16. 10. 2023
In the article "The Constitutional Court Sometimes Hijacks the Law, Says Candidate Pavel Simon", JUDr. Simon comments, among other things, on the question "Should the state compensate so-called unsuccessful criminal proceedings at all?" The introduction of the statement is quite correct, JUDr. Simon emphasizes that as a judge he respects the existence of compensation for the harm caused by criminal proceedings. But then, clearly from a more general perspective of a lawyer, he questions the institute as a whole. He considers the essence of compensation for harm caused by unlawful criminal proceedings to be a claim which was not founded not on a decision of the lawmaker but on the case-law of the Supreme Court of the Czech Republic and, as is clear from what follows, from his point of view it would be acceptable if only harm caused by “manifest error of the law enforcement authorities” were compensated. The Supreme Court judge is also entitled to take this view. But from my point of view and in my experience, it is a view that is so wrong that I feel it necessary to respond.
First of all, I remind that a criminal proceeding which does not result in a conviction but in the acquittal of the accused is not unsuccessful. The purpose of a criminal proceedings is not to obtain the proof of guilt and conviction of the offender, but also the fairness of the trial itself. And that successfully ends with the said acquittal. Most of the time, what remains is the harm caused by the criminal prosecution. Material, consisting for example of defence costs or loss of income, but often also non-material.
JUDr. Simon gave as an argument a model example in which person A filed a criminal complaint against person B for extortion. The state prosecuted person B and person A subsequently told the court that he had made it all up. In such a case, JUDr. Simon said, the state had to prosecute because it was a serious criminal offence and then it had to pay compensation because we have a strictly set compensation system. However, it would have been preferable if persons A and B had settled the issue in a civil court in a personality protection dispute. Person B, however, prefers to sue the state because it is easier to claim damages against it, which Mr Simon finds strange.
The presented model is highly simplified and does not correspond to reality. A mere complaint by one person that he or she is is being or has been extorted by another person should not be sufficient in itself to initiate a criminal prosecution. If it does, that alone would probably be a fundamental error. If the alleged victim's allegation has at least a minimal degree of credibility, an investigation should be initiated which does not fundamentally affect the suspect and is not capable (with some exceptions) of causing him harm. In the context of such an investigation, the law enforcement authorities must, in accordance with Section 2 of the Criminal Procedure Code, establish the facts of the case beyond reasonable doubt to the extent necessary for their decision and must assess with equal care the circumstances in favour of as against the suspect. I am convinced that, with careful investigation (and again with exceptions), the fabrication of the denunciation should have been established earlier, preferably before the prosecution was initiated. For example, because there would have been no other evidence of said extortion apart from the victim's allegations. In other words, the initiation of a criminal prosecution would have to be conditional on the possibility that the complaining person merely invented the act. Otherwise, there would have been an error on the part of the law enforcement authorities and the subsequent collapse of the prosecution's construction would necessarily have demonstrated that error. There is then no reason why the accused should not be entitled to compensation for the harm he suffered as a result of that error. It is the state whose authorities have powers which must be treated with the utmost care, in the words of the Criminal Procedure Code, with full respect for the rights and freedoms guaranteed by the Charter of Fundamental Rights and Freedoms and the international treaties on human rights and fundamental freedoms to which the Czech Republic is bound.
Not enough, however. Our criminal process is currently set up in such a way that the prosecutor cannot stop a criminal prosecution once it has been initiated simply because subsequent investigations have revealed facts that raise doubts that a criminal offence has been committed or that it has been committed by the person being prosecuted. Even in such a case, it is his duty to seek an indictment. Even though he knows that on this evidential basis the court will certainly or very probably decide in accordance with the principle of the presumption of innocence, also expressed by the Latin maxim in dubio pro reo, to acquit the accused for lack of evidence. The doubts mentioned above entitle only the court to acquit. In the framework of the recodification of the Criminal Procedure Code, it is proposed that the prosecutor should also be able to decide to discontinue the criminal prosecution in case of doubt, but the draft of the new Criminal Procedure Code is still only going through the inter-ministerial comment procedure.
JUDr. Simon accepts that the entitlement to compensation for the harm caused by a criminal prosecution arises only in cases where the law enforcement authorities have committed a "manifest error". But what is manifest error? Alternatively, who is to prove it? For simplicity's sake, one can imagine a range of hypothetical cases of criminal prosecution where, on the one hand, there is a criminal prosecution initiated after a suspect has confessed to a crime and at the same time provided information that proves the truth of the confession. At the other end of the scale is the situation where the law enforcement authorities have initiated a criminal prosecution on the basis of illegally obtained evidence or evidence that is obviously fabricated. In the former case, I am convinced that the prosecuted person who is later found to have fabricated everything convincingly, perhaps to cover up for the real offender, could hardly claim compensation for the harm caused by the criminal prosecution. And on this hypothetical range of alternatives all other criminal proceedings fall. And in some of them, it was not only the final outcome of the criminal proceedings, but also the facts apparent from the outset, that suggested that the criminal prosecution was not justified. Nevertheless, the criminal prosecution was initiated and pursued until finally the courts found it to be unjustified, i.e. unlawful. If, therefore, all such prosecutions ending in acquittal judgements could be included in the category of “manifest errors”, we are at the present state of affairs and all is well. But the current state of affairs is criticized by JUDr. Simon, so I guess the problem lies in the interpretation of “manifest erorr”.
On the basis of many years of experience, I dare to say that in 99 % of cases where compensation is successfully claimed for harm (even if usually only to a limited extent) caused by an unlawful criminal prosecution, it is evident that the duty to carefully clarify the circumstances tin favour as against the suspect was not properly fulfilled by the law enforcement authorities. There may be cases where this is not the case, but I know of none personally, none has been mentioned in the professional literature to my knowledge, and in all the circumstances it would have to be a statistically insignificant exception to what I have stated above. But even if the percentage is not accurate, there is still the question of who should bear the consequences of a criminal prosecution in which the original hypothesis is not borne out. The accused or the state?
It is probably also clear from what I have stated above that, broadly speaking, I consider the current system of compensation for the harm caused by what we call as unlawful criminal prosecution to be correct. Of course, and as always, there is room for discussion about its possible improvements. From my point of view, it is more in relation to the amount of compensation, which in many cases I consider to be small, even ridiculously small, in view of the brutal way in which the criminal prosecution has affected the lives of those prosecuted. Let everyone imagine the amount for which he or she would be willing to undergo several years, sometimes even many years, of defamation resulting from having been accused or publicly charged. And the resulting, often very drastic, interference in their personal and professional lives. If these areas can be separated at all. Without being too dramatic, it can be said that in some cases it has effectively destroyed their lives, or a substantial part of it. This is another reason why I very strongly disagree with the doubts about the current arrangements for compensation for harm caused by unlawful criminal prosecution. I am therefore convinced that, in principle, the compensation system is correct, except for the amount of compensation awarded.
JUDr. Tomáš Sokol, Source: Česká justice