Efectos medioambientales de las explotaciones de áridos

133

(1) The public prosecutor shall transfer a case to another authority, if the results of the pre- trial proceedings show that there is no criminal offence, but that it is an act which might be considered by another competent authority as a transgression, another administrative offence, or a disciplinary offence.

(2) The accused person and, the aggrieved person, if he is known, may file a complaint against the resolution according to sub-section (1), which has a dilatory effect.

Section 172 Discontinuation of Criminal Prosecution

(1) The public prosecutor shall discontinue the criminal prosecution, if

a) it is doubtless that the act for which the criminal prosecution is being conducted has never occurred,

b) the act is not a criminal offence and there is no reason to transfer the case, c) it is not proven that the act was committed by the accused person,

d) the criminal prosecution is inadmissible (Section 11 (1)),

e) the accused was not criminally liable due to insanity at the time of the act, or f) the criminality of the act has expired.

(2) The public prosecutor may terminate the criminal prosecution, if

a) the punishment, which may come as a result of the criminal prosecution, is completely insignificant next to the punishment, which was already imposed to the accused person for another act, or that is expected to be them as expected,

b) the act of the accused person has already been decided on by another authority, by disciplinary decision, or by a foreign court or authority, and this decision can be regarded as sufficient, or

c) given the importance and extent of the breach or threat to a protected interest that was affected, the manner in which the act was performed and its consequences or the circumstances under which the act was committed, and given the conduct of the accused person after committing the act, particularly his effort to compensate the damage caused or to eliminate other harmful consequences of his act, it is clear that the purpose of criminal proceedings has been reached.

(3) The accused person and the aggrieved person, if he is known, may file a complaint against the resolution under sub-section (1) and (2), which has a dilatory effect.

(4) A criminal prosecution that was discontinued for any of the reasons referred to in sub- section (2) shall continue, if the accused person declares within three days from the date when he was notified of the resolution to discontinue the criminal prosecution that he insists on hearing the case. The accused person must be instructed thereof.

134

(1) The public prosecutor shall suspend the criminal prosecution, if

a) the matter cannot be appropriately clarified due to the absence of the accused person, b) the accused person cannot stand trial due to a severe illness,

c) the accused person is unable to understand the purpose of the criminal prosecution due to a mental illness that occurred after the criminal offence was committed,

d) a transfer of the criminal prosecution to abroad is requested, or the accused person was extradited or banished.

(2) Before making a decision to suspend the criminal prosecution, it is necessary to do all that is necessary to secure a successful course of the criminal prosecution. If the reason for the suspension expires, the public prosecutor shall decide that the criminal prosecution continues.

(3) The aggrieved person must be notified about suspension of the criminal prosecution.

Section 173a Serving of Resolutions to the Supreme Public Prosecutor’s Office

The public prosecutor shall serve a resolution on termination of criminal prosecution and on transferring the matter to the Supreme Public Prosecutor’s Office without undue delay after it comes into full force and effect.

SUBDIVISION FIVE

Supervision of the Public Prosecutor Section 174

(1) Supervision over compliance with the legality in pre-trial proceedings shall be conducted by the public prosecutor.

(2) Besides the entitlements referred to in Section 157 (2), the public prosecutor is also entitled in the course of performing the supervision

a) to give binding instructions for the investigation of the criminal offences,

b) to request files, documents, materials and reports on committed criminal offences from the Police authority in order to review, whether the Police authority timely initiates criminal prosecution and proceeds accordingly,

c) to participate in the performance of the actions taken by the Police authority, to personally make individual actions or even an entire investigation and issue a decision in any matter; therein he proceeds in accordance with the provisions of this Code applicable for the Police authority, and a complaint against his decision is admissible to the same extent as against a decision of the Police authority,

d) to return the matter to the Police authority with his instructions for supplementation, e) to repeal unlawful or unjustified decisions and actions of the Police authority, which

he may replace with his own; in the case of a resolution to adjourn the matter, he may do so within 30 days of receipt; if the public prosecutor replaced a decision of the Police authority by his own decision otherwise than upon a complaint of an entitled

135

person against the resolution of the Police authority, then a complaint is admissible against his decision in the same extent as against the decision of the Police authority, f) to order that the actions in the matter are carried out by another person in active

service of the Police authority.

Section 174a Competence of the Supreme Public Prosecutor

(1) The Supreme Public Prosecutor may repeal unlawful decisions of inferior public prosecutors on discontinuation of criminal prosecution or on transferring the matter within three months from their full force and effect.

(2) For this purpose, the public prosecutor of the Supreme Public Prosecutor’s Office may request files, documents, materials and reports from the inferior public prosecutor´s offices and perform reviews on them.

(3) If the Supreme Public Prosecutor repeals a resolution pursuant to sub-section (1), the public prosecutor, who made decisions in the case in the first instance, shall continue in the proceeding. Therein he shall be bound by the legal opinion stipulated by the Supreme Public Prosecutor in his decision and is obliged to take steps and supplementations ordered by the Supreme Public Prosecutor.

Section 175

(1) Only the public prosecutor is entitled

a) to decide on the discontinuation, conditional discontinuation, or on suspension of criminal prosecution and on transferring a case to another authority,

b) to lodge an indictment,

c) to negotiate an agreement on the guilt and punishment with the accused person and to file a petition for its approval to the court,

d) to decide to release the accused person from custody, to release the accused from custody with substitution of custody by one of the measures substituting custody or to change the reasons for custody, if any of the reasons for custody ceased to exist, e) to order seizure of assets of the accused person and to determine which resources and

items are not affected by the seizure, or to revoke such seizure,

f) to secure a claim of the aggrieved person for compensation of damage or non-material harm, or for surrender of any unjust enrichment, and to reduce or revoke such securing or to remove an item from it,

g) to decide to destroy a seized thing pursuant to Section 81b, h) to order the exhumation of a corpse,

i) to petition a request for the accused person from abroad, or for issuing the European Arrest Warrant

j) to make a preliminary inquiry in the proceedings on extradition to abroad or in surrender proceedings on the basis of a European Arrest Warrant.

136

(2) In cases investigated by a public prosecutor, supervision over maintaining legality during the pre-trial proceedings shall be conducted by the public prosecutor of the immediately superior public prosecutor´s office; this does not affect the right of the public prosecutor conducting the investigation to make a decision pursuant to Section 171 through 173, pursuant to Section 307 or Section 309 under the conditions specified therein, unless this right is reserved by the public prosecutor conducting the supervision.

SUBDIVISION SIX

Agreement on the Guilt and Punishment Section 175a

(1) If the outcomes of the investigation sufficiently substantiate a conclusion that the act has occurred, that this act is a criminal offence and that it was committed by the accused person, the public prosecutor may initiate negotiations on an agreement on the guilt and punishment upon a motion of the accused person, or even without such a motion. If the public prosecutor does not find the motion of the accused person justified, he shall notify the accused person about his opinion, and if the accused person has a defence counsel, then also him.

(2) The public prosecutor shall summon the accused person to the negotiation of the agreement on the guilt and punishment; the time and place of the negotiation shall be notified to the defence counsel of the accused and aggrieved person, who has not explicitly declared that he waives the procedural rights granted to him as the aggrieved person by the law. At the same time he shall caution the aggrieved person to assert the claim for monetary compensation of damage or non-material harm caused to him by the criminal offence or for the surrender of unjust enrichment gained to his detriment at the latest during the first negotiation of the agreement on the guilt and punishment.

(3) A condition of negotiating the agreement on the guilt and punishment is a declaration of the accused person that he has committed the act he is being prosecuted for, if there are no reasonable doubts about the truthfulness of his declaration in the view of so far obtained evidence and other outcomes of the pre-trial proceedings. The agreement on the guilt and punishment is negotiated by the public prosecutor with the accused person in the presence of the defence counsel.

(4) If the public prosecutor believes that the statutory conditions for imposing a protective measure are fulfilled, he shall caution the accused person about the possibility to proceed according to Section 178 (2) even in case of negotiating the agreement on the guilt and punishment, in which the protective measure is not stipulated. Without this instruction he may proceed pursuant to Section 178 (2) only if the reasons for issuing the protective measure arose after filing the petition for approving the agreement on the guilt and punishment to the court.

137

(5) When negotiating the agreement on the guilt and punishment, the public prosecutor shall also heed the interests of the aggrieved person. If the aggrieved person is present at the negotiations of the agreement on the guilt and punishment, he shall comment particularly on the extent and manner of compensation for damage or non-material harm or the surrender of unjust enrichment. The agreement on the guilt and punishment may be negotiated also without the presence of the aggrieved person, if he fails to appear at the negotiation despite being duly summoned, or if he fails to appear at the negotiation and he has already applied the claim for compensation of damage or non-material harm or for the surrender of unjust enrichment, or has declared that he shall not assert this claim. If the aggrieved person, who is not present at the negotiation, asserted the claim for compensation of damage or non-material harm or for the surrender of unjust enrichment, the public prosecutor may negotiate the extent and manner of compensation of damage or non-material harm or for the surrender of unjust enrichment with the accused person for the aggrieved person up to the limit of the applied claim.

(6) The agreement on the guilt and punishment shall contain

a) identification of the public prosecutor, the accused and aggrieved person, if he was present at the negotiation of the agreement on the guilt and punishment and if he consents with the extent and manner of compensation of damage or non-material harm or the surrender of unjust enrichment.

b) date and time of its drawing,

c) description of the act the accused person is being prosecuted for, with stating the time, place and manner of its commission and eventually also other circumstances of its commission so that it could not be confused with any other act,

d) identification of the criminal offence seen in this act by its statutory name, by stating the relevant statutory provision and all legal attributes, including those that substantiate a specific term of imprisonment,

e) declaration of the accused person that he has committed the act he is being prosecuted for and that is the subject of the negotiated agreement on the guilt and punishment, f) in compliance with the Criminal Code the stipulated type, extent and manner of

execution of punishment, including the term of the probation period and in cases provided for by the Criminal Code a substitute penalty, eventually waiver of punishment, and the extent of adequate restrictions and obligations in case the Criminal Code allows it and they were stipulated; when negotiating the agreement on the guilt and punishment, it shall be considered whether the accused person gained or tried to gain material profit (Section 39 (7) of the Criminal Code).

g) the extent and manner of compensation of damage or non-material harm or the surrender of unjust enrichment, if it was stipulated,

h) protective measure, if its imposition comes into consideration and if it was stipulated, i) signature of the public prosecutor, the accused person and defence counsel and

signature of the aggrieved person, if he was present at the negotiation of the agreement on the guilt and punishment and whether he consents to the extent and manner of compensation of damage or non-material harm or the surrender of unjust enrichment.

138

(7) If the agreement on the guilt and punishment is concluded, the public prosecutor shall serve its copy to the accused person, his defence counsel and the aggrieved person, who duly and timely applied his claims (Section 43 (3)). If the agreement on the guilt and punishment is not concluded, the public prosecutor shall make a record thereof into the protocol; in such a case the declaration of guilt of the aggrieved person shall be disregarded in further proceedings.

(8) The agreement on the guilt and punishment cannot be negotiated in proceedings on an especially serious felony and in proceedings against a fugitive.

Section 175b

(1) If an agreement on the guilt and punishment is concluded, the public prosecutor shall submit a petition for approving the agreement on the guilt and punishment within the extent of the agreement to the court. If an agreement on the compensation of damage or non-material harm or on the surrender of unjust enrichment has not been reached, the public prosecutor shall notify the court thereof in the petition for approving the agreement.

(2) The public prosecutor shall attach the agreement on the guilt and punishment and other documents important for the trial proceedings and decision to the petition.

SUBDIVISION SEVEN