The Criminal Code contains a small set of crimes for which criminal prosecution is permissible only with the consent of the victims, if they are persons who, as witnesses, would have the right to refuse to testify. These crimes are exhaustively listed in the ustan. § 163 of the Criminal Code. The right to refuse a witness statement for the mentioned persons is regulated in the ustan. § 100 of the Criminal Code. For further explanation, let's simply call them "close people".
The state's interest in criminal law protection of rights, interests and values with the principle of officialdom gives way here to the specific right of the individual, who decides whether the act in question will be prosecuted and whether the perpetrator will eventually be punished. This legislation is based on the belief that the protection of the private life of the offender and the injured person, typically the victim, takes precedence over the prosecution and sanctioning of criminal offences. Any criminal prosecution and imposed punishment could have a major negative impact on the private sphere and the relationship of these persons.
In order to ensure that the given legal construct has the desired positive impact not only in the private sphere of the injured party, but also in the public sphere, the ustan contains. § 163a paragraph 1 of the Criminal Code exemption from the requirement of consent to criminal prosecution. I consider the exception listed under letter d) the cited provision according to which consent is not required if it is clear from the circumstances that consent was not given or was taken back in distress caused by threats, coercion, dependence or subordination. Circumstances of dependence or subordination will be usual especially in cases connected with domestic violence and may also be related to the so-called "Stockholm syndrome", when the victim of a crime creates a positive emotional bond with the perpetrator of the crime. Law enforcement authorities, especially investigators, who usually have the closest contact with the victim, must correctly distinguish whether there is an ustan at the place of application. § 163a paragraph 1 of the Criminal Code. The state power will then once again assume a paternalistic role and will be able to carry out criminal prosecution even against the will of the injured person's loved ones.
In order to assess the need to obtain the consent of the injured person, the decisive factor is the relationship between the offender (or the accused) and the injured party at the time of the criminal prosecution, not at the time of the commission of the crime (see the resolution of the Supreme Court of the Czech Republic dated 01, file no. 06 Tdo 2005/3). For the state power, in this case, the fact that the perpetrator harmed a person close to them is not the primary factor, i.e. that this is a socially very undesirable phenomenon, but that the persons harmed by the crime could be harmed even more, namely by criminal prosecution and possible punishment of a person close to them .
In the course of the criminal prosecution, the relationship between the accused and the victim may develop, both in the direction that the victim no longer perceives the accused as a person close to him or, on the contrary, becomes closer to the accused. This development must be reflected. If the injured party becomes a close person, then the law enforcement authority has the obligation to request the consent of such person to the criminal prosecution. The initiative in this direction will regularly come from the side of the accused and the victim, who inform the law enforcement agency about their new personal circumstances.
In the opposite situation, i.e. if the injured party ceases to perceive the accused as a close person, the possibility of withdrawing the already granted consent to criminal prosecution in the sense of the ustan also disappears. § 163 paragraph 2 of the Criminal Code.
For the sake of completeness, it can be added that the refusal to grant consent in the sense of ustan. Section 163 paragraph 1 of the Criminal Code has the effects of abolition and makes criminal prosecution impossible once and for all. The injured party cannot therefore demand criminal prosecution of a person whose prosecution he initially refused consent to, even if he is no longer a person close to him.
The legislation contained in the ustan. § 163 of the Criminal Code appropriately balanced by the subsequent statute. 163a of the Criminal Code can be evaluated as a very positive breakthrough from the principle of dispositiveness to the principle of officiality.
Source: epravo
