CEDH · CASELAW;COMMUNICATEDCASES;ENG — 13 novembre 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s9296A950 { margin-top:36pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid }   Communicated on 13 November 2017   FIRST SECTION Application no. 25775/15 Michal KONEČNÝ against the Czech Republic lodged on 26 May 2015 STATEMENT OF FACTS The applicant, Mr Michal Konečný, is a Czech national, who was born in 1990 and lives in Kroměříž. He is represented before the Court by Mr David Zahumenský, a lawyer practising in Brno. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. On 15 May 2013 the Brno Municipal Court ( městský soud ) gave judgement whereby it convicted the applicant of breach of the peace and attempted injury to health under Article 358 §§ 1 and 2(a) of the Criminal Code and sections 21(1), 146(1) of Law no. 40/2009. On 21 July 2013 the Brno Regional Court ( krajský soud ) dismissed the applicant’s appeal. On 21 January 2014 the Supreme Court ( Nejvyšší soud ) dismissed an appeal on points of law lodged by the applicant. Before it decided, it invited the Prosecutor General’s Office ( Nejvyšší státní zastupitelství ) to submit its observations. After having collected the observations which, according to the applicant, were not served on him, the court rejected the applicant’s appeal on points of law as inadmissible. It relied on the observations submitted by a prosecutor of the Prosecutor General’s Office (hereinafter “the prosecutor”), which noted, inter alia , that: “... In this case, it is possible to agree with both the [applicant] and the prosecutor ... as regards the fact that it does not appear from the reasoning of the first-instance court’s decision how the court dealt with the unrealised proposals to supplement evidence when these proposals had not been made at the conclusion of the trial (the [applicant’s] defence counsel had not any proposals to supplement evidence at this stage) and that [the court] failed to give reasons why the proposals to supplement evidence had not been granted. The court of appeal also merely stated ... that ‘... to allow further evidence would, in this situation, be redundant’ without remedying the above-mentioned defect. ... As the prosecutor ... rightly stated, allowing the above-mentioned evidence would only have increased one of the groups of evidence characterised by contradictory statements ... and would not have contributed to the further clarification of the facts. Such pieces of evidence could not have altered the conclusion of facts evaluated on the basis of other items of evidence otherwise than how the pieces of evidence were judged by the courts. It is clear from the above that the criminal activities of the [applicant] have undoubtedly been proved and that they result from the conclusion of facts made in the summary, while the testimonies of the persons who had allegedly participated in the celebrations at the Grůň hunting lodge ( Myslivecká chata ) in Rusava or who had allegedly stayed with the [applicant] in the Omega bar until the early hours could not have changed these conclusions. For the conclusion of facts, there would also have been no logic to identifying the Facebook user who alerted the victim to a potential offender.” The applicant lodged a constitutional complaint against the courts’ decisions, challenging in particular the impossibility for him to acquaint himself with the content of the observations submitted by the prosecutor, on account of which the principle of adversarial trial had been breached as the Supreme Court had relied on the observations in its decision. The applicant also claimed that the evidence had been assessed contrary to the in dubio pro reo principle to his detriment because of his criminal past, as his evidence proposals and comments on the evidence which had already been allowed by the courts had been dismissed without giving reasons. Furthermore, in his view the courts’ conclusions regarding the facts drawn from the evidence allowed had been in direct contrast to the evidence which had not been allowed and which had corroborated the version of the facts submitted by the applicant. The whole proceedings had showed that he had been a priori considered untrustworthy and guilty. On 4 December 2014 the Constitutional Court ( Ústavní soud ) dismissed the constitutional complaint by the applicant. As to the assessment of evidence, the court stated that it is not a court of fourth instance and that it had not found any essential departures from accepted practice in the work of the lower courts which could have resulted in a violation of the right to a fair trial. According to the Constitutional Court, the courts had duly indicated on the basis of which evidence they had drawn their factual conclusions, why and how they had assessed the pieces of evidence and why they had not accepted the applicant’s proposal to hear evidence from additional witnesses. Such evidence could not have changed anything as to the factual conclusion of the courts. Regarding the observations of the Prosecutor General’s Office which had not been served on the applicant, the Constitutional Court accepted that the Supreme Court had not done so since they had not revealed any new facts which could have had a radical impact on its decision; moreover, in some points they had even supported the applicant’s arguments. The Constitutional Court added that the applicant had not explained in what way his defence would have been modified had he become acquainted with the content of the observations before the Supreme Court’s decision. In the Constitutional Court’s view, the courts’ evidence assessment had not been arbitrary or grossly unfair and, therefore, the latter court was not entitled to interfere with those independent judicial decisions. B.     Relevant domestic law and practice Article 265h § 2 of the Code of Criminal Procedure (Law no. 141/1961) provides: “(2) The presiding judge of the court of first instance shall serve a copy of the appeal on points of law of the accused on the public prosecutor and a copy of the appeal on points of law of the public prosecutor on the defence counsel of the accused and on the accused, along with the notice that they may submit comments thereto in writing and agree to the proceedings on the appeal on points of law in a closed hearing ... Once the deadline for submissions of the appeal on points of law for all entitled persons expires, [the presiding judge] shall submit the file to the Supreme Court. ...” COMPLAINTS The applicant complains under Article 6 § 1 of the Convention that his right to a fair trial was violated in the criminal proceedings before the national courts. His right to an adversarial trial was allegedly violated by the Supreme Court, which omitted to send him the observations of the prosecutor upon which the court based its decision. He further alleged a violation of the equality of arms principle since the evidence which supported the defence was not admitted. QUESTIONS TO THE PARTIES Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention? In particular, were the principles of adversarial trial – as regards the observations of the Prosecutor General’s Office which the Supreme Court relied on in its decision (see Joos v. Switzerland , no. 43245/07, 15   November 2012) – and the principle of equality of arms – as regards the evidence the applicant wished to introduce, specifically witnesses for his defence, which were not admitted by the courts – respected? Was the applicant’s right to have his case properly examined observed (see Kasparov and Others v. Russia , no. 21613/07, §§ 56-59, 3 October 2013)? Were the conclusions of the courts from the submitted facts drawn arbitrarily or grossly unfair?