Grounds for facultative discontinuance of criminal prosecution in the light of the basic principles of criminal procedure
Abstract
The Czech criminal process is traditionally based on the principle of legality, according to which the prosecutor is obliged to prosecute all crimes of which he becomes aware, subject to statutory exceptions. Over time, however, the dominant principle of legality is being counterbalanced by an increasing number of opportunistic exceptions, which is also reflected in a growing number of cases where the prosecutor is left to his or her discretion whether to initiate a prosecution or whether to continue a prosecution that has already been initiated. We refer to these as grounds for facultative discontinuance of criminal prosecution. In this paper, after a more detailed definition of the principle of legality and the principle of opportuneness, we focus mainly on two existing problematic aspects of facultative discontinuation of criminal prosecution under the Czech Criminal Procedure Code. Following the analysis, we then present specific de lege ferenda proposals that could contribute to the improvement and refinement of the effective legal regulation. In the second part of the paper, a critical analysis of the draft wording of the new Criminal Procedure Code in relation to the issue at hand is not left aside, in which we draw attention to the possible overly broad and vague definition of one of the proposed optional grounds for discontinuation of criminal prosecution.
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