214/1994 Coll.



FIND



The Constitutional Court of the Czech Republic



On behalf of the United States



The Constitutional Court of the Czech Republic decided in plenary on 12 June 2006. October 1994 on

the design of a group of MPs to repeal the provisions of § 55 para. 2, the provisions of

expressed in section 74 para. 1 the words "(§ 68, 69, 72, 73, 73a), with the exception of

a decision on its renewal (section 71, paragraph 2, 5), "and the provisions of § 209

Act No. 141/1961 Coll., on criminal court proceedings (code of criminal procedure), in

as amended,



as follows:



On 1 January 2004. March 1995 shall be repealed the provisions of § 55 para. 2, section 209 and

the provisions of paragraph 1, expressed in paragraph 74. 1 the words "(§ 68, 69, 72, 73, 73a), with

the exception of the decision on its renewal (section 71, paragraph 2, 5), "Law No.

141/1961 Coll., on criminal court proceedings (code of criminal procedure), as amended by law

No 57/1965 Coll., Act No. 58/1969 Coll., Act No. 149//1969 Coll., Act

No 48/1973 Coll., Act No. 29/1978 Coll., Act No. 43/1980 Coll., Act No.

159/1989 Coll., Act No. 175/1990 Coll., Act No. 303/1990 Coll., Act No.

558/1991 Coll., Act of the Czech National Council No. 25/1993 Coll., Act No.

115/1993 Coll. and Act No. 293/1993 Coll.



Justification



(I).



On 23 December 2005. February 1994, the Constitutional Court of the Czech Republic received a proposal from the Group

44 members of Parliament of the United Kingdom to begin

proceedings for cancellation of the provisions of § 55 para. 2, part of the provisions of section 74 para. 1

expressed by the words "with the exception of decisions concerning its extension (§ 71 para.

2, 5) ", and the provisions of § 209 code of criminal procedure, as amended by Act No. 292/1993

SB.



According to § 42 para. 3 and section 69 of Act No. 182/1993 Coll., on the Constitutional Court,

posted by the Constitutional Court of the Czech Republic the present proposal to express

The Chamber of Deputies. The President of the Chamber of Deputies, Dr. Milan Uhde

confirmed the opinion of the Chamber of Deputies, expressed its vote on the

the draft law, and explained the severity of the adopted amendment to the criminal procedure code. In

your observations of the President of the Chamber of deputies of the Parliament of the United Kingdom

at the same time confirmed, in accordance with the requirements contained in the provisions of §

paragraph 68. 2 Act No. 182/1993 Coll., Act No. 293/1993 Coll. was

approved by the necessary majority of the Chamber of Deputies on 10.

November 1993, signed by the competent constitutional factors and properly

declared.



According to § 42 para. 2 Act No. 182/1993 Coll. of the Czech Constitutional Court's

the Republic has taken as documentary evidence from the Chamber of Deputies the competent

printing and the record of the House discussing the Act No. 293/1993 Coll. (the Parliament

The Czech Republic, Chamber of Deputies, 1993, and the parliamentary term, print no.

535, těsnopisecká report on the meeting of the Chamber of Deputies, parliamentary

period, 14. meetings, 9. -11. November 1993).



II.



II/a



1. In connection with the provisions of § 55 para. 2 and article 209 penal procedure, in

amended by Act No. 293/1993 Coll., the plaintiffs argue their conflict with the article.

38 para. 2 of the Charter of fundamental rights and freedoms, with art. 14. 3

(a). (e)) of the International Covenant on Civil and political rights and the

Finally, with art. 6 (1). 3 (b). d) Convention for the protection of human rights and

fundamental freedoms. In the opinion of the appellants cited the provisions

the criminal procedure code are in conflict with those provisions of the Charter of

fundamental rights and freedoms, and the international agreements referred to in article. 10 of the Constitution

The United States, because "anonymous witness precludes the implementation of

proof of status of the accused in the face of the witness, if his

testimony in serious circumstances do not agree with the statements made by the witness and contradiction

You cannot clarify otherwise. ... The exclusion of this evidence is

limits the establishment of facts and a thorough clarification of the circumstances of the case,

the evidence in favour of and against the accused person (according to the revised

§ 2 (2). 5 of the code of criminal procedure). " The appellants in support of their basic

the argument point out further to the uncertainty of the distinguishing marks of the admissibility of

anonymous testimony expressed "clearly" adverb can do, and thus a possible

the contested provisions exploitable code of criminal procedure. In connection with the

criticised contradiction with the Convention for the protection of human rights and fundamental

freedoms and the case-law, the appellants argue, the European Court of

human rights.



The President of the Chamber of deputies of the Parliament of the United Kingdom in its

comments on the draft to the justification cited by the contested provisions

Code of criminal procedure States: "according to the explanatory memorandum is the purpose of the proposed

the amendment to the criminal procedure code, among other things, to provide greater protection to witnesses,

issued for their testimony or testify the verbal commitment

and violent attacks. In accordance with the prevailing trends in the European

legal systems strengthens management in the process of kontradiktornost

evidence and more to take account of the principle of equality of the parties to the judicial process.

... From the above it follows that adopted by the legislation expresses

efforts to harmonize mutual rights and status, on the one hand, the witness and the

one side of the accused. The law is based on the need to provide

witness sufficient protection in the event that there is a real danger for

that fulfils its legal obligation, without, on the other hand, was

some fundamentally compromised the right of the accused to a defence. "



2. Since the proposal argues contradiction cited provisions of the criminal

the order not only with the Charter of fundamental rights and freedoms, but also with

the international treaties referred to in article. 10 of the Constitution of the Czech Republic, should be in

first of all to point out existing international case-law to the

the problem:



In cases when the applicant was convicted based on the testimony of the

anonymous witnesses that the Defense could not hear [Kostowski in.

Netherlands (1989), Windisch v. Austria (1990)], the European Court of

Human Rights repeatedly found violations of article. 6 (1). 3 (b). (d))

Convention for the protection of human rights and fundamental freedoms.



In these cases occurred at the national level to the odsuzujícímu judgment on

the basis of the testimony of an anonymous informant, and this, for the operative part of the

Court Central, the evidence was not available at the hearing.

Those decisions of the European Court of human rights thus enable

dual interpretation: the first is a denial of an anonymous witness in the position

a possible corroborating evidence for his conflict with the rights of the defence and with the

the principles of a fair criminal process expressed in the article. 6 Convention on the

the protection of human rights and fundamental freedoms, the second is an application of the General

the principle of oral deposition and public zavazujícího to execute all the evidence in the

the hearing to allow the application of the accused person of his rights pursuant to article. 6

paragraph. 3 (b). (d)) of the Convention on the protection of human rights and fundamental freedoms.



3. development of rights and freedoms, guaranteeing the inviolability of personal freedom,

He was closely associated with the development of their procedural guarantees. This development

led to the formation of the procedural principles of impartial procedure (law on the proper

the process).



The constitutional framework of procedural rights is contained in both the Charter of fundamental rights

and freedoms, as well as in the international treaties referred to in article. 10 the Constitution of the United

of the Republic.



The provisions of § 55 para. 2 and § 209 code of criminal procedure, as amended by Act No.

292/1993 Coll., introduced in the criminal process, the option to use an anonymous

testimony as a corroborating evidence.



The purpose of the right to public hearing of the case, in conjunction with the right to express

on all the evidence, is to provide the accused in a criminal

the ability to process verification of evidence leading to him before

face to the public. This verification in the case of testimony contains

two components: the first is to examine the veracity of the factual claims,

the second is the examination of the credibility of a witness then. The institution of the

anonymous witnesses, therefore, limits the ability of the accused to verify

the veracity of the testimony against him, pointing, since it excludes

opportunity to make representations to the person the witness and his credibility. Thus, the limits

the rights of the defence, in breach of the principle audi alteram partem

process, with the principle of equality of the participants, because the same restriction

does not introduce for impeachment and is therefore contrary to the principles of fair

process.



The constitutional fundamental right or freedom of adjustment in some cases

expressly empowers the legislature, under certain conditions, or from

the perspective of the Basic Law constitutionally targets right or freedom

restricted. In the case of article. 37 para. 3 and article. 38 para. 2 of the Charter of fundamental

rights and freedoms, as well as in the case of article. 14. 3 (b). (e)) of the international

Covenant on Civil and political rights and article. 6 (1). 3 (b). (d))

Convention for the protection of human rights and fundamental freedoms, but it is not the case.

This means that the cited provisions of the Constitution of the Czech Republic and

international agreements referred to in article. 10 of the Constitution of the United States do not provide

lawmakers to limit the space in them of fundamental rights and

freedoms.



To restrict fundamental rights or freedoms, even if their constitutional modification

restrictions on does not assume, can occur in the event of a collision. In these

situations, it is necessary to lay down the conditions under which the priority

one fundamental right or freedom, and for the fulfillment of which the other. The base is

in this context, maxima, according to which fundamental right or freedom can be

limited in the interest of any other fundamental right or freedom.



From the argument contained in the observations of the President of the Chamber of Deputies

Parliament of the Czech Republic, it can be inferred that in the kontrapozice to the basic


the rights, arising from the due process of law, to

inviolability of the person of a witness.



When assessing possible restriction on a fundamental right or freedom for the benefit of

other fundamental rights or freedoms may be established the following conditions for

which has a priority of one fundamental right or freedom:



The first condition is their mutual measurement, a second request is

investigation of the nature and the meaning of omezovaného of the basic rights of freedom, respectively.

(article 4, paragraph 4, of the Charter of fundamental rights and freedoms).



Mutual in mutual conflict standing measure of fundamental rights and

freedoms lies in the following criteria:



The first is the criterion of suitability, IE. the answer to the question of whether the Institute,

restricting certain basic law, to achieve the objective pursued

(the protection of other fundamental rights). In that case, you can regard

lawmakers, the anonymous witness that the Institute allows you to achieve the target, IE.

to secure the protection of the inviolability of his person.



The second criterion for the measurement of fundamental rights and freedoms is the criterion

necessity of comparing legislative resource

restricting the fundamental right or freedom with other measures

that allow you to achieve the same goal, but nedotýkajícími is

fundamental rights and freedoms. In response to the need for compliance with the criterion in

the case is not clear-cut: the State in addition to the legislative structure

allowing anonymity of a witness may use to protect other

resources (eg. the use of anonymous testimony only as a

first resource for further investigation, the grant of protection

the witness, etc.).



The third criterion is to compare the severity of both conflicts standing

of fundamental rights. In case one of them is the right to a proper

the process of securing the right to personal freedom, the second is the right to personal

integrity. These fundamental rights are, prima facie, equivalent.



Comparing the severity of conflicts standing fundamental rights (after completion of the

the terms of the suitability and desirability) consists in considering the empirical,

system, context and value arguments. Empirical

the argument can be understood the seriousness of the phenomenon, which de facto is associated with

the protection of a fundamental right (in the case of an increase in

cases of threats against and intimidation of witnesses by the organized

the crime). The system argument means considering the meaning and classification

the basic rights and freedoms in the system of fundamental rights and

freedoms (the right to due process in this context is part of the General

the institutional protection of fundamental rights and freedoms). The context

the argument can be used to understand other negative impacts, the limitation of

the basic law as a result of the preference of another (in this case

the possibility of misuse of the anonymous witness Institute in criminal process).

The value argument represents a positive standing in the conflict considering

fundamental rights relative to the accepted hierarchy of values.



Part of a matching severity in a collision of fundamental rights is standing

also considering the use of legal institutions that minimize arguments

based intervention into one of them.



So, for example, the argument against the restriction of one of the basic rights

the possibility of exploiting this editing can be eliminated by minimizing the

the negative as a result of decisions by other procedural conditions

about him.



It can therefore be stated that in the event of the conclusion on the merits of the priorities of the

one before the second of the two standing in a collision of fundamental rights

the final decision must also use all the options

minimize interference with one of them. This conclusion can be derived from

the provisions of article. 4 (4). 4 of the Charter of fundamental rights and freedoms, in that

the meaning of the fundamental rights and freedoms must be examined not only in the

the application of the provisions on limits of fundamental rights and freedoms, but

also, by analogy, in the case of their limitations as a result of their mutual

collision.



A number of arguments in the case under consideration speaks in favour of the Institute

anonymous testimony: in particular, the empirical argument (an increase in organised

crime and related cases, threaten witnesses), the system

(the capacity of the justice system as a result of violations threaten witnesses)

value (protection of life and property of citizens).



When a serious interference with the rights of the accused to a defence, and thus to

the principles of a fair trial, it was therefore the duty of the legislature

search options minimize such an intervention and to anchor it

the corresponding tools. Examples of such tools may be mentioned

procedural mechanisms, or establish exceptions to the general principle of free

reviews of the evidence by the judge by court reviews

the testimony of an anonymous witness specifically to examine whether the Court and

participants be given sufficient opportunity to deal with the credibility of the

the witness and his testimony with probative force, etc. These examples document

the fact that the anonymous witness Institute has

the legislature scope for modulating tools that minimize interference with the right

the defence and the rights to a fair trial. The choice of the

Tools minimalizujícího interference with the fundamental rights and freedoms is

already under the purview of the democratic legislature.



It can therefore be stated that in § 55 para. 2 and article 209 penal procedure, in

amended by Act No. 293/1993 Coll., contained limitations on the right to a defence

does not meet the conditions necessary to require collision of two fundamental

rights for a limit of one of them, in particular the requirement to minimize interference,

and is therefore in breach of article. 4 (4). 4, art. 37 para. 3, art. 38 para. 2

The Charter of fundamental rights and freedoms.



According to the provisions of § 70 para. 1 Act No. 182/1993 Coll., act or its

individual provisions, for which the Constitutional Court comes to the conclusion on their

conflict with the constitutional law or international agreement under article. 10

The Constitution of the United States, on the date on which the Constitutional Court determined in the award.

Referred to the Institute allows you to move the day, repealing certain

provisions of the Act, for the day of judgment in the collection of laws, and the

give lawmakers room to make partial lack of legal

modifications to remedy. For this reason, the Constitutional Court of the Czech Republic established

the day the cancellation provisions of § 55 para. 2 and § 209 code of criminal procedure, as amended by

Act No. 293/1993 Coll., on the 1. March 1995, and the lawmakers gave

time to amend the code of criminal procedure and the addition of it

the chosen mechanism to minimize interference with the right of the accused to

defence and at the same time by allowing the criminal process did not remain after the

Likewise, decisions of the Constitutional Court of the Czech Republic without the Institute

protecting a witness.



II/b



1. In relation to the provisions of section 74 para. 1 code of criminal procedure, as amended by

Act No. 293/1993 Coll., the appellants argue his conflict with the article. 38

paragraph. 2 of the Charter of fundamental rights and freedoms, with art. 14. 3 (b).

(e)) of the International Covenant on Civil and political rights, and finally with

article. 6 (1). 3 (b). (d)) of the Convention for the protection of human rights and fundamental

freedoms. In the opinion of the appellants cited the provisions of the code of criminal procedure is

contrary to the provisions of the Charter of fundamental rights and freedoms and

international agreements referred to in article. 10 of the Constitution of the Czech Republic, because the

The Charter of fundamental rights and freedoms "in any of its provisions, in particular in the

article. 8, guaranteeing personal liberty, nor in the article. 41, delegator restrictions

some of the fundamental rights and freedoms in the legal area, does not allow

restrictions on the right of the accused to submit complaints against a decision by which it

the Court deprives of liberty. Incremental decision on extending the binding,

meaning twice up to eight times the "strictly necessary"

the six-month binding, are equivalent to a decision on custody,

because even when deciding on the extension of the binding is a court or Tribunal shall examine

whether it lasts or whether the reasons for custody have not changed. " Proposal in this

the context of the further argues the right to appropriate legal protection, respectively.

legal protection arising from article. 2 (2). 3 (b). (b)) of the international

Covenant on Civil and political rights and from article. 5 (3). 4 the Convention on

the protection of human rights and fundamental freedoms.



The President of the Chamber of deputies of the Parliament of the United Kingdom in its

observations on the application for revocation under section 74 para. 1 code of criminal procedure, in

amended by Act No. 293/1993 Coll., the preamble to the contested

the provision states: "in terms of section 74 para. 1 the explanatory memorandum notes

that this is not a new provision, but only for an adjustment that removes the

persistent doubts of interpretation. "



2. the wording of the provisions of section 74 para. 1 code of criminal procedure before the amendment was

the following: "the decision on detention is admissible a complaint." Her

interpretation in relation to deciding on the extension of the links placed the highest

Court of the United States, in its resolution of 6 May 1996. March 1992, SP. zn. 2 cc

21/92, published under no. 57 Collections of court decisions and opinions,

1992, and came to the conclusion that the decision to extend

the binding decision is not binding, and is thus not admissible against him

complaint:



"The decision of the Prosecutor to extend the binding means

the decision is binding, or a decision that is binding


does not extend, or that the Prosecutor's proposal to extend the binding

is rejected. Both indicated the ways decisions assume that are given by

the reasons for detention under section 67 of the tr row, and in this sense is not the existence of

reasons binding criterion, which would be this or that design decisions

Prosecutor dependent. This criterion is only whether it would release

the accused to liberty as a result of the expiration of the statutory period, after which the

the binding is admissible, may be impeded or aggravated by achieving the purpose

the criminal proceedings.



To this must be added that the Prosecutor's proposal to extend the binding is not

a proposal for a review of the grounds for detention. If the Court in the performance of

official duties, referred to in the first sentence of the provisions of § 72 para. 1 tr row.,

It finds that the reasons for custody exist, they shall release the accused from custody,

Once again, of its own motion in accordance with the third sentence of the provisions of § 72 para. 1 tr.

row, and not on the initiative of the Prosecutor's proposal on the extension of the binding. In

This situation, already does not issue or decision that is binding

does not extend.



It is clear from the above that the decision of the Court on the proposal of the Prosecutor on

the extension of the binding pursuant to § 71 para. 1 row of tr, as amended by Act No.

558/1991 Coll., is not a binding decision within the meaning of the provisions of section 74 para.

1 tr row so the decision against which would be permissible

a complaint pursuant to section 74 para. 1, § 141 para. 2. "



Therefore, the amendment to the criminal procedure code explicitly in the new diction the provisions of § 74

paragraph. 1 the conclusions of the case-law of interpretation expressed.



These conclusions are based on a deduction that is researching the Trustees

for reasons only a necessary prerequisite for deciding on the extension of the binding, rather than

However, the condition of sufficient: that is to assess "whether it would

the release of the accused on freedom as a result of the expiration of the statutory period, after

that is, the binding could be impeded or aggravated by achieving

the purpose of criminal proceedings ". The question is whether when you populate the Trustees

reasons it is possible at all to conclude that it could no longer achieve the purpose

the criminal proceedings will be impeded or aggravated by it. In other words, if

consistent conclusion that are made at the same time remand the reasons and

at the same time is no longer the fear of the destruction or jeopardise the achievement of the purpose of the criminal

control.



The content of the Law Institute of the binding is constitutionally acceptable definition

the reasons for limitation of personal freedom (after charge-§ 68, 160

Code of criminal procedure) with a view to the necessary restrictions of personal freedom

of the accused to prevent the destruction or jeopardise the achievement of the purpose of the criminal

control. It follows that the claims about the compatibility of the current existence of

grounds for detention and a lack of fear of the destruction or jeopardise the achievement of the

the purpose of the criminal proceedings represents a contradiction.



The purpose of criminal proceedings is not only a "fair punishment

the perpetrators ", the purpose of the criminal proceedings is also" fair "process. The existence of a

due process is an inevitable condition of the existence of a democratic

the rule of law.



Statutory time limit defining the duration must be considered, therefore, binding

the time limit necessary limitation of personal liberty of the accused (respectively.

the defendant), for which the presumption of innocence, the designated authorities

in criminal proceedings for the termination of this procedure. It follows that, in the

deciding on the extension of the binding, in addition to the existence of a legal pre-trial detention

Therefore, necessary to establish serious reasons, as a result of which in the past

the time limit could not terminate the proceedings.



Deciding on the extension of the binding (i.e. on the further limitation of personal freedom

the person against whom the criminal proceedings and leads which should be seen from the

the perspective of the principle of the presumption of innocence) is therefore deciding on which

related requirements exceeding the deciding on custody. For such

decision making, from the standpoint of the principle of equality, therefore, must pay for everything

apply for the award of custody itself, hence the right to review.



The European Court of human rights in the application of article 4(1). 5 (3). 4 the Convention on

the protection of human rights and fundamental freedoms repeatedly stressed the right to

the person concerned to review the decision on custody.



In this context, it should be to deal with the question of whether any permissions

to apply for a review of merits test is not to be considered binding review

decision on the extension of the binding. A negative response, and therefore the conclusion on

the absence of the possibility of review of the decision on the extension of the binding by submitting the

requests for review can be seen as a merits test links, in fact, that

both of these institutions relate to different subject matter of the review.

A review of the decision to extend the existence of the detention binding

the reasons can be justified by the absence of serious reasons, in the

as a result of the remand period of time in the past it was not possible to terminate the proceedings.



It follows that the provisions of section 74 para. 1 code of criminal procedure, in

amended by Act No. 293/1993 Coll., excludes the possibility of review of the decision of the

the binding for which should be considered as well as the decision on the renewal,

which is inconsistent with the provisions of article 8(1). 5 (3). 4 to the Convention for the protection of human

rights and fundamental freedoms.



The result of the cancellation of part of the provisions of section 74 para. 1 code of criminal procedure, in

amended by Act No. 293/1993 Coll., and hence the abrogation of a restrictive submission

the complaint against the decision on the extension of the binding is the absence of a mechanism

in cases where the decision on the extension of the binding pursuant to § 71 para. 3

the criminal procedure code shall be decided by the Supreme Court. In order to provide

Lawmakers time for replenishment of that mechanism,

as in the case of cancellation of § 55 para. 2 and § 209 code of criminal procedure, as amended by

Act No. 293/1993 Coll., on the Constitutional Court of the Czech Republic decided in

the case of the cancellation of part of the provisions of section 74 para. 1 code of criminal procedure, as amended by

Act No. 293/1993 Coll., on the displacement of the effective date of the award to 1. March

1995.



The President of the Constitutional Court of the Czech Republic:



JUDr. Kessler v. r.



III.



Different views



A different opinion of the judge. Ivana Janů for decision on an application for

repeal the provisions of § 55 para. 2 and under the provisions of section 209 of the contested

the law.



Signed is of the opinion that the proposal of the Group of members should be

rejected in its entirety on the proposal to repeal the provisions. § 55 para. 2 and

with regard to § 209 criminal procedure code, under the defined words: "the President of the

the Chamber shall ensure that the witness was not present at the still unheard

the interrogation of the accused and other witnesses. If there is a concern that the witness in

the presence of the accused unless the truth, or if the hearing

the witness, or the person to whom he submitted testimony from in or near threaten to cause injury to the

health, death or other serious danger, President of the Chamber shall take the measures

appropriate to ensure the safety or confidentiality of the identity of the witness, or

reports of the accused for questioning such a witness out of courtrooms. After

return to courtrooms, however, the accused must be familiar with the contents of

testimony of a witness, you may to comment on it, and without a witness to the met,

He may ask questions via the President of the Senate, "and it is from these

reasons:



1. The provisions of article. 14. 3 (b). (e)) of the International Covenant on civil

and political rights, declared under no. 120/1976 Coll. (MPOPP), as well as

article. 6 (1). 3 (b). (d)) of the Convention for the protection of human rights and fundamental

the freedoms proclaimed under no. 209/1992 Coll. (EE) regulate within the framework of equality

weapons in a fair criminal process of a defendant's right to confront

in a broader sense. Rights within the meaning of the cited provision includes

Alternatively, personal, IE. direct confrontation (... carried out the interrogation), or

confrontation-mediated (... gave to hear).



This law grants the accused person and valid code of criminal procedure (published in

The collection of laws in full text of amended by no. 69/1994, tr row.)

the provisions of § 33 para. 1 if it authorizes a comment to all

the facts, which blame him, as well as indicate the evidence

for his defence, to make suggestions ... etc. The provisions of § 94 tr row.

modifies the confrontation in the strict sense, and only direct (personal). According to the

§ 164 of paragraph 1. 4 tr row may also allow the investigator to the accused person

to participate in the investigative measures and ask witnesses questions examined

(confrontation in the broader sense). Within the meaning of § 214 tr row must be

After each defendant evidence asked whether he wants him

Express ... Finally, the provisions of section 215 paragraph. 1 tr row implies the right to

the accused and his defence counsel, with the agreement of the President of the Chamber to ask

He questions; the provisions of paragraph 2 of the same then its right

to request the President of the Senate on this, to enable them to witness

(confrontation in the broader sense).



The purpose of the provisions of § 55 para. 2. is ensuring the safety of the witness

keeping his true generálií (personal data) in the Protocol on its

statements IE. to protect his identity, so that the accused could not be

familiarizing with the charge of the figure and possibly realize the impending

risk, for which he was a witness.



If the accused person need for confrontation (in a wider and narrower sense) with the

the person who testified against him, it is for the realization of this right,

It is understood the confrontation, especially the contents of the relevant

the testimony and not genuine identity of the witness, that the testimony in question


He composed. Request for a confrontation in a broader or narrower sense, as a proposal for a

additional evidence may be filed in the course of the investigation, respectively.

in his conclusion in familiarizing yourself with the results of this investigation. If

investigator to such a request, technically a confrontation does

in a manner analogous to, as described in § 209 tr row, i.e.. way

mediated. The accused, after the familiar with the testimony of the witness, to the

appraisal and without witness met face to face, he may

through the investigators to ask questions. The accused is guaranteed

the right to carry out questioning of a witness.



This procedure, arising from § 209 tr row and applicable not only in the management

before the Court, but also at the stage of investigation, to enable a hearing

the witness, or mediated confrontation, even when it comes to a witness in

against or in favour of the accused, whose identity in the interest of its

safety, or persons close to him, to be a secret.



If the INSTITUTE of ENDOCRINOLOGY in the article. 6 (1). 3 (b). d) explicitly talks about the right of the accused

achieve a subpoena witnesses on his behalf and against each other, then

the provisions of § 55 para. 2 tr round thing, and that's it. In

the meaning of the quoted provisions of the 141 1961anonymizovaná a person a witness already

vyslechnutého does not require his summons, except for the purpose of the accused

suggested confrontation, which is possible (see explanation above). Similarly, neither the

How anonymizing Web person witness pursuant to § 209 tr row, for reasons of

its security, or people close to him, does not prevent the accused person

(the accused) to the presence of a witness reached by the main

version, because the cited provisions of § 209 tr row with the presence of

the said witness counts.



If it is considered that section 209 row of tr is in breach of article. 38 para. 2

The Charter of fundamental rights and freedoms ("the Charter"), due to the

reasons for the possible recognition of the accused from the courtrooms, for example, from the perspective of the

interpretative point out the following. The condition of consideration of the case in

the presence of the thing, not only is true in the case of

the immediate physical presence of the accused in the procedural act, but

even if such a person is always the additional option will waveforms

proceedings (evidence) to learn about and comment on it; It is the ratio

Institute familiarity of the accused with the results of the investigation, that the whole

not just for the physical presence of the accused (although according to the cited

the provisions of § 164 of paragraph 1. 4 tr row it is possible).



If, therefore, extends to § 209 tr 5-reasons as reported by the defendant of the rules

Hall, provides at the same time its awareness about the course of the proceedings in his

the absence of this, that after his return to courtrooms must be familiar

with the content of the testimony of a witness, you may to comment on it, and without the

a witness to the met, he may, through the President of the Chamber to ask questions.



A strictly literal interpretation of the article. 38 para. 2 of the Charter, i.e.. adherence to physical

the presence of the accused, minute by minute, for each of the procedural act, the

in many cases, has led to the paralysis of the criminal proceedings and to prevent

to achieve its purpose (section 1 tr row).



This applies in particular in criminal matters, where the victims are the children of witnesses

(eg. sexually exploited). In these cases, does not

the immediate presence of the accused at the hearing, since it would mean

often its impossible. At the same time, however, the right of the accused to get acquainted

Additionally, at least with the results of a criminal prosecution, which is against it

are conducted, it is not completely restricted. The guarantee of its application is the already mentioned

familiarize yourself with the results of the investigation of the accused, or even a

method of examination of witnesses, which assumes § 209 tr row.



In terms of the case-law of the European Commission (hereinafter the Commission) on this issue.

the below quoted case Kurup v. Denmark (11208/84).



Opportunity to comment on all the evidence, both also assumes

the cited article of the Charter, is not eliminated anonymizací personal information about

the witness, since the accused may become familiar with the content of the testimony of such a

an anonymous witness and take it into account in its defence; the ignorance of the

generálií witness, as has already been said, is not at this point. The

However, the importance of terms of the credibility of the witness, which is also

important for the overall verification of his evidence, IE. In addition to truthfulness

This testimony as such. Examine and question the credibility of the

the witness may then the accused or his defense attorney, in a way that

assume that you have already cited by the last sentence of section 209 of the tr:



"After his return to courtrooms, however, the accused must be familiar with the contents of

testimony of a witness, you may to comment on it, and without a witness to the met,

He may, through the President of the Chamber to ask questions. "



Questions that are addressed to an anonymous witness may therefore also apply to its

assurance, without, however, was disrupted by his personal anonymity, not

only the subject of evidence (deed). You can ask for example. questions of the parties

the health status of a witness, as a prerequisite to the satisfaction of ability

testify. The Institute therefore does not restrict the anonymous witness completely option

to verify the veracity of the accused against him pointing to the witness

and even its credibility. Will the anonymous witness

convicted of lying becomes at the same time nevěrohodným. Through the aspect of the

the truth can be so examined and the credibility of the person the anonymous witness.

Similarly, you can call into question its credibility, as described above

way (§ 209 tr row) identified other circumstances affecting the itself

the person the witness, without distorting its anonymity.



With the above issues, the presence of when discussing things, as well as with the

possibilities to all the evidence closely related

the following conclusions.



According to the "guidelines and principles" adopted at the Conference of experts on "the protection of the

human rights in the exercise of criminal justice in Central and Eastern

Europe and in the Soviet Union ":" no protocol on the questioning of a person or a similar

the document cannot be provided to the detriment of the accused as evidence in court

proceedings, unless the defence had the opportunity to be present at the

the Act. " (Repík, b.: the International Conference for the protection of human rights in the

the performance of the criminal justice in post-Communist countries. The right and the

legality, 60, 1992, no. 5, p. 320). In this context should be stressed

that, in a situation described in section 209 tr row, when the accused is banned from

courtrooms, there remains its Defender. In the case that the defence counsel

the President of the Senate, does not have to make just such a measure appropriate to the classification

the identity of the witness, without the defendant in the course of his interrogation

leaving the meeting hall.



Similarly, the sounds and the Commission decision of 16 December 2002. 12.1981 No. 8395/78,

X v. Denmark: "it is essential that the defendant was present

When your process when questioning witnesses, but in exceptional circumstances, it is not

the violation of the article. 6 (1). 3 (b). (d)) of the European Convention, if the witness was

heard in the absence of the person against whom the testimony is going under

the condition that his lawyer was present, if a lawyer can

hearing of a witness to defend the interests of the defence as well as if it has made itself

defendant. "



Of the other principles, the Commission representative summarised in the case before the Court

Windisch, and concerning the taking of evidence, drawn up by the

the case-law, the following should be noted: the rights of the defence as a rule

require that the accused had a reasonable and appropriate option to deny

the testimony against him and to examine or cross-examine the witness at the time the leave

the composition of the testimony or in a later stage of the proceedings. The process will be assessed

as a whole from this point of view, whether it was fair; each sub

rights to be violated, yet due to the importance of the evidence to which the

concerns, in relation to other evidence and the overall leadership

This procedure can be considered fair (Repík, b.: the requirements of the European

Convention of human rights in the criminal process, advocacy, 1992 Bulletin, 10.

p. 7-11).



Cases in the Netherlands and Kostowski. Windisch v. Austria (Kostowski Case,

Vol. 166, 1989, Publications of the European Court of Human Rights;

Windisch Case, vol. 186, 1991) would constitute a violation of article 6(1). 6 (1). 3

(a). (d)) not in the EU, that the national courts were based on the testimony

the anonymous witness, but that these, for the Court's verdict of the flagship

the evidence already could not be made at a hearing of the Court, respectively, when both

the appellants were convicted on the basis of the testimony of anonymous witnesses,

that the Defense could not hear.



By contrast, the last sentence of the contested section 209 tr 5-such a possibility

offers, therefore, excludes any possible error in the above

matters committed by Dutch and Austrian Court, IE. misconduct, which, as a

such a result from the article. 6 (1). 3 (b). (d)) of ENDOCRINOLOGY.



To the said issue is closely related to the following case judikovaný

Commission (John Nielsen Kurup in Ib. Denmark, 11208/1984, European

Commission of Human Rights, Decisions and Reports, No 42/1985).



Navrhovatelova the complaint relates to the fact that the identity of witnesses who

identified in a given case, it has been known that he had to leave the meeting

Hall, when these had testified and Moreover, that has been excluded from portions of the hearing, when

the prosecution carried out summary of the case, which touches the testimony of witnesses.




The appellant claims that these circumstances have violated his right to have adequate

time and conditions for the preparation of his defence, as provided for in article 4(1). 6

paragraph. 3 (b). (b)) of ENDOCRINOLOGY.



Furthermore, he insisted that his right to defend himself was limited in

contrary to the article. 6 (1). 3 (b). (c)) the INSTITUTE of ENDOCRINOLOGY.



In addition, the applicant is of the opinion that its right to cross-examine witnesses, so

as is documented in article. 6 (1). 3 (b). (d)), has not been observed, and finally,

He was not given "fair" process, as says article. 6 (1). 1 INSTITUTE of ENDOCRINOLOGY.



The Commission argues that the rights secured article. 6 (1). 3 the rights and

the defence, in the general sense of the word. In determining whether these rights have been

respected, is not sufficient to only from a situation in which the only

the defendant. Consideration must include the overall situation, in which the defense

space for your application.



It is true that the ability to meet with his defence counsel is a fundamental part

the preparation of his defence. However, it cannot be argued that the right to

contact with an advocate and consultations with him must not be subordinated to any

the restrictions.



Navrhovatelův Defender he was obliged by a court decision to abstain from the debate on

those parts of the testimony made by the witnesses A and D, which could lead to the

disclosure of their identity in relation to the defendant-petitioner.



No limits was not the applicant challenged when it comes to meetings,

correspondence or exchanges of information between him and the Attorney in the preparation of

a proper defence.



In these circumstances, the Commission found no facts that would restrict the

navrhovatelovo the right to prepare a defence to such an extent that

could result in the infringement of article 81(1). 6 (1). 3 (b). (b)), or (d)), as the INSTITUTE of ENDOCRINOLOGY

the appellant points out.



As regards the complaint that the navrhovatelovy had to leave the courtroom

the Court of appeal, when witnesses A and D were questioned, the Commission considers it

principled to the accused was present when the witnesses testifying

against him, are examined. However, the Commission has accepted, in

exceptional circumstances there may be reasons examined witnesses against

the defendant in his absence, on the condition that his lawyer is

present.



In the present case, the appellant was asked to leave the courtroom

at a time when witnesses and testified against him, and (D). The Danish national

modification to the President of the Senate of the law, if there are special reasons,

report from the courtroom, the defendant in the case, that would be a witness or

spoluobžalovaný has not denounced the uninhibited, if otherwise, this notice be

cannot be obtained.



In the present case, which concerned, inter alia, of serious drug

the crime, had the Court of appeal for the reason of the applicant from the courtroom

report on.



However, when the petitioner-defendant was ordered to leave the Court of

Hall, his lawyer stayed and had all the options in the following article. 6

paragraph. 3 (b). (d)) to listen to both ENDOCRINOLOGY witnesses and ask them questions.



The Commission also found that the interests of the defence can be provided as well

well as a plaintiff lawyer navrhovatelovým.



The Commission therefore concludes that the requirements of article. 6 (1). 3 (b). (d)) were in ENDOCRINOLOGY

navrhovatelově court case met.



Although the Commission did not appear, prima facie, exceeding the minimum rights, as

It lists the article. 6 (1). 3 ENDOCRINOLOGY, yet also considered whether the circumstances of the

cited by the applicant in the course of his trial, however, cannot lead to a

the conclusion that he was not given a "fair" hearing how he guarantees the article. 6 (1).

1 INSTITUTE of ENDOCRINOLOGY.



How the European Commission, the European Court has repeatedly pointed out that the principle of

equality of arms is the procedural equality of the defendant and the prosecution and

an inherent element of "fair" process.



However, as has been shown above, all of this does not secure the accused

right to be present in person in all circumstances to all procedural acts.



Therefore, when considering complaints about navrhovatelově, as submitted, including

the fact that he had to leave the courtroom, not only at the time of the hearing

witnesses, but also at a time when the prosecution carried out summary of witness

the testimony, the Commission has not found any violation of the principle of equality of arms,

that could cause that the claimant was not given a "fair" hearing

the Court of appeal within the meaning of article 87(1). 6 (1). 1 INSTITUTE of ENDOCRINOLOGY.



From what has been stated, the Commission inferred that the proposal must be rejected

as obviously unfounded, in the meaning of article 87(1). 27 para. 2 ENDOCRINOLOGY.



For these reasons, the Commission declared the complaint inadmissible, and

failed her.



2. In terms of our legislation (§ 55 paragraph 2 tr row.)

condition of permissible anonymization Protocol generálií the witness for his

Notice the obvious threat of injury to health or other serious threat to

the person the witness or a person close to him, it is understood in connection with the administration of

the testimony. The apparent threat of injury must be evident, i.e..

as such, it is not enough any demonstrable risk of injury. Explanatory memorandum

message to the citovanému provisions of the code of criminal procedure States that, in particular, in the

the context to clarify that organised crime will occur

cases in which a person testifying as witnesses have been targeted by coercion

or violent attacks aimed at intimidating a witness and affect

his commitment to testify. To protect witnesses in these cases, the

allows the confidentiality of their personal information. The same character as the "threat of

the obvious injury "must have a" serious danger "referred to as the

alternative.



The described legal assumptions anonymization of the person the witness defined

quite certainly, thus pointing to zúženému applying this

process of the Institute. However, should the legislature conditions of confidentiality

witness narrowed too much, he could have referred to the legal Institute to exclude from its

the application almost entirely. However, this is hardly acceptable in the light of the requirements of the

to apply such evidence, which requires an increase in particular.

organized crime and the need for its effective detection.



The terms of confidentiality of the identity of a witness in the trial (§ 209 tr row.)

formulates the law as follows: 1. "the threat of damage to health or death or other

a serious danger to the witness or a person close to him, resulting from the

submitted by the witness ", or 2. "the need to preserve the anonymity of the witness of

for serious reasons ". The first assumption is formulated as in § 55

paragraph. 2 tr round the difference lies only in the fact that in the context of the main

the delineation of the law expressly does not "obvious". This is the range of the

conditions of anonymisation rather expanded. Therefore, on the contrary, a witness, stealth

According to § 55 para. 2. row is completely covered and as such

the provisions of § 209 tr row on the other side, however, the last cited

the provisions expressly States, as an alternative to the witness, the threat of death,

that is, of course, also covered by the provisions of § 55 para. 2. row, go to

it logically (and minori ad maius). The same range of both provisions, i.e..

rather restrictive, narrowing the interpretation can be achieved just § 209 tr row.,

i.e.. First, the conditions referred to therein anonymization of the witness.



The second assumption is formulated very generally. Such adjustment

apparently allows you to anonymise and witness other than which has in mind §

55 paragraph 1. 2. r. Restrinkce § 209 tr row, in the form of

the assumption, therefore, they are smaller than in the case of the provisions of § 55 para. 2 tr.

row, thus creating too much room for discretion.



3. reasons divorced in points 1. and 2. result in the need to insist on

the constitutionality of § 55 para. 2. l., as well as § 209 tr row; in this second

the case, however, only if the first premise above anonymize

a witness in the trial ("threat of injury"), as well as in the rest of

This last provision, since it is not a question of

the secrecy of the witness.



By contrast, the second assumption anonymization witness within the meaning of § 209 tr row.

as defined by the words: "... and a witness, whose identity must remain from the

for serious reasons secret... "is vulnerable for its vagueness and the fact

and minimizing the use of just such a process

the Institute (article 1 of the Constitution of the CZECH REPUBLIC, article 4, paragraph 4, of the Charter).



It was therefore in my opinion, should be members of the Group regarding the proposal

repeal of § 55 para. 2. row and section 209 tr row in the range indicated in the introduction,

reject.