CYIL vol. 14 (2023)

JIŘÍ MULÁK CYIL 14 (2023) depart from the conclusions of the Court of First Instance. 37 Exceptions to this case must be very specifically defined and are in principle only permissible where, for objective reasons, the same judge cannot continue the proceedings or the evidence cannot be repeated, and procedural safeguards must be in place to protect the interests of the accused. 38 For example, the keeping of accurate records combined with the fact that no doubts have arisen in the proceedings as to the credibility of the witness may stand. 39 This is all the more so where the superior court, without taking evidence, reassesses the conclusions of the inferior court concerning the witnesses’ statements and bases a new factual conclusion on them, without repeating their examination, contrary to that of the Court of First Instance. 40 A specific issue in this context is the assessment of the witness’s credibility, which the ECtHR considers to be a very complex exercise which, in principle, cannot be carried out solely on the basis of the report of the statement without examining the witness in person. 41 The same applies to the assessment of the credibility, personality, character, or other personal aspects of the accused. 42 3.2 The right to be present at the appeal hearing Although the right to be present at the hearing before the trial court is not in dispute, 43 the ECtHR has developed rather complex rules concerning the rights of accused (or convicted) persons to be present at the hearing on appeal. It is worth recalling that in one of its early judgments the ECtHR took the opportunity to state the basic principle for the application of Article 6 in appeal proceedings: “ Article 6(1) is indeed applicable to appeal proceedings. However, the manner of its application must clearly depend on the specific features of such proceedings. ” 44 More recently, the ECtHR 45 has emphasised that, compared with proceedings at first instance, the personal appearance of the defendant is not necessarily of the same importance in appeal or annulment proceedings as it is in court proceedings. In assessing this question, account must be taken, inter alia , of the particular features of the proceedings in question and the manner in which the interests of the defence are presented and protected before the Court of Appeal, in particular with regard to the issues to be decided and their importance for the complainant. 46 3.3 The right to a statement of reasons in the case-law of the ECtHR The ECtHR has referred to the right of parties to give reasons for decisions affecting them in several of its decisions. It sees the statement of reasons in three dimensions: firstly, as a right of a party to receive an adequate response to its submissions, arguments, and objections (otherwise, even the right to them would be meaningless), secondly, as a guarantee of fair decision-making by the courts, controlled by the public, avoiding cabinet justice, and thirdly, 37 ECtHR decision in Dan v Moldova of 10 December 2020, Application No. 57575/14, § 52. 38 Section 219 of the Criminal Procedure Code and the ruling of the Constitutional Court of the Czech Republic, Case No. IV ÚS 2565/19 of 22 September 2020. 39 ECtHR decision in Cutean v Romania of 2 December 2014, Application No. 53150/12, § 61. 40 ECtHR decision in Găitănaru v Romania of 26 June 2012, Application No. 26082/05, § 32. 41 ECtHR decision in Lazu v Moldova of 5 July 2016, Application No. 46182/08, § 40. 42 ECtHR decision in Zahirovic v Croatia of 25 April 2013, Application No. 58590/11, § 57. 43 TRECHSEL, S. Human Rights in Criminal Proceedings. Oxford: Oxford University Press, 2006, p. 260. 44 ECtHR decision in Delcourt v Belgium of 17 January 1970, Application No. 2689/65, § 26. 45 TRECHSEL, S. Human Rights in Criminal Proceedings . Oxford: Oxford University Press, 2006, pp. 257–261. 46 ECtHR decision in Pobornikoff v Austria of 3 October 2000, Application No. 28501/95, § 24.

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