According to Lipšic, the reason for paragraph 363 is in a situation where there is a clear illegality in the preparatory proceedings.
BRATISLAVA. Guilt and punishment should be decided by the courts, not the prosecutor. This was stated by a special prosecutor Daniel Lipšic.
He thus responded to examples of the application of the disputed section 363 of the Criminal Procedure Code from the recent past.
No one in the Union has such powers
He reiterated that the scope of powers arising from section 363 of the Criminal Procedure Code, which also applies to immoral decisions in Slovakia, such as resolutions, is nowhere in the European Union.
“Obviously, prosecution works there and it is not a cornerstone of criminal proceedings, because otherwise other countries would have to have it as well. And it has none,” he stressed.
He also considers it problematic from the point of view of the division of state power that the prosecutor’s office will use this paragraph, despite an earlier decision of the courts in the same matter.
Lipšic: Only the supervisory prosecutor can evaluate the video from the cottage as evidence Read
“It is even more extreme in a situation where the Specialized Criminal Court and the Supreme Court say in the custody decision that the prosecution is justified, the basic material condition is met, the evidence is sufficient, but Prosecutor General’s Office he will say that they are not enough, “he said.
According to him, the clear reason for applying the paragraph is in a situation where there is obvious illegality in the preparatory proceedings.
“But when, for example, it is argued that one cooperating defendant and other evidence are not sufficient to bring charges, or two cooperating are not sufficient, or the statements differ in some small case and are therefore not credible, this is a matter for the court to decide, “said Lipšic.
The courts decide on guilt and innocence
He pointed out that in one of the last decisions under section 363 of the Criminal Procedure Code, the Attorney General argued in the case law of the Supreme Court that if the decision on guilt is based on the testimony of one witness, it must be corroborated by other evidence.
“But this case law concerns a decision on guilt. My question is, does the Attorney General decide on guilt in proceedings under 363? Well, probably not. Acting on guilt and innocence is, according to our constitution, a matter for the court,” he added.
He says that the assessment of the evidentiary situation in the preparatory proceedings should be a matter for the supervisory prosecutor, and when an indictment is filed, this assessment is a matter for the court alone.
“But then the Prosecutor General’s Office will say that it is not possible to hear suspects in the procedural status of witnesses after the prosecution, because there is a new doctrine. However, there is no doctrine. On the contrary, it is not possible in any other “to hear the suspect only as a witness,” Lipšic said.
He emphasized that until 2015, the Attorney General could use section 363 of the Criminal Procedure Code only for substantive decisions, while after 2011 the law prohibited the so-called negative instructions.
“I am surprised that there are still some members of parliament who say that I am now criticizing section 363, and that I have introduced it into the Criminal Procedure Code. , as it really was, “added the special prosecutor.