Ministry of Justice of the Czech Republic Unofficial translations of certain criminal law provisions from:

- Penal Code (Act No. 140/1961 Coll., as amended),

Penal Code

0. Sanctions For meaningful analysis, provisions of the Penal Code on sanctions are provided:

Section 27

Types of Punishments For criminal offences committed the court can impose only following punishments:

a) deprivation of liberty (imprisonment); b) common benefit work; c) loss of honorary titles and awards; d) loss of military rank; e) ban of (particular) activity; f) forfeiture of property; g) pecuniary punishment; h) forfeiture of a (certain) thing; ch) expulsion; i) ban of residence.

Section 28 (1) If the special part of this Code provides for several punishments for a certain criminal offence, each such punishment may be imposed separately, or more of them concurrently. In addition to punishments which this Code stipulates in its special part for a particular criminal offence, other punishments listed in Section 27 may be imposed. Expulsion and ban of residence may be imposed separately, even if special part of this Code does not provide for such punishment. (2) However, pecuniary punishment cannot be imposed concurrently with forfeiture of property.

General Principles of Sentencing Guidelines

Section 31

(1) When determining the type of punishment and its extent, the court shall take into consideration the degree of danger which the criminal act represents to society (Section 3 par. 4), the possibility of reforming the offender and his personal situation. (2) When determining the type of punishment and its extent, the court shall also take into consideration: a) in the case of accomplices, the degree to which the activity of each accomplice contributed to

the commission of the criminal offence; b) in the case of an organizer, instigator or assistant (helper), the significance and nature of their

participation in the commission of the criminal offence; c) in the case of preparation of a specific criminal offence or an attempted criminal offence, how

close the offender’s activity came to completing the criminal offence, as well as the circumstances and grounds on which the criminal offence was not completed.

(3) A circumstance which constitutes a statutory feature (element) of a criminal offence may not be taken into consideration as an attenuating or aggravating circumstance, or as a circumstance which leads to the imposition of a higher (more severe) sentence (punishment).

Section 32

(1) If an offender commits an criminal offence in state of diminished sanity, which he did not induce himself, even through his own negligence, by the influence of addictive substances, the court shall take this circumstance into consideration when determining the type of punishment and its extent. (2) If the court believes that, according to the offender’s state of health, the purpose of sentence can be attained by the imposition of a shortened term of imprisonment in addition to imposition of protective therapy (Section 72), it shall reduce the term of imprisonment to below the minimum level, not subject to the restriction stipulated in Section 40 paragraph 4 of this Code, and at the same time order protective therapy.

Section 33 When deciding on the extent of a sentence, the court shall consider as an attenuating circumstance in particular the fact that the offender: a) committed the criminal offence in a state of severe agitation (excitement); b) committed the criminal offence at an age close to that of juvenile; c) committed the criminal offence while dependent or subordinate; d) committed the criminal offence under threat or duress; e) committed the criminal offence under the influence of a difficult personal or family situation

not caused by himself; f) committed the criminal offence while averting an attack or another danger, without the

conditions of necessary defense or extreme necessity being fully met; g) had led an orderly life prior to committing the criminal offence; h) endeavored to remove the harmful consequences of his criminal offence, or voluntarily

provided compensation for damage he had caused; ch) sincerely regretted his criminal offence; i) himself reported his criminal offence to the authorities; j) assisted the appropriate organs in clearing up criminal acts which he had committed; k) assisted the appropriate organs in clearing up criminal acts committed as a part of a criminal

conspiracy.

Section 34 When deciding on the extent of a sentence, the court shall consider as an aggravating circumstance in particular the fact that the offender: a) committed the criminal offence for a particularly contemptible motive; b) committed the criminal offence in a brutal manner, insidiously, with special cunning or in a

similar manner; c) committed the criminal offence by exploiting another person’s helplessness, dependence or

subordination; d) committed the criminal offence during a natural disaster, or during another event seriously

threatening human lives, public order or property; e) violated a special duty by his criminal offence; f) caused greater damage by his criminal offence; g) committed the criminal offence as its organizer, a member of an organized group or member

of a conspiracy; h) enticed another person, especially a juvenile, to commit the criminal offence;

ch) was engaged in criminal activity, or continued to engage in such activity, for a prolonged period;

i) committed more criminal offences; or j) had already be sentenced for a criminal offence; the court is authorized not to consider such

fact as an aggravating circumstance according to the nature of the previous offence, particularly in respect of the significance of a protected interest affected by such act, the manner of committing such act and his consequences, the circumstances under which it was committed, the offender’s personality, the extent of his culpability, his motives and the period which has passed since his last sentence; in the case of criminal offence of unlicensed production and possession of addictive and psychotropic substances or poisons under Section 187a par. 1 also by the fact, that the offender committed the criminal offence again because he is addicted to the use of addictive and psychotropic substances or poisons.

Sentencing for Multiple Criminal Offences

Section 35 (1) If the court sentences an offender for two or more criminal offences, it shall impose an aggregate sentence upon him, according to the statutory provision relating to whichever criminal offence is subject to the strictest punishment; in addition to the punishment admissible under such statutory provision, the court may, within the scope of aggregate sentence, also impose another type of punishment if this is warranted by one of the crimes for which the offender is being sentenced. If the minimum limits of the prison terms differ, the highest of them shall form the minimum limit of the aggregate sentence in question. If this Code stipulates only prison terms for such other criminal offences, none of other types of punishment stated in Section 27 may be imposed as a sole aggravated sentence. (2) The court shall impose a subsequent total sentence, according to the principles stipulated in paragraph 1, when it passes a verdict for relating to a criminal offence committed by the offender before the court of first instance announced a verdict of guilty relating to another criminal offence committed by the offender. When imposing such subsequent total sentence, the court shall cancel the verdict under which an earlier sentence was imposed on the same offender, as well as other decisions materially connected thereto, if, with regard to the modification caused by cancellation of the earlier verdict, they are no longer relevant. The subsequent total sentence may not be less strict than the sentence imposed under the previous verdict. Within the scope of the subsequent total sentence, the court shall impose punishment in the form of loss of honorary titles and awards, loss or military rank, or forfeiture of property or of thing, if the previous verdict included any of these punishments. (3) The provision on subsequent total sentence shall not be applied if the previous conviction is such that the offender is regarded as not having been sentenced. (4) Verdict of guilty according to paragraph 2 means also a verdict, which, under the terms of Section 26 paragraph 1, conditionally waives the punishment with supervision. When imposing subsequent total sentence the court shall cancel the verdict on conditional waiver of punishment with supervision, as well as all other decision materially relating to this verdict, if they are no longer relevant with regard to the modification caused by cancellation.

Section 36 If the court sentences an offender for a criminal offence which he committed prior to the previously imposed punishment being fully served, and if the court imposes the same kind of punishment on him, this punishment, together with yet non-served part of the previously imposed sentence, may not exceed the maximum limit allowed by this Code for such type of punishment. If an extraordinary punishment of imprisonment for more than fifteen and up to twenty-five years is involved, the maximum extent shall be a term of twenty-five years.

Section 37

The court shall waive imposition of subsequent total punishment according to Section 35 paragraph 2 or imposition of an additional sentence according to Section 36, if it believes that punishment imposed by previous sentence is sufficient.

Section 37a Imposition of Common Punishment for Continuing in Criminal Offence

If the court convicts an offender for partial attack (act) regarding continuing in criminal offence (Section 89 paragraph 3), other attacks (acts) of which were already covered by legally effective verdict of guilty of first instance court, it shall cancel statement on guilt for continuing criminal offence and of criminal offences committed jointly by single act in previous verdict, whole statement on punishment, as well as other statements, which are based on such statement on guilt, and shall newly, bound by material findings contained in judgment cancelled, decide on guilt for continuing in criminal offence, including new partial attack (act) and, if need be, also all criminal offences committed jointly by single act, on subsequent total punishment for continuing in criminal offence, which may not be less strict than punishment imposed by previous sentence, as well as on subsequent statements based on statement on guilt, if need be. If punishment is imposed for several criminal offences, provisions of Section 35 to 37 apply accordingly.

Section 38 Setting off a Custody Period against a Term of Imprisonment

(1) If an offender is held in custody during criminal proceedings and is sentenced in such proceedings to a certain term of imprisonment, the time which he spent in custody shall be set off against the term of imprisonment (i.e. his term of imprisonment shall be reduced by the time for which he was held in custody) or, where appropriate, against an aggregate or subsequent total punishment, if such set-off is possible due to type of punishment imposed. (2) If a punishment was imposed on an offender by a court or other organ, and such offender was convicted anew for the same act, the part of punishment already served shall be recognized in relation to punishment newly imposed, if it is possible with regard to the type of punishment imposed. The court shall proceed similarly if it imposes an aggregate sentence or a subsequent total sentence on an offender. (3) If setting off a custody or punishment (paragraph 1 and 2) is not possible, the court shall take it into consideration when determining the type of punishment and its extent.

Imposition and Serving of Specific Punishments

Section 39 Imprisonment (Deprivation of Liberty)

(1) The punishment of imprisonment shall be imposed for at most fifteen years. (2) In the case of criminal offences, where maximum term of imprisonment does not exceed three years, an offender may be sentenced to an unsuspended imprisonment only if, taking into consideration personality of such offender, the imposition of another punishment would clearly not lead to fulfillment of the punishment purpose. (3) Punishment of imprisonment shall be served in prisons according to special Act.

Section 39a (1) Sanction of imprisonment is served in one of these four types of prisons:

a) with oversight; b) with control; c) with security monitoring; d) with heightened security monitoring. Manner of serving a term of imprisonment in individual types of prisons is regulated by special Act.

(2) Court normally shall allocate an offender to a prison: a) with oversight, if he has been sentenced for a criminal offence committed by negligence, and

if he has not yet served any punishment for intentional criminal offence; b) with control, if he has been sentenced for a criminal offence committed by negligence, and if

he already served a punishment for intentional criminal offence, or offender, who was sentenced for an intentional criminal offence to a maximum of two years and who has not yet served any punishment for intentional criminal offence;

c) with security monitoring, if he has been sentenced for intentional criminal offence and the conditions for allocation to prison with control or to prison with heightened security monitoring are not met, and offender, who was sentenced for criminal offence committed by negligence and was not allocated to serve punishment of imprisonment in a prison with oversight or in a prison with control;

d) with heightened security monitoring, if he has been sentenced to life imprisonment or a term of imprisonment as an exceptionally dangerous recidivist (Section 41 paragraph 1), or if he has beed sentenced for an exceptionally dangerous criminal offence (Section 42 paragraph 2) to a minimum of eight years of imprisonment, or if he has been sentenced for intentional criminal offence and made an escape from custody or prison during last five years.

(3) The court may allocate an offender to a type of prison other than that under paragraph 2 if, because of seriousness of his criminal offence and degree and nature of corruption of the offender, it believes that its reformation (rehabilitation) will be better ensured in another type of prison; however, it shall always allocate an offender sentenced to extraordinary punishment to a prison with heightened security monitoring.

Section 39b (1) The court may decide to transfer a convicted person (an offender) from a prison of one type to another, provided that the subsequent type of prison differs from the prison, where an offender serves the punishment, by only one degree. (2) The court may decide to transfer a convicted person to prison with less strict regime, if behavior of convicted person and manner of fulfilling its duties justify conclusion, that transfer will contribute to fulfilling of the purpose of service of sanction. (3) The court may decide on transfer of convicted person to a prison with stricter regime, if

a) convicted person has seriously or repeatedly infringed prisons’ order or discipline; b) convicted person has been convicted of a criminal offence committed during service of

punishment by a final verdict. (4) A convicted person may not be transferred from a prison with a heightened security regime:

a) of he has been sentenced to an extraordinary term of imprisonment and has not served at least ten years of his term;

b) if he serves a punishment in prison with heightened security monitoring, before he serves at least one-third of punishment imposed.

(5) A convicted person who is ordered by the court to submit to protective therapy in an institution cannot be transferred to a prison with control or oversight. (6) Acting on a petition submitted by a convicted person, who has served continuously at least one-third of sanction imposed, but not less than six months, the court may decide to transfer him to prison

with less strict regime; this will not apply to convicted person, who was sentenced to life imprisonment and serves this term in prison with heightened security monitoring. (7) If a petition submitted under paragraph 6 is not granted, the convicted person may repeat it after expiry of six months from termination of proceedings relating to his previous petition.

Section 40 Extraordinary Reduction of a Term of Imprisonment

(1) If the court with regard to circumstances of a case or to offender’s situation believes that imposition of imprisonment as provided by this law would be disproportionately harsh on the offender, and that the purpose of the punishment can be fulfilled by sanction of shorter duration, it may reduce the sanction of imprisonment to bellow minimum term provided for by this Code. (2) The court may reduce the sanction of imprisonment to bellow minimum term also when it sentences an offender for preparation of criminal offence or for attempted criminal offence and it believes, with regard to nature and seriousness of the preparation or attempt, that application of the term of imprisonment stipulated by this Code would be disproportionately harsh on the offender, and that the purpose of punishment can be achieved by imposing a shorter term of punishment. (3) The court may reduce term of imprisonment to bellow minimum term also when it sentences an offender, who substantially contributed to clarification of criminal activity committed for benefit of criminal conspiracy or who assisted to prevent criminal activity, which another person prepared or attempted to commit for benefit of criminal conspiracy, if, with regard to possibility of rehabilitation (reform) of the offender and nature of criminal activity he committed, the court believes, that the purpose of punishment can be achieved by shorter term of punishment. (4) When reducing a term of imprisonment under paragraphs 1 to 3, the court may not impose a term of:

a) less than five years, if stipulated minimum term of imprisonment is at least twelve years; b) less than three years, if stipulated minimum term of imprisonment is at least eight years; c) less than one year, if stipulated minimum term of imprisonment is at least five years.

Sentencing a Particularly Dangerous Recidivist to a Term of Imprisonment Section 41

(1) An offender who repeats an especially serious intentional criminal offence, even though he has already been punished for such or other especially serious intentional criminal offence, is considered to be particularly dangerous recidivist, if this circumstance due to its seriousness, particularly due to length of time period passed since last sentence, substantially increases degree of dangerousness of the criminal offence to society. (2) Especially serious criminal offences are criminal offences stipulated in Section 62 and those intentional criminal offences punishable by a maximum term of imprisonment of at least eight years.

Section 42 (1) Maximum term of imprisonment stipulated by this Code is increased by one-third in case of particularly dangerous recidivist. The court shall impose punishment in the upper half of the range so determined on particularly dangerous recidivist. (2) Maximum term of imprisonment may not even after increase under paragraph 1 exceed fifteen years. When the court is imposing extraordinary punishment of imprisonment for more than fifteen years and up to twenty-five years the maximum term may not exceed twenty-five years.

Imposition of Imprisonment to the Offender Committing a Criminal Offence for the Benefit of Criminal Conspiracy

Section 43

An offender who has committed an intentional criminal offence as a member of criminal conspiracy; or

an offender, who committed such criminal offence willingly together with member of criminal conspiracy or with intent to assist criminal conspiracy; is considered to be offender committing a criminal offence for the benefit of criminal conspiracy, if circumstances of an act or personality of an offender substantially increase degree of dangerousness of an act to society.

Section 44 (1) Maximum term of imprisonment stipulated by this Code is increased by one-third in case of offender committing a criminal offence for the benefit of criminal conspiracy. The court shall impose punishment of imprisonment in upper half of range so determined. (2) Maximum term of imprisonment may not even after increase under paragraph 1 exceed fifteen years. When the court is imposing extraordinary punishment of imprisonment for more than fifteen years and up to twenty-five years the maximum term may not exceed twenty-five years.

Prohibition of a Specific Activity

Section 49 (1) A court may order a prohibition of a specific activity for a period of from one to ten years, if the offender in question has committed a crime related to such activity. (2) The court may only order prohibition of a specific activity as sole punishment if the Special Part of this Code (i.e. list of punishments set for particular offence) permits imposition of such punishment and if, because of the nature of committed criminal offence and the possibility of offender’s rehabilitation, imposition of no other punishment is necessary to achieve the purpose of the punishment. (3) The prison term shall not be counted as a period of performance of punishment of prohibition of a specific activity; however, the period before the verdict, for which the offender was in relation to the criminal offence deprived under special rules of permit to specific activity, which is subject to prohibition, or for which he could not perform such activity due to measure taken by state body, will be counted as a period of performance of punishment.

Section 50 (1) The punishment of prohibition of a specific activity consists in the offender being prohibited from performing a certain job (employment) or profession (occupation), or function or activity subjected to special license, or regulated by special provisions (rules). (2) Once the punishment of prohibition of a specific activity has been completed, the offender concerned shall be regarded as not having been sentenced.

Forfeiture of Property

Section 51 (1) Owing to the circumstances of the committed criminal offence and the offender’s personal situation, the court may order forfeiture of his property, if the offender has been sentenced to an unsuspended term of imprisonment for a premeditated criminal offence by which the offender acquired, or attempted to acquire, a property benefit. (2) The court may only impose forfeiture of property without the conditions under par. 1 being met if the Special Part of this Code permits imposition of such punishment; forfeiture of property may be imposed as a sole sentence if, because of the nature of the criminal offence and the person of the offender, imposition of another punishment is not considered necessary for achieving the purpose of punishing the offender.

Section 52 (1) Forfeiture of property shall apply to the entire property of the convicted offender, or only to a part of his property as determined by the court; forfeiture shall not apply to means or things that are required for satisfying the wants of the offender or persons whose maintenance or upbringing is the offender’s duty under statutory provisions. (2) A sentence of forfeiture of property shall terminate shared ownership of property based on statutory provisions. (3) The forfeited property shall escheat to the state.

Pecuniary Penalty

Section 53 (1) A court may impose a pecuniary penalty in an amount ranging from CZK 2,000 to CZK 5 million, if the offender acquired or attempted to acquire a property benefit by his criminal activity. (2) The court may only impose a pecuniary penalty without the conditions under par. 1 being met where a) the Special Part of this Code so permits, of b) it imposes such pecuniary penalty for the commission of a criminal offence punishable by a

maximum term of imprisonment not exceeding three years and, because of the nature of the committed criminal offence and the possibility of the offender’s rehabilitation, a concurrent sentence of imprisonment is not imposed.

(3) A pecuniary penalty may be imposed as a sole punishment if, because of the nature of the committed criminal offence and the possibility of the offender’s rehabilitation, the court is of the opinion that no other punishment is required. (4) The court may determine that the pecuniary penalty shall be paid in appropriate monthly instalments.

Section 54 (1) When fixing a pecuniary penalty, the court shall take into consideration the offender’s personal and property situation; the court shall not impose a pecuniary penalty if it is obvious that such penalty would be non-collectible. (2) The collected amount of the pecuniary penalty shall escheat to the state. (3) If the court imposes a pecuniary penalty, it shall also determine an alternative punishment of imprisonment of up to two years, should the pecuniary penalty not be paid within the fixed time limit.

The alternative punishment, together with a previously imposed term of imprisonment, may not exceed the maximum statutory limit stipulated for such criminal offence. (4) An offender who is ordered to pay a pecuniary penalty for a criminal offence committed due to his negligence shall be regarded as not having been sentenced, once the pecuniary penalty has been paid, or if its payment (fulfilment) or part payment was waived under an valid verdict.

Forfeiture of Thing

Section 55 (1) The court may impose forfeiture of a thing which a) was used to commit a criminal offence, b) was determined to be used to commit a criminal offence, c) the offender acquired by his criminal offence, or as a reward for such a criminal offence, or d) the offender at least partly acquired for another thing stipulated under c), unless the value of

the thing under c) is negligible in relation to the thing acquired. (2) The court may order forfeiture of a thing only if such thing belongs to the offender. (3) The forfeited thing shall become the property of the state. (4) An offender who is only punished by forfeiture of a certain thing shall be regarded as not having been sentenced, once the decision under which such punishment was imposed becomes valid (takes legal effect).

Section 56 A court may only impose forfeiture of a thing as the sole punishment where the Special Part of this Code permits imposition of this punishment and if, in view of nature of the committed criminal offence and the possibility of rehabilitating the offender, no other punishment is considered necessary for achieving the purpose of punishment.

Section 71 Types of Protective Measures

(1) Protective measures are protective therapy, protective (reformative) training and seizure of a thing.

(2) Protective (reformative) training may be imposed only on juvenile.

Section 73 Seizure of a Thing

(1) If the punishment of forfeiture of a thing mentioned by Section 55 paragraph 1 was not imposed, a court may decide on seizure of such thing,

a) if it belongs to the offender who cannot be prosecuted or sentenced, b) if it belongs to the offender, punishment of which was not imposed by a court, or c) if it is necessary due to safety of people or property, or due to another similar common

interest. (2) The state shall become owner of the thing seized.

1. Anti Money Laundering Act Following provisions from the Penal Code impose sanctions for various types of money laundering. The Section 252a is main provision covering most cases of intentional money laundering. Common and interpretative provisions of Sections 88 to 90 are included, too.

Joint Provisions Section 88

(1) Circumstances requiring a higher punishment shall be taken into consideration only if their gravity substantially increases the degree to which the criminal offence represents a danger to society. (2) The fact that an offender committed a criminal offence as a member of an organized group shall not prevent him from being concurrently punished, under the conditions stipulated in this Code, as someone who committed a criminal offence as a part of a criminal conspiracy.

Section 89 (1) A criminal act is understood to mean an act punishable in judicial proceedings and, unless a specific provision indicates otherwise, also the preparation of a criminal act, an attempt to commit a criminal act and the organising, instigating or aiding and abetting of one. (2) Conduct is also understood to mean failure to perform an action which the offender had an obligation to perform in accordance with the circumstances and his/her situation. (3) Continuing in a criminal act also means conduct where the individual elements of an act of assault conducted with a common intention constitute the same material fact of the criminal act, are linked by being committed in the same or in a similar manner and are closely connected in terms of time and the object of the assault. (4) A criminal act is committed publicly if it is committed a) by means of the content of printed matter or a distributed document, by a film, radio, television or in another similarly effective manner, or b) in the presence of more than two persons present at the same time. (5) A criminal act is committed with a weapon if the offender or, with his /her knowledge, an accomplice uses a weapon for an assault, to overcome or prevent resistance, or if he/she has it on his/her person for this purpose; a weapon is understood to mean here, unless a specific provision stipulates otherwise, anything by means of which a bodily assault can be made with greater impact. (6) A criminal act is also committed with violence if it is committed against a person whom the offender renders helpless by means of a stratagem. (7) Serious bodily harm means serious impairment in health or serious illness. Under these conditions serious bodily harm is a) maiming b) loss or substantial lessening of the ability to work c) crippling a limb d) loss or substantial deterioration in the functioning of a sense e) injury to an important organ f) disfigurement g) causing the loss or death of a foetus h) suffering in agony, or ch) long-term impairment of health.

(8) A close person means a relative in direct line of descent, an adoptive parent, an adopted child, sibling or husband or wife; other persons in a family or similar relationship are only considered as close persons if harm suffered by one of them is justifiably felt by the other as his/her harm. (9) A public official is an elected representative or other state administration or local authority official, a court or other state authority official or a member of the armed forces or the security service, a court distrainer enforcing distrainment, drawing up distrainment records and performing activities authorised by a court under a special legal regulation, (1a) if he/she is participating in the execution of tasks for society and the state and thereby uses the powers granted to him/her under his/her responsibility for executing these tasks. When executing his/her authorisation and powers under special legal provisions (1), a natural person who has been appointed as a forest warden, water guard, nature warden, hunting warden or fishing warden is also a public official. For criminal responsibility and protection of a public official it is required under specific provisions of this Code that the criminal act was committed in connection with his/her authorisation and responsibilities. An elected representative or other state or local authority official, a member of the armed forces or an armed force of another state is regarded under these conditions as a public official if so stipulated in a promulgated international agreement by which the Czech Republic is bound. (10) An addictive substance means alcohol, narcotic substances, psychotropic substances and other substances capable of adversely affecting a person’s psyche, self-control, cognition or social behaviour. (11) “Damage which is not negligible” shall mean damage amounting to no less than 5000 CZK, “damage which is not small” shall mean damage amounting to no less than 25 000 CZK, “significant damage” shall mean damage amounting to no less than 50 000 CZK, “considerable damage” shall mean damage amounting to no less than 500 000 CZK, “very large damage” shall mean damage amounting to no less than 5 million CZK. These amounts shall be used similarly to determine level of benefit, costs of clearing consequences of damage to environment, and value of a thing. (12) When the amount of damage is being determined, it shall be based on the price for which the object of the attack is usually sold at the place and time of such attack, If the amount of a damage cannot be established in this manner, it shall be based on the cost of obtaining an identical or similar thing or restoring it to its previous condition (to the condition prior to it being damaged). (13) The term “thing” shall also mean a controllable natural force. The provisions on things also apply to securities. (14) Burglary is understood to mean entering locked premises by a stratagem or unlawfully forcing a lock or some other security device. (15) Where this Code relates to some effect after a particular time has elapsed, the day on which the event determining the beginning of this period is not included in it. (16) For the purposes of the Criminal Code a natural person who carries out business activity under a special Act is also regarded as an organisation. (17) A criminal conspiracy is a group of a number of persons with an internal organisation structure and division of functions and activities which is aimed at systematic committing of intentional criminal activity. (18) It is also possible to mislead someone or to make use of someone’s misunderstanding by interfering with computer software or by performing other operations on a computer, interfering with electronic or other technical facilities, including interfering with items used to control such facilities

fitted with a microchip, magnetic, optical or other special recording device, or by making use of such operation or such interference carried out by another person. ------------------------------------------------------------------ 1) Act No. 289/1995 Coll., on forests and on amendment to and supplementation of some Acts (the Forests Act). Act No. 23/1962 Coll., on hunting, as amended. Act No. 114/1992 Coll., on protection of nature and the countryside, as amended. Act No. 102/1963 Coll., on fishing, as amended. Act No. 130/1974 Coll., on state administration in water management, as amended. 1a) Act No. 120/2001 Coll., on court distrainers and distrainment (distrainment rules) and on amendment of other Acts.

Section 90 (1) If this Code requires for an offender to have a special trait, capability or position for the commission of a criminal act, only a person who has the required trait, capability or position may be an offender or accomplice. Only a member of the armed forces may be an offender or accomplice in the case of a military criminal act under Chapter Twelve of the Special Part of this Code. (2) If this Code stipulates that an offender must possess a special trait, capability or position, it suffices that the special trait, capability or position is possessed by a legal entity in whose name the offender is acting. (3) An organiser, instigator or assistant and abettor of a criminal act specified in paragraphs 1 and 2 may also be a person who does not have the trait, capability or position required therein. (4) Where a member of the armed forces is referred to in this Code it is understood to mean a) a member of the armed forces on active service b) a person who, by being called up for special service, has become a member of the armed forces c) a member of the armed forces not on active service if he/she is in uniform, or d) a prisoner of war. (5) Where military service or military obligation is referred to in this Code it means service or obligation of persons specified in paragraph 4. (6) The provisions of Section 273, 274, 279, 285, 286 and 288a also apply to members of the security service.

Section 166

Patronisation

(1) A person who aids the perpetrator of a criminal act with intent to enable him/her to escape criminal prosecution, punishment or a protective measure or their enforcement will be sentenced to imprisonment for up to three years; however, if he/she so aids the perpetrator of a criminal act for which this Code stipulates a lesser sentence, he/she will receive that lesser sentence. (2) A person who commits a crime specified in paragraph 1 for the benefit of a close person is not liable to punishment, unless he/she acted thus with intent a) to assist a person who has committed a criminal offence of treason (Section 91), subversion of the Republic (Section 92), terror (Section 93), terrorist attack (Section 95), wilful damage (Section 96), sabotage (Section 97), espionage (Section 105 paras 3 and 4), participation in a criminal conspiracy under Section 163a paras 2 and 3, or genocide (Section 259), or b) to provide a financial benefit for him/herself or another person.

Participation (Sharing) Section 251

(1) A person who conceals or transfers to him/herself or to another person or uses a) a thing acquired by a criminal offence committed by another person, or b) what was acquired for such a thing, will be sentenced to imprisonment for up to two years or pecuniary punishment. (2) An offender will be sentenced to imprisonment for one to five years if he/she acquires a considerable benefit by an act specified in paragraph 1. (3) An offender will be sentenced to imprisonment for two to eight years or forfeiture of property if he/she acquires very large benefit by means of an act specified in paragraph 1.

Section 252

(1) A person who by negligence conceals or transfers to him/herself or another person a thing of significant value which was acquired through a criminal offence committed by another person will be sentenced to imprisonment for up to six months or pecuniary punishment. (2) A person who by negligence enables another person to conceal the origin or ascertaining of the origin of an item acquired by means of criminal activity will be punished by the same sentence. (3) An offender will be sentenced to imprisonment for up to two years a) if he/she commits an offence specified in paragraph 1 or 2 related to things obtained by means of trafficking in narcotic or psychotropic substances or by means of another especially serious criminal offence, or b) if he/she acquires a considerable benefit by means of such an act. (4) An offender will be sentenced to imprisonment for six months to three years if he/she acquires very large benefit by means of an act specified in paragraph 1 or 2.

Section 252a Legalisation of the proceeds of criminal activity

(1) A person who conceals the origin or strives otherwise to seriously hamper or render impossible identification of the origin of a thing or other financial benefit acquired by criminal activity with the aim of giving the impression (making it appear) that this thing or benefit was acquired legally, or a person who enables another person to commit such an act, will be sentenced to imprisonment for up to two years or pecuniary punishment. (2) An offender will be sentenced to imprisonment for one to five years a) if he/she commits an act specified in paragraph 1 as a member of an organised group, or b) if he/she acquires a considerable benefit by means of such an act. (3) An offender will be sentenced to imprisonment for two to eight years or forfeiture of property a) if he/she commits an act specified in paragraph 1 related to things obtained by means of trafficking in narcotic or psychotropic substances or by means of another particularly serious criminal act; b) if he/she acquires very large benefit by means of an act specified in paragraph 1; or c) if he/she abuses his/her employment or job position for the commission of such an act.

2. Anti Terrorism Financing Act Following provision of the Penal Code imposes sanctions for terrorist financing. Common and interpretative provisions of Sections 88 to 90 apply to all specific bodies of offences, including this provision, as do the provisions on punishments listed under 0.

Section 95

Terrorist Attack (1) A person who, with the intention to damage the Republic’s constitutional system or defense capability, to undermine or destroy fundamental political, economic or social structure of the Republic or that of an international organization, to seriously intimidate the population or to unlawfully compel the government or other body of public power or an international organization to perform, omit or tolerate something,

a) commits an attack against the life or health of a person with the intention to cause death or serious bodily harm;

b) takes hostages or commit an abduction; c) destroys or seriously damage public utilities, transport or telecommunication systems,

including information systems, fixed platforms on continental shelf, electric energy and water supply, health service or other important facilities, public sites or public property with the intention to endanger human lives, safety of the facilities, systems or sites or to expose property to the risk of major damage;

d) disrupts or stop the supply of water, electric energy or other basic natural resources with the intention to endanger human lives or to expose property to the risk of major damage;

e) seizes or control an aircraft, vessel or other means of passenger or freight transport, and/or destroy, seriously damage or extensively interfere in the operation of navigation systems or facilities; or provide false information on important facts, thus endangering human lives and health, safety of the means of transport or exposing property to the risk of major damage;

f) without due authorization, manufactures or otherwise acquires, stores, imports, transports, exports or otherwise delivers or uses explosives, nuclear, biological, chemical or other weapons with mass destructive effects; and/or engages in unauthorized research and development of nuclear, biological, chemical or other weapons or combat means or explosives prohibited by law or by an international treaty; or

g) exposes human beings to the danger of death or serious bodily harm, or exposes the property of other persons to the risk of major damage by causing a fire or flood or the harmful effects of explosives, gas, electricity or similarly dangerous substances or forces; or commits a similarly dangerous act; or aggravates the imminent danger or obstructs the efforts to counter or alleviate it,

shall be sentenced to a term of imprisonment of five to fifteen years, and, if appropriate, besides to this punishment also to forfeiture of property.

(2) The same sentence shall be imposed on a person a) who threatens to commit an act (conduct) under the paragraph 1, or b) who provides financial, material or other support to such act (conduct).

(3) An offender shall be sentenced either to imprisonment for a term of twelve to twenty years, and eventually besides to this punishment also to forfeiture of property, or to exceptional punishment,

a) if he commits the act as a member of an organized group b) if he causes serious bodily harm or death

c) if as a result of his act a considerable number of people have become homeless d) if he stops the transport in a greater extent e) if he causes very large damage by this act f) if he commits such crime with the intention of acquiring very large benefit g) if he endangers the international position of the Czech Republic or of an international

organization of which the Czech Republic is a member by this act h) if he commits the act during the state of emergency or state of war.

(4) The protection according to paragraphs 1 to 3 is afforded also to foreign state. Brief comments: This body of criminal offence is not aimed narrowly at protection of state structure of the Czech Republic, but protects general democratic principles against anyone. The same protection is afforded to organisations of international public law, whose importance grows with development of international interaction, specialisation and need to ensure harmonised performance of certain human activities at international level, and to foreign states. While the financing of terrorism could be sanctioned even under former legal provisions as participation to relevant criminal offences, this amendment includes new separate body of offence of financing of terrorism. This provision covers the action of persons who support financially, materially or otherwise the conduct described in paragraph 1. In fact, it is another form of criminal cooperation, which is otherwise covered by assistance to commission of criminal offence pursuant to principles of S. 10 of current Criminal Code, especially in the form of providing funds for commission of criminal offence. However, due to specific nature of this conduct, and its various possible forms, and considering that financial support is basic prerequisite for activity of these criminal structures, it is fully appropriate to pronounce the contemptibility of such behaviour by special body of offence, which provides for the same penalties that apply to terrorism itself. Besides these sanctions, other penalties may be imposed under conditions set by Sections 31 to 57a of current Criminal Code, such as prohibition of specific activity or forfeiture of a thing etc. Financing of terrorism is predicate offence for purposes of money laundering legislation, as are all other offences (i.e. all crimes approach).

5. Extradition Act The prohibition of extradition of Czech nationals is stipulated in Section 21 of the Penal Code, and is translated here:

Section 21

(1) A citizen of the Czech Republic may not be extradited to a foreign state either for criminal prosecution or for enforcement of a punishment (sentence).

(2) A citizen of the Czech Republic may not be surrendered to another Member State of the European Union only on the basis of European arrest warrant.

(3) A sentence of a foreign criminal court may not be enforced on the territory of the Czech Republic or have other effects there, unless it is stipulated in this Code or in a promulgated agreement (convention) which is binding on the Czech Republic. Following are provisions of Chapter XXV. of the Criminal Procedure Code, which regulate extradition proceedings in the absence of different or more specific regulation by the international treaty binding on the Czech Republic (see S. 375 para 1). It includes the legislation implementing the European Arrest Warrant. --- This is part of translation that has been made by the Council of the EU ---

CHAPTER TWENTY-FIVE LEGAL RELATIONS WITH FOREIGN COUNTRIES

Title One

General provisions Section 375

(1) The provisions of this chapter shall apply only where not otherwise provided for by a promulgated international agreement binding on the Czech Republic. (2) The provisions of this chapter shall also apply to proceedings on letters of request from an international criminal court set up on the basis of a promulgated international agreement binding on the Czech Republic or an international criminal tribunal set up by a decision of the Security Council of the United Nations Organisation issued in accordance with Chapter VII of the United Nations Charter binding on the Czech Republic ("tribunal"), except where otherwise stipulated by a special act. The provisions of Sections 367, 377 and 432(2) shall not apply. (3) The procedure laid down in Title Two of this chapter regarding extradition shall apply mutatis mutandis to proceedings and decisions on surrendering persons to an international criminal court or tribunal, except where otherwise stipulated by a special act. The provisions of Sections 392, 393 (1)(b)-(j) and (2), and 399(2) shall not apply. (4) The procedure laid down in Title Four of this chapter shall apply mutatis mutandis to proceedings and decisions on the transit of persons through the territory of the Czech Republic to appear before an international criminal court or tribunal or for the purpose of the enforcement of a penalty handed down by an international criminal court or tribunal, except where otherwise stipulated by a special act. (5) The procedure laid down in Title Seven of this chapter regarding the recognition and enforcement of foreign judgments shall apply mutatis mutandis to the enforcement of judgments by an international criminal court or tribunal, except where otherwise stipulated by a special act. Such judgments shall

include judgments by an international criminal court or tribunal regarding the restitution of property or compensation of victims. The deed need not be punishable under Czech law (Section 449). The provisions of Sections 450(1)(d)-(g) and 451(1) shall not apply.

Section 376 Reciprocity

(1) Where the legal relationship between the Czech Republic and the requesting State is not governed by an international agreement, the bodies handling criminal proceedings in the Czech Republic shall comply with the request if the requesting State guarantees that it will comply with similar requests from a Czech body. (2) If the requesting State makes a guarantee of reciprocity a condition of compliance with a request from a Czech body handling criminal proceedings, this guarantee may be given by the Ministry of Justice or, in the case of preliminary proceedings, by the Supreme Prosecutor’s Office. (3) The procedure referred to in paragraphs (1) and (2) is excluded, if the handling of the request is subject to the existence of an international agreement in accordance with the provisions of this chapter.

Section 377 Protection of State interests

A request from a body in a foreign State may not be complied with if handling it would violate the Constitution of the Czech Republic or any provision of Czech Law that applies unconditionally or if handling the request would damage some other significant protected interest of the Czech Republic.

Section 378 Protection and use of information

(1) The provisions of Section 8a shall apply mutatis mutandis to the provision of information by bodies of the Czech Republic regarding action taken by it in accordance with the provisions of this chapter. (2) Bodies of the Czech Republic shall not make public or provide, without the explicit consent of the relevant body in the foreign State, information or evidence obtained from it on the basis of a request received or sent in accordance with the provisions of this chapter or in connection therewith, or use such information or evidence for purposes other than the purposes for which they were sent or requested, if this is stipulated by a promulgated international agreement binding on the Czech Republic or if the information or evidence were provided only on the condition that these restrictions are observed.

Section 379 Service of requests

(1) Bodies in the Czech Republic may initiate proceedings in accordance with this chapter on the basis of a request from a body in a foreign State delivered to them by telephone, fax or electronically in accordance with the relevant legal provisions, provided they have no doubts regarding its authenticity and the case does not allow for any delay. The original of the request must be submitted subsequently within the time limit stipulated by the requested body. (2) Documents in criminal proceedings may be served on a person in the foreign State by post only where this is provided for by a promulgated international agreement binding on the Czech Republic.

(3) Requests within the meaning of this chapter may be sent to a foreign State or received from a foreign State also through the intermediary of the International Criminal Police Organisation (“Interpol”), in particular where the case does not allow for any delay. (4) Data and information may likewise be exchanged through the intermediary of Interpol regarding the time and other details of the surrender, reception and transport of persons or items in accordance with Section 380.

Section 380 Reception and surrender of persons and items

(1) Any person being extradited or surrendered from a foreign State on the basis of a request within the meaning of this chapter shall be received by the Czech Police from the bodies in the foreign State. Any person delivered in this way shall be transferred by the Czech Police to the nearest remand prison or other prison, except where provisions of this chapter stipulate otherwise. The prison receiving the person shall, without delay, notify the competent court and the public prosecutor overseeing the prison that the person has been placed there. (2) Any person being extradited or surrendered to a foreign State on the basis of a request submitted in accordance with the provisions of this chapter shall be taken by the Czech Police from the remand prison or prison and handed over to the bodies of the foreign State. (3) The transit of a person through the territory of the Czech Republic in accordance with Sections 422-424 shall be conducted by the Czech Police. (4) The Czech Police shall likewise handle the surrender or return of an item in accordance with Section 441 and the reception or return of an item surrendered from the foreign State on the basis of a request by bodies in the Czech Republic, where the item cannot be sent or is unsuitable to be sent by post, as well as the transit of an item through the territory of the Czech Republic at the request of bodies in a foreign State. (5) Persons surrendered to bodies in the foreign State in accordance with the provisions of this chapter or received from bodies in the foreign State need not carry travel documents for the persons of crossing the state borders.

Section 381 Manner of court decision

In proceedings in accordance with this chapter the court shall take its decision in the form of a ruling (usnesení), except where provisions of this chapter stipulate otherwise.

Section 382 Costs

(1) Costs incurred by a body in the Czech Republic in handling a request from a body in a foreign State in accordance with this chapter shall be borne by the State. (2) Where a promulgated international agreement that is binding on the Czech Republic allows for reimbursement for the costs referred to in paragraph (1) or part thereof from the requesting State, or where, in the absence of such an agreement, this is usual practice in relations between the requesting and requested State, the body which incurred the costs shall submit to the Ministry of Justice an itemised statement of the costs, a justification of the costs and the banking details for the purposes of obtaining the reimbursement from the requesting State.

(3) The State shall bear costs incurred by a foreign State in connection with a request from a body in the Czech Republic and reclaimed by that requested State in accordance with a promulgated international agreement binding on the Czech Republic or, in the absence of such an agreement, where this is usual practice in relations between the requesting State and the requested State. The State shall bear the costs incurred by the foreign State and reclaimed by it in respect of the transit of a person or item through its territory from another State to the territory of the Czech Republic in connection with a request from a body in the Czech Republic. This shall not effect the entitlement to seek repayment of these costs from the convicted party as part of the damages for the costs of the criminal proceedings.

Title Two Extradition

Extradition from a foreign country

Section 383 (1) The body entitled to seek extradition of a person from a foreign State is the Ministry of Justice. It shall so do on a request from a court that has issued an international arrest warrant within the meaning of Section 384. (2) Where there are grounds for assuming that the person concerned will not be extradited from the foreign State, the Ministry of Justice shall promptly communicate this fact to the court that issued the international arrest warrant, stating the reasons why the person is unlikely to be extradited from the foreign State. (3) On the basis of the information referred to in paragraph (2), the court may cancel the international arrest warrant after examining the reasons why it is unlikely that the person will be extradited from the foreign country. The decision shall be taken in closed session. (4) Where the proceedings are not proceedings on extradition for the purposes of enforcing a custodial sentence, the public prosecutor may lodge an appeal against the decision taken in accordance with paragraph (3); the appeal shall have suspensory effect.

Section 384 (1) Where a person whose extradition is to be sought is located in a foreign State, an international arrest warrant (“arrest warrant”) shall be issued by the presiding judge or the judge of the competent court. In the case of preliminary proceedings, this shall be done on a proposal from the public prosecutor. (2) The arrest warrant shall state: a) the name, address, telephone and fax number and electronic address of the body that issued the

arrest warrant; b) the first name and family name of the person sought, other identifying personal data, nationality,

and, if possible, a description, photograph and fingerprints; c) a description of the circumstances in which the offence was committed, specifying the time, place

and manner of its commission; d) the legal classification of the act using the exact wording of the legal provisions concerned,

including the prescribed scale of penalties for the offence in question; e) the provisions on limitation together with a description of the acts affecting the expiration of the

prescription period, if a period of more than three years has lapsed between the commission of the offence and the issuing of the arrest warrant.

(3) An arrest warrant issued for the purposes of the extradition from a foreign State of a convicted person must state, in addition to the particulars stipulated in paragraph (2)(a)-(d), by which court and

to what penalty the person was sentenced, as well as information on how the person's defence rights were ensured during the proceedings, if the sentence was handed down against a fugitive or in absentia, with the wording of Section 306a attached. The arrest warrant must also contain the provisions on limitation together with a description of the acts affecting the expiration of the prescription period, if a period of more than five years has lapsed between the validity of the sentence and the issuing of the warrant. The original judgment or a legally validated copy of the judgment must be attached to the arrest warrant. (4) The arrest warrant must bear the signature of the judge who issued it and an imprint of the court’s round stamp. If a translation of the arrest warrant into a foreign language must also be sent to the requested State, the court shall attach to the warrant a translation produced by a translator. The same shall apply to the translation of the sentence in the case of extradition of a convicted person to serve a custodial sentence. (5) The arrest warrant shall cease to be valid: a) if cancelled; b) once the extradited person is delivered to the court that issued the arrest warrant, or; c) if the extradited person is handed over to another body in the Czech Republic entitled to take

delivery of him or her. (6) The court that issued the arrest warrant shall cancel it where the grounds on which it issued it no longer obtain or where it discovers further grounds by virtue of which a warrant may not be issued (Section 385). The court shall promptly notify the Ministry of Justice that it has cancelled the arrest warrant and also send it the ruling cancelling the warrant. The Ministry of Justice shall ensure that any necessary measures are taken. Section 385 The court shall not issue an arrest warrant, if: a) it envisages imposing a penalty other than an unconditional custodial sentence or an unconditional

custodial sentence shorter than four months; b) the custodial sentence to be served or remaining part thereof is shorter than four months; c) issuing the warrant would entail costs or consequences for the Czech Republic that are manifestly

disproportionate to the public interest in the person in question being criminally prosecuted or serving a custodial sentence;

d) extradition from the foreign State would be disproportionately detrimental to the person concerned compared with the advantage to be gained by criminal proceedings or the repercussions of the criminal offence, particularly in view of the person's age or social or family circumstances.

Section 386

(1) If the case does not allow for any delay, the Ministry of Justice may, at the request of the presiding judge or the judge of the court competent to issue the arrest warrant, ask the bodies in the foreign State to take the person concerned into provisional custody. In the case of preliminary proceedings, the court shall do this on a proposal from the public prosecutor. The request must contain the particulars referred to in Section 384(2)(a)-(e), as well as a declaration to the effect that an arrest warrant has been or will be issued for the person in question and that his or her extradition will be subsequently requested. (2) The court shall, in addition, send the arrest warrant, drawn up in accordance with Section 384(2)-(4) and accompanied by a translation into the relevant language, to the Ministry of Justice no later than 10 days from the day on which the Ministry of Justice was sent the court's request submitted in accordance with paragraph (1)

Section 387

(1) The person extradited by the foreign State shall be handed to the police authorities and delivered by them without delay to the court whose presiding judge issued the arrest warrant. If the person has been extradited on the basis of arrest warrants from more than one court, he or she shall be delivered to the court stipulated by the Ministry of Justice. (2) If the extradition is not for the purpose of enforcing a penalty, the presiding judge must, within 24 hours of the handover, hear the person concerned and decide on custody. The provisions of Sections 67-74 shall apply mutatis mutandis to the custody proceedings. (3) The time spent by the person concerned in transit to reach the Czech Republic shall not be counted for the purpose of the time limits referred to in Section 71; however, it shall count towards the length of the penalty served in the Czech Republic.

Section 388 (1) Where a person is extradited by a foreign State subject to a condition, the condition shall be complied with. (2) If the person is requested or extradited to serve a custodial sentence only in respect of some of the offences for which a cumulative or aggregate penalty had previously been imposed, the court shall, in public session, determine an appropriate penalty for the criminal offences to which the extradition relates. (3) If the requested State extradites for the purpose of serving a custodial sentence a person on whom the penalty was imposed by a final judgment subject to reservations as regards the proceedings prior to the extradition, the court shall, in public session, hear the extradited person and: a) if the extradited person agrees to the enforcement of the penalty imposed, decide to enforce the

judgment, or; b) if the person does not agree to the enforcement of the penalty imposed, cancel the judgment in the

necessary respect and, at the same time, decide on the custody; in the further proceedings the court shall act in accordance with Section 306a mutatis mutandis.

(4) The court competent for the proceedings referred to in paragraph (3) is the court which decided in the case in the first instance. (5) An appeal may be lodged against the decision referred to in paragraph 3(b); the appeal shall have suspensory effect, unless it concerns the custody decision.

Section 389 The speciality rule

(1) The person concerned may be prosecuted only for the offences for which he or she was extradited, except where: a) following release from prison or from enforcement of a custodial sentence, the person remains on

the territory of the Czech Republic for more than 45 days, even though he or she could have left; b) the person left the territory of the Czech Republic and voluntarily returned or was brought to the

territory of the Czech Republic from a third State in a lawful way; c) the requested State renounced application of the speciality rule or gave additional agreement for

criminal prosecution for further offences, or; d) in the extradition proceedings the person explicitly renounced the right to apply the speciality rule

in general or in respect of specific offences committed prior to extradition. (2) Where the extradited person has not renounced application of the speciality rule in accordance with paragraph (1)(d) and if allowed by a promulgated international agreement binding on the Czech Republic, the court that issued the arrest warrant shall hear the person in the presence of his or her

defence counsel and inform him or her of the possibility of renouncing the right to apply the speciality rule and of the consequences of so doing. The court shall enter on the record the offences in respect of which the right has been renounced, using the correct statutory term and numerical identification, as well as a description of the deed, to ensure that the offences are not substituted by other offences. (3) Additional agreement for the purposes of paragraph 1(c) shall also mean a request from the requested State to take over the criminal prosecution of the extradited person for offences committed on its territory prior to extradition. This shall apply also in respect of a criminal complaint submitted by the requested State. (4) Sections 383 and 384 shall apply mutatis mutandis to the submission of a request for the requested State's additional agreement to criminal prosecution in respect of an offence other than the offence covered by the original extradition request. (5) Until such time as the requested State gives additional agreement to prosecution for further offences, the proceedings in respect of these offences may take only urgent or nonrecurring measures. (6) Paragraphs (1)-(4) shall apply mutatis mutandis to the enforcement of a custodial sentence that was handed down on the extradited person by a court in the Czech Republic prior to his or her extradition and was not covered by the original extradition request.

Section 390 Temporary surrender of a person who is to be extradited

(1) If, following authorisation of extradition, the requested State does not surrender the person concerned to the Czech Republic on the grounds that he or she is being criminally prosecuted by bodies in that State or is to serve a custodial sentence handed down by bodies in that State in respect of an offence other than the offence covered by the original extradition request, the presiding judge or judge who issued the arrest warrant may ask the Ministry of Justice to secure the temporary surrender of the requested person to the Czech Republic for the purpose of conducting the procedural steps necessary for the completion of the criminal prosecution. In the case of preliminary proceedings, this shall be done on a proposal from the public prosecutor. (2) In the request submitted to the Ministry of Justice, the court shall specify the proceedings at which the requested person's presence is required, as well as the date or period during which the person's presence needs to be ensured. (3) The provisions of Section 440 shall apply mutatis mutandis to proceedings for the temporary surrender of a requested person.

Extradition to a foreign country Section 391

(1) The ministry competent to take receipt of requests from bodies in a foreign State for the extradition of a person from the Czech Republic is the Ministry of Justice. Service may also be effected by sending a request to the Supreme Prosecutor’s Office, who forwards it to the competent public prosecutor for the purpose of conducting the preliminary investigation in accordance with Section 394 and must also send a copy of the request to the Ministry of Justice without fail. It shall forward the request to the Ministry of Justice if the competent public prosecutor is not known. (2) The foreign State’s extradition request must be accompanied by: a) the original or an authenticated copy of the guilty verdict, the arrest warrant or other decision with

the same effect; b) a description of the deed in respect of which the extradition is sought, including the date and place

where it was committed and its legal denomination;

c) the text of the relevant legal provisions of the requesting State. (3) Where the documents and information referred to in paragraph (2) are not attached to the request or the information provided by the requesting State is not adequate, additional information shall be sought by the Ministry of Justice, if direct contact between judicial bodies is not allowed under a promulgated international agreement binding on the Czech Republic. In such a case, the Ministry may stipulate a time limit within which the information must be provided.

Section 392 Extraditable offences

(1) A person may be extradited to a foreign State, if the deed in respect of which extradition is sought is a criminal offence under the Czech Criminal Code and the maximum custodial penalty that may be imposed for the offence under the Czech Criminal Code is at least a year. (2) The extradition of a person to a foreign State for the enforcement of a custodial sentence or preventive measure involving deprivation of liberty (hereinafter “preventive measure”) that has already been handed down in respect of an offence within the meaning of paragraph (1) is permitted, if the penalty or the preventive measure to be enforced or the remaining portion thereof is at least four months. Where there are several penalties or preventive measure or unenforced parts thereof, these shall be added together, if this is possible in view of the nature of the penalty or preventive measure. (3) Where a foreign State has requested the extradition of a person for more than one offence of which at least one satisfies the conditions stipulated in paragraph (1), extradition is permissible also for criminal prosecution in respect of the other offences or for the purpose of enforcement of the other penalties for which it would otherwise not be permissible in view of the extent of the punishment or remaining portion thereof.

Section 393 Unallowability of extradition

(1) A person may not be extradited to a foreign State, if: a) he or she is a national of the Czech Republic; b) the person is a person to whom asylum status has been granted in the Czech Republic, within the

scope of the protection granted to the person by the relevant legal provisions or international treaty; c) the criminal prosecution or enforcement of the custodial sentence are time-barred in accordance

with Czech law; d) the criminal prosecution may not proceed because of a pardon or amnesty; e) the offence in respect of which extradition is sought is of an exclusively political or military nature; f) the offence involves the violation of tax, customs or foreign currency regulations or other financial

laws of the State; g) the offence was committed on the territory of the Czech Republic, except for cases in which in view

of the particular circumstances of the commission of the offence preference must be given to conducting the criminal prosecution in the requesting State in order for the facts of the case to be duly established and for reasons relating to the extent of the punishment or its enforcement;

h) it is possible for the death penalty to be imposed in the requesting State for the offence in respect of which extradition is sought, unless the requesting State guarantees that the death penalty will not be handed down;

i) the requesting State is seeking extradition in order to enforce the death penalty, or; j) under Czech law the requested person was not criminally liable for the offence at the time when it

was committed or there are other grounds excluding him or her from criminal liability. (2) If a person is to be extradited to a State that is a signatory to the Convention implementing the agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their

common borders, the unallowability criteria referred to in paragraph 1(c) and (d) shall not be taken into account.

Section 394 Preliminary investigation

(1) The preliminary investigation shall be conducted by the public prosecutor at the regional prosecutor's office to which the Ministry of Justice or Supreme Prosecutor's Office forwarded the foreign State's extradition request or the public prosecutor who has been informed of a criminal offence in respect of which a foreign State could seek extradition. The purpose of the preliminary investigation is, in particular, to establish whether extradition of the person to the foreign State is ruled out by any of the circumstances referred to in Section 393(1). (2) The preliminary investigation starts with the arrest of the person concerned in accordance with Section 395 or by requesting the requisite reports. (3) The person whose extradition is sought must have a defence counsel at the extradition proceedings. (4) The public prosecutor shall, if he or she has not already done so in connection with the arrest in accordance with Section 395(1), hear the person concerned and inform him or her of the contents of the extradition request. If the person states facts that refute the suspicions and provides evidence of these facts that can be addressed without undue delay, the preliminary investigation shall cover these facts too. (5) The Ministry of Justice shall, at the instigation of the public prosecutor or without it, return the extradition request to the body in the State requesting extradition, if: a) the person whose extradition was sought has died; b) the person whose extradition was sought is not criminally liable under Czech law because of his or

her age; c) it is not possible to arrest the person whose extradition was sought; d) the person whose extradition was sought is located outside the territory of the Czech Republic or his

or her whereabouts are not known; e) the consent referred to in Section 389(1)(c) and (d) has not been given, or; f) the criminal prosecution or enforcement of the custodial sentence is statute-barred in the requesting

State. (6) The preliminary investigation ends with the submission of the proposal referred to in Section 397(1) or with the return of the request in accordance with paragraph 5.

Section 395 Arrest

(1) If there are grounds for custody, the public prosecutor or, on his or her order, the police may arrest the person whose extradition is sought. A police body is authorised to arrest such a person even without a prior order from a public prosecutor, if the case is urgent and the public prosecutor’s order cannot be obtained in advance. The police must, however, promptly notify the public prosecutor of the arrest and submit to him or her a copy of the report drawn up at the time of arrest and any further material the public prosecutor may need in order to be able to submit a provisional custody proposal (Section 396(1)). The proposal must be submitted in such a way that the arrested person could be delivered to the court no later than 48 hours from arrest; otherwise, he or she must be set free. (2) The police body that carried out the arrest shall question the arrested person and draw up a report accordingly indicating the place, time and detailed circumstances of the arrest and the personal particulars of the person arrested, as well as the material grounds for the arrest. In the course of the arrest, the person arrested must also be informed of the possibility of summary extradition proceedings

and the conditions governing them. The person arrested shall have the right to choose a defence counsel, to talk with him or her without the presence of any third party and to consult him or her in the course of the arrest; the person shall also be entitled to ask that the defence counsel be present at the questioning at the time of arrest, unless the defence counsel is unreachable within the time limit stated in the report. The person concerned must be informed of these rights and provided with the full opportunity to avail himself or herself of them. (3) If on the basis of further investigation the public prosecutor does not order the release of the person arrested, he or she must hand over the person to the regional court no later than 48 hours after the arrest together with a provisional custody proposal (Section 396(1)).

Section 396 Provisional custody

(1) If the facts established give rise to fear that the person to be extradited may flee, the presiding judge of the regional court may, on a proposal from the public prosecutor conducting the preliminary investigation, decide to take the person into custody (hereinafter “provisional custody”). (2) The court competent to take the decision referred to in paragraph (1) is the regional court in whose district the person to be extradited resides or was arrested. (3) Before taking the custody decision, the presiding judge of the regional court must hear the person to be extradited. The person shall be entitled to have a defence counsel present at the hearing. The time limits referred to in Chapter Four within which a decision to take an arrested person into custody must be taken and within which a custody decision must be communicated to the person concerned shall also apply likewise to proceedings concerning provisional custody and extradition custody. (4) If a person to be extradited has been taken into provisional custody or extradition custody (Section 397(3)), the custody enforcement provisions shall apply mutatis mutandis to relations with the defence counsel, lawyer and correspondence. (5) The public prosecutor of the competent regional prosecutor’s office, shall on a proposal from the person to be extradited or without such a proposal, decide to release the person from custody, if the reasons for which the person was taken into custody in accordance with paragraph (1) no longer obtain, where the decision on the allowability of the extradition to the foreign State in accordance with Section 397 has not yet been taken. The public prosecutor shall decide to release the person concerned from custody also where the preliminary investigation was initiated without an extradition request from a foreign State or where such a request was not received by the Czech Republic within 40 days of the date on which the person was taken into provisional custody. Release from custody in such circumstances shall not preclude the person being taken into custody anew if an extradition request is subsequently sent. (6) The provisions of Sections 72(2), 73, 73a and Section 73b(3) shall apply mutatis mutandis to proceedings dealing with a person’s request to be released from provisional custody or extradition custody (Section 397(3)). (7) An appeal may be lodged against a decision on taking into custody in accordance with paragraph (1), a decision on the release of the person to be extradited in accordance with paragraph (5) or a decision rejecting the person’s request to be released; the appeal shall have suspensory effect, except in the case of a decision on taking into custody.

Section 397 Decision by the court and extradition custody

(1) On completion of the preliminary investigation, the regional judge in whose district the person to be extradited resides or was arrested shall, on a proposal from the public prosecutor in public session, decide whether the extradition is allowable. The provisions of Section 188(1)(e) regarding referral back to the public prosecutor for further investigation shall not apply. (2) If the court decides that the extradition is not allowable and the person concerned is in custody, it shall at the same time decide that the person is to be released, unless he or she is deprived of liberty on some other legal grounds. (3) If the court decides that the extradition is allowable, it shall take the person concerned into extradition custody, unless this has already been done by the presiding judge in accordance with Section 396(1). In so doing, the court shall not be bound by the grounds for custody set out in Section 67. If at the time of the decision referred to in paragraph (1) the person concerned was already in provisional custody in accordance with Section 396(1), the court shall decide to convert this custody into extradition custody. If the person had been extradited to the Czech Republic from a foreign State, the court may decide that the extradition is allowable only if the extraditing State consents to the extradition to a further country. If the person had been surrendered to the Czech Republic on the basis of a European Arrest Warrant, the court may decide that the extradition is allowable only if the surrendering State consents to the extradition to a further country. (4) Appeals may be lodged against the decisions referred to in paragraphs (2) and (3); such appeals have suspensory effect. In the case of a decision to release the person concerned from custody, an appeal by the public prosecutor shall have suspensory effect only if lodged immediately after the decision is given. (5) Once the decision referred to in paragraph (3) has the force of law, the presiding judge of the district court shall refer the case to the Ministry of Justice. If the Minister of Justice has doubts regarding the correctness of the court’s decision, he or she may submit the matter to the Supreme Court for review. (6) Referral of the case to the Supreme Court converts the extradition custody into provisional custody. After reviewing the case, the Supreme Court shall proceed mutatis mutandis in accordance with paragraphs (2), (3) and (5).

Section 398 Summary extradition proceedings

(1) If the person to be extradited states before the court that he or she agrees to be extradited to a foreign State for criminal prosecution or to serve the penalty stated in the arrest warrant and extradition request, the public prosecutor shall refer the case to the Ministry of Justice with a proposal that the Minister allow the extradition without the court having to first decide on its allowability. (2) If the person to be extradited gives his or her consent to being extradited in the course of the public session on the allowability of the extradition, the public prosecutor shall retract the proposal made in accordance with Section 397(1) and proceed in accordance with paragraph (1). The proposal may be retracted no later than by the time when the court retires for final deliberation. (3) The person to be extradited must be informed in advance of the significance of consenting to extradition and of the consequences that flow from making such a declaration. Consent to extradition may not be retracted. (4) If the Minister of Justice has doubts regarding the allowability of the extradition, even though the person to be extradited has expressed consent, he or she may refer the matter back to the public prosecutor stipulating that the court must first decide on the allowability of the extradition in accordance with Section 397.

(5) If the person to be extradited consents to extradition to the foreign State, the public prosecutor shall, on completion of the preliminary investigation, submit a proposal to the regional court in whose district the person to be extradited resides or was arrested to take the person into extradition custody (Section 397(3)). (6) The provisions of Section 72(2) and 73b(3) shall apply mutatis mutandis to proceedings on the person’s request to be released from custody. The court competent to decide on the person’s request for release from custody is the court that took the extradition custody decision in accordance with paragraph (5).

Section 399 Authorisation and implementation of the extradition

(1) Extradition to a foreign State shall be authorised by the Minister of Justice. The Minister may so do, only if the regional court or the Supreme Court has decided in accordance with Section 397 that the extradition is allowable, unless it is a case of summary extradition proceedings in accordance with Section 398. (2) Even where the court finds that the extradition of the person concerned to the foreign State is allowable, the Minister of Justice may decide not to allow the person’s extradition, in particular where: a) there is a well-founded fear that the criminal proceedings in the requesting State would not comply

with the principles of Articles 3 and 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms or that the custodial sentence handed down or likely to be handed down by the requesting State would not be enforced in accordance with the requirements of Article 3 of this Convention;

b) there is a well-founded fear that in the requesting State the requested person would be exposed to persecution because of his or her origin, race, religion, membership of a certain ethnic or other group, nationality or political views or that he or she would be disadvantaged during the criminal proceedings or in the enforcement of the custodial penalty, or;

c) by being extradited, the person would, in view of his or her age and personal circumstances, be disadvantaged to a manifestly disproportionate degree compared with the seriousness of the offence with which he or she has been charged.

(3) Even where the court finds that the extradition to the foreign State is allowable, the Minister of Justice shall decide not to allow the extradition, where he or she has decided in accordance with Section 420(3) that the enforcement of a European Arrest Warrant is to take precedence. (4) The extradition of the person concerned following the authorisation and consequent release of the person from custody shall be organised by the presiding judge of the regional court which took the decision on extradition custody. (5) The Minister of Justice shall order the release of the person concerned from extradition custody after the matter has been referred to him or her in accordance with Section 397(5) or Section 398(1) and after taking the decision that the person is not to be extradited. The release shall be ensured by the presiding judge of the regional court ruling in the case.

Section 400 Postponement of extradition and temporary surrender

(1) If the presence of the person concerned is necessary in the Czech Republic for the purposes of completing a criminal prosecution or enforcing a custodial penalty in respect of an offence other than the offence covered by the extradition request, the Minister of Justice may, having decided to authorise the person’s extradition, postpone it.

(2) The Minister of Justice may decide to authorise the temporary surrender of the person concerned to the requesting State for the performance of the procedural steps necessary for the criminal trial. The decision shall stipulate an appropriate period - which may not be longer than six months - within which the person temporarily surrendered must be returned to the territory of the Czech Republic. (3) Following agreement with the competent body of the requesting State, the period referred to in paragraph (2) may be extended. The extension of this period may not be used for a purpose other than the purpose for which the temporary surrender was originally authorised. Temporary surrender may be repeated. (4) The provisions of Section 438 and 439 shall apply mutatis mutandis to the temporary surrender of the person concerned. (5) If during the period of the temporary surrender the person concerned is finally sentenced on the territory of the requesting State for the offence for which the extradition was authorised, the Minister of Justice may, on a proposal from the requesting State, decide to postpone the person's return to the territory of the Czech Republic until such time as the custodial sentence on the territory of the requesting State has been served. This procedure may not be used, if the criminal prosecution of the person concerned had not been made final in the Czech Republic. (6) The period for which the person was in custody in the foreign State during the period of temporary surrender shall count towards the period of enforcement of the penalty enforced in the Czech Republic only to the extent that it was not counted towards the enforcement of the penalty imposed on the territory of the requesting State. The period served in respect of the penalty imposed on the territory of the requesting State shall not count towards the period of enforcement of the penalty enforced in the Czech Republic.

Section 401 Handling of extradition requests from more than one foreign State

(1) If bodies in the Czech Republic are sent extradition requests from more than one foreign State for one and the same person, the extradition allowability conditions shall be examined for each request individually. (2) If the court decides that extradition is allowable to more than one of the foreign States or if the person whose extradition is sought agrees to extradition to more than one of the foreign States, the Minister of Justice shall, together with the extradition authorisation, decide to which State the requested person will be extradited. At the same time he or she shall communicate his or her approval for the person to be extradited to any further State that sought the person's extradition.

Section 402 Extension of extradition to cover another offence

(1) The provisions of this Title shall apply mutatis mutandis to proceedings on a request from a foreign State to which a person has been extradited seeking agreement for: a) prosecution for an offence committed prior to extradition other than the offence for which the

extradition was authorised; b) enforcement of a penalty imposed for an offence other than the offence for which the extradition

was authorised, or; c) extradition o a third country for the purpose of criminal prosecution or enforcement of a custodial

sentence. (2) The bodies competent for the proceedings are the bodies that dealt with the original request for the extradition of the person in question.

Part Three

Special provisions for the surrender of persons between the Member States of the European Union on the basis of a European Arrest Warrant

Section 403

General provisions (1) The provisions of this Chapter shall apply in the established cases to the surrender of persons between Member States of the European Union (hereinafter “Member States”) on the basis of a European Arrest Warrant and to action in connection therewith. (2) The Czech Republic may surrender a national of its own to another Member State of the European Union only on the condition of reciprocity. (3) The provisions of Part 2 shall apply to the surrender of persons between Member States, only where provisions of Part 3 do not stipulate otherwise.

Section 404 European Arrest Warrant

(1) European Arrest Warrant shall mean an arrest warrant issued on the basis of European Union provisions. (2) A European Arrest Warrant may be issued by a judicial body in one Member State (the “requesting State”) in respect of a person located in another Member State (the “surrendering State”) where the surrender of the person needs to be requested for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order, a) if the person has been prosecuted for a criminal act punishable by the law of the requesting State by

a custodial sentence for a maximum period of at least 12 months or may be subject to a detention order for a period of at least 12 months, or

b) if the person has been sentenced to a custodial sentence of at least four months or made subject to a detention order for a period of at least four months.

Surrender from another Member State to the Czech Republic

Section 405 (1) Where a person whose arrest is sought is located in the surrendering State, a European Arrest Warrant shall be issued in accordance with Section 40 by the judge on a proposal from the public prosecutor in the case of preliminary proceedings or by the presiding judge in the case of court proceedings. (2) The European Arrest Warrant shall state: a) the first name and family name of the person sought, other identifying personal data, nationality, a

description, and, if possible, a photograph and fingerprints; b) name, address, telephone and fax number and electronic address of the body that issued the

European Arrest Warrant; c) evidence of an enforceable judgment, an arrest order within the meaning of Section 69, an

international arrest warrant within the meaning of Section 384 or any other enforceable decision with the same effect in respect of the act for which the European Arrest Warrant was issued;

d) the legal classification of the act using the exact wording of the legal provisions concerned, including the prescribed scale of penalties for the offence under the law of the requesting Member State;

e) a description of the circumstances in which the offence was committed, specifying the time, place, manner and degree of participation in the offence by the person sought, as well as the consequences of the offence, if these can be stated, and:

f) the provisions on limitation together with a description of the acts affecting the expiration of the prescription period, if a period of more than three years has lapsed between the commission of the offence and the issuing of the European Arrest Warrant.

(3) A European Arrest Warrant issued for the purposes of the surrender of a person on whom a custodial sentence has been passed must state, in addition to the particulars stipulated in paragraph (2)(a)-(d), by which court and to what penalty the person was sentenced, as well as information on how the sentenced person's defence rights were ensured during the proceedings, if the sentence was handed down against a fugitive or in absentia, with the wording of Section 306a attached. The European Arrest Warrant must also contain the provisions on limitation together with a description of the acts affecting the expiration of the prescription period, if a period of more than five years has lapsed between the validity of the sentence and the issuing of the Warrant. (4) Where any of the offences in respect of which surrender is sought is an offence within the meaning of Section 412, the court shall state this fact in the European Arrest Warrant. (5) The European Arrest Warrant shall be sent by the court that issued it to the relevant body in the surrendering State in accordance with the legal system of that State in the official language or one of the official languages of that State or in another language in which that State is willing to receive a European Arrest Warrant. A copy of the European Arrest Warrant shall at the same time be sent to the Ministry of Justice. The Ministry of Justice shall specify by Decree the model for the European Arrest Warrant, the language other than the official language(s) in which the Member States will accept a European Arrest Warrant and the arrangements for the service of the Warrant. (6) The provisions of Section 384(4) and (5), Section 387 and Section 388 shall apply in these proceedings likewise. If the person concerned is handed over to the Czech Republic from a Member State of which he or she is a national or where he or she is habitually resident on the proviso that if he or she does not consent to the enforcement of the penalty or preventive measure in the Czech Republic, he or she will be returned to the Member State in question for the enforcement of any penalty or preventive measure handed down in the Czech Republic, the presiding judge shall, if the person is sentenced, forward the sentence to the Member State in question within 30 days of its validity together with a translation into the official language of the surrendering State. (7) If the person handed over to the Czech Republic from another Member State is given a custodial sentence or detention order, the court shall, for the purposes of calculating the total period of deprivation of liberty, take into consideration the time spent in custody in connection with the enforcement of the European Arrest Warrant.

Section 406 The speciality rule

A person surrendered by another Member State may not be convicted or have his or her liberty restricted or be deprived of his or her liberty in respect of an offence committed prior to surrender other than the offence for which he or she was surrendered; this does not apply if: a) following release from prison, from enforcement of a custodial sentence or from a detention order,

the person surrendered fails to leave the territory of the Czech Republic within 45 days, despite being able to, or returns to the territory of the Czech Republic having once left;

b) the other offence is not punishable with a custodial sentence or detention order, or is not arrestable; c) the person surrendered is liable only for a financial penalty or community service penalty, even

though this may be converted into a custodial sentence on the terms laid down by law; d) the surrendered person consented to being surrendered to the Czech Republic and renounced the

right to apply the speciality rule within the meaning of paragraph 1;

e) having been surrendered, the person explicitly renounced the right to apply the speciality rule within the meaning of paragraph 1 in respect of specific offences committed prior to the surrender;

f) the competent body of the State that surrendered the person has communicated its consent to the prosecution of the person for a further offence committed before he or she was surrendered.

(2) The statement referred to in paragraph 2(e) shall be made by the person concerned in a court and duly recorded in the presence of defence counsel. The statement may not be retracted. The court shall be required to inform the surrendered person of the consequences of renouncing the right to apply the speciality rule within the meaning of paragraph 1. The court competent for the proceedings referred to in paragraph 2(e) is the court that issued the European Arrest Warrant, in preliminary proceedings on a proposal from the public prosecutor. The court shall notify the competent body in the surrendering State of the content of the statement. (3) If a person is to be prosecuted for an offence committed prior to surrender other than the offence for which he or she was surrendered and the circumstances referred to in paragraph 2 do not obtain, a request for consent to prosecution for the other offence shall be submitted by the judge on a proposal from the public prosecutor in the case of preliminary proceedings or by the presiding judge in the case of court proceedings. Section 405 shall apply to the request likewise.

Section 407 Temporary surrender from another Member State

(1) The presiding judge or, in preliminary proceedings on a proposal from the public prosecutor, the judge who issued the European Arrest Warrant may request the body in the surrendering State for the person in respect of whom the European Arrest Warrant was issued to be heard or temporarily surrendered for the purpose of criminal prosecution in the Czech Republic. (2) The request referred to in paragraph 1 shall specify the proceedings at which the requested person's presence is required, as well as the date or period during which the person's presence needs to be ensured. (3) The provisions of Section 440 shall apply mutatis mutandis to proceedings for the temporary surrender of a requested person.

Surrender from the Czech Republic to another Member State Section 408

(1) The European Arrest Warrant shall be sent to the regional public prosecutor in whose region the person whose surrender is sought (the "requested person") resides or was arrested (for the purposes of this Part the “competent public prosecutor”). (2) If a European Arrest Warrant is sent to a public prosecutor who is not the competent prosecutor as stated in paragraph 1, this public prosecutor shall forward it to the competent public prosecutor and notify the body in the requesting State accordingly. The same procedure shall be followed in the event of a European Arrest Warrant being sent to the Ministry of Justice or the Supreme Prosecutor's Office. (3) The competent court to decide on the surrender to the requesting State is the regional court that is the place of work of the regional public prosecutor referred to in paragraph 1 (the “competent court”).

Section 409 Preliminary investigation

(1) The purpose of preliminary investigation is to establish whether the conditions are met for surrender on the basis of the European Arrest Warrant.

(2) The public prosecutor shall hear the requested person, if he or she has not already done so in connection with the arrest in accordance with Section 410, and inform the person of the content of the European Arrest Warrant, the possibility of consenting to surrender and the consequences of so consenting, as well as the possibility of renouncing the right to apply the speciality rule in accordance with Section 406(1) and the consequences of renouncing application of this rule. (3) The public prosecutor shall return the European Arrest Warrant to the body in the requesting State, if: a) the requested person has died; b) in accordance with the legal system of the Czech Republic, owing to his or her age the requested

person is not liable for the conduct for which the European Arrest Warrant was issued; c) it is not possible to arrest the requested person; d) the requested person is located outside the territory of the Czech Republic or his or her whereabouts

are not known; e) the European Arrest Warrant was served after the legal validity of the decision on the surrender of

the requested person or the decision on his or her extradition; f) the Member State has not given the consent referred to in Section 421(1); g) the non-Member State (“third State”) has not given the consent referred to in Section 421(3), or; h) the criminal prosecution, custodial sentence or detention order is statute-barred in the requesting

State.

Section 410 Arrest and provisional custody

The provisions of Section 395 and 396 shall apply likewise to the arrest and provisional custody of the requested person.

Section 411 Decision by the court and transfer custody

(1) The decision on the surrender shall be taken by the competent court on completion of the preliminary investigation on a proposal from the public prosecutor in public session. At the request of the body in the requesting State that issued the European Arrest Warrant, the court shall hear the requested person in public session, taking account of the conditions laid down by agreement with the body in the requesting State. The court shall notify the competent Czech police department, so that the surrender of the person concerned can be organised within the prescribed time. (2) At the request of the body in the foreign State that issued the European Arrest Warrant, the court shall allow representatives from that foreign body to attend the public session. The possibility for a representative from this body in the foreign State to put additional questions to the person being heard shall be governed by the provisions of Section 432(4) likewise. (3) If the competent court decides that the requested person is not to be surrendered and the person is in custody, it shall at the same time decide that the person is to be released, unless he or she is deprived of liberty on some other legal grounds. (4) If the competent court decides that the requested person is to be surrendered, it shall take the person into transfer custody, if it has not already done so in accordance with Section 410. In so doing, the court shall not be bound by the grounds for custody set out in Section 67. If at the time of the decision referred to in paragraph 1 the person concerned was already in provisional custody in accordance with Section 410, the court shall decide to convert this custody into transfer custody. The provisions of Section 397 shall apply to transfer custody likewise. (5) Appeals may be lodged against the decisions referred to in paragraphs 1, 3 and 4; such appeals have suspensory effect. An appeal by the public prosecutor against a decision to release the requested

person from custody shall have suspensory effect only if lodged immediately after the decision is given. (6) The court shall refuse to surrender the requested person only if: a) the act is not punishable by law in both States, unless the conduct is conduct listed in Section 412;

this shall not apply in the case of taxes, customs duties or foreign exchange where the enforcement of a European Arrest Warrant may not be refused on the grounds that Czech law does not levy the same type of taxes or customs duties or does not contain the same tax, customs and foreign exchange provisions as the law of the requesting State;

b) the offence in respect of which the European Arrest Warrant was issued is covered by an amnesty granted in the Czech Republic, or the criminal prosecution or enforcement of the penalty are statute-barred in the Czech Republic if prosecution in respect of this offence falls within the scope of the laws of the Czech Republic;

c) the requested person has been finally sentenced in the Czech Republic or the foreign State for the same act and the penalty has already been enforced or is being enforced or is no longer enforceable, or the criminal proceedings have been discontinued in the Czech Republic or other Member State by means of a final judgment, unless such decisions have been overturned in the prescribed proceedings;

d) the requested person has been criminally prosecuted in the Czech Republic for the same act in respect of which the European Arrest Warrant was issued;

e) the person is a national of the Czech Republic or habitually resident in the Czech Republic, his or her surrender is sought for the enforcement of a custodial sentence or preventive treatment or a correctional penalty and the person has stated on the record in the competent court that he or she refuses to submit to the enforcement of this penalty or preventive measure in the requesting State; this declaration may not be retracted.

(7) If a national of the Czech Republic or person who is habitually resident in the Czech Republic is surrendered to the requesting State for criminal prosecution, the court shall make the surrender subject to the proviso that the person will be returned to the Czech Republic for enforcement of the custodial sentence or preventive treatment or correctional penalty, if this type of penalty or preventive measure is imposed on him or her and, when the verdict is handed down in the requesting State, he or she does not consent to the enforcement of the penalty or preventive measure in that State. The court shall proceed in this way only if the requesting State has given a guarantee that it will hand over the person to the Czech Republic for the enforcement of the penalty or preventive measure. If the requesting State does not provide such a guarantee, the court shall refuse to surrender the requested person. (8) If a person is surrendered to the requesting State for enforcement of a custodial sentence or a preventive measure handed down in a verdict delivered in absentia without the person having been properly notified of the date and place of the proceedings, the court shall make the surrender subject to the proviso that the requesting State will provide the person with the opportunity to request a new trial and will facilitate the person's presence at the trial. (9) If necessary for the purposes of the criminal prosecution or enforcement of the custodial sentence imposed on the person to be surrendered in respect of a criminal act other than the act stated in the European Arrest Warrant, the court may allow the surrender of the person to be postponed until a time of its stipulation. In so doing, it shall examine the requesting State's reasoned request for the surrender of the person within the time limit within which the proceedings for which the person is to be surrendered must be conducted in respect of that person. (10) If a person who has been sentenced to a custodial sentence in criminal proceedings on the territory of the Czech Republic is surrendered, the court shall make the surrender subject to the proviso that the person will be returned for the enforcement of the custodial sentence or the remaining portion thereof and shall stipulate an appropriate period for this. This period may not be longer than the length of the custodial sentence not yet served or portion thereof. The period spent in custody in the requesting State by the surrendered person on the basis of the European Arrest Warrant shall, on

the person's return to the territory of the Czech Republic, be counted towards the custodial sentence not yet served or portion thereof. (11) The court shall decide on the European Arrest Warrant within 60 days of the arrest of the requested person. The court shall, without delay, send notification of the decision to the competent body in the requesting State and to the competent Czech Police department that classified the person as wanted. If surrender takes place, the court shall provide the competent body in the requesting State with information on the length of time spent in custody in the course of the transfer proceedings on the territory of the Czech Republic. If the court refuses the surrender in accordance with paragraph 3, it shall notify the competent body of the requesting State of the reasons for its refusal. (12) If in exceptional circumstances it is not possible for the decision to be taken within the time limit stated in paragraph 11, the court shall extend the period for taking the decision on the European Arrest Warrant by a further 30 days. It shall notify the body in the requesting State accordingly and give its reasons. (13) If the court is unable to deliver a decision on the surrender of the requested person even within the extended time limit referred to in paragraph 12, it shall notify the competent body in the requesting State and the European judicial cooperation entity, Eurojust, accordingly. It shall inform Eurojust through the intermediary of the Czech Republic's national member of Eurojust. It shall take the decision on the surrender without delay as soon as the obstacle preventing the decision is overcome.

Section 412 Exceptions to the double criminality rule

(1) Where surrender is requested for offences for which in the requesting State a custodial sentence for a maximum period of at least three years or a detention order for at least three years may be handed down and which involve conduct stated in the European Arrest Warrant by the body in the requesting State as one or more of the types of conduct listed in paragraph 2, the court shall not check whether the conduct in question is a criminal offence under Czech law. (2) The conduct referred to in paragraph 1 means: a) participation in a criminal organisation; b) terrorism; c) trafficking in human beings; d) sexual exploitation of children and child pornography; e) illicit trafficking in narcotic drugs and psychotropic substances; f) illicit trafficking in weapons, munitions and explosives; g) corruption; h) fraud, including that affecting the financial interests of the European Communities within the

meaning of the Convention of 26 July 1995 on the protection of the European Communities' financial interests;

i) laundering of the proceeds of crime; j) counterfeiting currency; k) computer-related crime; l) environmental crime, including illicit trafficking in endangered animal species and in endangered

plant species and varieties; m) facilitation of unauthorised entry and residence; n) murder, grievous bodily injury; o) illicit trade in human organs and tissue; p) kidnapping, illegal restraint and hostage-taking; q) racism and xenophobia; r) organised or armed robbery; s) illicit trafficking in cultural goods, including antiques and works of art; t) swindling;

u) racketeering and extortion; v) counterfeiting and piracy of products; w) forgery of administrative documents and trafficking therein; x) forgery of means of payment; y) illicit trafficking in hormonal substances and other growth promoters; z) illicit trafficking in nuclear or radioactive materials; aa) trafficking in stolen vehicles; bb) rape; cc) arson, dd) crimes within the jurisdiction of the International Criminal Court; ee) unlawful seizure of aircraft/ships; ff) sabotage.

Section 413 Summary transfer proceedings

(1) The requested person may state on the record to the competent court that he or she consents to being surrendered to the requesting State; at the same time he or she shall declare on the record that he or she renounces the right to apply the speciality rule in accordance with Section 406(1). The requested person must be explicitly informed of the consequences of taking this step. (2) Consent given in accordance with paragraph 1 may not be retracted. (3) If the requested person makes a declaration in accordance with paragraph 1, the provisions of Section 411 shall apply mutatis mutandis. The court shall refuse the surrender of the requested person only in the cases listed in Section 411(6)(c),(d) and (e). (4) The decision on surrender in accordance with paragraph 1 shall be issued by the court within 10 days of the declaration of consent made by the requested person in accordance with paragraph 1. The provisions of Section 411(12) shall apply to the extension of the time limit.

Section 414 Temporary surrender to a Member State

(1) Where a European Arrest Warrant has been issued for the purpose of criminal prosecution, on the basis of a request from the body in the requesting State the competent judge shall, on the basis of a proposal from the public prosecutor, decide on the temporary surrender of the requested person to the requesting State for the performance of the procedural steps necessary for the criminal trial. The decision shall stipulate an appropriate period - which may not be longer than three months - within which the person temporarily surrendered must be returned to the territory of the Czech Republic. (2) Following agreement with the competent body of the requesting State, the period referred to in paragraph 1 may be extended. The extension of this period may not be used for a purpose other than the purpose for which the temporary surrender was originally authorised. Temporary surrender may be repeated. (3) The provisions of Section 438 and 439 shall apply mutatis mutandis to Sections 438 and 439. (4) The request referred to in paragraph 1 shall be sent to the competent public prosecutor's office. Article 408(2) and (3) shall apply here likewise. (5) The time spent by the requested person in custody in the foreign State during the temporary surrender period shall not count towards the time limits referred to in Section 411(11) and (12) and Section 413(4).

Section 415 Time limits

(1) If the person enjoys a privilege or immunity in accordance with the law or international legislation, the time limits referred to in Section 411(11) and Section 413(4) shall start to run from the day on which the competent body is informed that the requested person has been divested of the privilege or immunity. (2) If the removal of the privilege or immunity is the responsibility of a competent body of the Czech Republic, the competent public prosecutor shall ask the body in question to remove the person's privilege or immunity. If the removal of the privilege or immunity is the responsibility of a competent body of another State, international organisation or the European Union, the competent public prosecutor shall report this fact without delay to the body of the requesting State that issued the European Arrest Warrant. (3) Where the person concerned has filed a complaint with the Constitutional Court against the conduct of the competent bodies of the Czech Republic in the course of the transfer proceedings, the time limits referred to in Sections 411(11), 413(4) and 416(2) shall start to run from the day on which the competent body is sent the Constitutional Court's decision on the complaint.

Section 416 Surrender

1) The surrender of the person following the authorisation and consequent release of the person from custody shall be organised by the presiding judge of the regional court. (2) Where the court decides to surrender the requested person, the person shall be surrendered without delay no later than 10 days following the day on which the surrender decision takes effect, unless the decision is a surrender decision in accordance with Section 411(9). (3) If the surrender of the requested person within the time limit laid down in paragraph 2 is prevented by circumstances beyond the control of the requesting and surrendering States, the competent bodies shall agree on a new surrender time. The surrender must take place no later than 10 days from this new surrender time. (4) In exceptional circumstances, surrender may be temporarily postponed on humanitarian grounds, in particular if surrender would threaten the life or health of the requested person. The surrender shall take place within 10 days of the point at which these reasons no longer obtain. (5) If the time limits referred to in paragraphs 2 to 4 cannot be complied with, the court shall decide to release the requested person from custody.

Section 417 Enforcement of a custodial sentence or preventive measure handed down

in a Member State (1) If the surrender of the requested person is refused for the reasons stated in Section 411(6)(e), the competent court shall invite the body in the requesting State to send it, within 30 days of the service of the invitation, an authenticated copy of the enforceable judgment on the basis of which the European Arrest Warrant was issued and an official translation of it into Czech. (2) If the authenticated copy of the enforceable judgment on the basis of which the European Arrest Warrant was issued and the official translation of it into Czech are not sent within the time limit and the person concerned is in custody, the competent court shall decide to release him or her.

(3) Before a surrendered person is returned to the Czech Republic for the enforcement of a custodial sentence, preventive treatment or a correctional penalty within the meaning of Section 411(7), the competent court shall invite the body in the requesting State to send an authenticated copy of the enforceable judgment and an official translation of it into Czech. (4) Once the body in the requesting State sends the court the enforceable judgment in accordance with paragraph 1 or paragraph 3, the competent court shall recognise the judgment of the body in the requesting State by converting the sentence handed down by that body into the sentence it could have handed down, had it delivered the judgment in the trial on the criminal act committed. The court shall, mutatis mutandis, proceed likewise in the case of preventive treatment sentences or correctional sentences. Proceedings for the recognition of the judgment of the body in the requesting State shall be conducted likewise in accordance with Part Seven.

Section 418 Extension of surrender to cover another offence and consent to surrender

or extradition to another State (1) The provisions of this Part shall apply mutatis mutandis to proceedings on a request from another Member State to which a person has been surrendered seeking agreement for that State to: a) prosecute the person for another offence committed prior to surrender or enforce a custodial

sentence or detention order that was passed on the person for an offence other than the offence for which the surrender on the basis of the European Arrest warrant was authorised;

b) surrender the person to a further Member State for the purpose of criminal prosecution or enforcement of a custodial sentence or detention order; or

c) extradite the person to a third country for the purpose of criminal prosecution or enforcement of a custodial sentence.

(2) The competent court shall decide on the request referred to in paragraph 1 within 30 days of the service of the request. (3) The provisions of Section 413 may not be applied to the proceedings referred to in paragraphs 1 and 2.

Section 419 Concurrent European Arrest Warrants

(1) If during the period of validity of a surrender decision more than one European Arrest Warrant is delivered for one and the same requested person, the competent court shall decide on the basis of a proposal from the public prosecutor which European Arrest Warrant to enforce. In so doing, it shall take account of the circumstances, the seriousness and location of the offences committed, the dates on which the European Arrest Warrants were issued and whether they were issued for the purpose of criminal prosecution or for the enforcement of a custodial sentence or detention order. It shall send its decision to the bodies in the other requesting States for their information. (2) The time limits referred to in Section 411(11) and Section 413(4) shall start to run from the date on which the last European Arrest Warrant is served.

Section 420 Concurrent European Arrest Warrant and extradition request

(1) If during the period of validity of a surrender decision an extradition request is delivered for one and the same requested person, the competent court shall, on a proposal from the public prosecutor, first decide on the surrender in accordance with Section 411 and on whether extradition is permissible in accordance with Section 397. In the event of a decision on surrender in accordance with Section 411(4) and at the same time on the permissibility of extradition in accordance with Section 397(1), the

presiding judge of the regional court shall forward the case to the Ministry of Justice to decide whether to enforce the European Arrest Warrant or comply with the extradition request. The presiding judge of the regional court shall inform the competent body in the requesting State without delay of the concurrent European Arrest Warrant and extradition request, of the Section 397 decision and of the referral to the Ministry of Justice. (2) In deciding whether to enforce the European Arrest Warrant or comply with the extradition request, the Minister of Justice shall take account of the circumstances, the seriousness and location of the offences committed, the dates on which the European Arrest Warrant and the extradition request were issued and whether they were issued for the purpose of criminal prosecution or for the enforcement of a custodial sentence or detention order. (3) If the Minister of Justice decides that the enforcement of the European Arrest Warrant shall take precedence, he or she shall immediately notify the competent regional court accordingly; the court shall then proceed in accordance with Section 416. The time limit referred to in Section 416(2) shall start to run from the date on which the Minister of Justice sends the notification that the enforcement of the European Arrest Warrant shall take precedence. (4) If the Minister of Justice decides that compliance with the extradition request shall take precedence, he or she shall immediately notify the regional court that decided on the surrender in accordance with Section 411(4) and the competent body in the requesting State. It shall then proceed in accordance with the provisions of Part Two. (5) A decision by the Ministry of Justice in accordance with paragraph 4 shall be grounds for cancelling the decision in accordance with Section 411(4). The decision on this shall be taken without delay by the regional court as soon as it receives the notification from the Minister of Justice in accordance with paragraph 4, in closed session by means of a nonappealable ruling. It shall send the ruling to the public prosecutor and the body in the requesting State that issued the European Arrest Warrant.

Section 421 Further surrender from the Czech Republic to another Member State

(1) A person who has been surrendered to the Czech Republic may be further surrendered to another Member State only with the consent of the surrendering State, save where otherwise stipulated. (2) Without the consent of the surrendering State a requested person may be further surrendered to another Member State for an offence committed prior to the surrender, if: a) the requested person consents to be surrendered to the other Member State; this consent must be

given voluntarily and entered on the record in the presence of defence counsel and the competent court must inform the person in advance of the consequences of giving this consent;

b) the provisions of Section 406(1)(a), (d) and (e) and (2) apply to the requested person; (3) If a requested person has been extradited to the Czech Republic from a third country and may not be further surrendered without the consent of that third country, the competent public prosecutor's office shall inform the Ministry of Justice of this without delay and the Ministry shall take the necessary takes to obtain the third country's consent for the surrender. The time limits referred to in Section 411(11) and 413(4) shall start to run from the day on which the competent public prosecutor receives the notification from the Ministry of Justice that the third country has communicated its consent to the surrender.

Transit for the purposes of surrender Section 422

(1) If transit of a person for the purposes of criminal proceedings is to be authorised at the request of another Member State, the Supreme Court shall decide on the surrender and the safeguard measures, provided that the transit request from the other Member State contains information on: a) the identity and nationality of the surrendered person; b) the issuing of a European arrest warrant; c) the nature and type of the offence, and d) the circumstances of the commission of the offence, including the date and place. (2) Authorisation for the transit of a person for the purposes stated in paragraph 1 that necessitate transit back through the territory of the Czech Republic after the conduct of the proceedings in the foreign State shall also constitute authorisation for that return transit. (3) Transit authorisation is not required for transport by air without a scheduled stop on the territory of the Czech Republic. Where there is an unscheduled stop on the territory of the Czech Republic and the Czech Republic has not been sent a transit authorisation request from a Member State containing the information referred to in paragraph 1, the person may be held in custody for up to 96 hours. The Supreme Court shall take the decision to take the person into custody on a proposal from the public prosecutor at the Supreme Prosecutor's Office. (4) The Supreme Court shall decide to reject a transit authorisation request, if the transit requested is for a national of the Czech Republic or person habitually resident on the territory of the Czech Republic for the purpose of the enforcement of a custodial sentence or detention order. (5) If transit is requested in respect of a national of the Czech Republic or person habitually resident on the territory of the Czech Republic for the purpose of criminal prosecution, the Supreme Court shall decide to authorise the transit subject to the proviso referred to in Section 411(7). The previous Sections 385 to 392 shall be renumbered as Sections 461 to 471.

Article II Transitional provisions in respect of Part One

1. Proceedings on extradition abroad initiated before the day on which this Act enters forces shall be completed in accordance with Part Two of Chapter Twenty-Five as amended by this Act. 2. The provisions of Title Three of Chapter Twenty-Five shall not apply to offences committed before the date on which this Act comes into force (comment - i.e. 1 November 2004). In such cases the procedure shall be in accordance with the provisions of Title Two of Chapter Twenty-Five as worded in this Act. 3. The provisions of Sections 403-422 shall not apply to the surrender of persons from the French Republic for offences committed before 1 November 1993 or for the surrender of persons from the Republic of Italy or the Republic of Austria for offences committed before 7 August 2002. In such cases the procedure shall be in accordance with the provisions of Sections 383-390.