CYIL vol. 14 (2023)

JIŘÍ MULÁK CYIL 14 (2023) that court as well and ordered it to be heard by another court in its district – the Regional Court in Prague. The ECtHR found that the relevant provisions of the Criminal Procedure Code did indeed allow such a procedure for important reasons. However, the established case-law of the Constitutional Court interprets it in such a way that it is an exceptional procedure, for which there must be clear, obvious, and unquestionable reasons, the existence of which has been unequivocally proven. The appellate court may order the Court of First Instance to eliminate contradictions in the findings of fact or to repeat or re-examine certain evidence, but it may not overturn its decision merely in order to impose its own view on the evaluation of the evidence. The Court of Appeal may draw the attention of the Court of First Instance to other matters to be dealt with, but it may not give binding instructions as to the conclusions of fact to be reached. The ECtHR pointed out that, although this was an exceptional measure, it had been applied repeatedly by the High Court in the present case until the applicant was found guilty. It is clear from the reasoning of its decision that it criticised the subordinate court in particular for the way in which it assessed the evidence. The wording used suggests that the Court of First Instance should have reached a different conclusion on the issue of the credibility of the main witness and that the Court of Appeal did not accept a result other than the conviction of the applicant. However, according to the ECtHR, this approach is contrary to Article 263(7) of the Code of Criminal Procedure, according to which the Court of Appeal is bound by the assessment of the evidence made by the Court of First Instance. 72 The Court of Appeal cannot consider the question of credibility, all the more so if it does not hear the witness itself. Under no circumstances may it then instruct the Court of First Instance on the question of the defendant’s guilt. The High Court in Prague did not provide any reason why it did not hear the key witness itself. If there was a discrepancy between the two courts in their assessment of his credibility, it was appropriate to do so, or at least to state why an interview was not necessary. 73 The High Court’s doubts about the ability of the Court of First Instance to make an objective and fair decision were based solely on the fact that it had reached different findings of fact and views on the question of the applicant’s guilt. As a result, the procedural procedure of the High Court may have influenced the decision making of the Regional Court in Prague in that it may have become convinced that the only outcome of the proceedings which would stand up to scrutiny was the conviction of the complainant. The ECtHR also pointed out that the decision of the High Court in Prague contained wording that, in its view, could be interpreted as suggesting that the Court of First Instance should have reached different conclusions as to the credibility of the witness in question and that the Court of Appeal would not accept a result other than the conviction of the applicant. The ECtHR noted that such conclusions could hardly stand up in the light of the settled case-law of the Constitutional Court. 74 In the ECtHR’s view, the Court of Appeal may not, under any circumstances, instruct the trial court as to whether it should decide on the guilt or innocence of the defendant, nor may it base its doubts as to the independence

72 ECtHR decision in Tempel v Czech Republic , §§ 47–49. 73 ECtHR decision in Tempel v Czech Republic , §§ 68–69.

74 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. p. 127.

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