CYIL vol. 11 (2020)

CYIL 11 (2020) THE CONTRADICTORY PRINCIPLE OF CRIMINAL PROCEEDINGS IN CASE LAW OF ECHR Convention on Human Rights. At the same time it holds, as a general rule, that it is up to the parties themselves to decide whether positions of other participants during the proceedings are so important that it is necessary to respond to them, regardless of the fact what actual influence such a position may have on the judge. 20 Hence, although there is not any exhaustive definition concerning what minimum requirements are a part of the principle “ of equality of arms ”, it is necessary for there to be sufficient procedural guarantees which are adequate to the nature of the case and are to correspond to the subject matter of the dispute between the parties. The principle of equality of arms therefore may include such possibilities as presenting evidence, challenging the other party’s evidence and presenting arguments in the case in question. 21 Although equality of arms basically means an equal procedural opportunity of presenting one’s case, it usually overlaps with the requirement “of adversarial proceedings”, which includes, in accordance with rather close understanding according to the ECHR, an access to evidence and knowledge thereof. That is why it is not clear on the basis of the constant ECHR case law, whether these principles are in fact independent on each other. 22 With certainty, it is possible to state that the issue of not making the evidence available to the defence can be analysed from the viewpoint of the requirement for the adversarial nature of proceedings (possibility of knowing the evidence and of getting it subjected to investigation before the judge), as well as from the viewpoint of the guarantee “of equality of arms” (possibility of knowing the evidence and of getting it subjected to investigation on equal conditions for both the parties). In criminal proceedings, where the prosecution party has a number of powers capable of intervening in the rights of the person against whom the criminal proceedings are conducted (but also in the rights of an aggrieved person or of a participating person), the mission of the principle of equality of arms is to provide the accused person with such a position in which they are able to present themselves before court as an “equal” party to the proceedings, not only as an object of the criminal proceedings that are underway. 23 From the principle of equality of arms and from this indicated (and understandable) inequality of the parties in the criminal trial, the legislator admits compensating authorisations of the accused person, the so-called favor defensionis . Among these authorisations it is possible to include the rights of defence in criminal proceedings (Article 6(3) of the European Convention on Human Rights, Section 2(13) of the Rules of Criminal Procedure) or the right to be considered innocent until they are found guilty in a legal way (Article 6(2) of the European Convention on Human Rights; Article 40(2) of the Charter of Fundamental Rights and Freedoms; Article 48 of the Charter of Fundamental Rights of the European Union, Section 2(2) of the Rules of Criminal Procedure). 24 Equality of arms naturally supposes that the public prosecutor and the accused person have the same possibility of taking part in the decision- making of the court. With regard to this requirement, the accused person’s right to be present at the court hearing was derived from the principles of adversarial proceedings and equality of arms. 25 At the same time, the ECHR admitted the existence of the right to be heard at the 20 Decision in the ECHR case: Ferreira Alves v. Portugal , of 13 April 2010, Applications no. 46436/06, 55676/08. 21 Decision in the ECHR case: H. v. Belgium of 30 November 1987, Application no. 8950/80. 22 Decision in the ECHR case Yvon v. France of 24 April 2003, Application no. 44962/98. 23 ŠÁMAL, Pavel. Fundamental principles of criminal proceedings in a democratic system. Prague: ASPI, 1999, p. 38. 24 REPÍK, Bohumil. repeated cit., p. 145. 25 Decision in the ECHR case: Colozza v. Italy of 12 February 1985, Application no. 9024/80.

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