Competence of the Public Prosecutor’s Office in non-criminal area
Article 80 of the Constitution of the Czech Republic does not preclude statutory regulation that would entrust the Public Prosecutor’s Office with powers to protect public interest in proceedings conducted before courts and other authorities in non-criminal area, in addition to the priority representation of the state in criminal matters. The basis of operation of the Public Prosecutor’s Office in other than criminal proceedings is Section 4 (1) (b) of the Act on Public Prosecutor’s Office. The scope, conditions and manner of such operation are stipulated in various laws. The non-criminal competence of the Public Prosecutor’s Office is stipulated in two forms:
– one is participation of the Public Prosecution in non-criminal proceedings before a court on the basis of its own motion for initiation of proceedings or on the basis of entering proceedings initiated by a motion of another petitioner or ex officio by the court, and only in cases provided for by the law (Section 5 of the Act on Public Prosecutor’s Office),
– second is supervision of the Public Prosecution over compliance with the law in places, where personal freedom of persons is being restricted according to statutory provisions, and in the extent and under the conditions and in the manner stipulated by the Act on Public Prosecutor’s Office (Section 4 (1) (b)).
The Public Prosecutor’s Office is entitled to file a motion to initiate proceedings in matters of
a) judicial care of minors [Section 8 (2) in matters referred to in sub-section (1) (b) of the Act no. 292/2013 Coll.], in cases of
– imposing a special measure of child care,
– institutional care,
– suspension, limitation or deprivation of parental responsibilities or performance thereof,
– determination of date of birth.
b) protection against domestic violence [Section 8 (2) in matters referred to in sub-section 1 (c) of the Act no. 292/2013 Coll.],
c) legal capacity [§ Section 8 (2) in matters referred to in sub-section (1) (d) of the Act no. 292/2013 Coll.],
d) declaration of death [Section 8 (2) in matters referred to in sub-section (1) (e) of the Act no. 292/2013 Coll.],
e) declaration of admissibility of admitting or keeping a person in a medical treatment facility [Section 8 (2) in matters referred to in sub-section (1) (f) of the Act no. 292/2013 Coll.],
f) declaration of inadmissibility of keeping a person in a social services facility Section 8 (2) in matters referred to in sub-section (1) (g) of the Act no. 292/2013 Coll.],
g) determination of illegality of a strike or lock-out (Section 21 and 29 of the Act no. 2/1991 Coll.),
h) determination of invalidity of an ownership transfer contract in cases, where the provisions limiting the freedom of the parties were not complied with in the course of making and entering into the contract (Section 42 of the Act no. 283/1993 Coll., as amended),
i) imposing a measure according to Section 90 of the Act no. 218/2003 Coll.,
j) supervision over compliance with applicable legislation in case of execution of institutional care or protective care, as far as a petition for
– cancelling the imposed institutional care,
– cancelling the imposed protective care,
– imposing protective treatment to children placed in a facility on the basis of an institutional treatment order [Section 39 (2) (e) of the Act no. 109/2002 Coll.],
k) winding up a company with liquidation (Section 93 of the Act no. 90/2012 Coll.).
The Prosecutor General is entitled to file a motion against a decision of an administrative authority, if there is a serious public interest in doing so (Section 66 (2) of the Administrative Judicial Procedure Code).
The Public Prosecutor’s Office is entitled to file an action for nullity of a court decision according to Section 231 (2) of the Civil Procedure Code in cases they may enter into or where they may file a motion for initiation of the proceedings. If the Public Prosecutor’s Office has not entered the proceedings, in which the contested decision was issued, it may file the action within the time limit given to the parties of the proceedings, if it enters the proceeding at the same time. This action is deemed to be an extraordinary legal remedy.
The Public Prosecutor’s Office is entitled to enter ongoing proceedings pursuant to Section 8 (1) of the Act on Special Trial Proceedings
a) in adoption maters, namely into the part of proceedings, where it is decided, whether the consent of parents with the adoption is necessary,
b) in matters of judicial care for minors, as far as
– imposition of a special measure concerning the upbringing of the child is concerned,
– institutional care,
– suspension, limitation or deprivation of parental responsibilities or execution thereof,
– determination of the date of birth,
are concerned
c) matters of protection against domestic violence,
d) legal capacity,
e) declaration of death,
f) determination of the date of death,
g) matters of adjudicating
– admissibility of accepting or keeping a person in a medical care facility, or
– inadmissibility of keeping a person in a social services facility,
h) replacement of certain lost or destroyed legal documents,
i) certain issues concerning legal entities (Section 85 and following of the Act on Special Trial Proceedings).
According to Section 7c of the Act no. 182/2006 Coll., on Insolvency and Manner of its Resolution, the Public Prosecutor’s Office is entitled to enter the insolvency proceedings, including moratorium and associated incidental disputes. According to Section 69 of the Act no. 182/2006 Coll., the Public Prosecutor’s Office that has entered insolvency proceedings, and incidental dispute or moratorium, is entitled to file, in addition to regular legal remedy (appeal), also an extraordinary legal remedy (extraordinary appeal), if such a remedy is admissible against the decision of the insolvency court.
According to Section 77 of the Act no. 304/2013 Coll., on Public records of Legal Entities and Natural Persons, the Public Prosecutor’s Office is entitled to enter proceedings in matters of public records (i.e. Record of Associations, Record of Foundations, Record of Institutions, Record of Home Owner’s Associations, Commercial Record and Record of Publically Beneficial Companies).
The Prosecutor General’s Office may enter pending proceedings at the Supreme Court on recognition of final and effective foreign decisions in matters of marriage divorce, statutory marital separation, declaration of marriage as null and void and determination whether a marriage exists or not, if at least one of the parties to the proceedings was a citizen of the Czech Republic (Section 51 (2) of the Act no. 91/2012 Coll.).
In case a civil proceeding is initiated, in cases provided for by the law, by a motion of the Public Prosecutor’s Office, then the Public Prosecutor’s Office is a party to these proceedings as the petitioner. Procedural rights and obligations of the Public Prosecutor’s Office arise from its position the proceedings, which is a result of exercising its procedural competence to file a motion to initiate the proceedings.
If the Public Prosecutor’s Office has entered, in cases provided for by the law, into proceedings initiated by another petitioner or ex officio by the court, then it is entitled to take all steps a party to the proceedings may take, with the exception of steps that may be taken solely by a party to the legal relationship in question. Consequently, the Public Prosecutor’s Office that participates in non-criminal trial proceedings by virtue of entering into such proceedings, is not entitled to take steps associated with subjective substantive-law right of a party to a substantive-law relationship. The competences of the Public Prosecutor’s Office are limited by the fact that they may not dispose with the subject matter of the proceedings. The Public Prosecutor’s Office is not entitled to change the motion for initiation of the proceedings or to withdraw it, if it did not file it. The Public Prosecutor’s Office is not entitled to agree on a settlement (Section 99 (1) of the Civil Procedure Code), to recognize a claim (Section 153a of the Civil Procedure Code). It is also not competent to take other substantive-law steps within the proceedings, e.g. to waive a claim, to raise a compensation objection, to argue a claim has been statute-barred or to raise an objection of relative invalidity. The principle that the Public Prosecutor’s Office is entitled to take all procedural steps any party to the proceedings can take, with the exception of steps that may be taken only by a party to a legal relationship, should be understood also in view of the time period, in which the Public Prosecutor’s Office enters the proceedings. This is why the Public Prosecutor’s Office is entitled only to such procedural steps that may be taken in time it entered the proceedings and in subsequent proceedings, not to steps that could have been taken only in the phase before it entered the proceedings. Without an express statutory legitimation the Public Prosecutor’s Office is not entitled to lodge an extraordinary legal remedy.
The Public Prosecutor’s Office does not represent any party in the proceedings it has entered and it is not dependent on their procedural status. In case the Public Prosecutor’s Office has entered proceedings that ended by a final and effective meritorious decision, than in this moment its participation in the proceedings is concluded. The Public Prosecutor’s Office will leave the proceedings if it finds that the public interest no longer requires its further participation in the trial proceedings. The Public Prosecutor’s Office will enter a pending proceeding at the court of the first instance or an appeal court if it believes that its participation is substantiated by a public interest. It may enter the proceedings simultaneously with lodging an appeal, if the period for filing an appeal has not expired to all parties to the proceedings.
The Public Prosecutor’s Office exercises supervision over compliance with the law in places, where custody, sentence of imprisonment, protective or institutional treatment or security detention is being executed, in the extent and under the conditions stipulated by the law. A special legal enactment that defines in more detail the extent and conditions of exercising the supervision, is the Act no. 293/1993 Coll., on the Execution of Custody, Act no. 109/2002 Coll., o. the Execution of Institutional or Protective treatment in School Facilities, and the Act no. 129/2008 Coll., on the Execution of Security Detention and on the Amendment of Certain Associated Acts.