CYIL vol. 11 (2020)

CYIL 11 (2020) THE CONTRADICTORY PRINCIPLE OF CRIMINAL PROCEEDINGS IN CASE LAW OF ECHR are, however, some exceptions from the obligation of evidence disclosure, when there is a possibility of non-disclosure of certain evidence to the defence with reference to protection of fundamental rights or due to protection of a public interest (interest of witness protection, national security, non-disclosure of investigation and criminalistic methods). 36 Nevertheless, it is inadmissible to conceal the evidence which is absolutely fundamental for the decision making about guilt of the accused person. 37 In connection with “ disclosure of evidence” it is appropriate to mention some differences regarding adversarial criminal proceedings in the continental and Anglo-American models of a criminal trial. Adversarial proceedings of an Anglo-American model must be adapted to the requirement of adversarial proceedings because the prosecution party would not have, within the framework of a classical “duel of the parties”, any reasons for handover to the other party of the evidence which could weaken their statements. Conversely, criminal proceedings of a continental type are inherently adversarial, in the light of the obligation to render the accused person familiar with the evidence, without any necessity of intervening in the legislation. If one returns to the basic issue, i.e. to what extent the principle of adversarial approach in criminal proceedings is determined by their controversy, it is possible to state that controversy is not the most important feature of adversarial proceedings, even though one could perceive it this way at prima vista . A problematic aspect from the viewpoint of the searching principle is the viewpoint of facticity, just due to non-full unilaterality of law enforcement authorities, in particular of the public prosecutor representing the prosecution. It is, however, a question whether it is psychologically possible to search, in an impartial way, for the evidence both in favour and in disfavour of the accused person, when the position of the public prosecutor changes in the proceedings before court. 38 In connection with the obligation to render the parties familiar with the evidence which had (could have) an influence on the decision in the case, I would still like to draw attention to a situation when the equality of arms is not breached, but at the same time the principle of adversarial proceedings is not sufficiently respected. Such a situation occurs if the court fails to make both the parties familiar with some of the evidence which arrived at the court through different channels or which were requested by the court itself. In such cases, both the parties are limited in their rights to express their views on all the evidence, or to challenge the same through their own evidence. 39 The last reflection of the principle of equality of arms in relation to the principle of adversarial proceedings is equality of both the parties to the proceedings in the possibility of lodging an appeal, 40 under the same conditions, in particular within the same deadline. 41 In terms of this criterion, the ECHR was not so rigorous (as in the case of a failure to render a party familiar with some of the evidence), because it accepted certain inequality as not inequitable, unless the matter 37 Decision in the ECHR case: Atlan v. the United Kingdom of 19 June 2001, Application no. 36533/97. 38 ŠÁMAL, Pavel. Fundamental principles of criminal proceedings in a democratic system. Prague: ASPI, 1999, p. 38. 39 Decision in the ECHR case: Nideröst-Huber v. Switzerland of 18 February 1997, Application no. 18990/91. 40 Complaint (Section 142 of the Rules of Criminal Procedure), Appeal (Section 246 and Section 247 of the Rules of Criminal Procedure), Extraordinary Appeal (Section 265d of the Rules of Criminal Procedure), Complaint for Violation of the Law (Section 266 of the Rules of Criminal Procedure), Application for Permission of Renewal of Proceedings (Section 280(2), (3) of the Rules of Criminal Procedure) and Opposition (Section 314g(1) of the Rules of Criminal Procedure). 41 REPÍK, Bohumil. repeated cit., p. 145. 36 Decision in the ECHR case: Rowe and Davis v. the United Kingdom of 16 February 2000, Application no. 28901/95.

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