Obhájce v československém trestním řízení

The guarantee of the right of defence constitutes an important part of the protection of citizens in the domain of penal procedure. According to the provision of section 41 of the Code of Penal Procedure, the task of the defence counsel is to defend the interests of the defendant. In the past, it was current to affirm that in all cases the social interest prevails over the individual one in the socialist penal procedure. The procedural rules are class rules principally because they realize the rules of the material law. It is therefore not correct to interpret the regulations concerning the penal procedure in a way fitting a certain predetermined aim, first of all to limit the rights of the defendant and to clear up whether, in the concrete case, the defendant should be allowed to realize those rights. The procedural regulations constitute on the one hand a certain frame, within which the proceedings concerning the given case are pursued, on the other hand they constitute a guarantee that the case in question will be decided in a righteous way, corresponding to the intentions of the material law. The defence counsel is defending the rights of the defendant. The basic interest is that the innocent should not be punished and that the culprit should be punished only in a way corresponding to the law. The other interests in question are the interests in the realization of the other rights of the defendant; their limits are determined by the law. In the first chapter the author deals with the notion of defence in the Czechoslovak penal procedure, with the relation existing between the right of defence and the other principles on which the Czechoslovak penal procedure is based, with the defence counsel and his tasks. In order to secure the objective truth, it is necessary to secure the objectivity and the global establishment of the factual state during the whole penal proceedings. The best form of penal procedure, corresponding to this aim, is a form, where there exists, opposite to the prosecuter, a subject equal to him in procedural rights and whose rights are very wide. The right of defence includes the right of the accused to require of all organs, acting in the penal proceedings, that all circumstances should be elucidated testifying in his favour, and the right of the accused to appoint a defence counsel and to take advise from him. Another guarantee, securing the defence of the accused, is the fact that also other persons may intervene in his favour. The author considers that the sense of the guarantee of defence of the accused consists in the unity existing between the establishment of the objective truth and the protection of the accused against any incorrect apprehension. From the point of view of the accused, the primordial aspect is the protection of his interests. The right of defence is a basic civic right and by the same one of the foundamental principles of the Czechoslovak penal procedure. The defence contributes to the establishment of the objective truth by supplying informations concerning all circumstances which are in favour of the accused; that means that the tasks of the defence are fixed in a onesided way. The presumption of innocence is closely connected with the defence, because the fact that the guilt has not been proved has the same importance as the proved innocence; in both cases the court must pass an acquitting judgement. The defence is therefore not obliged to make the innocence of the defendant incontestible, it is sufficient for her to make his guilt contestible. If the defence of the accused cannot be challenged in a convincing way, it is impossible to condemn him. The presumption of innocence guarantees also the equality of citizens before the law, without any consideration of their belonging to a certain race, religion, class or of the committed offence. The innocent person, as well as the culprit, have the same rights in the penal proceedings. The securing of the right of defence is a necessary consequence of the principle of accusation, because it is the unique way how to bring about the rivalry of the parties. Some other principles governing the penal procedure serve also this equality in the proceedings - the principles of publicity, of immediateness, of the oral character of the proceedings a.s.o. The participation of the social organizations (the community defence attorney and the proposal of a guarantee) constitute an important aid for the accused and facilitate his position in the penal proceedings. According to the provision of section 33, par. 1 of the Code of penal procedure, the accused has the right to appoint a defence counsel and to take advise from him. Our law is based on the supposition that it is necessary that the important tasks of defence should be executed only by qualified persons - therefore only an advocate can be defence counsel; only in very exceptional cases can be defence counsel an officer of justice in active service. The author argues with the opinions, according to which the participation of an officer of justice in active service as defence counsel is still necessary in penal proceedings. She considers that this institution should be abolished. She deals further with some questions concerning the mandatory defence, principally with the question how are to be interpreted the causes of mandatory defence. She deals also with questions concerning the refusal of the defence by the defence counsel and she argues with the opinions according to which the defence counsel should invite the accused to speak the truth. As far as the concrete tasks of the defence counsel in the penal proceedings are concerned, discussions go on in the theory of the socialist penal procedure concerning the position of the defence counsel in the proceedings. This question is not explicitly resolved even in the bourgeois theory of penal procedure. According to the opinion of the author, there exists a special relation between the defence counsel and the accused, belonging to the domain of penal procedure, in which are however reflected even certain elements of civil law, which constitute a part of the relation in question in cases, where the defence counsel is an advocate. In the second chapter the author deals with some general aspects of the activities of the defence counsel in the Czechoslovak penal procedure. The bourgeois theory of penal procedure has elaborated in great details the respective rights and duties of the defence counsel. The tasks of the defence counsel, as resulting from his procedural function, dont determine in a concrete way the activities of the defence counsel during the different phases of the penal proceedings. The duties of the defence counsel represent a sort of “technical manifestation” of his tasks during the penal proceedings. The author considers that the most important of these duties are the following ones: 1/ the defence counsel is obliged to provide legal assistance to the accused, to advise him in all affairs concerning his defence and he has the duty to use for that aim all legal means and methods. He has the duty to enforce the rights of the accused in time, effectively and in every appropriate way. In this connection the author examines how a consultation of the defence counsel with the accused should be conducted, what advises the defence counsel has to give to the accused, principally whether he has to persuade the accused to confess his guilt. She analyses also the problem of the instrumental and timely character of the presented defence. 2/ The defence counsel has the duty to invoke during the proceedings all circumstances which are in favour of the accused. As the Code of penal procedure does not contain a special provision explicitly forbidding the interrogation of the defence counsel as witness, she resolves this problem in connection with the provision of section 35, par. 2 of the Code of penal procedure and she draws the attention to the fact that the special duty of secrecy is not imposed upon the defence counsel as such, but only upon the defence counsel who is an advocate- this duty is in fact based on the provision of section 19 of the Act No. 57/1963 C. of L., concerning the legal profession. She analyzes the notion of “confided matters” according to the mentioned Act and she examines also its relation to the crimes of “failure to prevent a crime” and of “failure to report a crime” (sections 167 and 168 of the Penal code). The principal rights of the defence are in general connected with the possibility existing for the defence counsel to get acquainted with the accusation in order to be able to protect effectively the accused against it. The most important rights of the defence counsel in this respect are those to speak with the accused, to examine the files and to take part in the acts of the preliminary proceedings. With these rights is also connected the right of the defence counsel to make motions for the defendant, to submit applications, appeals and proposals on his behalf. The defence counsel enforces these rights of the defendant in the defendant’s name, even in the cases where he files motions against the will of a defendant (accused), who is not legally independant. In the third chapter the author analyzes some problems concerning the activities of the defence counsel during the different phases of the preliminary proceedings. The different principles governing the penal procedure are applied differently during the different phases of the penal proceedings, they influence however essentially the regulation of the different institutions of the penal procedure. The defence counsel has already in the preliminary proceedings the important right to assist to the acts of proceedings. His participation represents an important guarantee of the establishement of the objective truth. During the trial before the court of the first instance, the defence counsel takes care of the fact that all circumstances of the case should be reexamined so as to prevent that the decision of the court would be based upon non verified suppositions or opinions. The defence counsel has to take principally care of the fact that, if any doubts arise, the principle of the presumption of innocence of the defendant has to be applied. The author mentions also proposals de lege ferenda, concerning the preliminary examination of the accusation. The activities of the defence counsel during the trial must not be limited to the final statement for the defence, which represents only a culmination of the counsel’s work before the court. It is necessary therefore that the defence counsel should pay a great attention to the evidence. In the final statement the defence counsel sums up and appreciates, from the standpoint of the defence, the results of the penal proceedings. The statement for the defence contains the political appreciation of the case, the analysis of the evidence, of the factual state and the explication of the juridical opinions of the defence counsel. The statement for the defence has also a great importance as far as its influence on the public is concerned. In a further part of her study, dealing with the problems of the proceedings of appeal, the author analyses the question whether and in what measure the defence counsel is bound by the opinions of the defendant as far as the interposition of legal remedies is concerned. In her analysis of the problems concerning the appeal, the author draws the attention to the question whether the defence counsel is bound by his conceptions expressed before the tribunal of the first instance and to the question of the relation existing between the motion according to the provision of section 235, par. 1 of the Code of penal procedure and the concluding motions according to section 235, par. 3 of the Code of penal procedure. Because of the fact that the defence of the defendant finishes at the moment when the decision, by which the penal prosecution is closed, becomes valid, it is impossible that extraordinary legal remedies might be interposed by the defence counsel in the name of the defendant or of others legitimate persons without their express consentment. As far as the relation between the complaint for violation of the law and the retrial is concerned, the position of the author is essentially identical with the opinions published in the review “Zprávy advokacie” (Informations of the bar) in February 1960. She considers however that the suggestion aiming at the interposition of a complaint for the violation of the law, which is still not the complaint itself, should be taken seriously into account; certain minor violations of the law can, provided they are numerous, cause important damages to the total trend of the judiciary.