Information Note on the Court’s case-law 241

June 2020

Tempel v. the Czech Republic - 44151/12

Judgment 25.6.2020 [Section I]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Case repeatedly remitted to first-instance court for new examination until guilty verdict obtained on fifth occasion: violation

Facts – The applicant was convicted of murder by the Prague Regional Court after the High Court had qua shed four consecutive judgements of the Plzeň Regional Court acquitting him.

Law – Article 6: The applicant’s case had been examined five times by the courts of first and second instance, with the additional and repeated involvement of the Constitutional C ourt. Initially, the High Court had remitted the case to the same chamber of the first-instance court which had given the original judgment. Thereafter, relying on Article 262 of the Code of Criminal Procedure (“the CCP”), the High Court had referred the c ase to another chamber of the same court which had examined the case twice, and then lastly, to a different first-instance court within its jurisdiction.

Article 262 of the CCP provided that when an appellate court remitted a case to a first-instance court for a new examination, it could order the case to be assigned to another chamber, or to another first-instance court, if there were important reasons for that assignment. According to the case-law of the Constitutional Court, Article 262 of the CCP was to be interpreted as enabling an appellate court to remit a case to another chamber or another first-instance court only if there were “distinct, evident and undeniably important reasons for that procedure and the existence of those reasons h[ad] been clearl y proved”. An appellate court could order a first-instance court to eliminate the discrepancies in factual findings or re-examine and obtain certain pieces of evidence, and its instructions had to be adequately concrete. When those requirements had been fu lfilled, the appellate court could not quash the first-instance court’s decision only in order to push through its own assessment of the evidence and its own findings. Accordingly, regarding the assessment of evidence, the appellate court could only indica te to the first-instance court what circumstances were to be taken into account, but should not bind the first-instance court as to what factual conclusions it should reach.

While a decision under Article 262 of the CCP should be “entirely exceptional”, th e High Court had applied that provision repeatedly, until the Prague Regional Court – to which the case had ultimately been transferred by the High Court – had found the applicant guilty of murder and had sentenced him to life imprisonment, in contrast to the Plzeň Regional Court, which had acquitted the applicant four times.

When quashing the first-instance judgments, the High Court had mainly criticised the court of first-instance for how it had assessed the evidence and the credibility of the key witness in particular. However, that approach seemed to be at odds with Article 263 § 7 of the CCP as interpreted by the Constitutional Court, in accordance with which the appellate court had been bound by the assessment of the evidence carried out by the court of first instance. The reasoning of the High Court’s judgment by which th e case had been transferred to a different chamber of the Plzeň Regional Court for a second time had gone on to draw an alternative conclusion from the evidence previously examined by the court of first instance, without the relevant witness being heard by the High Court.

One of the High Court’s judgments had contained formulations that could be interpreted as suggesting that the first-instance court should reach different conclusions as to the credibility of the witness, and that the appellate court would not accept any outcome other than the applicant’s conviction. Such conclusions sat uneasily with the Constitutional Court’s long-standing case-law, which established, that an appellate court could not assess the credibility of a specific witness unless it heard him itself, as provided for in Article 263 § 7 of the CCP, and should not quash a judgment on acquittal unless the doubts of the first-instance court concerning the guilt of the accused were without any merit. Moreover, it could not, under any circu mstances, instruct the first-instance court as to whether it should or should not find the accused guilty. The High Court had provided no reason justifying its decision not to hear the witness directly and assess his credibility itself. Indeed, as the disa greement between the concerned jurisdictions had turned essentially on the credibility of that witness, an issue which inherently depended on seeing the witness give evidence, it would have been appropriate to at least give some reasons on why hearing the witness in question had been unnecessary.

It appeared that the High Court had based its doubts concerning the independence and impartiality of the judges of the first-instance court, and its conclusion that the first-instance court had failed to comply wit h its (the High Court’s) binding instructions, exclusively on the fact that the first-instance court had made factual findings and conclusions as to the applicant’s guilt which were different from what was right in the appellate court’s view. An appellate court might decide to reassign a case to another chamber of the same court, or to another court, in cases where it had doubts as to a first-instance court’s impartiality and independence, or in cases where a first-instance court had failed to comply with a binding instruction. However, according to the long-standing case-law of the Constitutional Court, an appellate court did not have competence to criticise a first-instance court’s assessment of evidence or factual findings, or its actual judgment on an ac quittal. Therefore, it could base neither its doubts concerning judges’ independence and impartiality nor its criticism of a first-instance court’s failure to comply with binding instructions on the mere fact that a first-instance court had made factual fi ndings and a conclusion in respect of an applicant’s guilt which the appellate court had merely disagreed with.

Against that background, the procedural approach adopted by the High Court could have had as a consequence that the Prague Regional Court come t o the conclusion that the only decision susceptible of being accepted by the High Court and bring the proceedings to an end was a guilty verdict. The particular succession of events strongly indicated a dysfunction in the operation of the judiciary, vitiat ing the overall fairness of the proceedings.

Conclusio n: violation (unanimously).

The Court also found, unanimously, a further violation of Article 6 in respect of the length of the proceedings.

Article 41: EUR 12,500 in respect of non-pecuniary damage.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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