CYIL vol. 11 (2020)

CYIL 11 (2020) THE CONTRADICTORY PRINCIPLE OF CRIMINAL PROCEEDINGS IN CASE LAW OF ECHR order that it can be considered as a really voluntary and unambiguous waiver, it is necessary to ensure that the accused person is really informed at least about the place and time of the hearing (or about other facts), on the basis of which they are able to decide. For these reasons it is necessary to deliver to them (to their own hands – personal delivery) not only the summons, 51 but at the same time also the information about possible changes. 52 It is a matter-of-course that all the information on the prepared court hearing must be delivered in an adequate term and also in a language that the accused person understands. 53 This means that for the respecting of the right to fair trial it is not sufficient if the accused person has learnt about the hearing in any other (unofficial) way. 54 The second group of cases at which it is possible to organise the main hearing without presence of the accused person consists of proceedings conducted against a fugitive. 55 It is possible to consider an accused person avoiding criminal proceedings by staying in a foreign country or by hiding (Section 302 of the Rules of Criminal Procedure) to be a fugitive. In the context of the European Convention on Human Rights, there are certain doubts about whether the fact that the accused person is avoiding criminal proceedings can be treated as unambiguous and voluntary waiver of the right to presence at the court hearing. According to the ECHR, at the moment when the reasons for organisation of the proceedings against a fugitive cease to exist, the accused person must have an opportunity of exercising their procedural rights in a new trial, because avoidance of the criminal proceedings cannot be assigned the meaning of a waiver of the right to personal participation at the hearing. 56 While in the past the ECHR refused to answer this question directly, even though it deemed it necessary to make it possible for the accused person that a new decision should only be issued after their being heard by the court, when the summons for the court hearing were not delivered to the accused person and at the same time the law enforcement authorities did not endeavour the necessary effort to find out their new address. 57 Later on, the ECHR decided, in another case, that the accused person whose absence at the hearing was the result of their own fault does not have the right to new proceedings. To the detriment of the issue, however, it did not provide an explanation stating from what grounds possible responsibility of the accused person for a failure to arrive at the court hearing should be derived. 58 The Rules of Criminal Procedure takes a side in favour of the rights of the defence, because Section 306a of the Rules of Criminal Procedure makes it possible to present the evidence already implemented again not only before court, if the reasons for organising the proceedings against a fugitive cease to exist in the course of the proceedings, but also to cancel an issued final judgement of conviction if the reasons for organising the proceedings against a fugitive have only ceased to exist when the judgement became final. The judgement, like other documentary materials, is delivered, in the course of the proceedings against a fugitive, naturally just to the lawyer of the accused person, whom the accused person must have for all the time of organisation of the proceedings against a fugitive (Section 36(1)(c), Section 304 51 Ibidem. 52 Decision in the ECHR case: Mitrevski v. Macedonia of 21 June 2007, Application no. 33046/02. 53 Decision in the ECHR case: Brozicek v. Italy of 19 December 1989, Application no. 10964/84. 54 Decision in the ECHR case: F.C.B. v. Italy of 28 August 1991, Application no. 12151/86. 55 REPÍK, Bohumil. repeated cit., p. 151. 56 Ibidem. 57 Decision in the ECHR case: Colozza v. Italy of 12 February 1985, Application no. 9024/80. 58 Decision in the ECHR case: Medenica v. Switzerland of 14 June 2001, Application no. 20491/92.

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