CYIL vol. 11 (2020)

JIŘÍ MULÁK CYIL 11 (2020) and 306(1) of the Rules of Criminal Procedure). Nevertheless, if the court has learnt in a credible way that the reasons for organising the proceedings against a fugitive ceased to exist, it is obliged to deliver, to the accused person, the judgement together with an instruction on the possibility of lodging a proposal for cancellation of the judgement (Section 306a(2) of the Rules of Criminal Procedure) within the deadline of eight days. The cassation of the judgement of conviction will be followed by new main hearing, on the basis of which a new judgement is issued, and for this purpose the prohibition on deterioration - reformationis in peius (Section 306a(4) of the Rules of Criminal Procedure) is valid. Another group of cases in which it is possible to act in the absence of the accused person is formed by proceedings concerning appeals and other remedy means, nevertheless in such cases the court should decide about legal issues ( questiones iuris ) only. 59 At the same time it is necessary to respect equality of arms, and therefore if a decision is to be made in absence of the accused person, the presence of the public prosecutor should not be admissible either. 60 According to the ECHR, presence of the accused person is conversely required if it is necessary for evaluation of personal characteristics of the offender, when it basically applies at cases consisting in reviews of questions of facts ( questiones facti ), 61 or if the court decides about an appeal relating to the sentence. 62 The fourth group of cases when the court is allowed to decide in absence of the accused person is the decision making by way of a criminal order. The instrument of a criminal order is not frequently mentioned in relation with the right to fair trial, 63 nevertheless, even the European Convention on Human Rights, or the ECHR 64 accepts this alternative method of decision making, if the accused person has, after the issuing of a criminal order, which happens in written and non-public proceedings, a possibility of calling out, through their activities, an adversarial (i.e. public, verbal and immediate (Section 2(10), (11) and (12) of the Rules of Criminal Procedure) hearing, i.e. of exercising their right to be present at the court hearing. 65 The recent Czech legislation of the criminal order appears rather problematic from the viewpoint of the right to fair trial and the long series of the accused person’s rights, in particular with regard to the fact that this method of decision making is applied in case of more than one half of all accused persons, because a criminal order can be issued by a sole judge for most basic facts of criminal offences. It is a fact that through a criminal order it is possible to decide about guilt and punishment even in the case when the accused person did not admit their guilt, and it is even possible also in the case when the accused person identified evidence in their favour in the preparatory proceedings, with implementation of which they were referred to the main hearing. 66 In case of fulfilment of legal conditions for the issuing thereof (Section 314e(1), Section 314a(1) of the Rules of Criminal Procedure), however, no main hearing is held unless an opposition is lodged. This means that a criminal 59 Decision in the ECHR case: Cooke v. Austria of 8 February 2000, Application no. 25878/94. 60 REPÍK, Bohumil. repeated cit., p. 151. 61 Decision in the ECHR case: Ekbatani v. Sweden of 26 May 1988, Application no. 10563/83. 62 Decision in the ECHR case: Cooke v. Austria of 8 February 2000, Application no. 25878/94. 63 JELÍNEK, Jiří. Criminal order yesterday, now and tomorrow. Kriminalistika [Criminology], 2015, no. 2. 64 ŠELLENG, Dalibor. Criminal order in the light of the European Court of Human Rights case law. Kriminalistika [Criminology], 2016, no. 1, p. 47 et seq. 65 Decision in the ECHR case: Hennings v. Germany of 16 December 1992, Application no. 12129/86. 66 VANTUCH, Pavel. Criminal order, conditions for its issuance and possibilities of defence. Criminal right , 2013, no. 7-8, p. 9.

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