CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ THE IMPARTIALITY OF JUDGE AND THE PRINCIPLE OF PRESUMPTION OF INNOCENCE … On the question of “violation” of the presumption of innocence, the ECtHR therefore noted that a violation of the presumption of innocence, 85 occurs when a judicial decision or a statement by a public official concerning a person accused of committing a crime expresses the opinion that the person committed the crime in question before their guilt has actually been established by law. The ECtHR has not disputed that, when deciding on criminal liability in complex cases (“group cases”), reference may also be made to the involvement of persons who may themselves be prosecuted and tried in the future, but the decision in such cases must be formulated in such a way as to avoid any possible preliminary judgment as to the guilt of the person concerned (i.e., without jeopardising their fair trial). 86 The ECtHR has recognised that, given the nature of the offence of organised crime group, it is necessary to refer also to the activities of other persons, including the complainant, when agreeing a plea agreement. However, the references to the complainant themselves were formulated by the national courts in such an explicit manner that it was not clear that the complainant would only be tried later and that his criminal liability had not yet been decided. In fact, the plea agreements and the sentencing judgments of the courts specifically identified the complainant’s involvement in the criminal activity, even though the complainant was referred to only by initials and was not himself a party to such a plea agreement. In the view of the ECtHR, given that the determining Chamber considered the conviction of the complainant’s accomplices to be a “substantial and homogeneous part” of the complainant’s case, it was prima facie motivated to rule in accordance with the previous convictions approving the plea agreements. 87 Any inconsistent findings in one case could undermine the credibility of the decision in the other cases. Moreover, the ECtHR pointed out that the complainant’s conviction rested to a large extent on the testimony of his co-conspirators, who had previously entered into plea bargains themselves, and therefore, in its view, they also had an obvious incentive not to contradict their earlier testimony, which had been given precisely when they had entered into their own plea bargains. The ECtHR therefore concluded that the convictions of the accomplices were manifestly biased against the complainant, which violated his right to strict compliance with the principle of the presumption of innocence. In view of the important role played by those convictions in the proceedings against the complainant, the ECtHR then considered that objectively justified doubts had arisen as to the impartiality of the Chamber which had ruled against the complainant with the same composition as that which had approved the plea agreements of his co-perpetrators. Moreover, that defect has not been remedied by the higher courts in deciding the appeals. For the above-mentioned reasons, the ECtHR unanimously held that Slovakia had violated Article 6(1) ECHR in the Mucha v. Slovakia case. 4. Conclusion The plea bargain, which is a traditional institution of the Anglo-American model of criminal procedure, represents a significant breakthrough in the continental model, as this model is based on different fundamental principles of criminal procedure. In the literature one 85 Judgment of the ECtHR in Mucha v. Slovakia of 25 November 2021, application no. 63703/19, §§ 55. 86 Judgment of the ECtHR in Mucha v. Slovakia of 25 November 2021, application no. 63703/19, §§ 57. 87 Judgment of the ECtHR in Mucha v. Slovakia of 25 November 2021, application no. 63703/19, §§ 57–60.

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