Did you know that in certain cases, a victim's consent is crucial for prosecution to proceed? Without their approval, the suspect cannot be charged or taken to trial.
In general, the decision whether to prosecute (or continue to prosecute) criminal offences rests with the state. The exception is the protection of private interests, to a limited extent. The private interests of certain persons are protected by the so-called victim's right of disposition.
If the victim is a person who is in a certain relationship (is a person close to the perpetrator) and the specific offence is included in the list specified in the Czech Criminal Procedure Code (Section 163), then the victim must be explicitly asked whether he or she agrees to the prosecution before the prosecution is initiated. If the relationship between the accused and the victim is established after the prosecution has been initiated, the victim must be asked immediately thereafter.
If the injured party does not immediately respond to the request of the law enforcement authority ("in Czech OČTŘ"), he or she is given a maximum of 30 days to respond. If he or she fails to make a statement within the time limit, it shall be deemed that he or she does not consent to the prosecution, i.e. the prosecution cannot be initiated or continued. Thereafter, consent cannot be given.
The consent given can be withdrawn. However, once consent has been withdrawn, it cannot be given again.
Which persons are required to give consent?
In general, the Code of Criminal Procedure provides that a criminal prosecution may be brought against one who, in relation to the victim, is "a person against whom the victim, as a witness, would have the right to refuse to give evidence" only with the consent of the victim. Simply put: consent is required if the victim and the perpetrator are close persons. Close persons are a relative in the direct line of descent, a sibling, an adoptive parent, a spouse, a partner or a companion.
In relation to the offence of rape under sections 185(1) and (2) of the Criminal Code, consent is required if it is committed between spouses, partners or companions.
Which offences require consent and which do not?
The Criminal Procedure Code limits the list of certain offences. These include, for example, bodily injury, damage to foreign property, dangerous threats, etc. On the other hand, the list does not include, for example, the offence of grievous bodily harm, murder or fighting.
When is consent not required regardless of the relationship between the persons and the specific offence?
The following exceptions apply to the rule that consent is required for certain crimes from a victim who is a close associate of the suspect.
Consent is not required if the victim has been caused death by such an offence. This is understandable as he no longer has a way to give consent.
Furthermore, consent is not required from the victim who is incapable of giving consent because he is limited in his capacity to that extent.
Furthermore, the consent of the victim is not required if the victim is under 15 years of age.
Nor is consent required if it is clear that consent was not given (or was withdrawn) under duress caused by threats, coercion, dependence or subordination. Thus, if the perpetrator uses threats to dissuade the victim from consenting to his prosecution, the prosecution may be initiated without the victim's consent.
Special cases
Until when can the given consent be withdrawn at the latest? The injured party can withdraw the consent by express statement at any time until the Appellate Court leaves for the final hearing. He can therefore take it back during the investigation, during the Main Trial, even after the announcement of the decision of the Court of first instance, and even during the appeal process.
What if there are more victims? The consent of even one victim is sufficient for criminal prosecution. This can be important, for example, in the case of the crime of trespassing (consent is required for this crime). The victims are all those who legally live in the dwelling into which the offender entered. It is sufficient that consent to prosecution is given by just one of them.
How can consent be expressed? Jurisprudence shows that consent must be definite and understandable. It cannot therefore be implied implicitly - e.g. from the circumstances, from the relationship of the victim to the perpetrator, from witness statements, etc. If the victim refuses consent, can he subsequently claim compensation for damages in criminal proceedings (conducted in relation to other victims)? Yes, it would be a situation where one victim (e.g. the parent of the accused) refused to consent to criminal prosecution, but the criminal proceedings are conducted with regard to other victims (whose consent was not required or they gave their consent). The injured parent can then make a claim for damages in such proceedings. He can make a claim no later than before the beginning of evidence in the main trial.
We specialize in defence and representation of victims in criminal proceedings. If you need legal help or representation, do not hesitate to contact us.
