Právo nebyť stíhaný a (ne)existencia opravného prostriedku

NOÉ, G.: Právo nebyť stíhaný a (ne)existencia opravného prostriedku. Právny obzor, 106, 2022, č. 1, s. 33 – 50.

https://doi.org/10.31577/pravnyobzor.2023.1.03

The right not to be prosecuted and the (non)existence of a remedy. The aim of the contribution is to point out the relevance of the constitutional right not to be prosecuted without the existence of a legal reason, from which the principle of criminal prosecution for legal reasons (and in a legal manner) derives, and which also deserves preference over other principles of criminal procedure. The principle in question contains the redundant term “accused” for decades, until the Czech legislator removed this term from the principle in the past, thereby achieving compliance with the Charter of Fundamental Rights of the Czech Republic. In addition to the fact that the contested term is misleading with reference to the doctrine of positive state obligation arising implicitly from the Constitution of the Slovak Republic and international treaties to which the Slovak Republic is bound. At the same time, the legislator overlooks the normative meaning (de lege ferenda) of the basic principle of criminal procedure. It follows from the decision-making activity of the ECHR that it chose the material concept of the term “accusation”, since its applicability is connected with the moment of official notification to a specific person that he is suspected of a crime. A legal definition of this time-nonexistent term “suspect” in the criminal code would contribute, among other things, to legal certainty. A fortiori is the significant fact that the Slovak legislator refused the possibility of filing an appeal against the resolution to initiate criminal prosecution, which undoubtedly represents a serious interference with basic human rights.

Key words: suspect, accused, prosecute, remedy, positive commitment

Úvod