CYIL vol. 11 (2020)

CYIL 11 (2020) THE CONTRADICTORY PRINCIPLE OF CRIMINAL PROCEEDINGS IN CASE LAW OF ECHR order which has the nature of a judgement of conviction (Section 314e(7) of the Rules of Criminal Procedure) is served on the accused person (instead of the summons). Although its obligatory part is also the instruction on the right to lodge an opposition, whereby this decision is cancelled, and the court becomes obliged to order the main hearing, nevertheless the information about the fact that in the subsequently ordered main hearing also a less favourable judgement can be issued is missing. 67 This may be problematic for both an accused person who is not represented by a lawyer because they may be rather surprised by the issuing of a stricter judgement, and for an accused person to whom their lawyer has explained the consequences of the lodging of an opposition. Such an accused person then may decide about not lodging any opposition at all for fear of a stricter punishment, even in a situation when there is exculpatory evidence. The situation is further complicated by the fact that the judge should use this form of deciding for making a decision on the basis of – as the legislator states – “the facts that have been sufficiently evidenced” (Section 314e(1) of the Rules of Criminal Procedure). 68 An issue in this case consists in the fact that the judge who essentially changes their decision after the lodging of the opposition and after organisation of the main hearing factually admits that the above-mentioned condition was not fulfilled, and in a situation when subsequently in the ordered main hearing the decision is to be made by the same judge who is the author of the cancelled criminal order, there is no wonder that their willingness to deviate from the opinion expressed in the criminal order is minimum. For this reason I believe that the legislation de lege lata would need several changes, when their aim should consist in consistent guarantees of the right to fair trial, i.e. such changes that would enable the accused person, without any fear (whether of deterioration of their situation or of possible bias of the court), to lodge an opposition and by doing so to claim the exercising of the right to presence at the court and of other rights which can only be exercised within the outlines of adversarial (verbal, immediate and public) hearing before court. 69,70 In a conclusion it is necessary to state, while commenting this right, that it is obviously not sufficient that the accused person is present just physically. At the same time, the accused person must be given space to take an active part in the hearing, so that they can use all their rights for the defence. 71 In a situation when the possibilities of the accused person, as far as their proactive participation is concerned, are limited in a certain way (physical limitations, 67 Ibidem. This means that there will not be applied a prohibition on reformationis in peius, like in the case of other remedy means (Complaint - Section 150(1), (3) of the Rules of Criminal Procedure; Appeal – Section 259(4); Section 264(2) of the Rules of Criminal Procedure; Extraordinary Appeal – Section 265p(1); Section 265s(2) of the Rules of Criminal Procedure; Complaint for Violation of the Law – Section 273 of the Rules of Criminal Procedure; Renewal of Proceedings - Section 289(b) of the Rules of Criminal Procedure. 68 ŠELLENG, Dalibor. Manifestations of the principle of material truth in the instrument of a criminal order. In: JELÍNEK, Jiří. (ed.) Basic principles of criminal proceedings – Leading ideas of Czech criminal trials. Prague: Leges, 2016, p. 158 et seq. 69 JELÍNEK, Jiří. Criminal order yesterday, now and tomorrow. Kriminalistika [Criminology], 2015, no. 2. 70 In connection with this institute it is suitable to mention also various forms of deviations where the criminal order is sometimes classified. In Czech criminal trials it is possible to find conditional suspension of criminal prosecution (Section 307 of the Rules of Criminal Procedure), settlement (Section 309 of the Rules of Criminal Procedure), conditional waiver of the application for punishment (Section 179g of the Rules of Criminal Procedure), plea bargain (Section 175a, Section 175b, Sections 314o to 314s of the Rules of Criminal Procedure) and withdrawal from criminal proceedings against a minor (Section 70 ZSM). Moreover: cf. Decision in the ECHR case: Deweer v. Belgium of 27 February 1980, Application no. 6903/75. 71 Decision in the ECHR case: Stanford v. the United Kingdom of 23 February 1994, Application no. 16757/90.

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