CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ THE CZECH REPUBLIC BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS IN 2017 equipped with a similarly strict set of standards.) By delivering its judgment in Regner , the Grand Chamber of the Court did not upset the existing national consensus on the way of ensuring judicial review of decisions adopted in the area of security clearances and agreed in essence with the national courts that there had been sufficient counterbalancing factors. One can imagine however that the standards of acquainting a party with this kind of proceeding with classified pieces of evidence may be configured differently, and that there is room for progress as recommended by the Court, i.e. in the sense of at least summarily informing the party of what they are reproached for. 1.2 Examination of witnesses in court The Czech Republic has already faced a certain number of cases where the accused were not put in a position to cross-examine absent witnesses of the prosecution whose testimonies, taken as an urgent and unrepeatable measure before bringing the charges, had been read out at the court trial. 7 The series, which surely remains open, was complemented by two judgments in 2017, in which the Court did not conclude to a violation of Article 6 § 1 and 3 d) of the Convention by five votes to two. In the case of Štulíř v. the Czech Republic (no. 36705/12, judgment of 12 January 2017), the applicant was charged mainly with unlawful restraint and coercion deployed against his former female partner who later started to work in the United Kingdom and, for that reason as well as fearing the applicant, she refused to come back to testify in court. Her testimony was corroborated by other pieces of indirect evidence, such as some other witnesses’ statements, written messages and expert opinions which essentially confirmed the version she gave before the trial. In the case of Bátěk and others v. the Czech Republic (no. 54146/09, judgment of the same day), the applicants were a group of customs officers charged with corruption, namely that they had requested bribes from truck drivers for speedier border control. Since they had been suspected of that practice for some time, an undercover police agent infiltrated the team of customs officers. The applicants were found guilty inter alia on the basis of depositions of Romanian truck drivers who were absent at the trial and the undercover member of the police who was heard in court as an anonymous witness. The Court first recalled the principles stemming from its case law in the area of using evidence provided by absent (or anonymous) witnesses, in particular from the Al-Khawaja and Tahery v. the United Kingdom and Schatschaschwili v. Germany judgments (respectively nos. 26766/05 and 22228/06, judgment [GC] of 15 December 2011; and no. 9154/10, judgment [GC] of 15 December 2015) which it then applied to the circumstances of the cases at hand in a relatively lenient way. While the Court acknowledged a certain legitimate interest in keeping the undercover agent anonymous, it did not really find the reasons for the absence of the witnesses who had not appeared at the trial compelling. Their presence had not been actively sought by the authorities that had only taken note of potential difficulties with securing their fresh depositions before the court. 7 Article 6 § 3 d) of the Convention is a provision which applicants tend to invoke quite frequently in criminal cases. Apart from the two judgments referred to above, the provision has been relied upon in approximately 15 other cases adjudicated by the Court against the Czech Republic in the form of a judgment or a published admissibility decision.

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