this sentence. If the convicted person is an offender of a criminal offence committed for the benefit of an organised criminal group, the verdict thereon must also be contained in the judgment.
(2) The verdict of a judgement of acquittal must state, which of the grounds referred to in Section 226 is the acquittal based on.
Section 123
The court that repeatedly decides in a case, where an earlier judgment was partially repealed upon an appeal, complaint for the violation of law, or the petition for a new trial, shall include only those verdicts in the new judgment, concerning which it decides again. Therein it shall point out the connection of these verdicts with the verdicts, concerning which the former judgement remained unchanged.
Section 124
In a judgment which imposes an aggregate sentence, the court must indicate those earlier judgments, whose verdicts on punishment the new judgment repeals and replaces with an aggregate sentence. If the judgment imposes a joint punishment for continuing in a criminal
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offence, the court must indicate the earlier judgments, whose verdicts on guilt, on continued criminal offence and on criminal offences committed in a single-acting concurrence therewith it repeals, the whole verdict on punishment, as well as other verdicts that have their basis in the concerned verdict, and replace them with new verdicts, including a verdict on a joint penalty for continuing in a criminal offence.
Section 125
(1) If the judgment contains a justification, the court shall briefly explain, which facts were deemed proven and what evidence substantiated its factual findings and which considerations it followed in the assessment of the presented evidence, especially if it was in mutual contradiction. The justification must clearly show how the court dealt with the defence, why it did not grant petitions for producing further evidence, and what legal considerations were followed when it assessed the proven facts in accordance with the relevant statutory provisions on the question of guilt and punishment. When justifying the imposed sentence, it shall state the considerations it followed when imposing the sentence; how it assessed the nature and seriousness of the criminal offence in the view of importance of the specific protected interest that was affected by the act, the manner in which the act was performed and its consequences, the circumstances under which the act was committed, personality of the offender, the extent of his culpability and motives, his intentions or objectives, as well as the mitigating and aggravating circumstances, the time elapsed since the commission of the criminal offence, eventual changes in the circumstances and length of criminal proceedings, if it lasted an excessively long time, considering the complexity of the case, the procedure of the authorities involved in criminal proceedings, the importance of the proceedings for the offender and his behaviour, which contributed to delays in the proceedings; it shall also indicate how it took into account the personal, family, property and other circumstances of the offender, his previous way of life, conduct of the offender after the committing of the act, particularly his effort to compensate the damage or other detrimental consequences of his actions, and if he was deemed a cooperating accused, also how he substantially contributed to the clarification of a crime committed by members of an organised group, in connection to an organised group or for the benefit of an organised criminal group. If other statements were contained in the judgment, they must also be justified.
(2) The instructions on an appeal, which must be contained in every judgment of a court of the first instance, shall indicate the time limit, within which it must be filed (Section 248 (1)), identification of the court, to which the appeal should be submitted (Section 251), identification of the court that will decide on the submitted appeal (Section 252), the extent, to which an entitled person can challenge the judgment (Section 246), and specification of the necessary contents of the appeal (Section 249).
(3) In the instructions on an extraordinary appeal, which must be included in every court decision on the merits made in the second instance, shall indicate the entitled person, including the need to submit the appeal of the accused person through the defence counsel (Section 265d), time limit for filing the appeal, identification of the court, to which the appeal
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must be submitted (Section 265e), identification of the court that will decide on the submitted appeal, and specification of the necessary contents of the appeal (Section 265f).
Deliberation and Vote on a Judgment Section 126
During the deliberation on a judgment, which decides on the guilt and punishment, the court shall assess in particular,
a) whether the act, for which the defendant is prosecuted, occurred, b) whether the act has all the characteristics of a criminal offence, c) whether the defendant committed the act,
d) whether the defendant is criminally responsible for the act, e) whether the criminality of the act did not expire,
f) whether and what sentence should be imposed on the defendant,
g) whether and to what extent should the defendant be imposed an obligation to compensate the aggrieved person for damage or non-material harm or to surrender any unjust enrichment,
h) whether and what protective measures should be imposed.
Section 127
(1) In addition to the judges and associate judges who were present at the hearing that immediately preceded the judgment, and the court reporter, no one else may be present at the deliberation and vote. The content of the deliberations must remain confidential.
(2) A majority vote decides the vote. If a majority vote cannot be achieved, the least favourable votes for the defendant are added to the votes more favourable, until a majority vote is achieved. If it is disputable, which opinion is more favourable to the defendant, it shall be decided by a vote.
(3) Each member of the court must vote, even if they were outvoted on the previous question. However, those who voted for the acquittal may abstain from voting during the vote on punishment; their votes will be added to the vote that is the most favourable for the defendant.
(4) Associate judges vote before the judges. Associate judges and junior judges vote before senior judges. The presiding judge shall vote last.
(5) A special protocol (Section 58) shall be drawn up on the vote.
Section 128 Pronouncement of Judgment
(1) The judgment must always be pronounced; it is pronounced by the presiding judge.
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(2) The opening words "In the name of the Republic", the full text of the verdict, at least a substantial part of the justification and the instructions on appeal are announced. The announcement must be in complete conformity with the contents of the judgment, as it was voted.
(3) The judgment is usually pronounced immediately after the proceeding that preceded the judgment; if that is not possible, the proceeding may be adjourned by no more than three days for the purpose of announcement of the judgment.
Section 129 Making of a Judgment
(1) Each judgment must be made in writing. Copies of the judgment must be in accordance with the contents of the judgment as it was pronounced.
(2) If the public prosecutor and the defendant waived the right for an appeal after the announcement of the judgement in within a time limit after the announcement prescribed by the court, and if they declared that they do not insist on written making of the justification, and at the same time the defendant declared that he does not wish other entitled persons to lodge an appeal on his behalf, the court may elaborate a simplified judgement, which does not contain a justification. If the entitled persons may lodge an appeal on behalf of the defendant even against his will, the simplified judgement may be made only in case they waive the appeal. If the judgement concerns several defendants, it is necessary to give reasons for its verdicts in the parts concerning a defendant, in whose case the conditions for making a simplified judgement were not met. If also the aggrieved person and parties concerned have the right to lodge an appeal and if they do not waive this right, it is also necessary to give reasons for the verdicts, against which they may appeal.
(3) If the judgment was not made in writing during the deliberation, the presiding judge or a judge appointed by him, who was a member of the court panel, shall elaborate it and submit it for process serving
a) in proceedings before District Courts and Regional Courts as courts of the second instance in matters of custody within five business days, and in other matters within ten business days,
b) in proceedings before Regional Courts as courts of the first instance, High Courts and the Supreme Court in matters of custody within ten business days, and in other matters within twenty working days.
Exceptions from these time limits are permitted in individual cases by the presiding judge of the court upon a request of the presiding judge of the senate or the judge elaborating the judgement, particularly with regard to extensiveness and complexity of the matter. If he extends the time limit by more than twenty additional business days, he shall justify in writing, why it was not possible to prescribe a shorter period. Otherwise he shall proceed according to sub-section (4).
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(4) If the presiding judge or any other member of the senate is not able to make the announced judgement in writing due to an obstacle of longer duration, a different judge shall make it upon the order of the presiding judge. In the case of a single judge, the judge designated by the presiding judge of the court shall prepare the judgment.
(4) Copies of the judgment shall be signed by the presiding judge and the judge who made it. If the presiding judge is not able to sign copies of the judgment due to an obstacle of a longer duration, a different member of the court will sign it in his stead; the reason therefor shall be noted in the copy of judgment.
Section 130 Service of Judgment
(1) Copies of the judgment shall be served to the defendant, the public prosecutor, the parties concerned and the aggrieved person, who filed a claim for monetary compensation of damage or non-material harm or for the surrender of unjust enrichment, even if they were present during the announcement of the judgment.
(2) If the accused has a defence counsel or a statutory representative, a copy of the judgment shall also be served to them.