CYIL Vol. 4, 2013

UNIVERSAL JURISDICTION UNDER CUSTOMARY INTERNATIONAL LAW … the prosecutorial (judicial) discretion and the principle of subsidiarity. Thus, for example, although Czech criminal procedure is based on the principle of legality (the prosecutors have the duty to prosecute all criminal offences of which they gained knowledge; exceptions are only admissible if a law or a promulgated international treaty provide otherwise), 89 other provisions of the Act No. 141/1961 Coll., the Code of Criminal Procedure, make it possible to take into account the fact that the sentence in which prosecution may result is fully insignificant compared with the sentence for another act the accused has already been charged with or can be expected to be charged with (section 172, para. 2, subpara. (a) of the Code of Criminal Procedure). (In addition, according to section 172, para. 2, subpara. (b), the prosecutor may stop prosecution, if the act committed by the accused has already been ruled on by a foreign court or agency and this decision may be considered satisfactory.) 90 International judicial cooperation in criminal matters will be, as of 1 January 2014, regulated by a newAct No. 104/2013 Coll., which will replace the current Chapter XV of the Code of Criminal Procedure. By way of example, according to relevant provisions of this Act the competent court of the Czech Republic will not request extradition of the person to the Czech Republic if the extradition would create costs or consequences for the Czech Republic evidently disproportional to public interest in criminal prosecution or execution of imprisonment of the person concerned, or if the extradition would cause the person, whose extradition is requested, a detriment evidently disproportionate to the importance of criminal procedure or to the consequences of the offence, particularly in relation to his/her age, state of health or family relations. 91 In addition, the authority competent to request extradition of the accused from a foreign State shall be the Ministry of Justice, which is not obliged to request extradition if there is a reasonable belief that the accused person shall not be extradited from the foreign State. 92 If the extradition request would be manifestly purposeless (notably if the conditions mentioned in section 79, para. (2) (c) of the Act were met) or inappropriate [section 79, para. 2 (d)], the Ministry is also entitled to inform the court accordingly and ask whether the court insists on the extradition request. 93 However, relevant provisions of Czech criminal law which could be used for the purpose of exercise of “customary universal jurisdiction” seem to be fragmentary, 89 Section 2, para. 3 of the Act No. 141/1961 Coll., the Code of Criminal Procedure. 90 According to Czech criminal law, the criminal prosecution is preceded by the (preliminary) examination of the case and can be initiated only if the facts ascertained during such an examination lead to the conclusion that a criminal offence was committed by a concrete person (section 160, para. 1 of the Code of Criminal Procedure). 91 Section 79, para. (2) (c) and (d) of the Act No. 104/2013 Coll. (currently, these conditions are contained in section 385 (c) and (d) of Act No. 40/2009 Coll., the Criminal Code). 92 Currently this condition is contained in section 383, para. 2 of the Act No. 40/2009 Coll., the Criminal Code. 93 Section 80 of Act No. 104/2013 Coll.