CYIL vol. 14 (2023)

JIŘÍ MULÁK CYIL 14 (2023) sentence, the sentence on compensation for damage/non-pecuniary damage/repayment of unjust enrichment).

5. ECtHR Case of Tempel v Czech Republic – Failure of the Czech justice system?

An illustrative case in this context is the ECtHR decision in Tempel v Czech Republic . 62 Below I would like to reproduce some of the conclusions of the ECtHR. As regards the facts of the case, in March 2002 the complainant was charged with, inter alia , double murder. The evidence established that two persons, the complainant and the main witness, were present at the scene of the crime. According to the complainant, the witness was murdered in connection with drug trafficking. This version of events was contradicted by the testimony of the main witness, the only direct evidence, according to which the complainant killed with the intention of seizing the vehicle of one of the victims. The Regional Court in Plzeň found substantial contradictions in the witness’s testimony and therefore found it unreliable and acquitted the complainant. The public prosecutor appealed. The High Court in Prague quashed the Regional Court’s judgment and sent the case back to the Regional Court for further consideration. It emphasised that it respected the power of the first instance court to make its own assessment of the evidence, but it had to deal with all the evidence, which it had not done. The Regional Court in Plzeň maintained its position and acquitted the complainant once again. The High Court in Prague again quashed the judgment and, on the basis of Article 262 of the Code of Criminal Procedure, 63 referred the case to the same court, but with a different composition. 64 It reproached the subordinate court for having assessed the credibility of the main witness in a one-sided and biased manner, without addressing the question of the complainant’s credibility. The applicant lodged a constitutional complaint against that decision, alleging a violation of his right to a lawful judge. The Constitutional Court declared it manifestly unfounded. 65 According to the applicant, the conditions for the application of this exceptional procedure were met. The complainant was subsequently acquitted for the third time. Even the Chamber to which the case was reassigned did not find the evidence of the main witness credible. The High Court in Prague again quashed the acquittal. While it admitted that the judgment had been carefully reasoned and that considerable attention had been paid to the evaluation of the evidence, it had nevertheless not been carried out in accordance with the law and the rules of formal logic. He pointed out that the rule of in dubio pro reo , which is based on the presumption of innocence, cannot be interpreted as meaning that all factual ambiguities are in favour of the defendant. The Regional Court in Plzeň nevertheless acquitted the complainant again. In its reasoning, it stated that the Court of Appeal would obviously have assessed the evidence differently, but that it could not give weight to that, since it had to assess the evidence according to its own internal conviction. The High Court in Prague also intervened for the fourth time because 62 Cf. e.g., the ECtHR decision in Tempel v Czech Republic of 25 June 2020, Application No. 44151/12. 63 ŠÁMAL, P. Rozhodování o přikázání věci jinému senátu nebo soudu podle § 262 TrŘ ve světle judikatury Ústavního soudu (Deciding on the transfer of a case to another chamber or court under Section 262 of the Criminal Procedure Code in the light of the case-law of the Constitutional Court). Trestněprávní revue (Criminal Law Review), 2022, No. 3. pp. 125 et seq.

64 ECtHR decision in Tempel v. Czech Republic , § 14. 65 ECtHR decision in Tempel v. Czech Republic , § 27.

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