Guardian of a legal entity in Czech criminal proceedings

Under Section 34(1) of Act No. 418/2011 Coll., on the Criminal Liability of Legal Entities and Proceedings against Them (the "CLLE Act"), the Code of Civil Procedure is decisive in criminal proceedings, as in civil proceedings, for the question of who may act on behalf of a legal entity. The persons mentioned above may therefore also act for a legal entity in Czech criminal proceedings. If there is no such person and no attorney-in-fact, the court may appoint a guardian under Section 34(5) of the CLLE Act. The law does not specify any requirements for the guardian, not even whether it must be a natural or legal person. It may also be a lawyer.

In criminal proceedings under the CLLE Act, the presiding judge appoints a guardian for a legal entity in the position of the accused, and in pre-trial proceedings the judge does so. By contrast, in pre-trial proceedings under the Code of Criminal Procedure, for legal entities in the position of injured party or interested person, the guardian is appointed by the public prosecutor under Section 42(3) and (4) of Act No. 141/1961 Coll., on Criminal Court Proceedings. Probably as a result of this incomprehensible division of the deciding authority, a remedy is available against a public prosecutor's resolution appointing a guardian for an injured legal entity or a legal entity in the position of interested person, whereas there is no such possibility against a resolution appointing a guardian for an accused legal entity. The person to be appointed as guardian of the accused must consent, but the legal entity as such has no means of defending itself against this, for example if a person who would not properly defend the legal entity's interests were appointed as guardian.1)

As mentioned above, a whole range of persons may act for a legal entity in the first place, and the institution of a guardian for a legal entity should therefore be a measure of last resort — i.e. where there is not a single person who could represent the legal entity or, where several are authorised by power of attorney, there is a risk of delay.2) This, however, conflicts with Section 34(4) of the CLLE Act, which provides that a person who is the accused, injured party or witness in the same case cannot perform acts in the proceedings. If such a situation arises, the presiding judge invites the legal entity to designate another person to perform these acts. In practice, members of the statutory body may thus be summoned as witnesses and can then no longer act for the legal entity in the criminal proceedings, even though they would probably do so more competently than a guardian. Law enforcement authorities can thus de facto and de iure exclude persons who can generally be expected to defend the legal entity's interests best and most consistently.

The Union of Defence Lawyers of the Czech Republic opposed this in its Opinion No. 2/2019 — both the exclusion of persons from acting for the legal entity by applying Section 34(4) of the CLLE Act (which in effect means that the legal entity cannot even choose its own defence lawyer) and the dualism of authorities deciding on the appointment of a guardian for different stages of criminal proceedings, and in particular the difference in the possibility of a remedy against such a resolution.3)

In its more recent decisions, the Czech Constitutional Court has leaned towards this view, first in its judgment of 15 August 2018, file no. II. ÚS 131/18, which held: "In view of the fundamental right of a legal entity to a defence, which includes the right to choose a defence lawyer, Section 34(4) of Act No. 418/2011 Coll., on the Criminal Liability of Legal Entities and Proceedings against Them, must be interpreted as meaning that a person authorised to act for an accused legal entity (Section 34(1) of the Act) may choose a defence lawyer for that accused legal entity even if that authorised person is a witness in the proceedings." This judgment thus marked a certain shift towards overcoming an overly formalistic interpretation of Section 34(4) of the CLLE Act. It was followed by the judgment of 21 January 2020, file no. IV. ÚS 3139/19, which held similarly, even in relation to an accused person: "If the only person authorised to act for a legal entity in criminal proceedings is excluded under the first sentence of Section 34(4) of that Act because he or she is accused in the same criminal case, this exclusion does not extend to the choice of an attorney-in-fact to perform acts for the legal entity in criminal proceedings under Section 34(1) of that Act, provided there is no specific risk that he or she is doing so in order to harm the legal entity or to benefit himself or herself at its expense in the criminal proceedings."4)

In conclusion, it suffices to add that over time the application of Section 34(4) of the CLLE Act can be expected to be optimised through decision-making practice. As regards remedies against a presiding judge's resolution appointing a guardian, the legislature will have to intervene. The newly prepared Code of Criminal Procedure is expected to contain Section 54, which provides for a complaint against such a resolution, both by a public prosecutor and by a presiding judge,5) and this flaw in the current legislation will thus be remedied.

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1) GŘIVNA, Tomáš. § 34 [Úkony právnické osoby]. In: ŠÁMAL, Pavel, DĚDIČ, Jan, GŘIVNA, Tomáš, PÚRY, František, ŘÍHA, Jiří. Trestní odpovědnost právnických osob. 2nd edition. Prague: C. H. Beck, 2018, p. 729.
SVOBODA, Karel, SMOLÍK, Petr, LEVÝ, Jiří, ŠÍNOVÁ, Renáta. § 29 [Opatrovník ad hoc ustanovený soudem]. In: SVOBODA, Karel, SMOLÍK, Petr, LEVÝ, Jiří, ŠÍNOVÁ, Renáta. Občanský soudní řád. 2nd edition. Prague: C. H. Beck, 2017, p. 149.

2) GŘIVNA, Tomáš. § 34 [Úkony právnické osoby]. In: ŠÁMAL, Pavel, DĚDIČ, Jan, GŘIVNA, Tomáš, PÚRY, František, ŘÍHA, Jiří. Trestní odpovědnost právnických osob. 2nd edition. Prague: C. H. Beck, 2018, p. 729.
SVOBODA, Karel, SMOLÍK, Petr, LEVÝ, Jiří, ŠÍNOVÁ, Renáta. § 29 [Opatrovník ad hoc ustanovený soudem]. In: SVOBODA, Karel, SMOLÍK, Petr, LEVÝ, Jiří, ŠÍNOVÁ, Renáta. Občanský soudní řád. 2nd edition. Prague: C. H. Beck, 2017, p. 149.

3) GŘIVNA, Tomáš, VLK, Václav. [Stanovisko Unie obhájců č. 2/2019 k institutu opatrovníka právnické osoby v trestním řízení]. Available at: https://www.uocr.cz/stanoviska/stanovisko-unie-obhajcu-c-2-2019-k-institutu-opatrovnika-pravnicke-osoby-v-trestnim-rizeni/

4) LICHOVNÍK, Tomáš. [Ustanovení opatrovníka trestně stíhané právnické osobě]. EPRAVO.CZ. Available at: https://www.epravo.cz/top/clanky/ustanoveni-opatrovnika-trestne-stihane-pravnicke-osobe-110638.html

5) Recodification of criminal procedural law, working version of the draft provisions, as at 1 January 2020. Available at: https://tpp.justice.cz/