On October 1, 2023, an amendment to the Code of Criminal Procedure Act came into force, under which § 4 was added to art. 12 (concerning the prosecution of crimes at the request of the injured party), which states that: „In a case of a crime under art. 190 § 1 of the Criminal Code, proceedings may be initiated and conducted despite the failure to file a motion for prosecution, if there is a high probability that the failure to file a motion results from the injured party’s fear of retaliation or if the public interest supports it. In such a case, the proceedings shall be conducted ex officio until their final conclusion.”
The amendment concerns the procedure for prosecuting the offence of making a criminal threat. Before 1 October 2023, the prosecution of a criminal threat could only take place at the request of the injured party – the person to whom the threat was addressed had to consent to the initiation and conduct of criminal proceedings in this case.
However, the legislator considered that there are cases when such proceedings should be conducted even without the injured party’s request. Such a situation was considered to be, first of all, a high probability that the failure to file an application results from the injured party’s fear of retaliation. The concept of retaliation has not been defined in the regulations; it should be assumed that the legislator had in mind a case when the injured party fears negative consequences related to filing an application for prosecution, which prevents him from filing it, and therefore his decision not to file an application for prosecution is directly and crucially influenced by fear. The injured party may feel the risk of losing their life or suffering damage to their health, and it seems that this premise also includes the injured party’s fear of harm to a person close to them or of the destruction of property of significant value.
The exclusion of the need to obtain the injured party’s motion to conduct proceedings in the case of a criminal threat also occurs when the public interest supports prosecution. This premise should be interpreted depending on the specific circumstances of the case. It allows for conducting criminal proceedings without the injured party’s motion, for example due to: the specific circumstances of the crime (such as the manner of the perpetrator’s actions, the severity of the threats), the identity of the perpetrator (when it is, for example, a law enforcement officer or a repeat offender threatening others), as well as the situation of the injured party (for example, when they are helpless due to age or illness).
The introduction of the discussed amendment means that the procedure for prosecuting the crime of criminal threat is changing. This offence may now be prosecuted ex officio unconditionally, and therefore is not treated as a crime that always requires a motion from the injured party to initiate proceedings. In other words, in the case of a punishable threat, the injured party’s motion is only relatively necessary, because the procedural body may sometimes take action in this case on its own. However, in order to prosecute without a motion (ex officio), the conditions specified in Article 12 § 4 of the Code of Criminal Procedure must be met.
