Protection of Rights of Aggrieved Persons PDF Print E-mail

 

Aggrieved person is a person, to whom a criminal offense caused:

- bodily harm,

- property damage,

- non-material harm, or

- at whose expense the offender unjustly enriched himself by the offense.

 

An aggrieved person is also a person, who suffered a property damage, which was however already fully compensated by the perpetrator. In any case the damage must be incurred by the criminal act, for which the accused person is being prosecuted.

 

An aggrieved person is not a person who feels to be subjectively harmed by the criminal offense either morally or otherwise, but whose harm is not in causal nexus with the criminal offense or is not caused by the fault of the offender.

 

Whoever is being prosecuted as a co-accused person in a joint proceeding may not act in the position of the aggrieved person.

 

There are two types of aggrieved persons according to their position in criminal proceedings:

- an aggrieved person who may claim compensation of damage (i.e. an aggrieved person, who petitioned the court no later than at the main trial before the evidence proceeding is commenced or eventually at the first hearing on the agreement on the guilt and punishment, to order the defendant in the judgment to financially compensate the damage or non-material harm caused by the crime or to surrender unjust enrichment gained by the defendant at the expense of the aggrieved person)

- an aggrieved person who may not claim compensation of damage

 

Aggrieved person is a party to criminal proceedings with a relatively wide range of procedural rights. However, participation of the aggrieved person in criminal proceedings is not mandatory. The aggrieved person may even waive his procedural rights by an express declaration made to the authorities involved in criminal proceedings.

 

Authorities involved in criminal proceedings are obliged to advise the aggrieved person on his rights and to provide him a full possibility to exercise them. In proceedings on a crime that resulted in bodily harm or death the victim must be advised on the conditions of provision of financial assistance (Section 7 and following of the Act no. 45/2013, on Victims of Crime, effective as of 1. 8. 2013).

 

In case the proceedings is being conducted for a crime, concerning which an agreement on the guilt and punishment may be made, the authorities involved in criminal proceedings will caution the aggrieved person within the advice on rights provided to him in pre-trial proceedings especially on the fact that an agreement on the guilt and punishment may be concluded and that in such case he may assert his claim for monetary compensation of damage or non-material harm or for the surrender of unjust enrichment no later than at the first hearing on such agreement.

 

Any aggrieved person, irrespective of his possibility to claim compensation, is entitled according to the Code of Criminal Procedure to:

- make proposals for supplementation of evidence, as soon as in the course of pre-trial proceedings,

- inspect files,

- attend negotiation of agreement on the guilt and punishment,

- attend main trial and public session held on an appeal or approval of agreement on the guilt and punishment,

- comment on the case and deliver a final speech before the proceeding is concluded,

- request the public prosecutor to remove delays in proceedings or flaws in procedure of the police authority and public prosecutor conducting the investigation,

- receive a copy of the indictment, if his place of residence or registered office is known,

- be represented by an agent, in special cases provided for by the law by a common representative,

- grant consent to criminal prosecution or not grant the consent or to withdraw it,

- right to make an incentive to filing a complaint for the breach of law.

 

The aggrieved person who according to the law has a claim against the accused person for compensation of damage caused by the criminal offense has also the following rights in addition to the above referred procedural rights:

- to assert a claim for compensation of damage or non-material harm or for the surrender of unjust enrichment against the defendant directly within criminal proceedings, whereas the reasoning and amount of damage, non-material harm or unjust enrichment must be documented by the aggrieved person, and he must be advised on these rights and obligations,

- to propose securing the claim for compensation of damage on the property of the accused person, to be notified of securing the claim and to file a complaint against a decision on cancelling or restriction of the seizure securing the claim for compensation of damage or excluding an item from the seizure,

- to be served a copy of a resolution on initiation of criminal prosecution, if his place of residence or registered office is known and if he expressly requests it,

- to be served the judgment and criminal order,

- to file an appeal for incorrectness of the statement on damage compensation, and also in case such ruling was not made, as well as in case of breaching the provisions on proceedings preceding the judgment, if it could have caused the ruling to be incorrect or missing,

- to file a complaint against a resolution of court, which allowed renewal of proceedings on the statement of granted damage compensation,

- to conclude an agreement with the accused person on the compensation of damage caused by the criminal offense within the framework of conditional discontinuation of criminal prosecution and the right to complain against the resolution on conditional discontinuation of criminal prosecution and against the decision that the accused person has approved himself within the probation period, ,

- to grant a consent with approving a settlement and the right to file a complaint against the decision on settlement approval.

 

The aggrieved person who is a victim of crime according to the Act on Victims of Crime is entitled to make a statement in any stage of criminal proceedings on how the committed criminal offense has affected his previous life.

 

The aggrieved person, who is a victim of crime according to the Act on Victims of Crime may request in the main trial to make a statement on how the committed criminal offense has affected his previous life, even in case he has already made the statement in writing. The presiding judge is obliged to grant the request and to allow the oral statement to be made at the latest in the final speech. The oral statement of the aggrieved person may be interrupted only in case it clearly diverts from its scope.

 

Representation of the aggrieved person

 

The aggrieved person may exercise his rights in criminal proceedings either:

- in person or in some cases by the means of

- another personstatutory representative, guardian or agent.

 

In case the aggrieved person is incapacitated or if his legal capacity is restricted, his rights are exercised through his statutory representative. Rights of an underage person in criminal proceedings are exercised through his statutory representative, since this person does not have legal capacity in such proceeding. Statutory representative of an underage person may be a parent, guardian (appointed by a criminal or civil court), custodian or foster parent.

 

In cases where the statutory representative of the aggrieved person cannot exercise his rights and there is a risk of delay, the presiding judge and in pre-trial proceedings the public prosecutor will appoint a guardian to exercise the rights of the aggrieved person. The decision on appointing a guardian applies in cases, where the statutory representatives are e.g. hospitalized or abroad on a long term basis, and also in cases of conflict between the statutory representatives and the aggrieved person.

 

The decision on appointment of the guardian is made by the court and in pre-trial proceedings by the public prosecutor. A complaint is admissible against the decision on appointment of the guardian, which does not have a dilatory effect.

 

The Aggrieved person may also be represented by an agent, which can also be a legal entity. An agent of the aggrieved person may at the same time be a confidant according to the Act on Victims of Crime. An agent of the aggrieved person may only be a person, whose legal capacity has not been restricted; in the course of main trial and public session an agent cannot be person summoned to testify as a witness, an expert or interpreter. An agent of the aggrieved person in criminal proceedings, in which confidential matters are being discussed, may only be a designated or instructed person according to the Act no. 412/2005 Coll., on the Protection of Confidential Information and Security Clearance.

 

Agent’s authorization is documented by a power of attorney and the agent is entitled to file petitions and submit requests and apply remedial measures. Furthermore, the agent is entitled to participate in all actions, which the aggrieved person may participate in.

 

Agent of a participating person and of the aggrieved person is entitled to file petitions, and submit requests and apply remedial measures on behalf of the participating person or the aggrieved person. He is also entitled to participate in all actions, which the participating person or the aggrieved person may participate in.

 

From the moment of initiation of criminal prosecution, the agent of the participating person and of the aggrieved person is entitled to be present in the course of all investigative actions that are to clarify matters important for the application of rights of the person he represents, and the outcome of which may be used in trial proceedings as evidence, unless the presence of the agent may thwart the purpose of criminal proceedings or if the action cannot be delayed and notification thereof cannot be made. He may ask questions to the accused person and other interviewed persons, however, not until the Police authority concludes the interview and invites him to do so. The agent may raise objections against the manner of execution of the action at any time during its course.

 

If the agent notifies the Police authority that he wishes to participate in an investigative action, the Police authority will be obliged to inform him in time of what type of action it will be and the time and place of its execution, unless execution of the action cannot be delayed and the notification thereof cannot be made. In case the action consists in interview of a certain person, the Police authority will also provide the agent with information, according to which such person can be identified. If such information cannot be determined in advance, the notification must clearly state to which matter is the person supposed to testify.

 

In case the agent of the aggrieved person or of the participating person is to attend an interview of a witness, whose identity is to be kept confidential, the Police authority will be obliged to adopt measures preventing the agent from learning the true identity of the witness.

 

The Code of Criminal Procedure stipulates a right of the aggrieved person to a defense counsel free of charge or at a reduced rate.

 

If the aggrieved person, who is an especially vulnerable victim according to the Act on Victims of Crime, who suffered a severe bodily harm that was caused by an intentional criminal offense, or who is a bereaved person of a victim killed by a criminal offense, certifies that he does not have sufficient funds to pay for costs incurred in connection to using an agent, the presiding judge of the court hearing the case in the first instance, and in pre-trial proceedings the judge will decide upon his petition that he is entitled for legal assistance provided by the agent free of charge or at a reduced rate. The same decision will be made on a petition of the aggrieved person, who has asserted a claim for compensation of damage or non-material harm or for the surrender of unjust enrichment in compliance with the law, if given the nature of the claimed compensation or its amount or given the nature and extent of the unjust enrichment the representation by an agent is not clearly overbundant.

 

An aggrieved person under the age of 18 is entitled to legal assistance provided by an agent free of charge even if the above stated conditions are not met, unless a criminal offense of negligence of child support is concerned.

 

In case the aggrieved person does not choose an agent, the presiding judge and in pre-trial proceedings the judge will appoint an attorney listed in the registry of providers of legal assistance to the victims of crime according to the Act on Victims of Crime.

 

If the grounds substantiating the appointment of an agent to the aggrieved persons cease to exist, or if the agent can no longer represent the aggrieved person for serious reasons, the presiding judge and in pre-trial proceedings the judge will decide even without a petition to relieve the appointed agent from the duty to represent the aggrieved person.

 

 

Consent of the aggrieved person with criminal prosecution

 

According to Section 163 of the Criminal Procedure Code, criminal prosecution for criminal an enumerative list of criminal offenses is conditioned by the consent of the aggrieved person, if there is a family or similar relationship between the aggrieved person and the perpetrator[1]. These offences include, but are not limited to bodily harm, negligent grievous bodily harm, failure to provide assistance, failure to provide assistance by a driver of motor vehicle, illegal restraint, breaking and entering, infringement of rights of another, sexual duress, theft, embezzlement, unauthorized use of a thing of another, dangerous threatening and dangerous pursuing. In case of rape the consent with criminal prosecution is required if the person being prosecuted is or at the time of commission of the act was a spouse, partner or companion of the aggrieved person.

 

If there are several aggrieved persons from a single act, consent of any one of them will suffice.

 

The right of the aggrieved person to dispose of the prosecution applies in principle to the whole criminal prosecution, including appeal proceedings. The consent with criminal prosecution may be withdrawn until such time as the court of appeal retires for final deliberation. The law expressly stipulates that an expressly denied consent cannot be granted again.

 

The lack of consent of the aggrieved person with criminal prosecution in case of the listed offenses results in inadmissibility of criminal prosecution, which is a matter of fact the authorities involved in criminal proceedings are obliged to take into account in each stage of criminal proceedings.

 

However, the institution of consent of the aggrieved person will not apply in case:

- the act caused death of a person,

- the aggrieved person is unable to convey the consent because of a mental disorder, for which his legal capacity has been restricted

- the aggrieved person is under the age of 15,

- the circumstances clearly imply that the consent has not been given or has been withdrawn in distress caused by threats, under duress, or by dependency or subordination of the aggrieved person.

 

Aggrieved person and adhesion procedure

 

Hearing the claim of the aggrieved person for compensation of damage caused by a criminal offense – so called adhesion procedure – form a part of criminal proceedings. The entitled subject of the adhesion procedure, whose claim for damage compensation is being decided, is an aggrieved person, who duly and timely asserts his claim for damage compensation against the accused person. The petition must be made no later than in the main trial before the evidence procedure is initiated. In case an agreement on the guilt and punishment is being negotiated, the petition must be made no later than at the first negotiation meeting on such agreement.

 

In order to grant the claim of the aggrieved person for damage compensation, the following conditions must be met:

- the damage is of a proprietary nature quantified in money, or a right to surrender unjust enrichment,

- the damage was incurred in direct connection to the act, for which the accused person is being prosecuted and which is stated in the indictment,

- the petition for granting damage compensation was filed in time by the competent person,

- the petition must clearly show for which reasons and in what amount is the claim for compensation of damage or non-material harm being filed or for which reasons and in what extent is unjust enrichment being claimed; the aggrieved person is obliged to document the grounds and amount of damage, non-material harm or unjust enrichment,

- the claim has not been decided on a civil-law or other applicable proceedings,

- the defendant is found guilty of the crime.

 

The court in criminal proceedings is bound by the petition of the aggrieved person and may not exceed it.

 

The court decides on the asserted claim for damage compensation according to non-criminal substantive-law regulations (in particular the Civil Code, Commercial Code, Labor Code), but in a procedure following the Criminal procedure Code, i.e. in the form of criminal proceeding.

 

Manner of decision on the claim for damage compensation:

 

- the court grants, either in full or in part, the claim for damage compensation, if the claim and its amount are substantiated by the outcome of criminal proceedings;

- the court refers the aggrieved person with his entire claim to civil-law proceedings, eventually to proceedings conducted before another competent authority, because:

 

1. according to the results of evidence procedure there are not sufficient grounds for imposing the obligation for monetary compensation of damage, non-material harm or for the surrender of unjust enrichment or if deciding on such obligation would require further evidence which exceeds the needs of criminal proceeding and it would substantially prolong it,

2. the defendant has been acquitted in relation to the act, which allegedly caused the damage; acquittal of charges mandatorily and without exception results in referring the aggrieved person to civil-law or other proceedings, because as a rule, the claim for damage compensation may be granted in criminal proceedings only by a condemning judgment,

3. the court will refer the aggrieved person with the rest of the filed claim to civil-law or other proceedings conducted before a competent authority, if it grants the claim only in part in the course of main trial.

  

The aggrieved person, who has asserted the claim for compensation of damage or for the surrender of unjust enrichment, may contest the decision of court of first instance by an appeal only for wrongness of the statement of the monetary compensation of damage or non-material harm or for the surrender of unjust enrichment, or because such statement has not been made, or because as a result of breaching the provisions on the proceedings preceding the judgment the statement on damage compensation is faulty or has not been made at all, however not for wrongness of the statement of guilt. If the case was decided by a criminal order that also contains a statement on damage compensation, the aggrieved person is not entitled to file a protest against the criminal order.

 

The aggrieved person, who has asserted a claim for compensation of damage or non-material harm or for the surrender of unjust enrichment may file an appeal against the judgment, by which the court has approved an agreement on the guilt and punishment for wrongness of the statement on monetary compensation of damage or for the surrender of unjust enrichment., unless he agreed with the extent and manner of compensation of damage or non-material harm or surrender of unjust enrichment in the agreement and this agreement has been approved by the court in the form he has consented to.

 

 


[1] Section 100 (2) of CPC stipulates that a witness is entitled to refuse testimony in case it would case a risk of criminal prosecution to himself, his direct relative, sibling, adoptive parent, adoptive child, spouse, partner, companion or to other person in family or similar relationship, whose harm he would rightfully perceive as his own.

 

 
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