CYIL vol. 9 (2018)

JIŘÍ MULÁK CYIL 9 ȍ2018Ȏ Another consequence of this principle shall be the rule in dubio pro reo (based on the principle in dubio pro libertate , i.e. in case of doubts a decision is made in favour of the person charged). 49 This means that if there remain, after using all achievable evidence, reasoned doubts about the facts important for the decision, which cannot be dispersed by execution and investigation of other available evidence, it is necessary to make a decision in favour of the person charged. 50 This means that if law enforcement authorities did not manage to obtain enough evidence enabling an unambiguous conclusion about the guilt, it is necessary to pronounce a conclusion more favourable for the person charged, i.e. to declare innocence. This rule concerns only the issues of facts ( questiones facti ). About legal issues ( questiones iuris ) the law enforcement authorities must make an unambiguous decision according to the iura novit curia principle. The in dubio pro reo rule, however, cannot be interpreted in such a way that any inessential lack of clarity regarding the facts, implying especially from small discrepancies in statements of witnesses, would always have to necessarily lead to exoneration from accusation. 51 According to Císařová, the acceptance of the principle of presumption of innocence “ leads to the court being obliged to find the maximum possible volume of evidence, which can clarify the matter from all points of view. Nevertheless, there are discrepancies which cannot be removed by any investigation, and then it only depends on the court’s consideration how it will evaluate the evidence. Only then, after the evaluation of the evidence is it necessary to consider whether there are any doubts or not, and then to use the presumption of innocence in the case of persisting lack of clarity regarding the facts .” From her approach it implies that at first it is necessary to apply the principle of searching and free evaluation of evidence, and then the presumption of innocence is applied, in other words – the presumption of innocence does not limit the principle of free evaluation of evidence. 52 Since the extent and method of application of this rule are markedly limited by application of other principles, this rule is applied at the very end of the criminal proceedings after utilisation of all realistically available evidence capable of contributing to the appropriate clarification of the matter, and therefore it is no wonder that this rule is not fully applied at the stage of preparatory proceedings. This different approach implies from the role of the preparatory proceedings, which should be just a “prelude” of the main trial, which forms the centre point of taking of evidence in criminal proceedings. In this context it is possible to highlight the different formulation of Section 172(1)(a) of the Rules of Criminal Procedure and Section 226(a) of the Rules of Criminal Procedure. The fact is that through investigation it is necessary to prove, in an unambiguous way, that the act for which the prosecution was initiated and conducted did not occur; if there were such doubts or if there were several variants of the course of the act, supported by contradictory evidence, one group of which confirms the commitment of that act while the other one disproves this conclusion, the public prosecutor is obliged to file the accusation and the matter must be heard before court, i.e. at application of the principles of oral proceedings, immediacy and free evaluation of evidence. At the same time it applies, according to the 49 Decision of the European Court of Human Rights, Vassilios Stavropoulos v. Greece, application no. 35522/04, of 27 September 2007, point 39. 50 The reasons for exoneration from accusation correspond to this rule as well [Cf. especially Section 226(a), (c) of the Rules of Criminal Procedure]. Cf. the finding of the Constitutional Court, file ref. no. III. ÚS 1624/09. 51 Resolution of the Constitutional Court, file ref. no. III. ÚS 1806/09. 52 CÍSAŘOVÁ, Dagmar. Presumpce neviny jako základní zásada trestního řízení v demokratickém státě (úvahy a podněty pro rekodifikaci). [“The Presumption of Innocence as a Basic Principle of Criminal Proceedings in a Democratic State (Considerations and Suggestions for Recodification)”]. Trestní právo , no. 4, 1998, p. 3.

208