2009/07/28 - Pl. ÚS 1/09: Rehearing following the ECHR Judgment

28 July 2009

HEADNOTE

Under

§ 119b para. 3 of the Act on the Constitutional Court, after granting

the rehearing, the Constitutional Court in its new Judgment proceeds

from the legal opinion of the international court, in this given case

from the Judgment of the European Court of Human Rights.
 


CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT

IN THE NAME OF THE CZECH REPUBLIC


On

28 July 2009, the Constitutional Court Plenum, composed of Pavel

Rychetský, Chairman of the Constitutional Court, and Justices Vlasta

Formánková, Pavel Holländer, Vladimír Kůrka, Dagmar Lastovecká, Jan

Musil, Jiří Nykodým, Miloslav Výborný, Eliška Wagnerová and Michaela

Židlická, adjudicated in reopened proceedings in the case of a

constitutional complaint by 1) Lubor Melich and 2) Martin Beck, both

represented by Mgr. David Strupek, an attorney at law, the law firm with

a registered office in Prague 1, Jungmannova 31, against a resolution

of the Municipal Court in Prague dated 18 December 2002, file No. 5 To

427/2002; with participation by the Municipal Court in Prague as a party

to the proceedings, and the Municipal Public Prosecutor’s Office in

Prague, with a registered office in Prague 2, Legerova 13, as a

secondary party; an oral hearing having been dispensed with upon consent

of the parties; as follows:

The Resolution of the Municipal

Court in Prague dated 18 December 2002, file No. 5 To 427/2002, shall be

annulled, since the fundamental right of the complainants established

by Art. 6 para. 1, para. 2 and para. 3 clause d) of the Convention on

the Protection of Human Rights and Fundamental Freedoms was violated in

proceedings prior to issue of the same.
 


REASONING


1.

By a petition sent by post on 27 March 2003, Lubor Melich and Martin

Beck (hereinafter referred to also as the “complainants” or

“defendants”) claimed that the Constitutional Court should annul by

judgment the decision specified in the heading issued by the Municipal

Court in Prague (hereinafter referred to only as the “court of appeal”)

regarding their criminal case administered by the District Court for

Prague 1 (hereinafter referred to only as the “court of first instance”)

under file No. 1 T 169/2001.

Circumstances of the case:
2.

The factual and legal circumstances of the case are summarised in

paragraphs 5 to 30 of the Judgment of the European Court of Human Rights

(hereinafter referred to only as the “European Court”) (dated 24 July

2008, in the case of Melich and Beck v. the Czech Republic, Application

No. 35450/04) as follows.

3. The complainants were born in the years 1978 and 1977 and reside in Prague.

4.

On 28 January 1999, around 10:00 p.m., an incident took place between

the complainants and three police officers, B., L. and P., which turned

into a scuffle. The description of the events given by the complainants

differs from that of the police officers.

5. According to an

official record developed on the same day by the three previously

mentioned police officers, these events took place during an identity

check initiated following the police officers’ attention being attracted

by a group of five persons allegedly smoking marihuana. Both

complainants, using vulgar expressions, refused to follow the order to

produce their identity documents, consequently police officer B.

requested them to accompany him to the police station. Following this,

the complainants produced their identity documents. Afterwards, the

first complainant began to move away towards a tram stop, and police

officer L. instructed him to stay at the site of the check and

approached him. As soon as they were close enough together, the first

complainant struck L. with his left arm and knocked him down. When

police officer B. wanted to hamper him, the first complainant attempted

to strike him with his fist in the face. B. and L. overcame the

opposition of the first complainant, immobilised him on the ground and

handcuffed him. After this, the first complainant attacked B. with his

shackled arms and left foot. During this conflict, police officer P.

prevented the second complainant from taking part in the scuffle, to

which this complainant responded with punches; afterwards, P. with the

help of L. handcuffed him. Two persons present, V. D. and I. D.,

voluntarily registered as witnesses. At 10:20 p.m., these witnesses and

the complainants were transported to the police station. The record

included that many persons had been standing at the tram stop near the

venue of the check and disturbing the course of the check with their

remarks, and thus the police officers did not feel safe.

6.

According to the complainants, the group consisted of only four persons,

comprising themselves and their girlfriends P. V. and J. J. They

followed the order by the police officers to produce their identity

documents without making any vulgar comments. Then they were requested

to follow the police officers to the police station. When they were

about to do so, the second complainant handed over to J. J. the keys

from his flat, but when the first complainant moved to hand over his

keys to P. V., police officer L. grabbed him, hit him and knocked him

down. Police officer B. also engaged in the scuffle. At the same time,

police officer P. kept the second complainant from engaging in the

scuffle. Even though the second complainant admitted that he had come

into physical contact with police officer P., he denied hitting him with

his fist. According to the complainants, the bystanders did not approve

of the actions of the police officers, except for one man who

encouraged them and later participated in the proceedings as witness I.

D. As for P. V. and J. J., the police officers refused to take them to

the police station; both women attempted in vain to deliver their

testimonies. Indeed, making a statement before a police body was only

made possible to them as late as when the parents of the complainants

appeared at the police station, which was on 29 January 1999 at 3:00

a.m. The statements by P. V. and J. J. depicted the events in the same

way as the complainants, even though they had had no chance to confer

with the complainants about their depositions. Amongst other points, J.

J. stated that the bystanders had considered the actions to be brutal

and that a woman had even lent her a mobile phone so that she could call

the police. Under Czech law, such explanations given prior to charges

being brought against complainants were not possible to accept as

evidence in subsequent criminal proceedings.

7. On 29 January

1999 at 6:00 p.m., the complainants were informed of being charged with

the criminal act of assault on a public official and were interrogated.

Affected by a night spent in a police cell, they declared that the

incident had happened needlessly and expressed regret for the same,

however, they denied having attacked the police officers. The first

complainant only admitted that, after being handcuffed, he had struck

one of the police officers with his head and knocked him to the ground,

this after the police officer had forbidden him from handing over the

keys to P. V. After the interrogation, the complainants were released.

8.

With respect to the fact that police officer L. no longer served in

Prague, he was examined elsewhere on 30 March 1999 following a request

to such effect. The defence counsel of the complainants excused

themselves from this examination. Subsequently, however, they stated

that whole sections of the record from this deposition are identical to

the wording of the official record dated 28 January 1999. During this

examination, L. admitted that when the first complainant was moving away

from the site of the check, the same went to approach one of the young

women standing at the tram stop.

9. On 8 April 1999, the

investigator examined witness I. D. in the presence of the defence

counsel of the complainants. The complainants stated that this witness’s

deposition was in favour of the police officers, but that his version

of the events differed from the version given by the police. However, he

stated that he had overheard the police officers’ request for the

complainants to accompany them to the police station.

10. On 12

April 1999, the examination of P. V. and J. J. was held, both P. V. and

J. J. confirming the statements of the complainants. The deposition of

P. V. was interrupted with a warning that in the case of giving false

testimony, criminal prosecution might follow. Amongst other points, she

stated that she had contact information for another person who had been

present at the given events, specifically for Z. Š. However, the

investigator dismissed the proposal by the defence counsel for examining

said person on the grounds of the expectation that Z. Š. would actually

testify in favour of the complainants. J. J. specified that during the

incident, she had called the police using a mobile phone belonging to

one of the persons present. On the basis of a proposal by the defence

counsel of the complainants, another witness, M. H., was obtained. This

witness, in her deposition on 16 April 1999, specified that she had not

seen the beginning of the scuffle; afterwards there perhaps was some

physical conflict but not violence; that the conduct of the police

officers was quite proper and that the complainants responded with

sneers and provocative gestures.

11. On 16 April and 23 April

1999, the investigator examined police officers P. and B. in the

presence of attorneys at law of the complainants. The complainants

stated that neither P. nor B. had been able to explain why the first

complainant should move away from the site of the check when his

identity document was in the hands of the police officers.

12. On 25 May 1999, the complainants were indicted for the criminal act of assault on a public official.

13.

During the trial held on 18 August 1999, the court of first instance

heard both defendants and police officers L. and P. These police

officers denied that they had requested the complainants to accompany

them to the police station; according to P. such a request would have

been nonsense when identity documents were being shown. The court also

heard witnesses P. V., J. J., M. H. and Z. Š. The witness for the

defence, Z. Š., said that the police officers had requested that the

complainants accompany them to the police station, and that the

complainants had definitely not attacked them. The deposition of witness

I. D., who was, on the basis of § 209 para. 1 of the Criminal Procedure

Code, heard in a separate room as he was afraid of vengeance by the

complainants, was brought to the courtroom via sound transmission.

14.

Police officer B. was heard during the trial on 29 September 1999.

According to him, the complainants had been requested to make an

appearance at the police station. He did not remember when exactly this

had taken place, but declared that this request had definitely not been

made before the complainants showed their identity cards.

15. In

the closing argument, the defence counsel of the complainants pointed

out that the statement by the police officers was confirmed only by the

deposition of I. D., which, however, contains a number of false

statements, and that it would not be logical for the first complainant

to move away from the site of the check after handing over his identity

card to the police officer. Furthermore, they stated that the police

officers by requesting the complainants to follow them to the police

station had proceeded in contravention of the Act on the Police of the

Czech Republic, and thus no longer held the position of public

officials.

16. By a judgment dated 29 September 1999, the court

of first instance found the complainants guilty of committing the

criminal act of assault on a public official and imposed on them a

suspended sentence of imprisonment for two months. In particular, the

court stated that the version of events by the police was confirmed at

least in its major points by the deposition of an impartial witness, I.

D., as well as the deposition by M. H., who confirmed the provocative

behaviour of the complainants. As for the depositions of P. V. and J.

J., the court reached the opinion that the same could be, to some

degree, influenced by the fact that they are the girlfriends of the

complainants. The court also expressed certain doubts on the deposition

of Z. Š., as she was in contact with P. V. and J. J.

17. The

second complainant filed an appeal in which he contested the assessment

of the evidence, which he claimed to be incorrect, and questioned the

balance in the assessment of the reliability of witnesses. The second

complainant pointed out that due to a lapse on the part of the police

officers, who had failed to obtain at least several witnesses from the

approximately 30 to 50 onlookers, the facts of the case could not be

ascertained sufficiently. The complainant also reproached the court for

not addressing the motives of the conduct which had been imputed to him.

Furthermore, he deemed that the police officers, who had violated the

Act on the Police of the Czech Republic, were not covered by the

protection pertaining to public officials during the incident.

18.

After the end of the open court session, which took place on 13 March

2000, the court of appeal dismissed the appeal by the second

complainant. The court found that the proceedings before the court of

first instance had not suffered from any material defects which could

affect clarification of the case or exercise of the rights of the

defence. According to the court, all available pieces of evidence were

presented and assessment of the same was logical and sufficiently

justified. The court of appeal also concluded that the procedure of the

police officers had been in accordance with the law.

19. On 16

October 2000, the second complainant contested the decision dated 13

March 2000 through a constitutional complaint, referring to his right to

a fair trial, presumption of innocence and the principle in dubio pro

reo, guaranteed by Article 6 para. 1 and para. 2 of the Convention for

the Protection of Human Rights and Fundamental Freedoms (hereinafter

referred to only as the “Convention”). He stated that the bodies

involved in criminal proceedings had proceeded from conviction on his

guilt constructed a priori, that the only objective of the criminal

proceedings was to secure his conviction, and that the police officers

intentionally failed to obtain other witnesses, since those persons

present at the site of the incident deemed their actions to be

inappropriate. The complainant finally claimed that the witnesses for

the defence had been considered unreliable and that the Municipal Court

had failed to deal with his objections.

20. By a Judgment dated 4

October 2001, file No. III. ÚS 617/2000, the Constitutional Court

granted the constitutional complaint filed by the complainant and

annulled the decisions of both courts in charge of adjudicating in

previous proceedings. The Constitutional Court reached the opinion that

the conclusions of the court of appeal were not convincing, that lapses

had occurred prior to the commencement of the proceedings (witnesses had

not been obtained), and that the decision by the investigator not to

examine Z. Š. was in contravention of the principles of a criminal

trial, since the same was equal to the preliminary selection of

evidence. In addition, the court of appeal, when assessing the

depositions of P. V., J. J. and Z. Š., did not respect the principle of

free evaluation of evidence, and did not justify their conclusion

concerning their being unreliable. Besides, also the description of

events submitted by the police officers and by I. D. lacked accuracy,

which could only in part be explained by the fact that various phases of

the incident might have been perceived by the parties involved in

different ways, or possibly not witnessed at all. The Constitutional

Court stated that the deficiencies in the evidence, or merely gaps in

the factual basis of the case, cannot be to the detriment of the

defendants, and that a certain version of the facts cannot be taken as

proven by omitting evidence which does not support the same. According

to the Constitutional Court, the investigation was certainly influenced

by the fact that the police officers, however they deemed the behaviour

of the complainants to be unlawful, had not secured sufficient evidence

in order to describe the facts of the case in as much detail as

possible, including circumstances testifying in favour of the

complainants, this despite some persons present offering themselves as

witnesses.

21. In accordance with the principle beneficio

cohaesionis, the contested decisions were annulled also in relation to

the first complainant, even though he had not filed any constitutional

complaint.

22. On 13 February and 10 April 2002, two trials were

held before the court of first instance, during which pieces of evidence

were newly presented. The majority of persons heard made identical

depositions as before or referred back to their previous depositions;

the first complainant added that the police officers, before handcuffing

him, had used restraining grips on him. I. D. was again heard in a

separate room, regardless of the objection by the defence that the

statutory conditions for making this procedure possible were not met, in

relation to which the defence counsel in particular stated that there

had been no attempt at vengeance and that they had personal data

concerning I. D. available. Police officer L. declared, with respect to

the flagrant similarities between his deposition following a request to

such effect on 30 March 1999 and the official record dated 28 January

1999, that he simply had read the record before being examined.

23.

On 3 June 2002, the court of first instance delivered the second

judgment, whereby they found the complainants guilty of committing the

criminal act of assault on a public official and imposed on them a

suspended sentence of imprisonment for two months. The court stated that

the deposition of the first complainant made on 13 February 2002 raised

certain doubts as previously he had not mentioned any use of

restraining grips, and this circumstance had not resulted from the

deposition of the second complainant either. To the contrary, the police

officers presented mutually congruent versions, confirmed by the

testimonies of I. D. and M. H. The court of first instance stated that

they did not trust the depositions of P. V. and J. J., since they were

girlfriends of the defendants, who could be influenced to depose in

their favour; in addition, M. H. stated that one of these women had

acted in a considerably hysterical way and verbally assaulted the police

officers.

24. The complainants appealed, stating that the court

of first instance did not follow the conclusions declared by the

Constitutional Court in their Judgment dated 4 October 2001 regarding

the lapses which had occurred prior to the commencement of the

proceedings, and regarding the unreliability of P. V. and J. J. The

complainants also pointed out that two pieces of evidence were presented

in contradiction with the law. Firstly, everything seemed to indicate

that police officer L. had the text of the official record available

during his preparatory examination; secondly, conditions for examining

I. D. in a separate room were not met, and I. D. did not want to be

confronted with the complainants because he was not speaking the truth.

Finally, the complainants contested the assessment of the evidence.

25.

The court of appeal amended the evidence with an examination of I. D.

conducted in the courtroom in the presence of the defence counsel of the

complainants, but in the absence of the complainants themselves.

26.

At the conclusion of the public hearing held on 18 December 2002, the

court of appeal denied the appeal by the complainants. The court of

appeal considered as proper the procedure employed by the court of first

instance which did not believe the defendants whose depositions were

conflicting in part. In this respect, the court of appeal particularly

referred to the examination of the first complainant dated 29 January

1999, when the same declared that he had struck L. with his head;

according to the court, the complainant thereby unambiguously confessed

that he had assaulted the police officer. With respect to the fact that

P. V., J. J. and Z. Š. did not mention what had happened before the

first complainant was handcuffed, i.e. the above-mentioned physical

assault, their depositions seemed to be unconvincing. According to the

court of appeal, it was not proven that the given official record was

read to police officer L. prior to his examination; and hearing I. D. in

a separate room was not in contradiction with the law, when his

identity was known and he was examined in the presence of the defence

counsel of the defendants prior to the commencement of the proceedings.

According to the court of appeal, I. D. was not obliged to justify his

application for the examination being held in the absence of the

defendants, and the chairperson of the panel could grant such an

application in accordance with § 209 para. 1 of the Criminal Procedure

Code, when such a chairperson deemed the same reasonable. The court of

appeal eventually stated that the procedure of the police officers on

the day when said events happened had been in accordance with the law

and that the complainants were not requested to appear at the police

station after producing their identity cards; as was stated by police

officer B. himself, such a request would have been nonsense at the given

moment. If I. D. indeed overheard such a request, he perhaps did not

hear it completely or misinterpreted the same. Even though it is not

possible to rectify lapses which took place prior to the commencement of

the proceedings, which the Constitutional Court pointed out, the

evidence secured was, according to the court, sufficient to express a

conclusion on the guilt of the complainants.

27. On 26 March

2003, the complainants filed a constitutional complaint. With reference

to Article 6 of the Convention, they declared that the criminal

proceedings as a whole had not complied with the criteria of a fair

trial and that the courts had not respected the principles of

presumption of innocence and in dubio pro reo. In their opinion, a

cumulation of a whole number of lapses is indicative of bias by ordinary

courts, the conclusions of which were in extreme contradiction with the

ascertained facts of the case. In particular, the complainants objected

that the court of appeal, referring to the examination conducted on 29

January 1999, fabricated a confession by the first of them. In such a

deposition, the first complainant declared that he hit the police

officer only after being handcuffed, that is after the end of the

scuffle, while the court interpreted this event as occurring at the

beginning of the affray, in order to be able to cast doubt on the

reliability of witnesses P. V., J. J. and Z. Š. In addition, the file

contains nothing to support the conclusion that the complainants were

not, after producing their identity cards, requested to appear at the

police station; in fact, on 29 September 1999, police officer B.

allegedly declared the opposite. The complainants also repeated their

objections concerning the examination of L. held on 30 March 1999, and

concerning that of I. D. As for the latter, they objected to the

argument pronounced in the decision of the court of appeal dated 18

December 2002, according to which the court was allowed to arbitrarily

assess whether or not the witness was to be heard in the absence of the

defendants. They also insisted on their declaration that the police

officers intentionally had not obtained more witnesses to the given

incident.

28. By a decision dated 25 March 2004, file No. I. ÚS

184/03, which was delivered to the attorney at law of the complainants

on 2 April 2004, the Constitutional Court rejected the constitutional

complaint as manifestly unfounded. The Constitutional Court stated that

the objections of the complainants had been particularly aimed at the

facts of the case as ascertained by the court and on the presentation

and assessment of evidence. According to the Constitutional Court,

however, the proceedings were administered in a proper and expeditious

manner and in accordance with procedural rules. The evidence gathered

unambiguously testified to the guilt of the complainants, and the courts

sufficiently explained their deliberations as well as the opinion on

the reliability or otherwise of P. V., J. J. and Z. Š. The rights of the

defence were not violated by examining I. D. pursuant to § 209 of the

Criminal Procedure Code, and the facts of the case were ascertained to

the degree necessary to allow a judgment to be passed. The

Constitutional Court finally stated that the objections contained in the

complaint are equal to the objections specified in the appeal;

therefore, the Court referred to the reasoning of the judgment of the

court of first instance and to reasoning of the decision of the court of

appeal dated 18 December 2002.

29. The complainants filed a

complaint (application) to the European Court against this resolution,

or against the Czech Republic as a signatory to the Convention. The

European Court, in the above-specified judgment dated 24 July 2008,

declared, amongst other facts, that the proceedings resulting in the

conviction of the complainants violated Article 6 para. 1, para. 2 and

para. 3, clause d) of the Convention.

30. On the basis of this,

using § 119 of Act No. 182/1993 Coll. on the Constitutional Court, as

amended by later regulations (hereinafter referred to only as the “Act

on the Constitutional Court”), the complainants filed a petition for a

rehearing. The Constitutional Court stated that the conditions for

dealing with such a petition were met, and decided on the same by a

resolution dated 28 April 2009, file No. Pl. ÚS 1/09 as follows: the

Constitutional Court granted a rehearing in the case of a constitutional

complaint by the complainants adjudicated under file No. I. ÚS 184/03

(verdict I), annulled its resolution dated 25 March 2004, file No. I. ÚS

184/03-27 (verdict II), and decided that the case originally decided

upon under file No. I. ÚS 184/03 shall continue under file No. Pl. ÚS

1/09.

Argumentation of the complainants contained in the constitutional complaint and the petition for the rehearing:

31.

In the constitutional complaint originally dealt with under file No. I.

ÚS 184/03, the complainants stated that the criminal proceedings

administered against them as a whole did not fulfil the criteria for a

fair trial pursuant to Art. 6 of the Convention, or Art. 36 et seq. of

the Charter of Fundamental Rights and Basic Freedoms (hereinafter

referred to only as the “Charter”) even after the proceedings following

the Judgment of the Constitutional Court dated 4 October 2001 had been

further elaborated. The procedure of the ordinary courts of both

instances violated the principle of presumption of innocence, since the

courts clearly proceeded from an anticipatory conviction on their guilt,

and doubts were not interpreted in favour of the complainants; they

referred to the Judgment of the European Court dated 6 December 1988 in

the case of Barberá, Messegué and Jabardo v. Spain (Application No.

10590/83), and a publication by Bohumil Repík, “Evropská úmluva o

lidských právech a trestní právo / European Convention on Human Rights

and Criminal Law”, Orac, 2002, p. 182.

32. They criticised the

court of appeal also for the most crucial lapse, when the court “on

purpose fabricated the confession of the first complainant, which since

then became entwined around the decision as a whole, and, in a similar

way, they essentially distorted the deposition of witness B. in the part

decisive for assessing the lawfulness of the actions by the patrol of

the Police of the Czech Republic.”
 
33. In addition, the

complainants criticised the ordinary courts for their violation of

principles of a fair trial in other particulars, which, in themselves,

seem to be less important, however, as a whole they raise doubts on the

impartiality of the courts and on compliance with the principle of

presumption of innocence. Defects were not remedied as per the previous

Judgment of the Constitutional Court. Furthermore, the complainants

referred to two cases (that is the “confession” of the first complainant

and the deposition of witness B.) in which, in their opinion, the

conclusions of the court of appeal were in extreme contradiction with

the ascertained factual circumstance. They also referred to other cases

(the deposition of witness L. in preparatory proceedings, the deposition

of witness D., lapses by the police officers prior to the proceedings

and the assessment of evidence), when, in their conviction, the

principles of a fair criminal trial were violated.

34. In the

petition for the rehearing, the complainants repeated argumentation

already applied in the application to the European Court and in the

preceding constitutional complaint. They expressed the opinion that the

Constitutional Court should, in the reopened proceedings, deal with the

constitutional complaint to the full extent of the same, including such

part thereof with which the European Court has not dealt.

The legal opinion of the European Court expressed in its Judgment dated 24 July 2008:

35.

The provisions of § 119b para. 3 of the Act on the Constitutional Court

bind this Court to base its new Judgment on the legal opinion of the

European Court. In the case under examination, this legal opinion was

contained in paragraphs 47 to 50 of the above-quoted Judgment of the

European Court dated 24 July 2008 as follows.

36. In the

introduction, the European Court noted that the requirements of Article 6

para. 3 of the Convention express special aspects of the right to a

fair trial that is generally guaranteed by paragraph 1 (Judgment dated 2

October 2001 in the case of G. B. v. France, Application No. 44069/98,

para. 57), and that the presumption of innocence established in

paragraph 2 of Article 6 of the Convention is one of the constituents of

a fair criminal trial required by paragraph 1 of Article 6 of the

Convention (Judgment dated 23 July 2002 in the case of Janosevic v.

Sweden, Application No. 34619/97, para. 96). With respect to the fact

that the objections applied in terms of Article 6 para. 1, para. 2 and

para. 3, clause d) of the Convention overlap, the European Court deemed

it appropriate to deal with the same from the viewpoint of all these

three provisions together.

37. The European Court also noted that

in a case to which no arbitrariness is attributed, the European Court

is not to replace the domestic courts in interpreting the law and

assessing factual circumstances and evidence. The point is that the

European Court cannot itself examine the factual circumstances which led

the domestic court to adopt this or that decision, since, in such a

case, the European Court would elevate itself to a position of a court

of third or fourth instance and thus exceed the limits of its mission

[Judgment dated 24 November 1994 in the case of Kemmache v. France (No.

3), Application No. 17621/91, para. 44]. Furthermore, the presentation

of evidence is governed, first of all, by the norms of national law. The

domestic courts are thus principally competent to assess evidence

collected by them and decide on the relevance of evidence proposed by

the defendants (Judgment of the Grand Chamber dated 6 May 2003 in the

case of Perna v. Italy, Application No. 48898/99, para. 29). Pursuant to

the Convention, the task of the European Court is to examine whether

the proceedings under examination were fair as a whole, i.e. including

the manner of submitting evidence [G. B. v. France, see above, para. 59;

Judgment of the Grand Chamber dated 25 March 1999 in the case of

Pélissier and Sassi v. France, Application No. 25444/94, para. 46].

38.

The European Court also stated that the principle in dubio pro reo,

being a specific expression of the principle of presumption of innocence

(Judgment dated 27 September 2007 in the case of Vassilios Stavropoulos

v. Greece, Application No. 35522/04, para. 39), requires that judges do

not proceed from an a priori held conviction that the defendant

committed the act which is imputed to them, so that the burden of

evidence rests on the prosecution, and that possible doubts are employed

to work to the benefit of the defendant (Judgment dated 28 November

2002 in the case of Lavents v. Latvia, Application No. 58442/00, para.

125).

39. In the given case, it was not the task of the European

Court to comment on the guilt of the complainants or on whether the

domestic bodies had correctly assessed the facts of the case and

correctly applied the law. The Court’s task was to review the statement

of the complainants that the proceedings as a whole were not in

accordance with the guarantee of a fair trial (see, mutatis mutandis,

Judgment dated 22 February 2007 in the case of Perlala v. Greece,

Application No. 17721/04, para. 25).

40. The European Court

firstly stated that the Constitutional Court in its first decision dated

4 October 2001 discovered certain violations of the principle of

fairness. One of its admonitions directed to the ordinary courts related

to the lack of evidence, in particular the fact that the police

officers had not obtained more witnesses, which negatively affected the

subsequent investigation. Nobody denied that such a lapse was not

rectifiable. However, no consequence ensued from the opinion of the

Constitutional Court that a lack of evidence or the insufficiently

ascertained facts of the case cannot be employed to the detriment of the

defendants. In this connection, the European Court stated that the

Government did not at all deal with the fact that witness V. D., whose

identity was ascertained on the day of the incident, has never been

examined, even though her examination, according to the complainants,

was determined to take place on 18 December 2002.

41. Another

criticism voiced by the Constitutional Court applied to insufficient

reasoning for the unreliability of witnesses P. V., J. J. and Z. Š. In

proceedings which followed the announcement of the Judgment dated 4

October 2001, the court of first instance nevertheless maintained its

previous reasoning, i.e. that P. V. and J. J. were girlfriends of the

defendants. The court of appeal amended these deliberations with the

fact that these witnesses had not mentioned any physical assault on

police officer L., which the first complainant had allegedly made before

being handcuffed. This statement, however, brought vigorous

disagreement from the complainants, who declared that it was a

distortion of the deposition of the first of them made on 29 January

1999. Even though such an objection was one of the main arguments raised

by the complainants before the Constitutional Court, in addition to

being one relating to the “rights and freedoms” guaranteed by the

Convention, thus requesting a specific and clear response (see, mutatis

mutandis, Judgment dated 28 June 2007 in the case of Wagner and J. M. W.

L. v. Luxembourg, Application No. 76240/01, para. 96), the

Constitutional Court, in its decision dated 25 March 2004, restricted

itself to the statement that the explanation of the unreliability of

witnesses, submitted by the ordinary courts, had sufficed.

42.

The European Court further stated that even though the Convention does

not prohibit the possibility of examining a witness in the absence of

the defendant if the defendant’s attorney is present, such an exception

from the guarantees established by Article 6 of the Convention must be

interpreted restrictively. However, the ordinary courts did not explain

satisfactorily why they applied, in the given case, § 209 para. 1 of the

Criminal Procedure Code, when they first heard I. D. in a separate room

and then in the courtroom but in the absence of the defendants. The

opinion of the court of appeal that I. D. was not obliged to justify his

application for being examined in the absence of the defendants, and

the lack of communication by the courts regarding the statement of the

complainants that they had in no way whatsoever intimidated the witness,

appear to be, in this respect, incompatible with the principle of

fairness and transparency. Such procedure creates an impression that the

judges acted on the basis of an a priori accepted conviction of the

guilt of the defendants.

43. The European Court finally stressed

the importance which must be placed on how matters appear from the

outside, and the increased sensitivity by the public regarding

guarantees of a proper judiciary (Judgment dated 30 October 1991 in the

case of Borgers v. Belgium, Application No. 12005/86, para. 24; Judgment

of the Grand Chamber dated 12 May 2005 in the case of Öcalan v. Turkey,

Application No. 46221/99). At the same time, the European Court noted

that as regards the issue of fairness, the contracting parties have less

leeway for discretion in the area of criminal prosecution than in the

area of civil litigations (Judgment dated 27 October 1993 in the case of

Dombo Beheer B.V. v. the Netherlands, Application No. 14448/88, para.

32). With respect to these circumstances, the European Court deemed that

the effects of all the above-specified difficulties were, in entirety,

so restricting in terms of the rights of the defence that the principle

of a fair trial established in Article 6 was violated. Therefore, the

European Court did not consider it necessary to comment on other

objections applied by the complainants.

44. In its conclusion,

the European Court stated that in the case under examination, Article 6

para. 1, para. 2 and para 3, clause d) of the Convention were violated.

Substantive examination of the constitutional complaint in the reopened proceedings

45.

The Constitutional Court further appended the requested file developed

by the court of first instance, file No. 1 T 169/2001, and its own files

III. ÚS 617/2000 and I. ÚS 184/03. With respect to the so ascertained

factual and legal basis specified above, the Court had no other option

than to state that the conditions for the procedure pursuant to § 82

para. 2, clause a) in connection with § 119b para. 2 to para. 5 of the

Act on the Constitutional Court had been met and the constitutional

complaint within the reopened proceedings must be completely granted. In

relation to this, the Court proceeded from the provisions of § 119b

para. 2 of the Act on the Constitutional Court and decided on the

original petition; that is on the constitutional complaint dated 26

March 2003 (delivered to the Court on 28 March 2003), not on a new

formulation of the proposed verdict of the same stated in the petition

for the rehearing dated 21 January 2009. The petition for the rehearing

serves to ensure that the original petition can possibly be decided upon

again from the viewpoint of the legal opinion expressed by the

international court, not that a new petition should be filed. Therefore,

only the decision of the court of appeal dated 18 December 2002 (cf.

Judgment dated 8 July 2008 in case file No. Pl. ÚS 13/06, para. 25;

nalus.usoud.cz) was the subject of decision-making. The

Constitutional Court did not accept other petitions by the complainants

for a new “comprehensive” dealing with the constitutional complaint

specified in the petition for granting the rehearing, with a reference

to its case law, according to which, in reopened proceedings, it is not

necessary to re-assess other circumstances of the case, since this would

further augment an already exceptional intervention into the final

decision made by a body of a sovereign country (cf. the above-quoted

Judgment dated 8 July 2008 in case file No. Pl. ÚS 13/06;

nalus.usoud.cz).

46. Under § 119b para. 3 of the Act on

the Constitutional Court, after granting the rehearing, the

Constitutional Court in its new Judgment proceeds from the legal opinion

of the international court, in this given case from the Judgment of the

European Court of Human Rights dated 24 July 2008 in the case of Melich

and Beck v. the Czech Republic, Application No. 35450/04, which

declared a violation of the fundamental right of the complainants to a

fair criminal trial under Art. 6 para. 1 of the Convention, a part of

which is formed by the principle of presumption of innocence established

in Article 6 para. 2 of the Convention, and the right to have adequate

time and facilities for the preparation of defence under Art. 6 para. 3,

clause b) of the Convention.

47. Therefore, the Constitutional

Court, in the reopened proceedings, without an oral hearing after the

parties agreed to dispense with the same, completely granted the

constitutional complaint, which means that the case is returned to the

court of appeal for the appeal to be dealt with anew. It will be the

task of the court of appeal to assess, within new proceedings, the

appeal by the complainants against the judgment by the court of first

instance dated 3 June 2002, file No. 1 T 169/2001-218 in such a manner

that would respect Art. 6 of the Convention.

Note: Judgments of the Constitutional Court cannot be appealed.

In Brno on 28 July 2009
 

Pavel Rychetský
Chairman of the Constitutional Court