Providing Explanations in Criminal Proceedings – (In)significant Act and Its Impact on Defense

In practice, even among experts, the terms criminal proceedings and criminal prosecution are often confused. However, the difference is fundamental – and for effective defense, the phase before prosecution begins, namely providing explanations, is also crucial.

Criminal Proceedings vs. Criminal Prosecution

• Criminal proceedings is a broader process – from investigation, through prosecution, to execution of sentence.
• Criminal prosecution is only part of it: it begins with the delivery of a decision to initiate criminal prosecution.
  At that moment, the suspect becomes an accused person, who is entitled to full procedural rights, especially the right to defense.

Difference Between Providing Explanations and Interrogation

Short answer: providing explanations is an act before criminal prosecution begins, while interrogation takes place after prosecution has been initiated (typically as interrogation of the accused, a witness or an injured party). The two acts are often confused in practice, yet their procedural regime and consequences differ substantially.

Main differences:

Practical impact: Although providing explanations is procedurally "weaker" than interrogation, its content goes into the file and the court reviews it. What you say while providing explanations may later bind you during interrogation as the accused – if your answers differ, the court treats it as a contradiction that undermines the credibility of your later defense. This is why the distinction between the two acts is critical to defense strategy.

Right to Defense

The accused person has, among others:

• the right to a defense attorney,
• the right to inspect the file and make copies,
• the right to participate in investigative acts.

However, these rights are fully effective only from the initiation of prosecution. Until then, the procedural position is weakened.

Providing Explanations Before Prosecution Begins

Before criminal prosecution begins, persons may be summoned to provide explanations (§ 158 of the Criminal Procedure Code).
The authority is obliged to:

• instruct them about the right to refuse testimony,
• define the procedural role (suspect × witness).

Many consider providing explanations insignificant because it is not a classic evidence. This is a great mistake.

Why Explanations Matter

1. Use in Court:
   According to the Criminal Procedure Code, with the consent of the prosecutor and the accused, official records of explanations by persons can be read even in the main hearing.
   It is therefore not an absolutely "procedurally unusable" act.

2. Content in the File:
   All explanations are part of the criminal file. The court has the opportunity to familiarize itself with them and compare their content with later defense.

3. Risk to Defense:
   If a suspect provides an explanation that contradicts their later defense, they significantly reduce the effectiveness of their defense – even though they were not formally accused yet.

Practical Recommendations

• Never underestimate providing explanations.
• Consult with an attorney before the actual interrogation.
• If possible, participate in explanations accompanied by a defense attorney – the police authority is obliged to inform you about this possibility.

Summary

Providing explanations is not formally the same as interrogating an accused person, but in practice it has a fundamental impact on future defense.
Every word spoken in this phase can later be turned against the interrogated person.

👉 Therefore, the correct strategy is consultation with an attorney and a conscious decision about whether and to what extent to provide explanations.