Special Prosecutor Lipšic on section 363: Guilt and punishment should be decided by the courts, not the prosecutor – Topky.sk

He reiterated that the scope of powers arising from section 363 of the TP, which in Slovakia also applies to immaterial decisions, such as resolutions, is not anywhere in the European Union. “Obviously, prosecution works there, and it’s not a cornerstone of criminal proceedings, because other countries would have to have it otherwise. And it doesn’t have one.” 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. “It is even more extreme in a situation where the Specialized Criminal Court and the Supreme Court of the Slovak Republic say in the custody decision that the criminal prosecution is justified, the basic material condition is met, the evidence is sufficient, but the General Prosecutor’s Office (GP) SR will say that they are not enough, “ declared.

The clear reason for applying paragraph 363 is in this situation

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.

He pointed out that in one of the last decisions under section 363 TP, the Attorney General argued in the case law of the National Council of the Slovak Republic that if the decision on guilt is based on the testimony of one witness, it must be confirmed 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.

Source: Topky / Vlado Anjel

Only the court has to evaluate the evidence when the indictment is filed

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 he will tell the GP SR that it is not possible to hear suspects in the procedural position of witnesses after the commencement of criminal proceedings, because there is a new doctrine. However, this is not a doctrine. procedural position to hear the suspect only as a witness, “ said Lipšic.

He emphasized that until 2015, the Attorney General could use section 363 of the TP 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 actually was, “ added a special prosecutor.