1994/10/12 - Pl. ÚS 4/94: Anonymous Witness

12 October 1994

HEADNOTES

1. The

purpose of the right to have one's case conducted in public, in

connection with the right to give one's view on all admitted evidence,

is to provide the accused in a criminal trial the chance to test

incriminating evidence in the presence of the public. In the case of

witness testimony, there are two parts to this process: the first is the

examination of the accuracy of factual assertions, the second is then

the chance to test the credibility of the witness. Therefore, the

practice of using anonymous witnesses restricts the accused's

opportunity to test the credibility of witness testimony that

incriminates him, since it excludes the possibility of his addressing

the witness personally and of commenting on his credibility. Therefore,

the accused's right to present a defense is restricted, a fact which

does not conform to the principle of the accusatorial process or the

principle of the equality of parties.

2. Fundamental rights and

basic freedoms may be restricted, despite the fact the constitutional

text makes no provision therefor, only in the case that two such rights

come into conflict with each other. There is a rudimentary maxim that a

fundamental right or basic freedom may be restricted only for the sake

of another fundamental right or basic freedom. Should the Court reach

the conclusion that it is reasonable to give priority to one of the two

conflicting fundamental rights, it is necessary, as a condition of the

final decision, to take all possible steps to minimize the impingement

of one upon the other. This principle can be inferred from Article 4

para. 4 of the Charter of Fundamental Rights and Basic Freedoms,1)

namely to the effect that fundamental rights and basic freedoms  must be

preserved not only when applying provisions on the limits of the

fundamental rights and basic freedoms, but also analogously in the case

that they are bounded as the result of a conflict between two rights.

3. When impinging seriously upon the right  of the accused to present a

defense, and thus upon the principle of fair procedure, it was the duty

of the legislators, therefore, to seek to minimize this impingement.

4. The goal of a criminal proceeding is not merely the "just punishment

of a perpetrator"; the goal of a criminal proceeding is also to have a

fair procedure. The existence of due process is an indispensable

condition of the existence of a democratic, law-based state.     

5. A statutorily defined time period, limiting the permissible duration

of custody, consequently must be considered as an indispensable period

of time during which limitations are placed upon the personal freedom of

the accused (or the defendant), to whom the presumption of innocence

applies, which bodies active in criminal proceedings are allotted for

the completion of the proceeding. It follows from this that, in the

absence of statutorily defined grounds for prolonging custody, before a

body active in criminal proceedings may do so, it must show that, due to

serious reasons, the proceeding could not have been completed within

the allotted time period.

 


CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT

IN THE NAME OF THE CZECH REPUBLIC


of the plenary session of the Constitutional Court of the Czech

Republic of 12 October 1994 file No PL ÚS 4/94 relating to the petition

of a group of 44 members of the House of Deputies of the Parliament of

the Czech Republic for the annulment of § 55 Para 22) of the provision

expressed in § 74 Para 14) in words "(§ 68, 69, 72, 73, 73a), except for

the decision about its prolongation (§ 71 Para 2, 5),"  and the

provision § 209 Act No 141/1961 Coll., on criminal procedure (Code of

Criminal Procedure),3) in the wording of later regulations (the finding

was published under No 214/1994 Coll.).

As of the day

of March 1, 1995, § 55 Para 2,2) § 2093) and § 74 Para 14) in words "(§

68, 69, 72, 73, 73a), except for the decision about its prolongation (§

71 Para 2, 5)," of Act No 141/1961 Coll., on criminal procedure (Code of

Criminal Procedure), in the wording Act No 57/1965 Coll., Act No

58/1969 Coll., Act No 140/1969 Coll., Act No 49/1973 Coll.,  Act No

29/1978 Coll., Act No 43/1980 Coll., Act No 159/1989 Coll., Act No

178/1990 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 292/1993 Coll.


REASONING

 


1.On 23 February 1994 the Constitutional Court of the Czech Republic

received a petition of 44 members of the House of Deputies of the

Parliament of the Czech Republic to commence the proceedings for the

annulment of § 55 para 2,2) of a part of § 74 para 14) expressed by

words "(§ 68, 69, 72, 73, 73a), except for the decision about its

prolongation (§ 71 Para 2, 5),"  and the provision of § 209 of the Code

of Criminal Procedure,3) in the diction of Act No 292/1993 Coll.

2/a.

(1)  In connection with § 55 para 22) and § 2093) of the Code of

Criminal Procedure, in the wording of Act No 209/1993 Coll., the

petitioners object against its being contradictory to Art. 38 para 2 of

the Charter of Basic Rights and Freedoms,5) and further Art. 14 para 3

e) of the International Convention of Citizens Rights and Political

Right, and finally, to Art. 6 para 3 d) of the Convention on the

Protection of Fundamental Rights and Basic Freedoms. In the opinion of

the petitioners the quoted provisions of the Code of Criminal Procedure

are at variance with the mentioned provisions of the Charter of Human

Rights and Freedoms and international conventions according to Art. 10

of the Constitution of the Czech Republic,6) since "an anonymous

examination of a witness rules out evidence by bringing the accused face

to face with the witness, if his testimony does not correspond with the

testimony of the witness concerning serious circumstances and if there

is no other way of clarifying the difference… Excluding this testimony

means restricting the finding of the factual state of things and a

careful elucidation of the circumstances testifying in favour of the

accused or incriminating him (according to the revised § 2 para 5 of the

Penal Code7))." The petitioners point further, in support of their

basic argument,  to the uncertainty of the differentiating feature of

the unacceptability of anonymous evidence, as expressed by the adverb

"obviously", and namely to the possible misuse of the assaulted

provisions of the Penal Code. In connection with the objected

discrepancy regarding the Convention on the Protection of Human Rights

and Basic Freedoms, the petitioners argument also in using case law of

the European Court of Human Rights.

The Chairman of the House of

Deputies of the Parliament of the Czech Republic expressed his opinion

concerning the petition for reasoning of the objected provisions of the

Code of Criminal Proceedings: "According to the reasoned statement the

sense of the drafted revision of the Code of Criminal Procedure resides,

among others, in offering a better protection to the witnesses that can

be exposed to verbal and brachial attacks for their testimony, or only

for their decidedness to testify. In accordance with the prevailing

tendency in the European legal orders the contradictory aspect of the

proceedings in the process of submitting evidence is being strengthened

and more stress is laid upon the principle of equality of the parties

before the court…. It follows from the above that the adopted legal

regulation expresses the effort to tune in the mutual rights and the

position at the side of the witness, and on the other side that of the

accused. The Act is based upon the fact that a witness should be offered

sufficient protection in case he may be threatened by obvious danger

for having met his legal duty without, however, having impaired the

right of the accused to defense, on the other hand.

(2) Since

the petition arguments that the cited provisions of the Code of Criminal

Procedure are at variance not only with the Charter of Fundamental

Rights and Freedoms, but also with international conventions according

to Art. 10 of the Constitution of the Czech Republic,6)  it should be

pointed, first of all, to the existing international case law to the

given problem:

In cases where the submitter was condemned upon

the basis of the testimony of anonymous witnesses that the defense had

no way of hearing [Kostowski v. Netherlands (1989), Windisch v. Austria

(1990), the European Court of Human Rights repeatedly stated the

violation of Art. 6 para 3 d) of the Convention on the Protection of

Human Rights and Basic Freedoms.

In these cases a condemning

judgment upon the basis of the testimony of an anonymous informer took

place on national level, such testimony that was cardinal for the

statement of the Court, however, was not executable during oral hearing.

The mentioned judgments of the European Court of Human Rights,

accordingly, allow two-fold interpretation: the first is the refusal of

anonymous testimony in the position of possible convicting evidence for

its discrepancy with the right for defense and the principles of fair

procedure expressed in Art. 6 of the Convention on the Protection of

Human Rights and Basic Freedoms, the second is the application of the

general principle of oral proceedings conducted in the public, obliging

the execution of all evidence in oral proceedings, allowing the accused

to put forth his rights according to Art. 6 pare 3 d) on the Convention

on the Protection of Human Rights and Basic Freedoms.

(3) The

development of rights and freedoms giving guarantee of inviolability of

personal freedom, has been inseparably connected with the development of

their procedural guarantees. This development has led to the

establishment of procedural principles of impartial proceedings (right

for fair trial).

The constitutional framework of procedural

rights is comprised both within the Charter of Fundamental Rights and

Freedoms, and in the international conventions according to Art. 10 of

the Constitution of the Czech Republic.6)

§ 55 para 22) and §

2093) of the Code of Criminal Procedure, in the wording of Act No

292/1993 Coll., introduce the possibility of using an anonymous witness

as convicting evidence into the criminal proceedings.

The purpose

of the right to have one's case conducted in the public, in connection

with the right to give one's view to all submitted evidence, is to offer

the accused in the criminal process the possibility of verifying

incriminating evidence against himself, and namely before the public. In

case of witness testimony this verification contains two component

parts: the first is the verification of the truthfulness of the factual

assertions, the other the chance to test the credibility of the witness.

The institution of anonymous witnesses, consequently, restricts the

accused's opportunity to express his view on the witness person and to

comment upon his credibility. Therefore, it restricts the accused's

right to present a defense, and it does not conform with the principle

of the accusatorial process, the principle of equality of parties, as it

does not introduce the same restriction for the plaintiff and is

therefore contradictory to the principles of fair process.

The

constitutional arrangement of a basic right or freedom, in some

instances, literally empowers the legislator to restrict the basic right

or freedom by law under certain conditions, or from the viewpoint of

constitutionally described aims. In the case of Art. 37 para 38) and

Art. 38 para 25) of the Charter of Fundamental Rights and Freedoms, as

well as in case of Art. 14 para 3 e) of the International Agreement on

Citizens and Political Rights and Art. 6 para 3 d) of the Convention on

the Protection of Human Rights and Basic Freedoms, however, this is not

the case. This means that the cited provisions of the Constitution of

the Czech Republic and of the International conventions according to

Art. 10 of the Constitution of the Czech Republic6) do not offer the

legislator room for restricting the basic rights and freedoms contained

in them.

A restriction of basic rights or freedoms, although the

constitutional arrangement may not anticipate their restricting, can

occur in case that two such rights come into conflict with each other.

In such situations it is necessary to determine conditions under which

one basic right or freedom is prioritized, and under what conditions

some other may have priority. In this connection there is a rudimentary 

maxim according to which any basic right or freedom may be restricted

only for the sake of an other fundamental right or basic freedom.

When

considering the possibilities of restricting a basic right or freedom

for the benefit of another basic right or freedom the following

conditions can be stipulated governing the priority of one basic right

or freedom:

The first condition is their mutual comparison, the

other is the requirement  to examine the substance and the sense of the

fundamental right or freedom being restricted (Art. 4 para 4 of the

Charter of Fundamental Rights and Freedoms1)).
The mutual comparison of colliding fundamental rights and freedoms is based upon the following criteria:
The

first is the criterion of applicability, i.e. a reply to the question

whether the institute restricting a certain basic right allows the

achievement of the desirable aim (the protection of another basic

right). In the given case the legislator can be affirmed in that the

institute of anonymous witness allows to achieve the aim, i.e. to

guarantee the inviolability of his person.

The second criterion

for measuring basic rights and freedoms is the criterion of necessity

residing in the comparison of the legislative means restricting some

basic right or freedom with other provisions allowing to achieve the

same objective, however, without impinging upon fundamental rights and

freedoms. The reply to the fulfilment of the criterion of necessity in

the second case is not unambiguous: in addition to the legislative

construction allowing the anonymity of the witness the government can

use also other means for his protection (such as the utilization of

anonymous testimony as a criminalistic means for further examination,

offering protection to the witness etc.).

The third criterion is

the comparison of the importance of both conflicting basic rights. In

the case under consideration one of them is the right of fair trial

ensuring the right for personal freedom, the other is the right of

personal inviolability. These basic rights are prima facie equal.

The

comparison of the importance of colliding basic rights (after having

fulfilled the condition of appropriateness and necessity) resides in

weighting empirical, systemic, contextual and value oriented arguments.

As an empirical argument the factual seriousness of a phenomenon can be

understood that is connected with the protection of certain fundamental

right (in the case under consideration this is the increasing number of

cases of threatening and terrorising of witnesses by organized crime).  A

systemic argument means considering the sense and the classification of

the respective fundamental right or freedom within the system of basic

rights and freedoms (the right to fair trial in this connection is part

of the general institutional protection of basic rights and freedoms).

As contextual argument also further adverse impacts of the restriction

of one fundamental right due to the favouring another right can be

understood (in the given case the possibility of misusing the institute

of anonymous witness in the criminal procedure). The value argument

represents considering the positive aspects of the conflicting

fundamental rights as regards the accepted hierarchy of values.

Part

of comparing the relative weight of the conflicting basic rights is

also considering the utilization of legal institutes minimizing the

intervention into one of them, supported by arguments.

For

instance an argument disfavouring the restriction of one basic right due

to the possibility of misusing such arrangement can be eliminated by

minimizing such adverse impact in establishing further procedural

conditions for deciding about the same.

Therefore it can be

stated that in case of a conclusion about the well-foundedness of the

priority of one of two conflicting basic rights a necessary condition

for the final judgment is also having applied all possibilities of

minimizing the impingement upon one of them. Such conclusion can be

derived also from Art. 4 para 4 of the Charter of Fundamental Rights and

Freedoms,1) and namely in the sense that the basic rights and freedoms

should be preserved not only when applying provisions on the limits of

basic rights and freedoms, but also, in analogy, in case of their

restriction due to their conflicting with one another.

In the

case under consideration a number of arguments testify in favour of the

institute of anonymous witnesses, especially the empirical argument (the

increase of organized crime and, in connection with it, of the cases of

deterring the witnesses), the systemic (impairment of the ability of

the justice to act due to the witnesses being threatened), and the value

related argument (protection of life and property of citizens).

Concerning

a serious intervention into the right of the accused for defense and eo

ipso also into the principles of fair trial, the legislator was also

obliged to seek ways for minimizing such intervention and to establish

corresponding instruments for the same. Examples of such instruments can

be the already mentioned procedural mechanisms or providing exceptions

from the general principle of free assessment of evidence by the judge

through imposing the duty of the court to carry out special examination

when assessing the testimony of an anonymous witness, and namely whether

the court and the participants had been given sufficient opportunity to

deal with the credibility of the witness and the evidentiary strength

of his statement etc. These examples document the fact that the

legislator has room to arrange instruments minimizing the impingement

upon the right for defense and the rights derived from fair trial in the

framework of the arrangement of the institute of anonymous witness. The

choice of an instrument minimizing the impact upon a fundamental right

or freedom is within the authority of a democratic legislator.

Therefore

it can be stated that the restriction of right of defense in § 55 para

22) and § 2093) of the Code of Criminal Procedure, in the wording of Act

No 292/1993 Coll., does not meet the conditions that should be required

for restricting one of two conflicting fundamental rights, especially

the requirement to minimize the intervention and, consequently, it is

contrary to Art. 4 para 4,1) Art. 37 para 3,8) Art. 38 para 25) of the

Charter of Fundamental Rights and Freedoms.

For this reason the

Constitutional Court of the Czech Republic determined the term of

annulment of § 55 para 22) and § 2093) of the Code of Criminal

Procedure, in the wording of Act No 292/1993 Coll., to be 1 March 1995,

thus giving the legislator time to revise the Code of Criminal

Procedure, complementing it by a mechanism chosen by himself minimizing

the impingment upon the right of the accused of defense while enabling

the criminal procedure not to remain without an institute for the

protection of the witness after the abrogating judgment of the

Constitutional Court of the Czech Republic.

2/b. (1) In

connection with § 74 para 1 of the Code of Criminal Procedure,4) in the

wording of Act No 292/1993 Coll., the petitioners object its controversy

with Art. 38 para 2 of the Charter of Fundamental Rights and

Freedoms,5) further with Art. 14 para 3 e) of the International

Convention on Citizen and Political Rights and further with Art. 6 para 3

d) of the Convention on the Protection on Human Rights and Fundamental

Freedoms. In the opinion of the petitioners the cited provision of the

Code of Criminal Procedure is contrary to the above provisions of the

Charter of Fundamental Rights and Freedoms and Art. 10 of the

Constitution of the Czech Republic6) since the Charter of Fundamental

Rights and Freedoms  "does not permit in any of its provisions,

especially in Art. 8 guarantting personal freedom, or in Art. 41

delegating restrictions of some fundamental rights and freedoms into the

legal sphere, the restriction of the right of the accused  to lodge

appeals against a judgment of a court depriving him  from personal

freedom.  Successive decisions on prolonging the custody, resulting in

doubling the period of custody or even in eight times the 'indispensably

necessary' custody of six months at the longest, are equivalent to a

decision about imposing custody, as the court is obliged to examine

whether the reasons for custody pertain or have changed also when

judging about the prolongation of custody." In this connection the

petition further arguments with the right to appropriate legal

protection, or judicial protection derived from Art. 2 para 3 b) of the

International Convention of Citizen and Political Rights and from Art. 5

para 4 of the Convention on the Protection of Human rights and

Fundamental freedoms.

 (2) The diction of § 74 para 1 of the Code

of Criminal Procedure4) before the revision was: "An appeal against a

decision on custody is acceptable." Its interpretation regarding

decisions on prolonging custody was given by the Supreme Court of the

Czech Republic in its judgment of 6 March 1992, file 2 Tz 21/92,

published under No 57 of the Collection of Judiciary Judgments and

Opinions 1992, with the conclusion that a decision on prolonging custody

was not a judgment on imposing custody, and therefore an appeal against

it was not permissible:
"The decision concerning the request of a

prosecutor about prolonging a custody is a decision either to prolong

the custody, or a decision not to prolong the custody, or a decision to

reject the request of the prosecutor concerning the prolongation of the

custody. Both mentioned ways of decision anticipate that the reasons for

custody are given according to § 67 of the Code of Criminal Procedure,

and in this sense the existence of the reasons of custody is not a

criterion on which the one or the other decision concerning the request

of the prosecutor depends. Such criterion is solely the consideration

whether the releasing of the accused due to the termination of the legal

time period for which the custody is acceptable can counteract or

handicap the achievement of the purpose of the criminal proceedings.

It

should be added that the request of the prosecutor concerning the

prolongation of custody is not a request to revise the reasons of

custody. If the court, in meeting its official duty stipulated in the

first sentence of § 72 para 1 of the Code of Criminal Procedure, finds

that there are no reasons for custody, it shall release the accused from

custody and namely again out of official duty according to the third

sentence of § 72 para 1 of the Code of Criminal Procedure, and not on

impulse of the request of the prosecutor for prolonging custody. In such

case no judgment on not prolonging the custody is issued.

It is

obvious from the above that the judgment of the court relating to

prolonging custody according to § 71 para 1 of the Code of Criminal

Procedure, in the diction of Act No 558/1991 Coll., is not a judgment on

custody in the sense of § 74 para 1 of the Code of Criminal

Procedure4). Therefore this is not a judgment against which a complaint

according to § 74 para 1,4) § 141 para 2 of the Code of Criminal

Procedure would be permissible".

The revision of the Code of

Criminal Proceedings in the new diction of § 74 para 1,4) consequently,

expresses explicitly the interpretation conclusions of the judicature.

These

conclusions are supported by the deduction according to which the

examination of the reasons of custody is only a necessary condition for

judging about the prolongation of custody, however, not a sufficient

condition: This is only the consideration "whether by releasing the

accused due to the legal term of acceptable custody having elapsed the

achievement of the purpose of criminal proceedings could have been

counteracted or handicapped". It is a question whether, if the reasons

for custody have been met, it is possible to arrive to the opinion that

the achievement of the purpose of criminal proceedings can not have been

counteracted or handicapped. In other words: whether a conclusion is

acceptable according to which the reasons for custody are given, but

simultaneously there is no fear of counteracting or hampering the

purpose of criminal proceedings.

The contents of the legal

institution of custody is defining the constitutionally acceptable

reasons for the restriction of personal freedom (after having

communicated the accusation, see § 68, 160 of the Code of Criminal

Procedure) with the objective to disable the accused from counteracting

or handicaping the achievement of the purpose of criminal proceedings by

way of this indispensable restriction of personal freedom. It can be

inferred from the above that the allegation on the compatibility of

simultaneous existence of reasons for custody and non-existence of fears

from counteracting or handicapping the purpose of the criminal

proceedings represents a contradiction.
 
The purpose of criminal

proceedings is not only "just punishment of a perpetrator" the goal of a

criminal proceeding is also to have a "fair" process. The existence of

fair process is an indispensable condition for the existence of a

democratic, law based state.

The legal term defining the

duration of custody, accordingly, shall be considered to be the term of

indispensable restriction of personal freedom of the accused (or the

defendant) to whom the presumption of innocence applies, and which

bodies active in criminal proceedings are allotted for the completion of

the proceeding. It follows from this that, in deciding on the

prolongation of custody, in addition to the existence of statutorily 

defined grounds, serious reasons must be shown for which the proceeding

could not have been completed within the allotted time period.

The

judgment on prolonging custody (i.e. on further restrictions of the

personal freedom of a person against whom a criminal proceeding is

pending and who shall be considered from the viewpoint of the

presumption of innocence) therefore is a judgment for which higher

requirements apply than for judging on custody. For such

decision-making, considering the principle of equality, therefore all

shall apply that is in force for judging on custody as such and,

accordingly, also the right of review.

The European Court of

Human Rights, when applying Art. 5 para 4 of the Convention on the

Protection of Human Rights and Fundamental Freedoms, repeatedly stressed

the right of the involved person for having the judgment on custody

reviewed.

In this connection also the possible question should

be solved whether the authorization to request the review of the

justification of custody can be considered as a review of the judgment

concerning the prolongation of custody. A negative answer, and therefore

the conclusion on the absence of the possibility of reviewing a

judgment on prolongation of custody by submitting an appeal to examine

the justification of custody can be seen in the fact that both these

institutes pertain to different subjects of review. The review of the

judgment on prolongation of custody, under the existence of grounds for

custody, can be substantiated by the absence of important reasons in

consequence of which the proceeding could not have been competed within

the allotted time period.
 
It can be derived from the above that §

74 para 1 of the Code of Criminal Procedure,4) in the diction of Act No

292/1993 Coll., excludes the possibility of reviewing the judgment on

custody for which also the decision about its prolongation shall be

considered, thus being contradictory to Art. 5 para 4 of the Convention

for the Protection of Human Rights and Fundamental Freedoms.

The

consequence of the deletion of a part of § 74 para 1 on the Code of

Criminal Procedure,4) in the diction of Act No 292/1993 Coll., and

accordingly, the annulment of the exception restricting the appeal

against the judgment on the prolongation of custody, is the absence of

decision making mechanism in the cases in which the Supreme Court

decides about the prolongation of custody according to § 71 para 3 of

the Code of Criminal Procedure. For the purpose of allotting a certain

time period to the legislator for complementing such mechanism, in

analogy with the case of annulling § 55 para 22) and § 2093) of the Code

of Criminal Proceedure, in the diction of Act No 292/1993 Coll., the

Constitutional Court of the Czech Republic decided also in the case of

the annulment of a part of § 74 para 14) of the Code of Criminal

Procedure, in the diction of Act No 292/1993 Coll., about delaying the

effectivity date of the finding onto 1 March 1995.


 


Pl. US 4/94
Overview of the most important legal regulations

1.  

 Art. 4 par. 4 of Act no. 2/1993 Coll., the Charter of Fundamental

Rights and Freedoms, provides that in employing the provisions

concerning limitations upon the fundamental rights and basic freedoms,

the essence and significance of these rights and freedoms must be

preserved; such limitations are not to be misused for purposes other

than those for which they were laid down.

2.    § 55 par. 2 of

Act no. 141/1961 Coll., the Criminal Procedure Code, as amended by of

Act no. 292/1993 Coll., reads: If there is apparently danger of

detriment to health or other serious danger to a witness or persons

close to him in connection with giving testimony, the first and last

name of the witness and his other personal data shall not be entered

into the record, but

3.    recorded separately from the criminal

file, and may be viewed only by bodies active in the criminal

proceedings. The witness shall be informed about his right to sign a

protocol of the questioning using an assumed first and last name, under

which he is then recorded. If the reasons for separate recording of the

witnesses’ personal data cease to exist, these data shall be attached to

the criminal file.

4.    § 209 of Act no. 141/1961 Coll., the

Criminal Procedure Code, as amended by of Act no. 292/1993 Coll., reads:

The panel chairman shall see to it that a witness who has not yet given

testimony is not present during the questioning of the defendant and

other witnesses. If there is concern that the witness will not tell the

truth in the presence of the defendant, or if there is danger of

detriment to health, death or other serious danger to the witness being

questioned or persons close to him or if the witnesses’ identity must

remain secret for serious reasons, the panel chairman shall take

measures appropriate to ensure the safety or secrecy of identity of the

safety, or shall order the defendant out of the courtroom during the

time that such witness is being questioned. However, after his return to

the courtroom, the defendant must be informed about the content of the

witnesses’ testimony, may respond to it, and, without meeting the

witness, may pose questions to him through the panel.

5.    § 74

par. 1 of Act no. 141/1961 Coll., the Criminal Procedure Code, as

amended by of Act no. 292/1993 Coll., reads: A complaint may be filed

against a decision on custody (§ 68, 69, 72, 73, 73a) with the exception

of a decision to extend it (§ 71 par. 2,5).

6.    Art. 38 par. 2

of Act no. 2/1993 Coll., the Charter of Fundamental Rights and

Freedoms, provides that everyone has the right to have his case

considered in public, without unnecessary delay, and in his presence, as

well as to express his views on all of the admitted evidence. The

public may be excluded only in cases specified by law.

7.    Art.

10 of Act no. 1/1993 Coll., the Constitution of the Czech Republic,

provides that international treaties concerning human rights and

fundamental freedoms which have been duly ratified and promulgated and

by which the Czech Republic is bound are directly applicable and take

precedence over statutes.

8.    § 2 par. 5 of Act no. 141/1961

Coll., on Criminal Court Procedure (the Criminal Procedure Code), as

amended by later regulations, provides that bodies active in criminal

proceedings proceed so that the facts of the matter are determined about

which there are not reasonable doubts, in the scope necessary for their

decision. Without a motion from the parties, they shall carefully

clarify circumstances to the benefit and the detriment of the accused. A

confession by the accused does not absolve the bodies active in

criminal proceedings of the duty to review all circumstances of the

case.

9.    Art. 37 par. 3 of Act no. 2/1993 Coll., the Charter

of Fundamental Rights and Freedoms, provides that all parties to

proceedings are equal.