CYIL vol. 11 (2020)

CYIL 11 (2020) THE CONTRADICTORY PRINCIPLE OF CRIMINAL PROCEEDINGS IN CASE LAW OF ECHR and credibility of a secret witness. This will concern, in particular, examination of a witness, situated in a different room, through audio/video technology, as well as the possibility of asking the witness questions through a law enforcement authority or subsequent playback of the audio-video recording of the examination. Since the matter concerns credibility of the witness and immediacy of their responses, which the accused person should be allowed to assess, it is possible to change the voice quality or to mask the face of a secret witness. 98 From all the above indicated guidelines for execution of adversarial examination of witnesses it is clear that the right to the defence and to familiarisation with relevant evidence, which can serve as a ground for a decision about the guilt, including the possibility of challenging the evidence submitted, belongs among fundamental rights of the accused person, which can be limited for very serious reasons only. These rights are, however, not absolute because in the case of their collision with other rights or authorised interests it is necessary to compare the two rights and to decide which of them is to be preferred in the particular case. This conclusion is shared by both the ECHR and the Constitutional Court, 99 because both of them stated that it is only possible to limit the right to defence at the moment when it is not possible to ensure protection of a witness in any manner other than through the secrecy of such a witness. At the same time, it is true that it is always necessary to use such a measure that is the least restrictive in relation to the right to defence. 100 6. Conclusion The principle of adversarial proceedings can be characterised as an element of the right to fair hearing of the case, which is, of itself, an integral part of the right to fair trial. In a certain meaning, a complement to the principle of adversarial proceedings is the principle of equality of arms, which provides both the parties to adversarial proceedings with a chance to effectively foster their authorised interests before court. These principles are absolutely fundamental, in which Repík perceived the position of the two principles “in the very essence of fairness” , when it is not possible, without adversarial proceedings, to speak about a trial at all. 101 Specific meaning of the two principles is determined, within the meaning of the European Convention on Human Rights, by the evolutive interpretation of the ECHR, because even there it is possible to register autonomous interpretations of the terms in the interest of assurance of uniform understanding in jurisdiction of the European Convention on Human Rights. The principle of adversarial proceedings can then be understood as a method of finding the truth or as a right of the parties to defence or as a court trial criterion, which is linked with appropriate fundamental principles of criminal proceedings (Section 2 of the Rules of Criminal Procedure). The principle of adversarial proceedings consists, in my opinion, of two inseparable components - of the right to information (i.e. the right or obligation to get oneself familiar with all the documents and evidence that can affect the 98 KMEC, Jiří, KOSAŘ, David, KRATOCHVÍL, Jan, BOBEK, Michal. European Convention on Human Rights. Prague: C. H. Beck, 2012, p. 828 et seq. 99 Findings of the Constitutional Court of the Czech Republic, file ref. no. IV. ÚS 37/01 of 22 October 2001, and III. ÚS 210/98 of 3 March 1999. 100 It is a fact that in a material legal state which is obliged to guarantee at the same time several contradictory rights, it is necessary to pay appropriate attention to minimisation of negative impacts on these areas - Decision in the ECHR case: Van Mechelen and others v. the Netherlands of 23 April 1997, Applications no. 21363/93, 21364/93 and others. 101 REPÍK, Bohumil. repeated cit., p. 144, 147.

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