Prosecuting attornies supervise pre-trial proceedings even in their sleep

Authors: JUDr. Lukáš Duffek, Mgr. Linda Coufalová

The Supreme Administrative Court as disciplinary court has recently judged a case under Ref. No. 12 Ksz 7/2019–196, on possible disciplinary offences committed by a supervising prosecuting attorney and the prosecuting attorney in charge of the criminal proceedings. The prosecutor in charge of the proceedings was accused of inadequate examination of the expert opinion that was ordered by the police authorities in the course of criminal proceedings. This opinion was taken as the basis for the initiation of criminal prosecution, and later for the indictment of the defendants. The supervising prosecutor was then accused by the disciplinary plaintiff of not duly supervising the actions of the prosecutor in charge of the stated proceedings.

The criminal proceedings in which the expert opinion was presented concerned the offense of negligent breach of duty in administration of the property of another. It was alleged that the accused (the city council) had committed the crime of selling a property for inappropriate consideration, and what served as the main evidence was an expert opinion according to which the property was appraised at a price that was CZK 502,840 higher than the price for which it had been sold. The difference between the sale price and the expert’s appraisal price thus only exceeded by CZK 2,840 the minimum threshold of material damage that signifies the crime of negligent breach of duty in administration of the property of another. The expert opinion was issued in compliance with the Act on Appraisal of Property and with the regulations on appraisal of the Ministry of Justice. However, in defiance of Sec. 137 of the Criminal Code, which imposes an obligation to determine the amount of damage on the basis of the usual price, the opinion did not include any passage determining that price.

Despite several complaints from the accused and the defense, and despite the objections raised against the accuracy of the expert’s opinion, pointing primarily to the use of incorrect methods, the prosecutor in charge of the proceedings did not respond to them and did not conduct an additional examination of the expert. According to her defense, during the disciplinary proceedings she was assured by the expert by phone that this method could be used for the determination of the usual price. She made no record of this call in the criminal pleadings. According to the disciplinary plaintiff, by this she had committed a disciplinary offence, for having acted unprofessionally and negligently, she had caused an unlawful situation that subsisted from when the complaint of the accused against the decision to initiate criminal prosecution was rejected, through indictment and until the end of the hearing.

The Supreme Administrative Court stated on this matter that the prosecutor was responsible for the lawfulness of criminal proceedings until the final judgment of the case, his/her greatest responsibility being particularly the pre-trial proceedings, the lawfulness of which the prosecutor is obliged to supervise constantly. At the same time, the prosecutor has to assess critically all the evidence of guilt or innocence, including the conclusions of expert investigation. Therefore, the prosecutor must not accept those expert opinions and conclusions uncritically, and it cannot be accepted that appraisal is a purely expert issue, and that the prosecutor should not review the expert’s conclusions.

The bodies participating in criminal proceedings have limited options for reviewing the accuracy of expert opinions, but that should not lead to impermissible blind faith in any kind of insufficiently grounded expert conclusions. It is at least after the expert’s examination and explanation that the process of indictment may be initiated, because the prosecutor may do so only provided that the results of investigation justify bringing the accused before the court. If there are serious doubts about the accuracy of an expert’s opinion, which was crucial for fulfilling one of the criteria of the crime, and the expert also determined the price as exceeding the threshold of material damage only slightly, according to the disciplinary court’s assessment, it is difficult to assume that the results of investigation would have fully justified the submission of the indictment.

In the pre-trial proceedings, where the prosecutor is the so-called master of the suit, it is primarily his/her responsibility to ensure that any unlawfulness that occurs during the proceedings is corrected and to annul any illegal or unjustified decision and measures of the police authorities. The court noted hyperbolically that “the prosecutor supervises the lawfulness of the pre-trial proceedings 24 hours a day and 7 days a week, that is, even while asleep.” If in the course of criminal proceedings the prosecutor becomes aware of any significant doubts about whether the conditions for suspension of criminal prosecution are fulfilled, he/she must examine them properly. If the criminal proceedings continue without the prosecutor having done so, further criminal prosecution may be considered illegal. The disciplinary court “shares the general conclusion of the defense of [the disciplinary accused] that there definitely is an interest in the hearing of all contentious cases, as well as in conviction for only admittedly criminal cases. Yet it must be noted that this may not justify the buck-passing perception of that principle, which is in practice – rather simply – called ‘sue in case of doubts’. Thus, this principle, which springs from the different degree of uncertainty needed for the discontinuation of criminal prosecution (cf. Sec. 172 Par. 1 of Rules of Crim. Proc.) and for judgment of acquittal (cf. Sec. 226 of Rules of Crim. Proc.), must not be perceived as a universal argument that allows the neglecting of the relevant defense of the accused.” The court also concluded that “in the matter of legal assessment, the principle of iura novit curia definitely applies even to the prosecutor, who is subject to similar professional requirements to the judge.”

Thus the court, regarding the threat of possible disciplinary offense, significantly reinforced the liability of prosecutors in criminal proceedings and strengthened the requirement that the evidence be sufficient. It follows from this reasoning that should there be any circumstantial evidence implying that the evidence may be problematic, the prosecutor should approach such evidence with circumspection and examine it thoroughly, both to the benefit and to the detriment of the accused. The court adopted an opposing attitude to cases, which sometimes occur in practice, where the bodies participating in criminal proceedings, primarily prosecutors, hide behind the conclusions of expert opinions, without having critically examined them. In addition to that, the court stated that no piece of evidence, and therefore not even an expert opinion with all the intrinsic legal elements, is endowed with higher probative value. Within the meaning of the principle of free evaluation of evidence, it is subject to similar evaluation to any other piece of evidence.

As regards supervision, the Supreme Administrative Court then concluded that the supervising prosecutor may not substitute the activity that the prosecutor in change of the proceedings has to perform. Therefore, the possible procedural disciplinary liability of the supervising prosecutor in criminal cases does not concern the entire process of the criminal proceedings conducted, but only the execution of supervision itself. For this reason, in relation to the conducted criminal proceedings and their possible result, the liability of the supervising prosecutor is different, or less extensive than the liability of the prosecutor in charge of the proceedings.

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