CYIL vol. 9 (2018)

JIŘÍ MULÁK CYIL 9 ȍ2018Ȏ of the purpose of the criminal proceedings. For example, if the fulfilment of the purpose of the criminal proceedings requires the person charged to be taken in custody (detention), this limitation must last for only the time period which is absolutely necessary and must be replaced by another measure, which is less limiting, if such measure is sufficient for fulfilment of the purpose of the criminal proceedings. At the same time the law enforcement authorities are expected, especially by the court, to be impartial and unbiased. 6. Compensation for breach of the principle of the presumption of innocence According to Herczeg, 69 it is possible to achieve compensation of a breach of the presumption of innocence of the person charged in criminal proceedings by using several means, which can be further divided into two categories, namely criminal-law and criminal- procedure means. Concerning the criminal-procedure means, the matter may concern exclusion of the law enforcement authorities according to Section 30(1) of the Rules of Criminal Procedure or delegation according to Section 25 of the Rules of Criminal Procedure, i.e. taking the case away from the materially and locally competent court and its assignment to another court. 70 In this context it is also possible to refer to provisions of Section 262 of the Rules of Criminal Procedure, which enables the court of appeal 71 to order the case to be heard and decided about in a different composition of the panel of judges (or by a different single judge; Section 262, the first sentence, of the Rules of Criminal Procedure), concerning the entire panel or, depending on the particular situation, only some of its members, which is justified e.g. by doubts about the freedom of prejudice on the part of the panel or single judge, or that the case should be heard and decided by another court of the same type and instance in the district (Section 262, the second sentence, of the Rules of Criminal Procedure), which is actually an analogy with Section 25 of the Rules of Criminal Procedure. 72 According to Herczeg, it is furthermore not possible to exclude discontinuation of the prosecution (and similar analogical decisions) either, 73 even though he considers them to be an extreme solution useable on an exceptional basis only, when it is not possible to ignore justified interests of the aggrieved parties, or even to decide in the way which could undermine the general confidence in the democratic legal establishment whose task is, among other things, to properly and equitably decide, by means of judicial power, about the guilt and sentence 69 HERCZEG, Jiří. Vliv medializace trestního stíhání na odpovědnost státu za dodržení spravedlivého procesu. (“Influence of the mediation of criminal prosecution on the responsibility of the state for the observance of a fair trial”). Trestní právo , 2017, no. 3, p. 5. 70 By using this procedure it is, however, possible to change only the local competence, not the material and functional competence. Cf. also Section 24 of the Rules of Criminal Procedure. 71 The rules of specific material (so-called functional) competence of regional and high courts are based, like the local competence, on material (Section 16 and Section 17 of the Rules of Criminal Procedure) and local competence (Section 18 of the Rules of Criminal Procedure) of the court of first instance, whose judgement is reviewed. The court of appeal is therefore always the immediately superior court of a higher instance, into the 73 Pursuant to 172(2)(c) of the Rules of Criminal Procedure, in summary preparatory proceedings pursuant to Section 179c(2)(i) of the Rules of Criminal Procedure, as well as in proceedings before court, after the preliminary hearing concerning the accusation pursuant to Section 188(2) of the Rules of Criminal Procedure, in the trial pursuant to Section 223(2) of the Rules of Criminal Procedure, in the appeal proceedings pursuant to Section 257(1)(c) of the Rules of Criminal Procedure, in the proceedings before a single judge pursuant to Section 314c(1)(b) of the Rules of Criminal Procedure. district of which the court of first instance which issued the challenged judgement belongs. 72 Finding of the Constitutional Court, file ref. no. III. ÚS 90/95 of 7 December 1995.

212