CYIL vol. 11 (2020)

CYIL 11 (2020) UNPOPULAR OPINION: THE IMPORTANCE OF BILATERAL EXTRADITION … (Section 14(1)(a) of the Act). If the person does not choose a legal counsel, the regional court that has jurisdiction to decide on admissibility of the person’s extradition must appoint one. Even during the initial police interview following arrest, the person sought may demand that a legal counsel is present unless the legal counsel is unreachable within the deadline provided for under the Act. In accordance with Section 93(3) of the Act, the person must be handed over to the prosecutor within 48 hours. The prosecutor must decide whether the person should be handed over to the regional court to decide on the person’s preliminary custody 73 . The person sought and the person’s legal counsel have access not only to a copy of the extradition request (and other supplementary documents) but to the full case file (Section 65 of the Act No. 141/1961 of the Collection of Laws, Code of Criminal Procedure, as amended, which is subsidiary to the Act in accordance with Section 3(1) of the Act); in the preliminary inquiry stage, however, the prosecutor may limit access to the full file if there are important reasons to do so. As already mentioned above, the person sought and the person’s legal counsel may provide the prosecutor, the courts and the Ministry with information, evidence, pleadings, legal arguments etc. in all stages of the extradition proceedings. The person’s legal counsel may also advise on further avenues of defence, such as filing constitutional complaint, applying to the European Court of Human Rights (ECtHR) or applying for international protection (see below). Even in case of simplified extradition (i.e. if the person sought in front of a judge 74 and in mandatory presence of the person’s legal counsel consents to the extradition), the prosecutor must examine grounds for refusal of extradition relating to international protection (asylum or supplementary protection and asylum proceedings) of the person in the Czech Republic or in another Member State of the European Union 75 vis-à-vis the requesting party, real risk of death penalty in the requesting party, lis pendens and res judicata exceptions in the Czech Republic with regard to the same offence (facts), preferability of prosecution in the Czech Republic if the offence (facts) was committed fully or in part in the territory of the Czech Republic, third state’s consent with re-extradition if the person was extradited to the Czech Republic from the third state (if the rule of speciality applies), compliance of the extradition with the Czech Republic’s obligations under human right treaties, real risk of persecution of the person in the requesting party on account of origin, race, religion, sex, membership in an ethnic or other group, nationality, political opinions or other similar reasons and real risk of prejudice against the person in the criminal proceedings or during enforcement of sentence in the requesting party on account of these reasons; if the prosecutor finds that one of these grounds for refusal is met, simplified extradition is not possible and the case must be submitted to the court to decide on admissibility of the extradition and the person’s consent is disregarded (Section 96(2) of the Act). However, it is unlikely that a political opponent or dissident would give consent with simplified extradition (mandatory presence of the person’s legal counsel should prevent attempts by any party to influence the person to give consent). 73 Custody pending decision on the person’s extradition; this type of custody includes both the custody pending receipt of extradition request (provisional arrest) and subsequent custody pending decision of courts and, eventually, the Minister on it. 74 Before the person consents, the judge must advise the person about the importance and legal effects of giving consent to extradition. 75 The ground for refusal of extradition under Section 91(1)(b) of Act has been recently extended to include asylum proceedings in other Member States of the European Union by judgments of the Constitutional Court of the Czech Republic of 15 August 2017, ref. No. II. ÚS 1260/17, and of 3 June 2019, ref. No. II. ÚS 3505/18.


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