CYIL vol. 11 (2020)

JIŘÍ MULÁK CYIL 11 (2020) proceedings deciding about legality of detention (Section 73d et seq. of the Rules of Criminal Procedure). 26 In this context, the ECHR also stated that if only one of the parties can take part in the hearing before court, there is a breach of the principle of equality of arms. 27 The analogical conclusion, i.e. that presence of one party only is a breach of the principle of equality of arms, can be applied even to presence of the accused person at the main hearing, or at the appeal proceedings. 28 The accused person is, however, allowed to waive the right to be present during the hearing of the case before court, on condition that such a waiver has been made voluntarily and unambiguously, 29 or that in certain circumstances it is possible to make decisions at the absence of the accused person if the matter concerns proceedings against a fugitive. 30 The basically equal possibility of both the parties to the proceedings to affect the course of the proceedings is naturally not exhausted just by presence (absence) of the two parties so that neither of them is disadvantaged against the other one. It holds that both the parties to the proceedings must have the same possibility of expressing their views on all the facts that can affect decisions in the case. 31 This subsequently results especially in the right of the accused person to be rendered familiar with the evidence, collected by the prosecution, 32 which is then associated, according to the ECHR, with a complementary obligation of public authorities (law enforcement authorities) to render the accused person familiar with all the evidence which was collected, both to their disfavour and to their favour. 33 In the continental countries where the searching principle applies, which includes a general obligation of the law enforcement authorities to search for evidence not only in disfavour, but also in favour of the accused person, and to use the same in the proceedings, the implementation of this right is set up by the actual characteristics of these authorities as the authorities representing the public interest consisting in both conviction (punishment) of the actual offender and in exoneration of a person whose guilt was not evidenced in a sufficient way. The accused person, who is at the same time authorised to be represented by a lawyer already in the pre-judicial stage, must be enabled to have access to the investigation file, or to other documents which were obtained during investigation and which may have an influence on the assessment of guilt. 34 Through this possibility, the accused person obtains an access to the evidence, both incriminating and exculpatory. Conversely, in the common law system, which is based on the activity (actual duel) of both the parties presenting evidence for supporting their statements, a special obligation was created for investigation authorities – to render the accused person familiar even with the evidence which the prosecution itself does not intend to use for the reason that it is partially exculpatory evidence (obligation of “ evidence disclosure” ). 35 There 26 Decision in the ECHR case: Winterwerp v. the Netherlands of 24 October 1979, Application no. 6301/73 or Sanchez-Reisse v. Switzerland of 21 October 1986, Application no. 9862/82. 27 Decision in the ECHR case: Sanchez-Reisse v. Switzerland of 21 October 1986, Application no. 9862/82 or Wesolowski v. Poland of 22 June 2004, Application no. 29687, Kampanis v. Greece of 13 July 1995, Application no. 17977/91. 28 REPÍK, Bohumil. repeated cit., p. 145. 29 Ibidem, p. 150. 30 Ibidem, p. 151. 31 Decision in the ECHR case: Mantovanelli v. France of 18 March 1997, Application no. 21497/93. 32 Ibidem. 33 Decision in the ECHR case: Edwards v. the United Kingdom of 16 December 1992, Application no. 13071/87. 34 REPÍK, Bohumil. repeated cit., p. 147. 35 Decision in the ECHR case: Edwards v. the United Kingdom of 16 December 1992, Application no. 13071/87.

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