Information about Fair Trials. Definitions of key legal terms. Criminal proceedings and defence rights in Slovakia

Transcription

1 CRIMINAL PROCEEDINGS AND DEFENCE RIGHTS IN SLOVAKIA This leaflet covers: Information about Fair Trials Definitions of key legal terms Criminal proceedings and defence rights in Slovakia Useful links This booklet was last updated in 1

2 About Fair Trials Fair Trials is a non-governmental organisation that works for the right to a fair trial according to internationally-recognised standards of justice. Our vision is a world where every person s right to a fair trial is respected. We believe the right to a fair trial is an essential part of a just society. Each person accused of a crime should have their guilt or innocence determined by a fair and effective legal process. But the right to a fair trial is not just about protecting suspects and defendants; it also makes societies safer and stronger. Without fair trials, trust in justice and in government collapses. Despite the importance of fair trials being recognised by the international community, this basic human right is being abused day-in-day-out in countries across the globe. We re working to put an end to these abuses, towards realising our vision of a world where every person s right to a fair trial is respected. If you think an important question is not covered by this note, please let us know. We would appreciate it if you could also take a few moments to give us some feedback about this note. Your comments will help us to improve our services. Fair Trials includes Fair Trials International and Fair Trials Europe. Fair Trials International is a registered charity (no ) and in 2010 was incorporated with limited liability in England Wales (no ). Fair Trials Europe is a registered public foundation in Belgium (registered number ). We were initially founded in 1992 with the name Fair Trials Abroad. If you require this leaflet in large print, please contact using the details at to the end of this document. 2

3 IMPORTANT This leaflet was last updated in. The information contained in this document is provided for information purposes only and is not intended as legal advice, nor does it constitute legal advice. Whilst we endeavour to keep the information up to date and correct, Fair Trials makes no representations or warranties of any kind, express or implied about the completeness, accuracy, reliability, suitability or applicability to individual cases of the information contained in this leaflet. Any reliance you place on such material is therefore strictly at your own risk. Fair Trials disclaims any liability to the fullest extent permissible by law for any loss or damage of any kind arising from the use of the information provided. You should always seek professional legal advice from a lawyer qualified to practice in the jurisdiction you are in. 3

4 CONTENTS DEFINITIONS OF KEY LEGAL TERMS... 4 INFORMATION ON CRIMINAL PROCEEDINGS AND DEFENCE RIGHTS IN SLOVAKIA... 5 Q1. WHERE DO THE LAWS OF SLOVAKIA APPLY? Q2. WHAT ARE MY RIGHTS UPON ARREST?... 8 Q3. WHEN WILL I KNOW ABOUT THE CASE AGAINST ME? Q4. HOW DO I FIND A LAWYER? WHAT IS THE ROLE OF MY LAWYER? Q5. WILL I HAVE TO STAY IN PRISON UNTIL MY TRIAL STARTS? IF SO, FOR HOW LONG? Q6. HOW LONG BEFORE MY CASE GOES TO TRIAL? Q8. WHAT HAPPENS AT TRIAL? Q9. I AM NOT HAPPY WITH THE DECISION, CAN I APPEAL AGAINST IT? HOW DO I APPEAL? Q10. I HAVE EXHAUSTED ALL LEGAL REMEDIES. WHAT OPTIONS DO I HAVE? Q11. WHAT RIGHTS DO I HAVE AS A PRISONER?. 21 Q12. CAN I GET MY SENTENCE REDUCED? Q13. CAN I GO BACK TO MY HOME COUNTRY? USEFUL LINKS

5 DEFINITIONS OF KEY LEGAL TERMS Appeal (opravný prostriedok sťažnosť, odvolanie, odpor): An opportunity to dispute a decision made at trial by asking a higher court to review it. This can result in the decision being overturned or changed. Appellate Court (odvolací súd): The court that is competent to hear appeals (i.e. challenges) made to decisions of the lower courts Arrest Warrant (príkaz na zatknutie): A document authorising the police to make an arrest, search premises, or carry out some other action relating to the administration of justice. Bail (náhrada väzby): The temporary release from police custody or prison of a person accused of a crime and awaiting trial. Bar Association (Slovenská advokátska komora): An organisation whose role is to represent lawyers and help people in their dealings with lawyers. Charge/Indictment (obvinenie, obžaloba): An official statement accusing a person of committing an offence. Consulate (konzulát): The section of the embassy whose task is to assist its citizens. Court of First Instance (prvostupňový súd): A lower court where a trial is initially heard. Embassy (veľvyslanectvo): The office of a government official who resides in a foreign country and represents his/her government s interests. European Court of Human Rights (Európsky súd pre ľudské práva): The Court is based in Strasbourg, France, and hears human rights cases against the 47 countries which make up the Council of Europe (which is different from the European Union). 5

6 Judge (sudca): A person with authority to hear and decide on cases in a court of law. Judgment (rozsudok): A decision on a case provided by a judge in a court of law. Lawyer (advokát): A person whose profession is to give legal advice and assistance to clients and represent them in court or in other legal matters. Legal Aid (obhajca ex offo): Financial assistance provided to a person who needs a lawyer and who cannot afford to pay for one. Plea Bargain (dohoda o vine a treste): A procedure which allows the defendant to plead guilty in exchange for a less severe sentence. Police Custody (zadržanie): Detention of a suspect by the police after arrest Pre-trial Detention (väzba v prípravnom konaní): Detention in prison during the investigations (and often during the trial itself as well), which happens before the decision on guilt or innocence is made by the court. Public Prosecutor (prokurátor): A person who conducts a case against a person who is accused of a crime. Remand (väzba): The act of sending a person, accused of a crime, into prison until the trial. Sentence (trest): The punishment assigned to a person convicted of a crime as fixed by a court of law. Victim is known as obeť, and in criminal proceedings poškodený in Slovak. Warrant (príkaz): A document issued by a legal or government official authorising the police to make an arrest, 6

7 search premises, or carry out some other action relating to the administration of justice. Witness is known as svedok in Slovak. 7

8 INFORMATION ON CRIMINAL PROCEEDINGS AND DEFENCE RIGHTS IN SLOVAKIA Q1. WHERE DO THE LAWS OF SLOVAKIA APPLY? The United Kingdom of Great Britain and Northern Ireland consists of three separate legal jurisdictions: England and Wales, Scotland, and Northern Ireland. Each jurisdiction has its own court system and there are also some significant differences in the laws that apply. The laws of Scotland (called Scots law) only apply in Scotland. The information here does not deal with the laws of Northern Ireland, or England and Wales. Q2. WHAT ARE MY RIGHTS UPON BEING DETAINED? If you are detained on suspicion of having committed a crime, you can be held for an initial period of 48 hours, if you are suspected of committing a minor offence, or within 72 hours for more serious offence. You should be accused formally ( charged ) within this period and brought before a judge (who decides whether or not you should be remanded into custody, or be released. (a) (i) Right to information: Will the police inform me of my rights? Will this be done orally or in writing? You should be given information about your rights orally and in writing by a police officer. If you do not understand Slovak, you are entitled to have this information translated or interpreted to you. (ii) Do I have the right to be informed of the allegations / charges against me? 8

9 If the police believe that you have committed a crime, charges will be brought against you, and you will be informed of these charges in a language that you understand. The decision on the accusation will be translated to your language. The charges contain: the description of the crime; the crime scene and the time when the crime was committed; evidence showing that the crime was committed by you; the legal definition of the crime and the criminal laws applicable to your case; and information that you have the right to file an objection to the charge. (b) (i) The right to inform people: Do I have a right to have the consulate informed of the arrest? If you are not a Slovak citizen, you have the right to request from the police or the court to have your embassy or consulate to be informed of your arrest. (ii) Do I have a right to inform my family of the arrest? You have the right to inform your family or another person you name as a designated contact. However, you could be denied this right if it is believed that it could undermine the purpose of your detention. 9

10 (c) Do I have a right to a lawyer? You have the right to access a lawyer during questioning. If you cannot afford a lawyer, you can ask for a public defender to be appointed. (d) Do I have a right to a translator/interpreter? You have the right to an interpreter free of charge, if you do not speak Slovak. You should inform the police and your lawyer if you need an interpreter. You also have the right for the written documents in your case to be translated. However, this applies only to those documents which you must understand in order to prepare your defence (the charges, the indictment, the judgment, and similar documents). (e) Do I have to talk to the police or can I remain silent during police interrogation? Will it work against me if I am silent? You have the right to remain silent, and the right not to answer any questions that could incriminate you. Q3. WHEN WILL I KNOW ABOUT THE CASE AGAINST ME? Police should present the accusations against you in written form and proceed with criminal prosecution immediately after they establish facts indicating that a criminal act was committed and if there are reasonable grounds to believe that it was committed by a particular person. Once the investigation is completed, you and your lawyer will have the right to read the file in full, and become acquainted with the evidence. The police must provide you with adequate time to read the file. 10

11 Q4. HOW DO I FIND A LAWYER? WHAT IS THE ROLE OF MY LAWYER? (a) How do I find a lawyer? You can get in touch with the Slovak Bar, which may be able to help you identify a suitable lawyer. If you are not a Slovak citizen, your embassy or consulate may also be able to provide some help. If you do not engage a lawyer, the court will automatically appoint one for you if: You are in custody, or already serving a prison sentence for a different offence; You have limited legal capacity; You are in a health-care facility undergoing monitoring ; You are under 18 years old; You are not capable of defending yourself because of a physical or mental disability; You are being charged with an offence punishable by a minimum of 10 years imprisonment. (b) I cannot afford to pay for a private lawyer, what should I do? You will be appointed a public defender ( ex offo lawyer), if in your case, it is mandatory by law to be represented by a lawyer. You will have to pay back the costs of your public defender if you are convicted. If you cannot afford a lawyer, you will have to make an 11

12 application for free legal assistance. As a general rule, you will be eligible for free legal assistance, if your income falls below a certain level that is reviewed on a regular basis. If you qualify, the court will appoint a public defender for you. If your public defender was appointed on this basis, you will not have to reimburse your lawyer s fees, even if you are convicted. You do not get to choose your own public defender. (c) What is the role of my lawyer? Will s/he investigate the case? Your lawyer s role is to advise you, and to represent your interests by ensuring that your rights are protected, and make any applications or appeals that may be helpful to your defence. Your lawyer is also entitled by law to make certain requests, including requests to have certain types of evidence gathered, to present evidence, or to request evidence gathered by the investigative authorities not to be used at trial. (d) I am unhappy with my lawyer: How can I change lawyer? How can I complain about my lawyer? A good first step is to speak to your lawyer about your concerns. If you have appointed your lawyer privately (i.e. you are paying the fees), you have a right to change lawyer. You are entitled to find your own defence lawyer at any time even if you have a court-appointed lawyer. I If you have been appointed a lawyer by the court, the court can assign a different on your request only if it is satisfied that the lawyer is failing to perform his/her duties properly. You can make an official complaint to the Slovakian Bar Association to complain about your lawyer (see useful links section). 12

13 Q5. WILL I HAVE TO STAY IN PRISON UNTIL MY TRIAL STARTS? IF SO, FOR HOW LONG? The information given below is specific to Slovakia. For general information and tips about how to obtain your release prior to your trial, please refer to our note of advice on Applying for Release Pending Trial. (a) Will I have to stay in prison until my trial starts? If the reasons for keeping you detained cease to apply, or if the time limits for holding you in custody have lapsed, you must be released. (b) How long can I be kept in prison before my trial starts? The overall length of detention which the court can order during before the end of criminal proceedings, including pretrial detention, cannot exceed: 12 months, if you are prosecuted for a misdemeanour (i.e. an offence committed with negligence or intentional offence punishable by a maximum term of imprisonment not exceeding five years) of which the pre-trial custody cannot exceed 7 months; 36 months if you are prosecuted for committing felony (i.e. an intentional criminal offence carrying a maximum custodial penalty of more than five years) of which the pre-trial custody cannot exceed 19 months; 48 months if you are prosecuted for committing a particularly serious offence (i.e. an offence punishable by a minimum term of imprisonment of at least ten years) of which the pre-trial custody cannot exceed 25 months; 60 months, in exceptional circumstances in which 13

14 you are prosecuted for committing a particularly serious offence that is punishable by a minimum term of 25 years in prison, or life imprisonment. (c) Are there alternatives to detention pending trial? You could be released on bail, subject to a number of conditions, such as: - surrendering your passport or other travel documents; - living at a fixed address, reporting to a local police station; - obeying a curfew; - refraining from contacting specified people or going to certain places; - electronic tagging, or - providing a financial guarantee for your attendance at court (called security) It is common for individuals to be released on the condition that they undertake to appear at a particular court at a specified time (this is referred to as bail undertaking ). (d) How and when can I apply for release while waiting for trial? You have the right to ask the court or the prosecutor to release you at any time. If the prosecutor does not grant your request during the investigation, s/he passes your request to the court. You may file an appeal against the court's decision within 3 days if it refuses to releases you. If your request for release is not granted, you may file another request to be released in 30 days. You can also ask to be released earlier there has been a change in your 14

15 circumstances. (e) Can I go back to my home country if I have been released pending my trial? You may return to your home country if you have been released and the conditions of your release do not require you to remain in Slovakia. (f) What will happen if I breach the conditions of my release? If you violate the conditions of your release, you may end up with harsher conditions, or you may end up in custody. You will also not be able to recover the bail money you deposited with the court as a condition of your release. (g) Do I need a lawyer to apply for release? There is no legal requirement to have a lawyer to represent you for your bail application, so you may apply for bail yourself. Your chances of getting released could be undermined if you are not assisted by a lawyer, who has the necessary knowledge of local laws, legal proceedings and court practice. Q6. HOW LONG BEFORE MY CASE GOES TO TRIAL? It can be very difficult to predict how long it could take for your case to reach trial. Each case is different, and you should seek your lawyer s opinion. (a) There are always delays with my case, does that mean my lawyer is doing a bad job? No. Delays are possible at each stage of the proceedings and courts are often overburdened with the number of cases they have to handle. This means that cases can progress very slowly due to factors which are outside the control of your lawyer. However, you should discuss the situation with your 15

16 lawyer in order to find out the reason for the delays. Q7. CAN I PLEAD GUILTY? WHAT ARE THE CONSEQUENCES OF PLEADING GUILTY? You can plead guilty, but by doing so, you may lose some important rights. You should seek your lawyer s advice before deciding on your plea. Your criminal proceedings may continue even if you plead guilty, because you cannot be convicted solely on the basis of your own confession. However, your guilty plea may help you get a reduced sentence. You may also plead guilty in order to benefit of a faster procedure called plea bargain where you confess your guilt and sign an agreement with the prosecutor in return for a reduced sentence. The agreement must be approved by the court and cannot be appealed. This procedure is much quicker, but you should seek your lawyer s advice before deciding whether to choose a plea bargain. Should you not reach an agreement in relation to plea bargain with the prosecutor then all documents from those specific negotiations must be excluded from the files. This means that discussions cannot be used against you if a plea bargain is not concluded and you proceed to trial. Q8. WHAT HAPPENS AT TRIAL? Most criminal trials take place at the district court, but if your case is complex, your trial could take place instead at the Special Criminal Court. At the preliminary hearing, the court will review the indictment, and assess whether or not the evidence in your case was gathered in accordance with law. The court will also confirm your plea. If the court finds serious flaws with the indictment, it could be returned to the prosecutor. Otherwise, the court will 16

17 set the hearing date for your trial. At the main trial, the prosecutor will start by reading the charges against you. Before you are heard, the court will remind you of your rights, and you may then be asked by the court to give your explanations in relation to the accusations you are facing. The prosecutor will present evidence that you committed a crime. You are entitled to comment on and ask questions about every item of evidence. You can then present evidence which you think is important to your defence, and call any witnesses. (a) Do I have to be present? The court may try and sentence in your absence under certain circumstances. The main hearing cannot be held in your absence unless you request otherwise, if you are in custody or are serving a prison sentence, or if you are being charged of a criminal offence for which you could face more than 10 years in prison. (b) Can I ask for the trial to take place in my home country? You can only ask for your trial to take place in your home country, if the courts of your home country are prepared to try you for the same accusations. This happens very rarely, and you should seek clarification with your lawyer to find out whether this is possible in your case. (c) Is there a jury? No. Trials are heard by a single judge or a panel of three judges, depending on the seriousness of the crime. 17

18 (d) Can my lawyer call and cross-examine witnesses? You and your lawyer have the right to question all witnesses in your case. If you have a lawyer, s/he will generally ask the questions in court on your behalf. (e) I don t speak the language of the court, do I have a right to an interpreter? Is it free? You should be given access to an interpreter, who should also interpret what other participants are saying during the trial, as well as translate written documents. The interpreter is provided free of charge. (f) Will the written evidence be translated for me? Not all written materials are translated, but the interpreter should help you understand the content of important documents. You should receive translated versions of certain key documents like the written charges against you. (g) Will the interpreter also help me if I need to talk to my lawyer? If necessary, the interpreter will be present during consultations with your advocate. If you have been unable to obtain translations of the evidence, you can use this opportunity to have the evidence explained to you orally. (h) Will I be informed of the decision of the court on the day of the trial? The decision is usually handed down immediately after the end of your trial. If you are not present at the trial, the judgment will be delivered to you. The judge has 30 days to produce a written judgment, after it is handed down. 18

19 (j) Can I receive a copy of the judgment in my mother tongue? Yes, you have a right to receive a copy of the judgment in your mother language. (k) I was tried in my absence and was not informed of this, what can I do? If you think that you may have been tried in your absence, you should consult a lawyer at the earliest opportunity to see whether you can challenge the decision or obtain a re-trial. Q9. I AM NOT HAPPY WITH THE DECISION, CAN I APPEAL AGAINST IT? HOW DO I APPEAL? If you are not happy with the decision, you can appeal against it. Your appeal should be made within 15 days from the date the decision in your case is handed down. If you were not present at the court, you must appeal within 15 days from receiving the decision in writing. If you do not announce your appeal, you are assumed to have decided not to exercise this right. Your appeal must include a statement of the reasons why you believe the decision made by the court was wrong. (a) Do I need to pay my lawyer more money if there is an appeal? If you are paying for your lawyer, it is likely that you will need to pay him/her more money. If you have been granted legal aid, it will depend on whether you are acquitted or convicted. 19

20 (b) What is the time frame for the appeal to take place? There is no legal timeframe in which appeal hearings must take place. (c) Could things get worse during the appeal? If I am acquitted, can the prosecution appeal? You cannot end up with a harsher outcome by appealing, unless the prosecution also appeals. The prosecution can appeal against acquittals. Q10. I HAVE EXHAUSTED ALL LEGAL REMEDIES. WHAT OPTIONS DO I HAVE? (a) Is it possible to get my case reviewed? There are limited circumstances under which you could get your case reviewed. You could, for example, get your case reviewed if you can prove that your conviction was based on false evidence, or if new facts are discovered. Your case could also be reopened if the European Court of Human Rights has decided that there has been a violation of your rights in the criminal proceedings. (b) Can I apply for a pardon? Pardons are granted by the President of the Republic. A pardon can grant immunity against prosecution, or a reduction or suspension of your prison sentence. Civil associations (including trade unions and other social organisations, work collectives and churches) can also file a petition for pardon on your behalf. 20

21 Q11. WHAT RIGHTS DO I HAVE AS A PRISONER? (a) Do I have rights as a prisoner? Where can I find out about my rights? As a prisoner you have some rights that cannot be taken away from you. Your lawyer can provide you with more information on your rights. There are social workers in every prison (supervising prison guards) who may also be able to provide some information about your rights. (b) What can I do if my rights are violated? Where can I get assistance regarding my welfare issues, regarding abuse and mistreatment? You should also ask for your lawyer s advice if you think your rights have been violated. You can also make a complaint to the social workers, the director of the prison administration, or the Human Rights Ombudsman. If you are not a Slovak citizen, your consulate may also be able to provide some help. Q12. CAN I GET MY SENTENCE REDUCED? You can appeal against your sentence to get it reduced. You may also be eligible for conditional release, (i.e. parole). To be eligible, you must have served half of your sentence. Good behaviour in prison usually helps your chances of getting parole. If parole was refused, you may re-apply one year after the refusal decision. (a) I have been sentenced to pay a fine, what will happen if I don t pay it? 21

22 If you do not pay the fine, it may be converted to imprisonment. Q13. CAN I GO BACK TO MY HOME COUNTRY? (a) Can I serve my prison sentence in my home country? This may be possible if there is an agreement between Slovakia and your home country that allows such transfers to happen. For more information about prisoner transfers, please refer to our note on Prisoner Transfers. (b) Can I be expelled instead of serving my sentence? Foreigners are not usually expelled instead of being tried. Deportation without trial is possible if you are in Slovakia in violation of its immigration laws. (c) Is there a risk that I will be deported after serving my sentence? Yes. If you are not a Slovak citizen, you may be deported after serving your sentence. You can challenge deportation decisions. If you are an EU citizen or a citizen of the European Economic Area, you can be deported only if you are a threat to the security of the Slovak Republic, to public order, or to public health. 22

23 USEFUL LINKS ORGANISATION MANDATE CONTACT DETAILS LAW GOVERNING BODIES Slovenská Advokátska Komora (Slovak Bar Association) The Slovak Bar Association is the governing body for lawyers in Slovakia. The Bar Association is responsible for maintaining professional standards for lawyers, and can receive complaints about individuals who may have act in breach of these standards. The website has a directory of registered local lawyers. Languages: Website available in Slovak, English, and German. Website: E: office@sak.sk T: +421 (0) F: +421 (0) Kolárska Bratislava LEGAL AID Centrum Pravnej Pomoci (Legal Aid Centre) The Legal Aid Centre provides free legal assistance to individuals unable to afford a lawyer on a number of different legal issues, including family law and employment law. They do not offer legal assistance on criminal matters. Languages: Slovak Website: m E: info@centrumpravnejp omoci.sk T: +421 (0) Námestie slobody 12 P.O.BOX Bratislava 15 OMBUDSMEN and COMPLAINTS COMMITTEES 23

24 Verejný ochranca práv (Public Defender of Rights) The Public Defender of Rights acts as the Ombudsman for Slovakia, and his/her duty is to ensure that public bodies act according to the principles of democracy and good governance. If you think that your fundamental rights and freedoms may have been violated by a public body in Slovakia. You can file a complaint to the Public Defender. Languages: Website available in Slovak and English. Information also available in Hungarian, Polish, Ukrainian, Czech, German, French, Bulgarian, Croatian, Spanish, Russian, Romani, Rusyn, Serbian, and Arabic. Complaints can be submitted in any language. Website: E: sekretariat@vop.gov.s k T: +421 (0) F: +421 (0) P. O. Box Bratislava 24 NGOs HUMAN RIGHTS Slovenské národné stredisko pre ľudské práva (Slovak National Centre for Human Rights) The Slovak National Centre for Human Rights is Slovakia s national human rights institution. It monitors Slovakia s compliance with international human rights standards, and carries out advocacy and educational activities. Languages: Website available in Slovak and English Website: E: info@snslp.sk Laurinská Bratislava Human League Rights The Human Rights League is a nongovernmental organisation that aims to promote the rights of foreigners in Slovakia, and to provide legal assistance. The main focus of its work is on immigration and asylum Website: E: hrl@hrl.sk T: (0)

25 law. Languages: Slovak and English F: (0) Hurbanovo nám Bratislava 25

26 Our vision: A world where every person s right to a fair trial is respected. THANK YOU Fair Trials would like to thank the law firms and individual practitioners, including Dr Ondrej Laciak who have generously given their time and expertise to help produce these legal guidance notes. Fair Trials is grateful to all of its funders, including: Co-funded by the European Union For a full list of our funders see Fair Trials T: +44 (0) Temple Chambers F: +44 (0) /7 Temple Avenue casework@fairtrials.net London EC4Y 0HP United Kingdom LON /10 26