CHAPTER 17 - LABOUR LAW

Transkript

1 CHAPTER 17 - LABOUR LAW LABOUR LAW is the branch of law which regulates the relationship between and among employers, employees, and labour organizations, often dealing with issues of public law. It is distinguished from EMPLOYMENT LAW which deals only with employment contracts and issues regarding employment and workplace discrimination and other private law issues. THE EMPLOYMENT RELATIONSHIP is the relationship of an employer and an employee based on an express or implied agreement of the parties. The employee performs services or does work under the direction and control of the employer. An EMPLOYEE is hired only to work under the control of the employer, as contrasted with an AGENT, who is to negotiate or make contracts with third persons on behalf of and under the control of a principal, and with an INDEPENDENT CONTRACTOR, who is to perform a contract independent of the control by the other party. A BLUE- COLLAR WORKER is an idiom referring to a member of the working class who performs manual labor and earns an hourly wage. Blue-collar work may be skilled or unskilled, and may involve factory work, construction, repair or mechanical work. Blue-collar workers are distinguished from WHITE-COLLAR WORKERS, whose jobs are not considered manual labor. White-collar workers earn a monthly or annual salary rather than an hourly wage. COLLECTIVE BARGAINING is an important activity usually carried out by TRADE UNIONS on behalf of the employees. Representatives of the employees (trade union officials) bargain with an employer for an agreement on wages, benefits, promotion, working hours and working conditions for the employees. COLLECTIVE BARGAINING CONTRACTS govern the rights and obligations of employers and employees in many private and public sector employment relations and they are generally subject to a ratification vote by the employees. ~ 1 ~

2 The parties to any contract have both rights and duties. Duties of employers are, for the most part, rights of employees. The main statutory RIGHTS OF EMPLOYEES include entitlement to: a national minimum wage; equal pay for the similar work; a written statement of employment particulars; an itemised pay statement; time off and holidays; statutory sick pay; a healthy and safe working environment; family and parental leave; notice of termination of employment; not to have unlawful deductions from wages; not to be discriminated against on grounds of sex, race, sexual orientation, disability, religion, age, trade union membership, part-time or fixed term employment. All employees should receive written notice specifying the following matters: an identification of the parties and the date of the commencement of the employment; the method of calculating the remuneration and the intervals at which it is to be paid; conditions relating to hours of work; entitlement to holidays and holiday pay; provision of sick pay and pension schemes; the length of notice which the employee is obliged to give and entitled to receive to terminate the contract. There are also some duties on the side of an employee that may or may not be written expressly in the contract; they, however, must be fulfilled. EMPLOYEES HAVE DUTIES, such as to render personal service (the work must be carried out personally), to take care and exercise reasonable skill (an employee must take care of his employer s property and be careful not to harm fellow workers so as to impose vicarious liability on his employer), to obey instructions and to give loyal and faithful service (an employee must carry out his duties at work in an honest and responsible manner). WAGES are usually defined as the amount paid periodically, especially by the day or week or month, for the manual or mechanical work (labour) or service of an employee. SALARY is a fixed payment made periodically to a person as compensation for regular non-manual or non-mechanical work. The amount of wages may be fixed by negotiation, may depend upon a collective bargain or may be implied from the custom of the trade. In the absence of any agreement, there is an obligation to pay a reasonable amount. It is usual practice for employers and employees to enter into a written agreement which sets out their respective obligations and rights, and which constitutes a CONTRACT OF EMPLOYMENT, either at the commencement of employment or shortly before. A contract of employment must include certain clauses, such as the type of work to be performed by the employee, the place of work, the starting date. Other possible clauses deal with pay, hours of work, absence, confidentiality, giving notice or grievance procedures. An employment contract may be concluded either for a definite or indefinite period ~ 2 ~

3 of time. If the period is indefinite, the contract may be terminated at any time by either party by giving notice to the other. If the period is definite (a fixed-term contract), the employee cannot terminate at an earlier date without justification for so doing. A contract for fixed term or a particular piece of work normally ends automatically on the expiration of the time or completion of the work. An EMPLOYEE MAY BE justifiably DISMISSED (DISCHARGED) because of his nonperformance of duties, misrepresentation or fraud in obtaining the employment, disobedience to proper directions, disloyalty, theft, possession or use of drugs or intoxicants, wrongful misconduct or incompetency. When employees are without work through no fault of their own, they are eligible for UNEMPLOYMENT COMPENSATION BENEFITS. The unemployed person must be available for placement in a similar job anb be willing to take such employment at a comparable rate of pay. The SOCIAL SECURITY SYSTEM ensures that people in need will receive various kinds of financial support, e.g. death benefit, old-age benefit, maternity benefit, sickness benefit, family allowance or nursing allowance. VOCABULARY Agent Bargain Blue-collar worker Collective bargaining Commencement Confidentiality Contract for a particular piece of work Death benefit Deduction Definite period Zmocněná osoba, obchodní zástupce, agent Vyjednávat, sjednat, dohodnout se Dělník Kolektivní vyjednávání Zahájení, začátek Důvěrnost Smlouva o dílo Pojistné plnění při smrtelném pracovním úraze Srážka, odpočet Doba určitá ~ 3 ~

4 Discharge Dismiss Employee Employer Employment Employment contract Employment law Entitlement to Equal Expiration Family allowance Fellow worker Fixed-term contract Give notice Grievance procedure Indefinite period Independent contractor Itemised Justification Labour law Maternity benefit Negotiate Negotiation Nonperformance Nursing allowance Obey Old-age benefit On behalf of Propustit, dát komu výpověď Propustit, dát komu výpověď Zaměstnanec Zaměstnavatel Pracovní poměr, zaměstnání, zaměstnanost Pracovní smlouva Pracovní právo Nárok na, subjektivní právo Stejný, rovný Vypršení Rodinné přídavky Spolupracovník Smlouva na dobu určitou Dát výpověď Pravidla pro předkládání pracovních stížností Doba neurčitá Nezávislý dodavatel Rozložený na jednotlivé položky Ospravedlnění, odůvodnění Pracovní právo Dávky v mateřství Vyjednávat Vyjednávání Neplnění Dávky pro osobu ošetřující osobu blízkou Být poslušen Dávky ve stáří Jménem ~ 4 ~

5 On grounds of Parental leave Particulars Part-time Period of notice Principal Promotion Provision Remuneration Render personal service Salary Sick pay Sickness benefit Skilled Termination of employment Time off Trade Trade unions Vicarious liability Wage White-collar worker Na základě Rodičovská dovolená Náležitosti, podrobnosti Na částečný úvazek Výpovědní doba Vedoucí, šéf Povýšení Ustanovení Odměna Vykonávat práci osobně Plat Nemocenské Nemocenské dávky Odborný, kvalifikovaný Ukončení pracovního poměru Volno Řemeslo, živnost, branže Odbory Odpovědnost v zastoupení Mzda Pracovník (nemanuální) ~ 5 ~

6 CHAPTER 18 CIVIL PROCEDURE CIVIL LAW is different from criminal law. Civil disputes always involve the private interests of individuals, groups or organizations, including the government. When people cannot reach an agreement, one of them can ask the courts to decide. Cases that appear in civil court include civil and family matters, wills and estates, lawsuits claiming damages for negligence, labour matters and matters concerning business companies. PARTICIPANTS in a civil suit are called parties. The party starting a court action, or lawsuit, is known as the plaintiff or petitioner. The party accused of causing the damage or injury is known as the defendant or respondent. THE ROLE OF THE COURTS The courts become involved in civil matters when an individual, group or organization has asked them to. The plaintiff sues the defendant and the case will be heard in either the County Court or the High Court, depending on the nature of the case and the size of the loss involved. In the High Court the parties are usually represented by barristers although they may appear in person. Solicitors have a right of audience in the County Court. The role of the courts in civil disputes is to provide a way to resolve conflicts when the parties can not or will not settle in any other way. Although civil trials can take place before a judge and jury, a judge alone hears most of the trials. The aim is not to punish the defendant, but rather the judge awards damages to the plaintiff or orders the defendant to act or refrain from acting in some specific way in the future. STANDARDS OF PROOF In a civil case the judge makes a decision on a balance of probabilities. This means that when the parties are disagreeing about what was said or what happened, the court must decide which side s evidence is more probably the truth, and apply the law to that. It s as if the evidence is put on a scale. The judge or jury will find in favour of the side which presents the best evidence. For example, if the evidence shows that it is more probable than not that Arsenault caused the motor vehicle ~ 6 ~

7 accident in which MacDonald suffered injuries, the judge will order the defendant Arsenault to pay compensation for pain and suffering to the plaintiff MacDonald. ACCUSATORIAL (ADVERSARIAL) AND INQUISITORIAL PRINCIPLE In criminal cases, inquisitorial principle is applied, whereas in civil cases both accusatorial (adversarial) and inquisitorial principles are used. The difference between these two is that in accusatorial court procedure, judges do not investigate the cases before them but reach a decision based only on the evidence presented to them by the parties to the dispute. On the other hand, in inquisitorial court procedure it is the function of the judges to investigate the case and to collect evidence. PROCEDURE X TRIAL Procedure (řízení, proces, civil procedure občanské právo procesní) can be defined as the manner for carrying on a civil lawsuit or criminal prosecution, whereas trial (soudní jednání in civil cases, hlavní líčení in criminal cases) denotes only one part of the proceeding, namely the happening in a courtroom. The term procedure covers all the steps necessary to turn a legal right into a satisfied judgement, it does not merely refer to the trial itself. The proceedings prior to trial usually take months and often result in a settlement being reached before any trial takes place. Proceedings after trial may also take many months, for example appeals procedure and the enforcement of the judgement. JURISDICTION Before the proceedings start, it is important to decide which court has jurisdiction over the case, which means which court has the power to decide about the case. Czech law distinguishes three types of jurisdiction subject-matter, territorial and functional. PRE-TRIAL MOTIONS The action is begun by issuing and serving the writ of summons. This is a document addressed to the defendant giving him notice that an action has been commenced against him and requiring him to ~ 7 ~

8 place himself on the court record by delivering an acknowledgement of service to the court office. The writ is prepared by the plaintiff s solicitor. However, some actions are commenced by a petition rather than a writ, for example a divorce or a company liquidation. Consequently, an exchange of pleadings takes place. Afterwards, if no pre-trial settlement is reached, the jury is selected and the trial is held. Eventually, if there is no appeal the matter is concluded by enforcement of the judgement. PLEADINGS The first step is when the plaintiff files a Statement of Claim with the court clerk. It is signed, dated and stamped and served on the defendant and filed in court with proof of service. The second step occurs when the defendant files a Defence. If the defendant has a complaint against the plaintiff he may include a Counterclaim with his defence. The last type of pleadings is a Reply, which is the plaintiff s answer to the defence. TRIAL If you are the plaintiff, your lawyer makes an opening statement and calls witnesses to support your position. After each witness gives evidence for you, the defendant s lawyer has a chance to crossexamine them. Following this, your lawyer may re-examine the witness of any new matters which may have been raised by the defendant s lawyer during cross-examination. This is called a rebuttal. If you are the defendant, your lawyer can call witnesses to support your position at the end of the plaintiff s case. They are also cross-examined by the plaintiff s lawyer. Again, your lawyer has the opportunity to re-examine the witnesses on new matters which may have been raised by the plaintiff s lawyer during cross-examination. The judge or the jury give their verdict after closing arguments in which each side has the opportunity to provide their summing up of evidence. If there is a trial with jury, the judge charges the jurors and they retire to jury room to deliberate in secret. If the jurors fail to agree by required vote, the jury is called hung jury and a new trial is ordered. A civil suit may be stopped at any time if the parties reach an out-of-court settlement. ~ 8 ~

9 ENFORCEMENT OF JUDGEMENT The rules of civil procedure also provide for the compulsory enforcement of judgements if the party against whom judgement was rendered fails to comply with the order of the court. Execution is the act of getting an officer of the court (bailiff) to take possession of the property of a losing party (judgement debtor) on behalf of the winner (judgement creditor), sell it and use the proceeds to pay the judgement. Judgement can be enforced in four ways: A warrant of execution a bailiff can collect the money by selling judgement debtor s goods at auction if the judgement debtor failed to pay the amount he has been ordered to pay An attachment of earnings order/garnishee of wages the money will be stopped from the defendant s wages a charging order the court places a charge on the judgement debtor s real property (house, piece of land) a third party debt order it can be sent to anyone who owes the defendant money or the defendant has to stop taking money out of his or her bank account or building society account and the money owed to the creditor is paid from the account VOCABULARY Accusatorial Acknowledgement of service Adversarial, accusatorial Aggrieved party Allegations Arbiter, umpire Arbitration Attachment of earnings order Barrister Bench, panel Projednací Potrvrzení o doručení Projednací, obžalovací, sporný Poškozená strana Tvrzení Rozhodce Rozhodčí řízení Příkaz k exekuci srážkami ze mzdy Advokát, který smí obhajovat před soudem Senát soudců ~ 9 ~

10 Beyond a reasonable doubt By a preponderance of the evidence Charge the jurors Charging order Civil procedure Closing argument Contention, dispute Counsel Counselor Counterclaim Cross-examination Defence Enforcement of the judgement Evidentiary objections Evidentiary rulings Garnishee of wages Hung jury Inquisitor Inquisitorial Investigate Issue and serve Judge on the panel, bench Judge sitting alone, single judge Judge trial Judgement creditor Judgement debtor Jury charge Nade vší pochybnost Na základě převažujících důkazů Poučit porotu Exekuce prodejem nemovitosti Občanské právo procesní Závěřečná řeč Spor Právní zástupce Poradce Protinávrh Křížový výslech Vyjádření k žalobě Vykonatelnost rozsudku Námitky proti důkazům Rozhodování o důkazech Srážky ze mzdy Zablokovaná porota (neschopná dojít k jednomyslnému závěru) Vyšetřovatel Vyšetřovací, vyšetřující Vyšetřovat Vydat a úředně doručit Soudce v senátu Samosoudce Soud bez poroty Oprávněný Povinný Poučení poroty ~ 10 ~

11 Legitimate claim Litigator Motion Negotiator On a balance of probabilities Opening statement Out-of-court settlement Petition Pleadings Presiding (chairing) judge Pre-trial motions Procedure Proceeding(s) Process Rebuttal Refrain from acting Reply Return a verdict Rules of Civil Procedure Satisfied judgement Settlement Solicitor Standards of proof Statement of claim Subject-matter jurisdiction Oprávněný nárok Právní poradce Návrh Vyjednavatel, prostředník Po zvážení všech pravděpodobností Úvodní řeč Mimosoudní urovnání Návrh Soudní materiály, spisy, podání Předseda senátu Přípravné řízení, předběžné líčení Postup, procedura, proces Soudní řízení Předvolání, úkon soudu, příkaz, řízení, proces, soudní písemnost Vyvrácení důkazů Zdržet se konání Replika, vyjádření žalobce k vyjádření žalovaného Vyhlásit výrok Občanský soudní řád, pravidla občanského soudního řízení Vykonaný rozsudek Urovnání sporu Advokát připravující proces, ale nevystupující u soudu Míra dokazování Žalobní návrh Věcná příslušnost ~ 11 ~

12 Territorial jurisdiction Testimony, deposition Third party debt order Trial Trial by ordeal Trial is held Ultra vires Venue jurisdiction Warrant of execution Writ of summons Místní jurisdikce Výpověď, svědectví Exekuce přikázáním jiných peněžitých pohledávek Soudní jednání, hlavní líčení Zkouška ohněm, ordálie Koná se soudní přelíčení Mimo pravomoc, nad rámec Místní příslušnost Soudní příkaz k exekuci Soudní obsílka ~ 12 ~

13 CHAPTER 19 CRIMINAL LAW CRIMINAL LAW is concerned with acts and omissions contrary to public order and society as a whole, it regulates the conduct of its citizens and legal relationships between the state and individuals. It has two parts general (it deals with principles and rules which concern all crimes) and special (it defines particular crimes, e.g. elements in murder, offences against persons, families, property, habitation, public order and morals). IGNORANCE OF THE LAW IS NO DEFENCE everyone is presumed to know the law, it is no defence to a criminal charge that the person charged was unaware that the act he was performing was a criminal offence. PRESUMPTION OF INNOCENCE all people accused of a crime are legally presumed to be innocent until they are convicted in a trial or until they plead guilty. The prosecutor must convince the jury that the defendant is guilty beyond a reasonable doubt, the defendant needn t say or do anything in his own defense. CRIME (uncountable noun) means violation of law in general. It tends to be concentrated in inner cities and deprived areas, rising affluence has provided more opportunities for casual property crime. Most crime is committed by young males, it is opportunist and is not planned. Only a small proportion of young male offenders go on to become serious repeat offenders. A CRIME (countable noun) is a positive or negative act in violation of penal law. It can also be defined as any act done in violation of those duties which an individual owes to the community, and for the breach of which the law has provided that the offender shall make satisfaction to the public. A crime is more serious than a misdemeanor, although the terms may be used synonymously. According to the gravity, crimes can be classified as FELONIES/ARRESTABLE OFFENCES (more serious, a policeman may arrest a suspect without a warrant) and MISDEMEANORS/NON-ARRESTABLE OFFENCES (less serious, a warrant to arrest needed). There are two things to prove before a court will convict someone of a crime: the actus reus and the mens rea of the offence as it is defined in the Criminal Code. The Actus reus is the guilty act, the ~ 13 ~

14 action which is prohibited in the Code, or the failure to do an action which is required to be done by the Code. The Mens rea is the guilty mind, it means that the accused did the deed with a criminal mind deliberately and intentionally or recklessly with disregard for human life. To convict somebody you must prove both of them and they must occur concurrently. CRIMES AGAINST PROPERTY The category of crimes against property includes crimes in which property is destroyed (such as arson and vandalism) and crimes in which property is stolen or otherwise taken against the will of the owner (such as robbery and embezzelement). Arson is the wilful and malicious burning of another person s property. Vandalism is wilful destruction of, or damage to, the property of another. It includes such things as breaking windows, flooding basements, breaking off car aerials. Larceny/theft is the unlawful taking and carrying away of the property of another with intent to steal it. The crime of larceny also includes keeping lost property when a reasonable method exists for finding the owner. For example, if you find a wallet that contains the identification card of its owner but you decide to keep it, you have committed larceny. You may also be found guilty of larceny if you keep property delivered to you by mistake. Shoplifting is a form of larceny. It is the crime of taking items from a store without paying for them. Embezzlement is the unlawful taking of property by someone to whom it was entrusted. Robbery is the unlawful taking of property from a person s immediate possession by force or intimidation. Unlike other theft offences, it involves two harms: theft of property and actual or potential physical harm to the victim. The element of force is the difference between robbery and larceny. A pickpocket who takes your wallet unnoticed is liable for the crime of larceny. A mugger who knocks you down and takes your wallet by force is guilty of crime of robbery. Extortion, popularly called blackmail, is the use of threats to obtain the property of another. There is usually the threat to do future physical harm, destroy property (e.g. I ll blow up your car unless you pay me 500 dollars), or injure someone s character of reputation. ~ 14 ~

15 Burglary was originally defined as breaking and entering the dwelling of another during the night with intent to commit a felony. Modern laws have broadened the definition to include the unauthorised entry into any structure with intent to commit a crime, regardless of the time of day. Forgery is a crime in which a person falsely makes or alters a writing or document with intent to defraud. This usually means signing, without permission, the name of another person to a check or some other document. It can also mean changing or erasing part of a previously signed document. Uttering is offering to someone as genuine a document known to be a fake. CRIMES AGAINST THE PERSON Crimes against the person include homicide, assault, battery and rape. All of those crimes are serious offences. A defendant found guilty on one of them may receive a harsh sentence. Homicide is the killing of a human being by a human being. The term comes from the Latin homo (man) and cidere (to kill). Murder is the most serious form of criminal homicide, it is a killing which is done with malice. Malice means having the intent to kill or seriously harm or acting in an extremely reckless manner which shows a lack of regard for human life (e.g. shooting into a crowd). In the past, there were no degrees of murder. Any homicide done with malice was considered to be murder and was punishable by death. To reduce the punishment for less grievous homicides, most states now have classification of murder according to the killer s state of mind or the circumstances surrounding the crime. Firstdegree murder is usually defined as a killing that is premeditated (thought of before), deliberate, and done with malice (with intent to kill or cause serious bodily injury or with indifference to human life). Second-degree murder is a killing that is done with malice, but without premeditation or deliberation. The intent to kill did not exist until the moment of the murder. Second-degree murder includes intentional but spontaneous killings that are unplanned. Voluntary manslaughter is a killing that would otherwise be murder, but that occurs after the victim has done something to the killer that would cause a reasonable person to lose self-control or act rashly. The killing must occur just after the provocation so that the killer did not have an opportunity to cool down, e.g. when a man walks in on his spouse cheating on him with another man, flies into a rage, and kills the man. ~ 15 ~

16 INVOLUNTARY MANSLAUGHTER is an unintentional killing resulting from conduct so reckless that it causes extreme danger of death or bodily injury. An example is a killing that results from playing with a gun known to be loaded. Assault is any attempt or threat to carry out a physical attack upon another person. Battery is any unlawful physical contact inflicted by one person upon another without consent. Traditionally, the law has recognized two types of rape. Forcible rape is the act of unlawful sexual intercourse committed by a man with a woman by force and without her consent. Statutory rape is sexual intercourse by a male with a female who has not yet reached the legal age of consent. DEFENCES DURESS - A person acts under duress when he or she does something as a result of coercion or a threat of immediate danger to life or personal safety. Under duress, an individual lacks the ability to exercise free will. For example, suppose someone points a gun at your head and demands that you steal money or be killed. You steal the money. Duress would be a good defence in this case if you were prosecuted for theft. Duress is not a defence to homicide, however. NECESSITY - An individual acts under necessity when he or she is compelled to react to a situation that is unavoidable in order to protect life. Suppose, for example, that a group of people is left adrift in a lifeboat and the lifeboat is so heavy with cargo that it is in danger of sinking. The group throws the cargo overboard to make the lifeboat lighter and more manageable. In this case, necessity would be a good defence to a charge of destruction of property. Necessity is not a defence to homicide. The law recognizes the right of a person unlawfully attacked to use reasonable force in self-defence. It also recognizes the right of one person to use reasonable force to defend another person from an attack that is about to occur. A person cannot use more force than appears to be necessary. If, after stopping an attacker, the defendant continues to use force, the roles reverse, and the defender can no longer claim self-defence. Reasonable force may be used to protect property. PUNISHMENTS When a person is convicted of a crime, a punishment follows, e.g. death penalty, imprisonment, a monetary fine, removal from office, disqualification to hold any office of honour, trust or profit, compelled community service or shaming. The trial judge can sentence a defendant to a term of ~ 16 ~

17 years in prison and then he can suspend the sentence and place the defendant on probation the defendant is free but must fulfill the conditions set by the judge (e.g. random drug testing, no contact with ex-felons, no firearm, report to a probation officer regularly). If the probationer violates any of the conditions of release, the judge may order the offender to serve the suspended sentence. The Czech Penal Code lists the following punishments: imprisonment, community service, deprivation of titles of honours and awards, deprivation of a military rank, prohibition of professional activity, forfeiture of property, pecuniary punishment, forfeiture of a thing, banishment, prohibition of abode (to stay at a particular place), exceptional punishment: imprisonment for the term between years, and the life imprisonment. VOCABULARY Accessory Actus reus Adultery Affluence Aggravated Armed robbery Arrest warrant Arson Assailant Attempt Banishment Beyond a reasonable doubt Burglary By coertion Casual property crime Charge with Spoluviník, spolupachatel Trestné jednání Cizoložství Bohatství, blahobyt Násilný Ozbrojená loupež Zatykač, příkaz k zatčení Žhářství Útočník Pokus Vyhoštění Nade vší pochybnost Vloupání Pod nátlakem Příležitostná majetková trestná činnost Obžalovat z ~ 17 ~

18 Community service order Concurrently Conviction Corpse Crime Death penalty, capital punishment Death warrant Defence Deliberately Deprivation of a military rank Deprivation of titles of honours and awards Deprived Drug trafficking Duress Embezzlement Entrust Exceptional punishment Extortion, blackmail Felony Forfeiture of a thing Forfeiture of property Forgery Habitation, dwelling Homicide, manslaughter Ignorance of the law is no defence. Imprisonment Obecně prospěšné práce Souběžně Usvědčení, odsouzení Tělo, mrtvola Zločin, trestný čin (poč.), kriminalita (nepoč. subst.) Trest smrti Příkaz k výkonu trestu smrti Okolnost vylučující protiprávnost Úmyslně Ztráta vojenské hodnosti Ztráta čestných titulů a vyznamenání Zanedbaný Obchodování s drogami Nátlak, tíseň Zpronevěra Svěřit co, pověřit koho čím Výjimečný trest Vydírání Hrdelní zločin, závažný trestný čin, lze zatknout bez příkazu k zatčení Propadnutí věci Propadnutí majetku Padělání Obydlí Zabití Neznalost zákona neomlouvá. Odnětí svobody Indictable offence ~ 18 ~ Závažný trestčin projednávaný na základě

19 formální obžaloby Intentionally Involuntary manslaughter Larceny, theft Life imprisonment Malice aforethought Malicious Mens rea Misappropriation Misdemeanor Mitigating factor Monetary fine Money laundering Mugger Murder Mutilate Necessity Non-capital felony Nonincarcerative sanction Offender Pecuniary punishment Penal law, criminal law Pickpocket Plead guilty, not guilty Premeditate Probation Probation officer Prohibition of abode Záměrně Neúmyslné zabití Krádež Doživotí Zlý úmysl Zlovolný, zlomyslný, konaný ve zlém úmyslu Zlý úmysl Odcizení Přestupek, přečin, méně závažný trestný čin Polehčující okolnost Pokuta Praní špinavých peněz Násilník a zloděj Vražda Zohavit Krajní nouze Nehrdelní závažný trestný čin Trest neuvězňující Pachatel, provinilec, delikvent Peněžitý trest Trestní právo Kapesní zloděj Přiznat vinu, popírat vinu Předem promyslit Podmínka Probační úředník Zákaz pobytu ~ 19 ~

20 Prohibition of professional activity Prosecutor Punishment Rape Recklessly Removal from office Repeat offender Robbery Search warrant Self-defence Sexual intercourse Shaming Strike down Summary offence Suspect Suspend the sentence Treason Uttering Voluntary manslaughter Zákaz činnosti Státní zástupce, žalobce Trest Znásilnění Nedbale Odvolání z funkce Recidivista Loupež Příkaz k prohlídce Nutná obrana Pohl. styk Zostuzení Zrušit, odvolat (zákon, rozsudek, nařízení) Trestný čin projednávaný ve zkráceném řízení Podezřelý, podezírat Odložit výkon trestu Vlastizrada Uvedení padělků do oběhu Úmyslné zabití ~ 20 ~

21 CHAPTER 2 0 CRIMINAL PROCEDURE Once the crime has been committed, it is reported to the police by the victim or witnesses. The police arrive at the scene of the crime to investigate what has happened. They look for important clues and other evidence (e.g. fingerprints or a genetic profile) that will help them to identify the culprit. In some cases, they will also try to establish if the modus operandi (a Latin expression which describes the way in which the crime was carried out) matches other crimes in the area. If they have a suspect who doesn t have a good alibi, they will then apprehend him. Arrest is the apprehension of a person suspected of criminal activities. The police cannot arrest anyone unless they have lawful authority to do so, for otherwise they run the risk of being sued for damages for false imprisonment or assault. With the more serious offences (felonies), a police officer automatically has power to arrest a suspect. The police can also obtain an arrest warrant from a magistrate by laying an information. The police can serve the warrant on the accused and arrest the suspect. When the suspect is arrested, the police will caution him (in other words, they warn him that anything he says might be used later in court this caution is called the Miranda rule). The suspect has to be told why he is detained and that he has the following rights: to see a solicitor (if he cannot afford a solicitor, he can be appointed at public expense), to inform somebody that he is detained, to look at the codes of practice that the police should follow, right to have a speedy trial by judge or jury, right to a clean cell, three meals a day, eight hours rest a day, right to call a witness, to be presumed innocent etc. The police should not use pressure to get answers to their questions and the suspect may stand mute (= he doesn t have to testify). The suspect is then taken to the police station, where he is interviewed by the investigating officers. If, at the end of the interview, the police believe that they have the right man, they charge him with the crime. A statement is prepared, which is signed by all parties present. The accused is then either released on bail (in other words, he is ~ 21 ~

22 allowed to leave the police station and go home in exchange for a financial deposit, on condition that he promises to appear in court when required: if he doesn t appear in court, he will lose this deposit and a warrant will be issued for his arrest), or he is remanded in custody and locked in a cell (to prevent him from running away or to prevent harm to other people or property). More questioning will probably follow: the police need as much proof as possible (anything that is admissible in court will help them to get a conviction), and they may also be interested in any accomplices who may have helped the man. The police will also want to talk to any witnesses who were present when the crime took place. The next day, the man appears before a magistrate in a magistrates court. Because not all offences are tried in the same manner, the magistrate will decide whether the offence is less serious and will be tried only summarily, or whether the offence is very serious and will be tried on indictment. In the case of trivial offences or offences committed by juveniles, a summary trial takes place in the magistrates court. The case is heard by magistrates (also called justices of the peace, JPs) who are mostly lay men and cannot sit alone to try cases (they usually sit in benches of two or three). Magistrates are the judges of both law and fact, which means that they decide both about the guilt or innocence and about the punishment. In the case of serious offences (offences triable on indictment), the case will be committed for trial at a Crown Court. When the accused knows that he is going to stand trial, he asks a solicitor to prepare his case. The information collected is then given to a barrister who will defend him in court. In a criminal case, the police will have their own barrister, who is known as the Crown Prosecutor. These two barristers are referred to throughout the trial as counsel for the defence and counsel for the prosecution. Before the trial begins, the counsels review their evidence (either witnesses who will testify at court, documentary evidence that will be submitted or real evidence such as exhibits, physical appearnace of persons or inspections outside the court) and decide how to present their case. Members of the jury are selected and briefed on their duties. Any lay man (= except judges, JPs, solicitors, barristers, police officers, prison officers) between who is on the electoral register can serve on a jury. A jury panel consists of 12 jurors. A date for the trial is arranged. ~ 22 ~

23 At the beginning of the trial, the judge (who is a professional and may sit alone) asks the defendant how he pleads: guilty or not guilty. Both counsels then address the jury with a summary of what the believe is true, and explain what the jury will hear at the trial. The counsel for the prosecution then calls and questions witnesses. The counsel for the defence can cross-examine these people. The defendant will also be questioned by both counsels. At the end of the trial, the counsels summarise the facts as they see them, and the jury then retires to deliberate in private. When the jury has reached its verdict, it returns to the court and the foreman of the jury delivers the verdict to the court. If the defendant is found to be not guilty, he is acquitted. However, if the jury s verdict is guilty, the defendant is convicted and sentenced by the judge. Punishments available to a judge include imprisonment, community service, probation order (the offender has to report to a probation officer at specified times, he has to live at a particular address, undergo treatment for a mental condition or for addiction to alcohol or drugs, or attend counselling) or financial penalties. The defendant may also be given a suspended sentence. If the defendant is not happy with the decision of the court, he is free to appeal to a higher court. The highest courts for appellants in England and Wales are the House of Lords and the European Court of Justice. VOCABULARY Accomplice Accused Acquit Admissible Appellant Komplic Obžalovaný, obviněný Zprostit viny, vynést osvobozující rozsudek Přípustné (důkazy) Odvolatel, odvolávající se strana ~ 23 ~

24 Apprehend Apprehension Arrest Bench Caution Cell Charge with Clue Commit for trial at court Convict Conviction Counsel for the defence Counsel for the prosecution Criminal procedure Culprit Detain Documentary evidence Evidence Exhibit Interview Investigate Zadržet, vzít do vazby Vzetí do vazby Zatknout, zadržet, zatčení, uvalení vazby Soudci, senát Poučení; oznámení osobě, že může být obviněna z trestného činu Cela Obžalovat z Stopa, vodítko Odeslat obviněného k vyššímu soudu, který je příslušný Odsouzenec, trestanec Odsouzení, uznání vinným Právní zástupce obhajoby Státní žalobce, prokurátor Trestní řízení, trestní právo procesní Viník, pachatel, obžalovaný Zadržet ve vazbě Listinné důkazy Důkaz, důkazy Věcný důkaz předložený soudu Rozhovor, výslech Vyšetřovat ~ 24 ~

25 Justice of the peace, JP Lay an information Lay man Modus operandi Panel Proof Real evidence Release on bail Remand in custody Scene of the crime Speedy trial Stand mute Statement Summary trial Suspect Testify Testimony Tried on indictment Tried summarily Victim Witness Smírčí soudce Podat žalobu Laik Pracovní postup Porota, seznam porotců Důkaz Věcný důkaz Propustit na kauci Vzít do vazby Místo činu Urychlený proces Nevypovídat, mlčet Výpověď Zkrácený proces Podezřelý Vypovídat, svědčit Svědectví, svědecká výpověď Projednávaný s formálním obviněním před soudcem a porotou Projednávaný ve zkráceném řízení Oběť Svědek ~ 25 ~