CYIL vol. 11 (2020)

JIŘÍ MULÁK CYIL 11 (2020) sensory disorders), it will be necessary to provide for a compensation of disadvantages connected with their particular health problems (permission of the presence of an assisting person, provision of a sign language interpreter). 72 At the same time, the court is obliged to facilitate suitable conditions during the hearing (assurance of good acoustic characteristics inside the hearing room). 73 If criminal proceedings are conducted against a minor person, their case must be conducted and heard only in such a manner that is adequate to their age and intellectual and moral maturity and which is comprehensible for the minor so that it can be possible for them to respond to the implemented evidence and to exercise all other rights of defence they may have. 74 It is not a violation of the European Convention on Human Rights if the right to be present at the court hearing is implemented through a video conference, which may be used in the case of accused persons who are highly dangerous. If a video conference is used, it will be necessary to pay increased attention to the guaranteeing of other rights as well, e.g. to provide sufficient space for communication between the accused person and their lawyer. 75 From the above-stated text it is possible to derive that the presence of the accused person at the court hearing is an absolutely fundamental condition for the exercising of all other procedural rights when – if the accused person is present at the hearing – it is obligatory to enable them to fully realise these rights. At the same time, the presence of the accused person is absolutely fundamental for clarification of the facts immediately affecting the court decision in the matter, which includes establishing the facts and assessment of personal characteristics of the accused person, in particular as far as the sentence statement is concerned. Only in the presence of the accused person it is therefore possible to fulfil both the main purposes of criminal proceedings (implementation of a fair trial, punishment of actual offenders). For these reasons, the right to be present at the court hearing should not be ignored, conversely, the presence of the accused person should always be fostered and proceedings without their presence should only be organised in the situations when it is not possible to ensure their participation through available means. On the other hand, it is, however, necessary to facilitate hearing in the absence of the accused person, if the accused person fails to use their rights and their only aim is to block criminal proceedings and to postpone issuance of a fair decision. The accused person in that case cannot rely on being exempt from punishment if they are able to effectively hide themselves from the exercising of a public interest and justice, and in accordance with the principle that rights belong to the vigilant ( vigilantibus iura scripta sunt) they should be motivated to arrive before court by themselves in their own interest and with the use of all existing instruments of the right to defence. 5. Right to summons and adversarial examination of a witness The principle of adversarial proceedings is not, in spite of its meaning or just thanks to its meaning, usually explicitly embedded in a normative way in its full extent. This means that in practice an explicit normative embedment basically belongs only to selected aspects of this general principle. An example of this approach is the right “ to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf 72 Decision in the ECHR case: Timergaliyev v. Russia of 14 October 2008, Application no. 40631/02. 73 Decision in the ECHR case: Stanford v. the United Kingdom of 23 February 1994, Application no. 16757/90. 74 Decision in the ECHR case: V. v. the United Kingdom of 19 December 1999, Application no. 24888/94 or Adamkiewicz v. Poland of 2 March 2010, Application no. 45729/00. 75 Decision in the ECHR case: Marcello Viola v. Italy of 5 October 2006, Application no. 45106/04.


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