CYIL vol. 11 (2020)

JIŘÍ MULÁK CYIL 11 (2020) concerned an unjustified disproportion in the rights of both the parties and unless the right to the defence was prejudiced at the same time. 42 It was also the Constitutional Court of the Czech Republic that was deciding with reference to the principle of equality of arms in relation to the possibility of lodging an appeal, namely about constitutionality of legislation relating to an extraordinary remedy means – complaint for violation of the law. 43 Although the right of the accused person to be present at the court hearing, by the way, as well as a number of other “invisible” rights, are not explicitly stated in Article 6 of the European Convention on Human Rights, according to the decision-making practice of the ECHR they imply teleologically (from the purpose of that article). Other procedural rights guaranteed by Article 6 of the European Convention on Human Rights, whether explicitly or in consequence of the decision-making practice of the ECHR, cannot be effectively implemented without the presence of the accused person. 44 The matter concerns an idea similar to the idea stating that “ the right to the trial of a certain quality ” cannot exist without “the right to access” to court. 45 Presence at the court hearing must be naturally made possible also for the accused person who finds themselves in custody (is held in detention) or is serving a sentence of imprisonment. 46 In its decision-making practice, the ECHR stated that personal presence of the accused person at the court hearing is so desirable that it is not in contradiction with the meaning of the European Convention on Human Rights, if national legislation imposes the obligation to appear before court on the basis of summons upon the accused person, when such an obligation can be enforced by using other enforcement instruments (bringing to trial or sanctions in the form of a disciplinary penalty). On the other hand, however, it stated that the accused person cannot be deprived of the right to defence by non-admission of their lawyer for the reason of a failure to appear before court for the hearing in a criminal case. 47 Nevertheless, the ECHR at the same time stressed that an absolute ban on organisation of court hearing at the absence of the accused person could paralyse criminal proceedings e.g. by the fact that such a situation could lead to some deformation of the evidence and its information value, negative prescription of prosecution, or even to denegatio iustitiae. 48 For this reason, it is not a breach of the European Convention on Human Rights, if the national legislation provides the accused person with a possibility of waiving the right to presence at the court hearing, when it is possible to do so, according to the ECHR, even in an implied way, e.g. in such a manner that the accused person fails to arrive upon summons at the court hearing without any apology, 49 nevertheless, this must happen in a voluntary and unambiguous way. 50 In 42 Decision in the ECHR case: Kremzow v. Austria of 21 September 1993, Application no. 12350/86. 43 Finding of the Constitutional Court of the Czech Republic, file ref. no. Pl. ÚS 15/01 of 31 October 2001. 44 Decision in the ECHR case: Colozza v. Italy of 12 February 1985, Application no. 9024/80. 45 Decision in the ECHR case: Golder v. the United Kingdom of 21 February 1975, Application no. 4451/70. 46 Decision in the ECHR case: Goddi v. Italy of 9 April 1984, Application no. 8966/80. 47 Decision in the ECHR case: Van Geyseghem v. Belgium of 21 January 1999, Application no. 26103/95. 48 Decision in the ECHR case: Colozza v. Italy of 12 February 1985, Application no. 9024/80. 49 Decision in the ECHR case: Hermi v. Italy of 18 October 2006, Application no. 18114/02. 50 REPÍK, Bohumil. repeated cit., p. 151. 4. Principle of adversarial proceedings and the accused person’s right to be present at the court hearing

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