CYIL vol. 9 (2018)

JIŘÍ MULÁK CYIL 9 ȍ2018Ȏ it is not possible to overestimate the indicated formulation differences so much, 32 because both the formulations express the same idea protecting the person charged with a crime which he did not commit (or the proving and final decision about the guilt have not been made yet), over the negative connotations implying from its temporary position. A positive experience is that a common point (formulation in the Charter and in the Rules of Criminal Procedure) is the requirement of a final convicting judgement, which is a higher standard than e.g. the formulations in the ECHR, ICCPR or the Charter of Fundamental Rights of the EU. A higher standard of protection is offered by the national regulation even in relation to “the person against whom a criminal procedure is conducted” , where we include also a suspected person, while international documents speak only about “the person who is charged with a crime.” The above mentioned discrepancies between the standard of legal protection of an individual implying from international documents and the standard of legal protection implying from the domestic regulation of the Czech Republic will have to be resolved in accordance with the interpretation rule on application of the highest standard offered 33 in such a way that the domestic regulation will be preferred. Besides this, I believe that it would be in contradiction with the principle of procedural equality, if the suspected person was denied the benefits implying from the presumption of innocence, and if they were admitted only to the person charged at whom it is possible to identify a higher level of suspicion ( argumentum a maiore ad minus ). In relation of the formulation of presumption of innocence in the Charter and in the Rules of Criminal Procedure the constitutionally conforming interpretation will be necessarily applied. 34 It implies from this approach in turn that the widest protection is provided by the Charter of Fundamental Rights and Freedoms. Unification of formulations should be made De lege ferenda , and therefore it would be suitable to take over the wording as stated in the Charter of Fundamental Rights and Freedoms and to formulate it this way also in the (n ew) Rules of Criminal Procedure, 35 especially with regard to the fact that the Charter of Fundamental Rights and Freedoms, being a part of the Constitutional order, can only be changed by a Constitutional (qualified) procedure, and there is no political (or social) demand for a review of this Constitutional document either. A supporting argument is also the fact that the order of presumption of innocence is theoretically stronger than the ban on presumption of guilt. Moreover, presumption of innocence is regulated in Section § 3(5) of the ZSVM (Act on the judiciary in issues of the juvenile) according to which “in the proceedings according to this law it is necessary to protect personal data of the person against 32 Consistently ŠÁMAL, Pavel. Základní zásady dokazování v připravovaném novém trestním řádu. (“Basic principles of evidence in the forthcoming new Criminal Procedure Code”) In: JELÍNEK, Jiří et al. Trestní právo procesní – minulost a budoucnost. (“Criminal procedural law – the past and the future”). Prague: Leges, 2016, p. 54. 33 Cf. 53 of the ECHR and Art. 52(3) and 53 of the Charter of Fundamental Rights of the EU. 34 Cf. Art. 9, 87 and 95 of the Constitution of the Czech Republic. Constitutionally conforming interpretation, as one of the types of systemic interpretation, built upon the principle of hierarchy, when the reason for its strict binding force is a higher legal force of the norm of the Constitutional order – for more details see WINTR, Jan. Metody a zásady interpretace práva. (“Methods and Principles of Law Interpretation”). Prague: Auditorium, 2014, p. 63, 210. 35 Concerning these issues, it is of course possible to object that it is redundant to repeat (and to state again) the Constitutional principles also at the level of simple law, because by using the same logics it would be possible to introduce also other rules into the Rules of Criminal Procedure, e.g. the fact that only the court decides about the guilt and sentence for crimes (Art. 40(1) of the Charter of Fundamental Rights and Freedoms).

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