CYIL vol. 14 (2023)

JIŘÍ MULÁK

CYIL 14 (2023)

6.1 Constitutional Court of the Czech Republic (Case No. I. ÚS 1365/21) The first of them is the ruling of the Constitutional Court of the Czech Republic, Case No. I. ÚS 1365/21 . 79 In the present case, the issue was the right to judicial protection in the case of a remand by the Court of Appeal in criminal proceedings, namely the failure of the Court of Appeal to be bound by the findings of fact of the Court of First Instance and exceeding of the limits for the imposition of instructions by the Court of Appeal on the Court of First Instance. In this decision, the Constitutional Court stated that the provisions of Section 263(7) of the Code of Criminal Procedure must be interpreted in a constitutionally consistent manner in such a way that the Court of Appeal cannot reassess the facts established by the Court of First Instance as a whole from a different point of view than whether these facts were reached on the basis of evidence duly and to the necessary extent and whether the Court of First Instance gave convincing, internally inconsistent, and exhaustive reasons for them. The Court of Appeal may then assess the individual pieces of evidence adduced before the Court of First Instance only as to the lawfulness of the manner in which they were taken and the logicality and completeness of their assessment. It may not, however, review the findings of fact made by the Court of First Instance, nor may it review the conclusion on the reliability of the evidence (in particular the credibility of the witness) made by the Court of First Instance. It is also important that the appellate court may make its own findings of fact only if it completes the evidence itself or re-executes the evidence already taken by the Court of First Instance. If it chooses to do so, it must conduct the evidence in open court in accordance with the principles of directness, immediacy, and free evaluation of the evidence and allow the accused the same standard of defence as if the evidence had been taken in the main trial (i.e., the accused must be allowed to be present, to ask questions if the evidence is to be given to a witness, a co-accused, or an expert witness, to comment on the content and manner of the evidence, to make further evidentiary submissions, etc.), in accordance with the principles of the right to a fair defence and adversarial procedure. It is consistent with a constitutionally compliant interpretation of Section 264(1) of the Code of Criminal Procedure that, as a basic rule, the trial court must respect and comply with the instruction of the appellate court. It may refuse to do so only exceptionally, namely if such an instruction is explicitly formulated as unconstitutional (e.g. if the Court of Appeal explicitly ordered the Court of First Instance to make certain findings of fact) or if its disguised unconstitutionality is quite obvious. In principle, the Court of First Instance can only draw such a conclusion if its judgments are repeatedly overturned by the Court of Appeal and the fact that it does so in order to force the Court of First Instance to adopt its own conclusions of fact or assessment of the evidence is apparent from the specific facts and, at the same time, there is no legitimate explanation for the Court of Appeal’s action. The requirements for a constitutionally-conforming interpretation of Section 264(1)(a) of the Criminal Procedure Code in terms of instructions in relation to the facts and the process of evidence can then be generalised in such a way that the Court of Appeal may, in particular, instruct the Court of First Instance to supplement the evidence in relation to a circumstance which has not been clarified at all or has been clarified only insufficiently. To take specific evidence which has been proposed, sought, or secured but which the Court of 79 Decision of the Constitutional Court of the Czech Republic, Case No. I. ÚS 1365/21 of 22 February 2022.

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