CYIL vol. 11 (2020)
JIŘÍ MULÁK CYIL 11 (2020) prosecutor to implement the evidence supporting the prosecution. The indicated unequal access to this possibility should be understood as one of the consequences of favor defensionis , requiring unequal positions of the defence party in the continental model of a criminal trial. At the same time it means an effective elimination of prejudice on the part of the court towards the evidence submitted by the defence, which does not act as a protector of public interests. 95 Within the framework of practical application of requirements for adversarial examination of a witness and therefore full respecting of the rights of the accused person implying from Article 6(3)(d) of the European Convention on Human Rights, specific difficulties arise in situations when it is necessary to interrogate witnesses with a threat of detriment to their life, health or freedom in consequence of the statements made. According to the ECHR, provisions of Article 6 of the European Convention on Human Rights do not require the rights of witnesses to be taken into consideration within the framework of a fair trial, but there are other provisions aimed at protection of their rights, which should be respected as well. 96 It is possible to protect vulnerable witnesses by interrogating them as secret witnesses. The ECHR has determined a three-level test for the purpose of a review of applicability of execution of a non-adversarial examination of a witness: 1. Is there any serious reason for the absence of the witness? 2. Does the statement of the witness represent exclusive or decisive evidence? 3. Are there any sufficient balancing factors compensating the onerous conditions at which the defence operated? A serious reason for the absence may be formed of a number of facts, an example could be death or witness’s fear, health reasons or unreachability of the witness. 97 If the answer to the existence of a serious reason for the absence of a witness is negative, it is possible to generally state that the witness’s statement should not be useable. The ECHR itself, however, commented this issue in such a manner that the non-existence of a serious reason for the absence of a witness cannot be (of itself ) of a decisive nature for a conclusion of unfairness of the proceedings. The witness’s statement forms exclusive evidence if it is the only evidence against the accused person. The decisive evidence is then the incriminating evidence of such importance or significance that it is likely to be decisive for the result of the proceedings. The assessment of whether the statement of an absent witness forms decisive evidence or not, is up to domestic courts which must deal with this issue in their decisions. If they fail to do so or if their justification is unacceptable or wilful, the review of the decisive nature of specific witness statements is up to the ECHR. In order that it can be possible to use a witness statement representing exclusive or decisive evidence and not being implemented at the main hearing, it is necessary to compensate, in a sufficient manner, the insufficiencies for the defence implying from the fact that it could not take part in interrogation of a witness and ask them questions. If the compensation is sufficient, the proceedings as a whole are fair in spite of the fact that the right implying from Article 6(3)(d) of the European Convention on Human Rights was breached in a particular case. According to the ECHR, suitable measures are various ways enabling the accused person to assess (challenge) the truthfulness 95 FENYK, Jaroslav. Principles of public prosecution in criminal proceedings. Policajná teória a prax [Police theory and practice], 2002, no. 3, pp. 65-66. 96 Decision in the ECHR case: Doorson v. the Netherlands of 26 March 1996, Application no. 20524/92. 97 In the case of unreachability, the court must do all what can be reasonably expected from it for assurance of the witness’s presence (to search for proactively with the help of national authorities or to use international legal aid).
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