CYIL vol. 9 (2018)

JIŘÍ MULÁK CYIL 9 ȍ2018Ȏ decides about the guilt and sentence for criminal offences (Art. 90 of the Constitution of the Czech Republic, 16 Art. 40(1) of the Charter of Fundamental Rights and Freedoms 17 ). It is impossible to achieve the final goal of criminal proceedings without its strict and complete fulfilment. At present it is expressed in the most general way in Art. 6(2) of the ECHR “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”. 18 The presumption of innocence principle expressed this way has, without any doubt, great importance for proper and legal implementation of the entire criminal proceedings. For this reason it is quite logically included into the article declaring the right to a fair trial. A more general formulation is quite justified here because the ECHR (as well as the Charter of Fundamental Rights of the EU or the International Covenant) must count also on legal regulation of the criminal trial, where criminal proceedings do not end with a judgement of conviction only, but also with pleading guilty ( guilty plea ). 19 According to the European Court of Human Rights, this article integrates three key postulates. The first of them is the right not to be publicly referred to as guilty by public power authorities before the issuing of a final judgement. 20 Another requirement is the fact that the burden of proof lies on prosecution and any justified doubts concerning the guilt must be interpreted in favour of the person charged ( in dubio pro reo ). 21 Finally, the third requirement is then the right of the persons charged to know with what they are charged so that they can prepare and present their defence, and the defence counsel is obliged to submit sufficient evidence on which it would be possible to assess the question of guilt or innocence. 22 The European Court of Human Rights also places emphasis on the fact that the actual Article 6(2) of the ECHR cannot prevent state authorities from informing the public about the investigation which is underway, nevertheless it imposes the conditions on them that during this process they must behave cautiously and prudently, in order that the presumption of innocence can be respected. A similar formulation like the one in ECHR is offered also in Art. 14(2) of the ICCPR, 23 Art. 48(1) of the Charter of Fundamental Rights 16 ŠIMÍČEK, Vojtěch, FILIP, Jan, MOLEK, Pavel, BAHÝĽOVÁ, Lenka, PODHRÁZKÝ, Milan, Radovan SUCHÁNEK, Radovan, VYHNÁNEK, Ladislav. Ústava České republiky – Komentář. (“Constitution of the Czech Republic – Commentary”). Prague: Linde Prague, 2010. 17 WAGNEROVÁ, Eliška et al. Listina základních práv a svobod. Komentář. (“Charter of Fundamental Rights and Freedoms. Commentary”). Prague: Wolters Kluwer, 2012. 18 For more detailed information see KMEC, Jiří, KOSAŘ, David, KRATOCHVÍL, Jan, BOBEK, Michal. Evropská úmluva o lidských právech. Komentář. (“European Convention on Human Rights. Commentary”). Prague: C.H. Beck, 2012. 19 The Czech criminal proceedings do not include any guilty plea institute, even though its introduction is considered. The existing agreement on guilt and sentence ( plea bargaining ) is approved by the court through a judgement of conviction (Section 314r(4) of the Rules of Criminal Procedure). Also the criminal order (Section 314e(7) of the Rules of Criminal Procedure) has nature of a judgement of conviction. 20 Judgement of the European Court of Human Rights, Minelli v. Switzerland, application no. 8660/79, of 25 March 1983; Judgement of the European Court of Human Rights, Ilgar Mammandov v Azerbaijan, application no. 15172/13, of 22 May 2014. 21 Judgement of the European Court of Human Rights, Telfer v. Austria, application no. 33501/96, of 20 March 2001. 22 Judgement of the European Court of Human Rights, Barberà, Messegué and Jabardo v. Spain, application no. 10590/83, of 6 December 1988. 23 “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

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