CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ CZECH REPUBLIC BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS IN 2023 1.6 Interrogation of witnesses As the last of the Court’s decisions against the Czech Republic last year, let’s take a closer look at the Sládek v. Czech Republic decision. 38 It concerned the issue of sentencing based on the testimony of a witness who did not testify during the main hearing and could not be questioned by the defence. The criteria by which the fairness of criminal proceedings in such situations should be assessed were set out by the Court in two Grand Chamber judgments: Al-Khawaja and Tahery v. the United Kingdom 39 and Schatschaschwili v. Germany . 40 In recent years, the Court has communicated to the Czech Republic for its observations eight applications relating to the examination of witnesses in criminal proceedings. This seemed to be an indicator of possible wider misconduct by the Czech criminal courts. However, all of these cases eventually resulted in either a judgment of no violation of Article 6 of the Convention 41 or a decision of manifest lack of foundation. 42 T he Sládek v Czech Republic decision is the latest in this series. In its decision, the Court found that the testimony of a witness whom the defence had been unable to question during the main hearing because he had refused to testify, and who’s questioning the defence counsel had not participated in the pre-trial proceedings, had played a significant role in the applicant’s conviction. However, the courts have cautiously analysed the admissibility of the witness’s testimony and have given proper reasons for their conclusions. Moreover, the conviction was based on a number of other pieces of evidence. The telecommunications records were of key importance; the testimonies of other witnesses were also relevant. The proceedings as a whole were therefore fair. The last conviction for violation of the right to a fair criminal trial due to the impossibility of interrogating a prosecution witness thus remains the 2012 judgment in Tseber v. Czech Republic . 43 2. Execution of the Court’s judgments Last year was not only full of interesting new decisions of the Court. It also brought important developments in the execution of judgments from previous years. Execution of the Court’s judgments of violation includes individual and general measures. The individual measures include the payment of the just satisfaction awarded by the Court and the possibility to request a reopening of the proceedings before the Constitutional Court pursuant to Section 119 of the Constitutional Court Act. The general measures are naturally of wider significance. Their essence consists in ensuring that a similar violation of the Convention will not occur in the future. General measures may take the form of changes in the case law of domestic courts, legislative amendments, changes in internal 38 Application no. 32671/13, decision of 23 March 2023. 39 Applications nos. 26766/05 and 22228/06, judgment of 15 December 2011. 40 Application no. 9154/10, judgment of 15 December 2015. 41 See Štulíř v. Czech Republic, no. 36705/12, judgment of 12 January 2017, and Bátěk and Others v. Czech Republic , no. 56146/09, judgment of 12 January 2017. 42 See Podlipní v. Czech Republic (no. 9128/13, decision of 31 March 2022), Málek and Černín v. Czech Republic (no. 32193/16, decision of 20 October 2022), Schäfer and Todorovic v. Czech Republic (no. 43861/13, decision of 15 December 2022), Lázók v. Czech Republic (no. 13676/15, decision of 15 December 2022), and Barsegian

v. Czech Republic (no. 6261/16, decision of 15 December 2022). 43 Application no. 46203/08, judgment of 22 November 2012.

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