CYIL vol. 11 (2020)

CYIL 11 (2020) THE CONTRADICTORY PRINCIPLE OF CRIMINAL PROCEEDINGS IN CASE LAW OF ECHR should be repeated later on (if possible) at participation of the accused person or their lawyer (Section 164(4) of the Rules of Criminal Procedure). An important role is played by provisions of Section 211 of the Rules of Criminal Procedure, determining the cases in which it is possible to read the protocol on interrogation of a witness at the main hearing, when one of these cases is just the subsequent unavailability of the witness, for the reason of their death, prolonged disappearance, unreachability, for the reason of their long-term stay abroad or a disease which permanently or for a long time makes their interrogation impossible. Although the Rules of Criminal Procedure do not state it explicitly, it is necessary to ensure that in the cases when the statements of a witness whom the defence could not ask questions is read at the main hearing, a possible judgement of conviction is not based exclusively or at a decisive rate on such an statement. This implies from the interconnection of the national legislation with the European Convention on Human Rights, including the interpretation presented by the ECHR. 92 The adversarial nature of criminal proceedings in relation to interrogations of witnesses is to be supported also by provisions of Section 89(2) of the Rules of Criminal Procedure and Section 215(2) of the Rules of Criminal Procedure. These are provisions enabling each of the parties not only to find, submit or propose the evidence, but also to implement the same at the main hearing, which concerns interrogation of a witness as well. Here it will concern in particular the witnesses interrogated upon a proposal of either of the parties. It is, however, appropriate to add that the use of such a possibility of interrogation of a witness directly by the defence was increasing only rather slowly, 93 which was caused by several reasons. Such requests were assessed negatively on the part of presiding judges because they considered them as a manifestation of distrust towards the court. Last but not least, it is very difficult to ensure regularity of execution of an interrogation if it was to be made by the accused person themselves without a lawyer. For these reasons, counsels for defence were rather reluctant and preferred not to try to interrogate witnesses. The existence of such reasons, however, led legislators to the concept when the defence can retain a possibility of asking the presiding judge so that the defence can be able to make, by themselves, interrogations of witnesses proposed in favour of defence, or whether the defence leaves such an interrogation up to the presiding judge for the purpose of fostering credibility of a witness. This way the defence demonstrated that the interrogation is not prepared or drilled a priori, and by doing so it provides the court with space for free assessment of evidence, for better assessment of credibility of a particular witness. The Rules of Criminal Procedure de lege lata do not provide the presiding judge with a possibility of inviting the counsel for defence or the accused person to implement the evidence proposed by the defence. 94 The position of the prosecution is different, as provisions of Section 180(3) of the Rules of Criminal Procedure explicitly enables the presiding judge to invite the public 92 Cf. Decision in the ECHR case: Fausciana v. Italy of 1 April 2004, Application no. 4541/02, where it is stated that the accused person cannot be denied their right just for the reason that national laws and regulations make it possible to establish a decision on statements of witnesses who are unreachable later on, when such statements were made without participation of the accused person or their lawyer within the framework of preparatory proceedings. 93 These provisions were legislatively embedded through the amendment no. 292/1993 Coll. and amended through the amendment no. 265/2001 Coll. 94 JELÍNEK, Jiří. Taking evidence from the viewpoint of future legislation of the Czech Rules of Criminal Procedure. In: JELÍNEK, Jiří et al. Taking evidence in criminal proceedings in the context of the right to fair trial. Prague: Leges, 2018, p. 25.

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