CYIL vol. 11 (2020)
CYIL 11 (2020) THE CONTRADICTORY PRINCIPLE OF CRIMINAL PROCEEDINGS IN CASE LAW OF ECHR under the same conditions as witnesses against him ” embedded in Article 6(3)(d) of the European Convention on Human Rights. 76 This right belongs among specific aspects of the right to fair trial guaranteed in Section 6(1) of the European Convention on Human Rights, and therefore in cases when its violation is claimed, the ECHR verifies whether it was “ violated to such an extent that the claimant was denied a fair trial .” 77 The reason for the expressive accent on the adversarial nature of the taking of evidence through examination of a witness is logical, because in particular a witness’s statement often represents one of the most important and most frequent means of evidence serving for clarification of the case. Concerning the right of the accused person to have witnesses summoned in his favour, an absolutely fundamental aspect is the statement that it is possible to do so “ under the same conditions as witnesses against him ”, which means that the principle of equality of arms is manifested even here. The court, whose task is to assess admissibility of the proposed evidence in terms of its presentation at the main hearing, 78 is not generally obliged to satisfy every proposal of the accused person for such an interrogation of a witness. If the latter refused the interrogation, it must not be carried out in a way which disadvantages the accused person (the defence party) 79 against the prosecution party. 80 The criterion at assessment of the evidence admissibility must be its applicability. This leads, on the one hand, to the obligation of the accused person to justify the importance and necessity of the proposed witness, 81 and on the other hand to the obligation of the court relating to proper justification that it does not admit the interrogation of the witness. 82 The above-mentioned facts at the same time suppose that the accused person must ask for the interrogation of the witness. If the accused person was passive, i.e. if they failed to propose witnesses in their favour, they could naturally not claim any violation of their right to fair trial, implying from non-execution of the interrogation of the witness. 83 During the actual execution of interrogations of witnesses, it is necessary, but for some exceptions, to ensure their adversarial nature consisting in the possibility of the accused person to challenge the witness’s statement and to ask the witness some questions, either immediately in the course of the statement or even later. 84 According to the ECHR, an adversarial examination of a witness shall be held, in principle, during the main hearing. Provided that it is not 76 A similar formulation can be found also in Article 14(3)(e) of the International Covenant on Civil and Political Rights. 77 Decision in the ECHR case: Balšán v. the Czech Republic of 18 July 2006, Application no. 1993/02. 78 Decision in the ECHR case: Bricmont v. Belgium of 7 July 1989, Application no. 10857/84. 79 The matter concerns the right of the defence as a whole, not only of the actual accused person. Therefore, it is not a breach of this right if e.g. only a counsel for defence is enabled, within the framework of preparatory proceedings, to take part in some of the activities. (Decision in the ECHR case: Verdam v. the Netherlands of 31 August 1999, Application no. 35253/97.) Concerning the main hearing, the accused person must not be denied participation therein, nevertheless neither the ECHR finds it as a violation of the European Convention on Human Rights if the accused person is excluded from the hearing room for a certain time period (e.g. for the reason of a threat of witness intimidation), if they are, after coming back to the hearing room, rendered familiar with the content of the statement made and can express their opinion thereon. Cf. REPÍK, Bohumil. repeated cit., p. 202. 80 Decision in the ECHR case: Tarau v. Romania of 24 February 2009, Application no. 3584/02. 81 Decision in the ECHR case: Perna v. Italy of 6 May 2003, Application no. 48898/99. 82 Decision in the ECHR case: Sgarbi v. Italy of 21 October 2008, Application no. 37115/06. Cf. JELÍNEK, Jiří, ŘÍHA, Jiří, SOVÁK, Zdeněk. Decisions in criminal matters. Prague: Leges, 2015, p. 314. 83 Decision in the ECHR case: Perna v. Italy of 6 May 2003, Application no. 48898/99. 84 Decision in the ECHR case: Kostovski v. the Netherlands of 20 November 1989, Application no. 11454/85.
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