A summons to give an explanation can catch a person off guard. It is often their first contact with the police, and the natural reaction is to try to explain everything quickly. This is exactly the moment to stop and think the next steps through. Under the Czech Code of Criminal Procedure, an explanation serves mainly to examine whether a criminal offence has been committed and who may have committed it. It therefore usually takes place before criminal prosecution of a specific person begins, yet it is already part of criminal proceedings. If the facts established sufficiently justify suspicion against a particular person and the other statutory conditions are met, that person may then be charged with a specific act. The very first statement can therefore influence the direction the case takes.

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In what capacity you are giving the explanation

First, find out in what capacity you are giving the explanation. What matters is whether you are a suspect, or a person who can provide information about someone else's conduct, for example a future witness or an injured party. Giving an explanation is not yet a formal witness examination. If your position is not clear, ask about it explicitly. A suspect may refuse to give an explanation and is not under a duty to tell the truth and conceal nothing; even a suspect, however, must not, for example, falsely accuse another person of a criminal offence. Other persons are obliged to tell the truth, but may refuse to give an explanation if it would expose them or a close person as defined by law to the risk of criminal prosecution. An intentional untruth, or concealing a circumstance material to the decision, may constitute an administrative offence when explaining another person's criminal offence, punishable by a fine of up to CZK 50,000.

How it works in practice

At the start, the police verify your identity and the lawyer present proves their authority to represent you. From our practice we also know situations where, even before you are advised of your rights and obligations, questions follow about your job, income, children, criminal record or other family and personal circumstances. Such questions may look like mere form-filling, but the answers may be relevant to the matter under examination. The right not to incriminate yourself does not arise only at the moment the police officer advises you of it. If there is a statutory reason to refuse an explanation, you may rely on it even for a question asked before that advice. We therefore take the view that your procedural rights cannot be circumvented by moving questions into this opening part. At the same time, answers about the matter under examination and about personal circumstances must be distinguished from the duty to prove your identity; exercising the right to remain silent does not cancel that duty.

Legal assistance of a lawyer

You have the right to legal assistance from a lawyer already when giving an explanation. It makes the most sense to go through the matter beforehand: what it concerns, what you actually know, and whether it is wise to give an explanation at all, or to give it only in a combined form and exercise the right to remain silent in part. If you decide to give an explanation, you will usually be given room to describe events in your own words, followed by additional questions from the police and from your lawyer. You may also consult your lawyer during the interview; if you need to, ask for a break. Depending on the circumstances, our law firm also uses an approach with suspects where the client first gives a continuous account of selected facts and then exercises the right not to answer further questions. Such an approach must be based on the specific situation. For a person who is not a suspect, a refusal to answer must have a statutory reason.

The official record and signing it

An explanation is usually recorded in an official record, whose use as evidence in court is limited. The law does allow exceptions, for example reading it at the main trial with the consent of the public prosecutor and the defendant. You therefore cannot rely on what you say not mattering. The record also stays in the file and may influence the further steps of the police (and later the court), even if a proper examination has to be carried out afterwards. Read it carefully before signing, insist that inaccuracies are corrected and ask for a copy of the signed record. If you do not remember something, say so; do not fill gaps in your memory with guesses. Good preparation with a lawyer helps make your statement accurate and helps you understand its possible consequences.

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