pruh+znak_PF_13_gray5+fialovy_RGB PF_PPT_en Czech law of evidence Marek FRYSTAK Department of Criminal Law www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Aberystwyth University, April 2011 General information nwritten law included in the CPC (Criminal Procedure Code) n nall those provisions represent a certain instruction of rational steps of investigative, prosecuting and adjudicating bodies when preparing the factual basis of their decision n nthe primary source of (not only) criminal law is the law n nstate authority may be asserted only in cases and within the bounds provided for by law and only in the manner prescribed by law n ninvestigative, prosecuting and adjudicating bodies are state authorities and can exercise in criminal proceedings only what the law allows them n n n n 2 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 nin making decisions, (not only) judges are bound only by statutes and treaties which form a part of the legal order npolitics, confession, momentary good or bad mood, family well-being, tiredness etc. n njudicial decisions (case law) are not the source of law n nwhy the courts in their decisions use them and base on them their decisions n nrespect the legal certainty of citizens based on the fact that the courts in factually similar cases decided in a similar way nif the courts decides the case without applied judicial decisions is real appeal court overrule this decision n n n 3 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 n n nevidence means action of investigative, prosecuting and adjudicating bodies regulated in CPC the objective of which is to loop up evidence, produce such obtained evidence and to check and assess the obtained evidence n nevidence represents the only way in which the investigative, prosecuting and adjudicating bodies may and must obtain the factual basis for its decision or for further actions n n n 4 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 n n n nBasic Phases of Evidence 5 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 n nsearching for evidence - an obligation of all investigative, prosecuting and adjudicating bodies to search for anything that may be used as a mean of evidence and which may contribute to clarification of the case ne.g. questioning of the accused, questioning of the witness, examination of the scene of crime etc. n nproducing and procedural taking of evidence - an obligation of investigative, prosecuting and adjudicating bodies to produce all found items of evidence and to take them procedurally n ne.g. examination of the scene of crime itself and its taking in the form of a report on examination of the scene of crime, including a plan or sketch of the scene of crime, making video and audio documentation etc. n 6 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 n n n nchecking and assessing the evidence - an obligation of investigative, prosecuting and adjudicating bodies to check each found evidence in details and subsequently also in mutual relations between items of evidence n nreliability of evidence nthe witness is advised to tell the truth but he is lying n ncorrect and due performance of the check is a basic prerequisite of an objective assessment of evidence n n 7 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 n n nBasic Principles of Criminal Proceedings n 8 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Presumption of Innocence Principle nuntil guilt is declared in a final and conclusive sentencing judgment, the one against whom the criminal proceedings are conducted may not be considered guilty n nif there are any doubts about guilt of the accused and those can't be successfully removed by producing other evidence then it is necessary to decide for the benefit of the accused - principle in dubio pro reo n nin order to sentence the accused, his guilt must be proven as the accused is not obliged to prove his innocence or more precisely to prove any fact important for criminal proceedings nnemo tenetur se ipsum accusare, privilege against self-incrimination n nno conclusion regarding guilt may be deduced from activity or passivity of accused n 9 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Searching Principle n nthe investigative, prosecuting and adjudicating bodies are obliged to ascertain ex officio facts testifying for the benefit as well as to the detriment of the accused n nthe principle of ex officio actions means that investigative, prosecuting and adjudicating bodies perform their acts ex officio ne.g on the basis of their official duty and they do not wait for any activity/motion of the parties n nthe accused may suggest production of a certain time of evidence ne.g. clarification of a fact which is important in terms of his guilt and which may even testify for his benefit 10 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Verbal Principle nhearing before court is verbal n nevidence in the form of testimony of witnesses, experts and the accused is usually produced by interrogation of those persons n nthere is an opportunity to produce evidence by reading a record of prior questioning of accused/witness if n nhe refuse to give a testimony before court nis in relation to the accused his sibling, adoptive parents, adoptive child, spouse, partner or common law husband n nthere are differences in their current and original testimony nthe witness testimony does not agree with the accused testimony nin order to find the reliability of evidence is necessary to remove these distortions n n n n 11 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Principle of Directness nwhen making a decision in the trial the court may consider only such evidence which was produced during the trial n nthe rule of impossibility to change members of the court according to which only the judge who was present at the trial from its beginning until its end may render decision nwitness testifies in favor of the accused but quite obviously he is sweating or nervous (lets ask why ?) - the reliability of evidence n nthe rule of impossibility to interrupt the trial supposed to ensure that the court decides on the basis of perceptions following from facts learnt in the performed trial nhowever this does not mean that it would be impossible to adjourn the trial ne.g. due to the provision of further evidence 12 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Principle of Discretionary Weighing of Evidence n ninvestigative, prosecuting and adjudicating bodies weigh the evidence according to their internal belief based on careful consideration of all circumstances of the case individually as well as in their aggregate n nis built on the internal belief of investigative, prosecuting and adjudicating bodies which is not created as a manifestation of subjective arbitrariness n nstrictly logically, based on the legal order, legal awareness, universal and logical weighing of evidence as well as the context of cases, it must result in a belief about whether and how a certain act happened and how it should be legally assessed n 13 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 n n n n nthe court must specify which facts it considers proven, which evidence it used as a basis of its factual findings, the existence of which facts it considers doubtful and what are the results thereof and which considerations the court follows n 14 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Principle of Ascertaining Facts Free of Justified Doubts nindividual facts must be proven only in the extent necessary for a decision in terms of ascertaining the facts of the case for a specific decision n nCPC does not include the principle of the so-called objective truth which allows the court, when rendering its decision, to be satisfied with such facts of the case which both parties jointly recognize proven nwhat is the truth and it is possible to ascertain the truth objective or subjective nin making decisions judges are bound only by statutes and treaties…. n nconfession of the accused does not release investigative, prosecuting and adjudicating bodies from the obligation to examine all important circumstances of the case nthe accused may defend in any way – possibility to give false testimony n 15 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 n n n nThe Subject of Evidence 16 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 nthree basic types of facts n ncircumstances important for the meritorious decision ne.g. circumstances forming the elements of an offence which is allegedly the prosecuted act, circumstances suggesting or disproving that the offender is the accused, circumstances important in terms of imposing a certain measure on the accused n ncircumstances important for further actions in the criminal proceedings ne.g. circumstances justifying adjournment of a trial, suspension of criminal prosecution, refusal of the obligation to testify n ncircumstances that resulted in criminal activity or allowed its committing and circumstances important for the decision on assertion of a claim for damages n n n n 17 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 The scope of evidence n nin the necessary extent must be proven n nwhether the act regarded as an offence was committed n e.g. whether the act was committed at all, the manner of its committing, circumstances of its committing as well as circumstances excluding unlawfulness of the act ne.g. extreme emergency, self-defence, approval of the injured, admissible risk or authorized use of an arm n nwhether the act was committed by the accused, identification of specific offender, his age as well as motive n 18 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 n nimportant circumstances affecting assessment of the nature and seriousness of the act but also reasons excluding unlawfulness ne.g. the statute of limitations, effective repentance n ncircumstances important in terms of assessment of offender's personal background (facts describing the person of the offender) n nimportant circumstances allowing to determine effects and the amount of damage caused by the offence ne.g. asking for assessment of damage or examining whether the damage has not been compensated 19 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 The facts which cannot be proven n nit is not necessary to prove facts which are considered true on the basis of general human experience and there are no doubts about them n nshould any doubts about those facts occur they would naturally be a subject of evidence ne.g. that the accused was sane or that a document delivered to an investigative, prosecuting and adjudicating body comes from the person specified therein as the sender n nthose facts on which a decision was rendered in a manner binding on investigative, prosecuting and adjudicating bodies or on which other bodies than investigative, prosecuting and adjudicating ones can decide 20 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 n nlegal regulations of the Czech Republic published or notified in the Collection of Laws and international treaties published in the Collection of International Treaties n nit applies that the court knows the law (iura novit curia) n nregulations which are not published in the Collection of Laws and therefore they are not generally known are the subject of evidence ne.g. various statutes, articles or measures n nforeign regulations naturally do represent the subject of evidence n n 21 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 n n n nThe Means of Evidence 22 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 n nanything which may contribute to clarification of the case may be used as evidence ne.g. particular testimonies of the accused and witnesses, expert opinions, objects and documents important for criminal proceedings and examination (exhaustive list) n neach party of the criminal proceedings may look up and submit such evidence or suggest its producing - consequence of the equality of arms n nthe fact that evidence was not looked up or requested by an investigative, prosecuting and adjudicating body does not justify refusal of such evidence 23 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Illegal evidence n neach item of evidence must be looked up, produced, procedurally taken and assessed in accordance with the law n nif not it would be obtained in conflict with law, it means it is illegal evidence n nsuch evidence de facto exists but it cannot be used and it must be regarded as if it did not exist at all n nCPC does not include any positive definition of the term of illegal evidence 24 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 nevidence obtained by illegal coercion or threat of such coercion must not be used in criminal proceedings n nillegal coercion may take several forms, most frequently the form of physical and psychic coercion n nsuch evidence suffers of a substantial defect which cannot be removed in any way during criminal proceedings and hence it may not be used within the proceedings (absolute ineffectiveness) n nrelative ineffectiveness can be removed during criminal proceedings - pledge of confidentiality /deprivation of confidentiality n nit may be used only as evidence against the person who applied such coercion or threat of coercion n 25 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Fruit of the poisoned tree theory nif the first evidence is obtained illegally how is it with the legality of other evidence obtained on the basis of this evidence n nif the tree is poisoned it means all its fruits are poison nif the first evidence is illegal all other evidence obtained on the basis of this evidence is illegal nduring illegal house search was obtained bank account number of the accused under which was requested bank information in accordance with the law nall obtained evidence is illegal n neven if the tree is poisoned it does not mean all its fruits are poison nif the first evidence is illegal it is does not mean all other evidence obtained on the basis of this evidence is illegal nduring illegal house search was obtained bank account number of the accused under which was requested bank information in accordance with the law nevidence obtained during house search is illegal, bank information is legal n n n n n 26 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Examination of accused nright but not the obligation to testify and comment on all the facts nobligation to obey the warning to attend the investigative, prosecuting and adjudicating bodies n ndefend in any way – possibility to give false testimony ncriminal liability for false accusation n npossibilities how to ensure the presence of the accused to the acts of criminal proceedings nsummons of the accused nimposing a disciplinary penalty nbringing the accused narrest warrant nthere are grounds for custody but can not summons/bring of the accused ntaking into custody nescape abroad or hiding in the Czech republic (preventive custody) influencing witnesses (collusive custody) and continuation of the crime (protective custody) n n n n n 27 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Examination of witness nobligation to testify n„the evidence which I shall give shall be the truth, the whole truth, and nothing but the truth“ nthe witness does not testify under oath but he is advised to tell the truth nobligation to obey the warning to attend the investigative, prosecuting and adjudicating bodies n nright to refuse testimony if the witness - necessity to be adviced nhas duty not to disclose/ pledge of confidentiality nhe may be testified only if he is deprived of this obligation nis in relation to the accused his sibling, adoptive parents, adoptive child, spouse, partner or common law husband ncan cause the criminal prosecution itself or next of kin (sibling, adoptive parents, adoptive child, spouse, partner or common law husband) or other members in family (cousin, aunt, uncle) or cause them harm, that he feels like own harm n n n n n 28 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 n n n npossibilities how to ensure the presence of the witness to the acts of criminal proceedings n nsummons of the witness nimposing a disciplinary penalty nbringing the witness n 29 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 n n nSpecial Methods of Evidence n 30 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 nevidence as a procedural activity is very closely related to criminalistics n ncriminalistic procedures and methods are directly presented when searching for, taking and using various means of evidence n nCPC regulates only some of them nit does not mean if a certain criminalistic method is not regulated in CPC it is illegal and therefore inadmissible from the procedural point of view n nthe following methods are closely related with principle of ascertaining facts free of justified doubts n nthe reliability of evidence – where is the „true“? n n 31 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Confrontation n n nif the testimony of the accused does not conform to the testimony of a witness or accomplice in significant aspects, the accused can be confronted with the witness of the accomplice face to face n nIf the testimony of a witness does not conform to the testimony of the accused or another witness, the witness can be confronted with the accused or another witness face to face n n n n n 32 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Recognition/identification n nthe recognition shall be carried out should it be important for the criminal proceedings that the suspect, accused or witness repeatedly recognizes the person or thing and herewith establish his identity n nshould the person be recognized, he shall be shown among at least three persons who do not differ considerably n nif is it not be possible to show the person who shall be recognized, the recognition shall be carried out on the basis of a photography which is submitted with similar pictures of at least three other persons n nif the thing should be recognized it shall be showed in a group of things preferably of the same kind n 33 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Investigatory Experiment n nthe investigatory experiment is carried out if the circumstances ascertained in the criminal proceedings, eventually the new circumstances significant for the criminal proceedings, are to be verified or specified, by observation under artificially created or permutated conditions n nwas it possible to shot the victim in that distance? n ncould witness actually to see the accused? n 34 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Reconstruction n n n nthe reconstruction is carried out if the testimony of the suspect, accused, accomplice, victim or witness is to be verified by way of restoration of the situation and circumstances under which the criminal offence has been committed, or which are substantially linked therewith, if other evidence carried out in the criminal proceedings is not sufficient to clarify the matter n 35 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 n n n n nThanks for your attention n 36 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 n n n nQuestions…??? n 37 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 nJUDr. Marek Frystak, Ph.D. nassistant professor nDepartment of Criminal Law nFaculty of Law - Masaryk University nVeveří 70 n611 80 Brno nThe Czech republic nTel. + 420 549 493 870, Fax. + 420 541 213 162 nE-mail: Marek.Frystak@law.muni.cz n 38