CYIL vol. 11 (2020)
JIŘÍ MULÁK CYIL 11 (2020) possible to ensure this, it is possible to be satisfied with the condition that the examination is carried out in an adversarial way already in preparatory proceedings, 85 when this statement can be used as evidence also in the case when it is changed by the witness in question during the proceedings, or if the witness then refuses to provide any further statements. 86 In other words, adversarial proceedings must be of such a type that they can provide the accused person with a sufficient and proper opportunity of interrogating and challenging the credibility of a witness against themselves, either at the time when such a witness is making their statement or at a later phase of the criminal proceedings. There may, however, naturally occur situations when the accused person did not have a possibility of being present at the examination of a witness or asking them questions in preparatory proceedings, and yet it is not possible to examine the witness at the proceedings before court for various reasons (their current stay is not known, the witness refuses to make a statement, the witness loses their capacity to make a statement or dies). Not even in such cases is it, however, possible for the accused person to be denied their rights either. 87 In order that the court can be able, even in such a situation, to establish a judgement of conviction, it is necessary to meet rigorous conditions. From the decision-making practice of the ECHR it firstly implies that such a witness statement must not contribute to conviction of the accused person at a decisive rate or be even the only incriminating evidence. 88 Secondly, concerning a witness at whom their stay is unknown, the appropriate authorities must develop an activity towards the search for the witness in order to ensure their presence at the court hearing. 89 Thirdly, the ECHR admitted an alternative that the accused person waives their right to adversarial examination of that witness. If the accused person or their lawyer had a possibility of being present at the examination, however, they did not make use of such a possibility, and at the same time there were not identified any serious obstacles preventing them from participation, they cannot object later on that their right was breached. 90 In Czech criminal proceedings it is possible, within the framework of standard preparatory proceedings, to interrogate witnesses, if there is a threat of the loss of evidence value of the witness or if the matter concerns an urgent or unrepeatable act, and in such a case it is necessary for the judge to be present at such an act (Section 158a of the Rules of Criminal Procedure). 91 The interrogations of witnesses which were not made as urgent or unrepeatable 85 Ibidem. 86 Decision in the ECHR case: Camilleri v. Malta of 16 March 2000, Application no. 51760/99. 87 Decision in the ECHR case: Fausciana v. Italy of 1 April 2004, Application no. 4541/02. 88 Decision in the ECHR case: VanMechelen and others v. the Netherlands of 23 April 1997, Applications no. 21363/93, 21364/93 and others. The ECHR was dealing with the interpretation when such evidence is considered decisive in its judgement in the case “ Al-Khawaja and Tahery v. the United Kingdom of 15 December 2011”, Applications no. 26766/05 and 22228/06. It is the evidence which is so significant that it is possible to consider it as determining for the result of the trial. Where the judgement was based also on other evidence, it depends on the rate at which it contributed to the decision. In the decision in the ECHR case: V. C. v. Moldova of 12 October 2010, Application no. 25470/05, the ECHR stated that if the judgement of conviction was not established on statements during the obtaining of which there was a violation of the right of the defence, it cannot establish any violation of the European Convention on Human Rights. 89 Decision in the ECHR case: Rachdad v. France of 13 November 2003, Application no. 71846/01. 90 Decision in the ECHR case: Kopecký v. the Czech Republic of 30 March 2010, Application no. 32456/04. 91 Concerning these issues: ŘÍHA, Jiří. Selected aspects of applicability of protocols on earlier witness statements at the main hearing with regard to the ECHR case law. In: JELÍNEK, Jiří et al. Taking evidence in criminal proceedings in the context of the right to fair trial. Prague: Leges, 2018, p. 233 et seq.
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