II. ÚS 213/2000

Pursuant  to  § 314g para. 2, first sentence, of  the  Criminal
Procedure  Code, if within the time limit an authorized  person
submits  an  objection to the criminal warrant, it  is  thereby
invalidated and the single judge should call a hearing  in  the
main  proceeding;  when hearing the matter in  the  trial,  the
single judge is not bound, either by the legal qualification or
the  type  or  extent of punishment contained in  the  criminal
warrant.  The principle of the prohibition of reformationis  in
peius does not generally apply in this case.  The imposition of
a  more  severe punishment may not, of course, be based on  the
court's  arbitrary decision, rather it must correspond  to  the
ascertained   facts.   The  ordinary  court  then   based   its
imposition  of the higher punishment on facts which  must  have
been  known to it already at the time of its decisions  in  the
criminal  order,  in  which it decided  on  the  punishment  of
imprisonment  for a period of six months.  Following  the  main
trial,   the   complainant,  nonetheless,  was   sentenced   to
imprisonment for a period of twenty months.  The Constitutional
Court  is, thus, of the opinion that, at various stages in  the
criminal proceeding, the local court attached divergent  weight
to  the  facts  justifying  the imposition  of  a  more  severe
punishment, moreover to the detriment of the defendant, without
giving a reasonable explanation therefor.

     In  view  of  the fact that the defendant is  the  central
figure  in the entire criminal prosecution, the conditions  for
holding  the main trial in his absence are especially  limited.
The  main  trial  should in principle be held in  his  presence
since,  as  one  of  the  parties to  the  proceeding,  he  has
important  rights, which can be asserted in their full  measure
precisely  in  the  course  of the trial.   This  rule  may  be
diverged from only in quite exceptional cases.  It was only the
complainant's  legal  council  who  excused  herself  from  the
ordered  main trial, at which the first instance court  decided
to  hold  the hearing in the complainant's absence,  while  the
complainant  in  the given circumstances only insisted  on  his
right  resulting from the cited Art. 6 para. 3, let. c) of  the
Convention, since he did not intend to appear at the main trial
without  his defense council being present.  The first instance
court's  manner  of  proceeding - by which it  decided  in  the
complainant's absence, despite the fact that he did not himself
bring  about this impediment to his participation in  the  main
trial  and that his absence was justified by the need  to  have
his  defense council present for the main trial - raises in the
eyes  of  the Constitutional Court serious doubts  on  the  its
being  in conformity with the standards of criminal proceedings
guaranteed by the Convention.


A panel of the Constitutional Court decided in the legal matter
of  petitioner  M.K.,  concerning his constitutional  complaint
against  the 10 November 1999 judgment of the Local  Court  for
Prague  9,  file  no.  2 T 57/99-112, and the21  February  2000
judgment  of  the  Municipal Court in Prague,  file  no.  9  To
18/2000-124,  with  the  Local  Court  for  Prague  9  and  the
Municipal  Court  in  Prague taking  part  as  parties  to  the
proceeding and the Czech Republic, represented by the  Ministry
of  the  Interior, as a secondary party to the  proceeding,  as
follows:

The 10 November 1999 judgment of the Local Court for Prague 9,
 file no. 2 T 57/99-112, and the 21 February 2000 judgment of
 the Municipal Court in Prague, file no. 9 To 18/2000-128, are
                           quashed.

                          Reasoning:

In  a timely submitted constitutional complaint which otherwise
fulfills the requirements prescribed in Act No. 182/1993 Coll.,
on  the  Constitutional  Court, as  subsequently  amended,  the
complainant  contested the decisions mentioned in  the  heading
above.   He  considers  that  these  decisions  resulted  in  a
violation of Arts. 90 and 96 of the Czech Constitution, Art.  9
para.  1  and 14 para. 3, let. e) of the International Covenant
on Civil and Political Rights (hereinafter "Covenant"), Art.  6
para. 1, 2, and 3, let. d) of the Convention for the Protection
of   Human   Rights   and  Fundamental  Freedoms   (hereinafter
"Convention"),  and  Art.  38  para.  2  of  the   Charter   of
Fundamental Rights and Basic Freedoms.  .  .  .  .

     In  order  to  consider  and decide  in  the  matter,  the
Constitutional  Court requested the case file  from  the  Local
Court  for  Prague  9,  file  no. 2  T  57/99,  from  which  it
ascertained the following:
    
     In  the  first of the contested decisions, the 10 November
1999 judgment, No. 2 T 57/99-112, the Local Court for Prague  9
found  the  complainant guilty in that at  approximately  11.15
a.m.  on 16 August 1998, in Prague 9, on Poděbradská Street  in
front  of  house No. 55, he began verbally to assault a  police
officer  and  then, when he was placed into a police  auto,  he
damaged  that auto by repeatedly kicking the right  rear  door,
kicking  through the upholstry, which caused the Czech  Police,
the Administration of the Capitol City of Prague, damage in the
amount  of  2,795  Crowns.  This occurred  after  he  had  been
stopped  by  a  police patrol, since he was  driving  a  Nissan
without  state  license plates and was not carrying  a  drivers
license.   Subsequently  he succeeded in  getting  out  of  the
police  auto,  then  he physically attacked Sergeant  M.B.,  by
kicking  him  and  knocking him to the ground,  causing  him  a
contusion  of  the  left elbow with bruising and  surface  skin
abrasion.   The  injuries  required medical  examination.   The
complainant  thus  harmed the possession  of  another,  thereby
causing a not insignificant amount of damage to the property of
another.   Further  he  used violence  with  the  intention  of
affecting a public official in the performance of his duty,  by
which  he  committed  both  the criminal  offense  of  damaging
another's  property  under § 257 para. 1 of  Act  No.  140/1961
Coll., the Penal Code, and the criminal offence of an attack on
a  public  official under § 155 para. 1, let. a) of  the  Penal
Code.  On the basis of the foregoing the court sentenced him to
an  aggregate punishment of imprisonment for a period of twelve
months.  .  .  .  If appears from the reasoning that  the  main
trial,  scheduled for 29 September 1999 was adjourned,  as  the
day  before  the trial the complainant submitted the  power-of-
attorney  of his defense counsel.  His defense counsel  excused
her  absense  due to an already paid vacation abroad,  and  the
complainant requested an adjournment of the trial  due  to  her
absence.  The complainant also did not appear from the trial on
10  November  1999, although he had taken notice of  the  trial
date.   His defense counsel merely sent an excuse by fax, which
explained she had taken ill, and the complainant did  not  wish
to  be  present  at  the trial without her participation.   The
court  did  not accept this last excuse, since it  had  already
occurred  repeatedly.   "By  this means"  the  complainant  was
thwarting the trial in three cases altogether.  In view of  the
fact  that  this  was  not a case where assistance  of  defense
counsel  is  required (§ 202 para. 1 of the Criminal  Procedure
Code),  the  court  heard  it  and  decided  the  case  in  the
complainant's  absence.   In  the proceeding,  the  complainant
denied  that he had committed the criminal offense, and  stated
that, on the contrary, the police had struck his knee with  the
car  door.   He  considered  their  intervention  as  improper.
According to the court’s reasoning, the complainant's guilt was
evidenced by a large amount of testimony by intervening  police
officers and by witnesses B. and P., and further details of the
scene  of  the crime were described in witness M.'s  testimony.
His  guilt  was then also shown by the official police  record,
written up immediately after the whole incident, by a report on
the  use  of  coercive  means, and an official  record  on  the
investigation of the justification and appropriateness  of  the
use  of  coercive  means.   The  court  further  introduced  as
evidence  a  medical report concerning witness  B.'s  injuries.
Even the damage cause to the police auto was quantified.

    In its 21 February 2000 judgment, No. 9 To 18/2000-124, the
Municipal Court in Prague resolved the complainant's appeal  by
affirming  the  first  instance  court's  decision,  with   the
exception  of  its judgment on damages. The reasoning  provided
that neither the provisions ensuring the required clarification
of  the  matter  nor the complainant's right  to  defense  were
violated  in the trial preceeding judgment.  In the trial,  the
first  instance  court  duly admitted all  necessary  evidence,
which  it  also  evaluated as required by § 2 para.  6  of  the
Criminal Procedure Code.  The factual findings which were  made
on  the  basis  of  the introduced evidence  are  complete  and
correct  and  are  supported by the introduced  evidence.   The
court  stated  that,  as  far  as  concerns  the  complainant's
assertion that his rights were abridged, his defense  does  not
pass muster.  It is clear from the case file that several times
he  failed, without reason, to appear for the trial,  and  that
the  trial  was  also  adjourned when the  complainant's  legal
counsel  took over his defense.  The appellate court  therefore
considers  it  to have been correct that, in a situation  where
the  complainant did not appear even for the trial,  the  first
instance  court,  in  accordance with §  202  para.  2  of  the
Criminal Procedure Code, heard the case in his absence.  In the
given  situation,  the first instance court did  not  error  in
deciding to omit the questioning of certain witnesses.  It  was
not  possible for their testimony from the preliminary  hearing
to   be  read  aloud.   In  the  appellate  court's  view,  the
complainant's guilt was unequivocally proven, and  his  defense
appeared  to  be  highly  unconvincing  and  unreliable.    The
appellate  court  found  the  first  instance  court's  factual
conclusions  to be complete and correct.  Its legal  assessment
of   the  complainant's  conduct  was  correct  as  well.   The
appellate court concurred in the punishment imposed,  which  it
considered to have been proportionate.  The complainant engaged
in criminal activity at a time when he was on a trial period of
conditional  release,  and  at his place  of  domicile  he  has
several  entries in his record with the Municipal  Division  of
the  Czech Police.  In view of the level of danger to  society,
the  punishment imposed, being in the upper half of the  lawful
sentencing  range,  is  not  disproportionately  severe.    The
appellate court thus merely revised the judgment in relation to
the  compensation of damage of the injured party, since it  was
not  the  Czech Police, Administration of the Capitol  City  of
Prague, which was the injured party, rather the Czech Republic,
represented by the Minister of Interior.

     In  the  instant constitutional complaint, the complainant
contests  both  of  the  mentioned judgments.   He  denied  the
criminal activity for which he has been found guilty.   On  the
contrary, he states that he himself was attacked by the  patrol
of  the Czech Police which was carrying out a traffic check  on
him,  he  was injured, and he was insulted by statements  of  a
nationalistic character.  According to his assertion, a  number
of  procedural  errors also occured.  The first instance  court
heard  the case in the absence of both the complainant and  his
legal  counsel,  although  they had  both  been  duly  excused.
Eyewitness  to the attack by members of the Czech  police  were
not  even  called  before  the first instance  court.   On  the
contrary, only witnesses who confirmed the complainant's  guilt
were called.  The first instance court did not even resolve the
issue as to why a police officer who, according to the original
report, had not even been present at the incident testified  at
the  preliminary  hearing.  The proposed  re-enactment  of  the
incident was not carried out, even though it would have  proven
that  no  criminal  offense  was  committed  and  that  it  was
impossible  for  the witnesses called by the  defense  and  the
police  to  have,  from  the places where  they  were,  alleged
witnessed  the facts which make up a part of their  conflicting
testimony.   It would also come to light that the testimony  of
police  officers is conflicting, as concerns the time  sequence
and the manner in which the complainant carried out the attack.
It  would be proven that the complainant could not have carried
out  the  attack, as from the beginning he had been handcuffed.
The   appellate   court  did  not  concern  itself   with   the
complainant's  objections, and did not even resolve  the  first
instance  court's  errors.  Further,  the  complainant  "cannot
understand"  on  the basis of which facts he was  sentenced  to
imprisonment for a period of twenty months, when originally  in
the  criminal  order  a sentence of imprisonment  of  only  six
months had been imposed upon him.

.  .  .  .

The constitutional complaint is well-founded.

     The Constitutional Court has emphasized repeatedly in  the
past  that, as it is not the supreme organ in their system,  it
is  not  empowered  to  intervene into the  decision-making  of
ordinary   court  (compare  Art.  81  and  Art.   90   of   the
Constitution).  To the extent that courts proceed in conformity
with Chapter Five of the Charter, it may not arrogate to itself
the right of revisory scrutiny over their decision-making (Art.
83  of  the Czech Constitution).  In harmony with its  constant
jurisprudence,  as  well  as  with  the  jurisprudence  of  the
European  Court  for  Human  Rights, the  Constitutional  Court
focuses  its  attention on the issue of whether  the  completed
criminal  proceeding was on the whole fair  (for  example,  the
matter of Barberŕ, Messegué and Jabardo, 1988).  It has serious
doubts concerning the fairness of the proceeding.

     The complainant objects above all that the ordinary courts
made  a  series of errors, primarily concerning the  taking  of
evidence.   We can concur with the appellate court  that  in  a
situation where the accused was not present for the main  trial
(§  202  para. 2 of the Criminal Procedure Code),  it  was  not
possible  to  read  out  the witness testimony  taking  in  the
preliminary  hearing.   According to  §  211  para.  1  of  the
Criminal Procedure Code, among other things, the consent of the
accused is required for that, so that his absence ruled out the
application of that provision.  The accused's consent cannot be
deduced  from  his  failure to show up for the  main  trial  (R
3/65).    His   absence  does  not,  however,  rule   out   the
introduction  of  evidence  by the  examination  of  witnesses.
Criminal  proceedings  are governed by a  host  of  principles,
among which is the principle that the facts of the case must be
ascertained  without reasonable doubt, the searching  principle
(§ 2 para. 5 of the Criminal Procedure Code), and the principle
of the free evaluation of evidence (§ 2 para. 6 of the Criminal
Procedure Code).  It is the duty of all organs taking  part  in
criminal  proceedings to make use of all available evidence  so
as  to  ensure the highest possible level of factual  certainty
concerning  the  course of events.  A court is  not  absolutely
bound  by  offers  of  evidence, and  it  is  not  required  to
introduce  all  proferred  evidence,  rather  those  particular
pieces of evidence which will lead to the ascertainment of  the
facts of the case such as to leave no reasonable doubt.  Within
the  confines of its independent decision-making, the court  is
authorized  to  reach  the conclusion that  further  taking  of
evidence  is  not necessary in the case before it, should  this
conclusion   not  violate  the  principles  of   the   criminal
proceeding,  or  even  of  fair  process.   Naturally,  in  the
reasoning  of  each  decision,  the  factual  events  must   be
described  as precisely as possible and persuasively explained.
According  to  §  125 of the Criminal Procedure  Code,  in  its
judgment  the  court  should briefly  explain  which  facts  it
considered proved and on which evidence it based its finding of
facts  and  which  considerations lead it  when  assessing  the
admitted   evidence,  especially  if  there   was   conflicting
evidence.  It must be evident from the reasoning how it came to
terms  with  the  defense,  why  it  denied  motions  to  admit
additional evidence, and which legal considerations led it when
it  assessed  the proven facts in accordance with the  relevant
statutory provisions in the question of guilt and punishment.

     The  ordinary  courts did not observe the  above-described
requirements of due evidence-taking and fair process.   It  was
ascertained  from  the submitted case files, specifically  from
the  24  February 1999 indictment of the Local  State  Attorney
(No.1.  57)  that  the state attorney offered  as  evidence  an
expert  opinion  (No.1. 3-6 of the file),  the  medical  report
(No.1.  41-42  of  the  file), reports on  the  examination  of
witnesses  . . . , the quantification of the damage  (No.1  38-
40),  the official police record (No.1 43-48) and the accused's
personal  statement.  It appears from the record  of  the  main
trial  that the defendant repeatedly failed to appear  for  the
main  trial, so that it was adjourned.  According to the record
of  the  main  trial from 10 November 1999, the first  instance
court  ruled  that, pursuant to § 202 para. 2 of  the  Criminal
Procedure  Code, the hearing would be held in the complainant's
absence.  A number of witnesses proposed in the indictment were
called  to the main trial.  Witnesses Mrs. K., Mr. A., Mrs.  S,
and  Mrs.  B  did not appear.  The court admitted  evidence  by
examining  witnesses M. B., M. P., and V.  M.,  and  read  into
evidence material from the case file [the quantification of the
damage  (No.1  38-40), the medical report (No.1. 41-42  of  the
file),  the  official police record (No.1 43-48),  etc.].   The
court  ruled that the admission of evidence consisting  in  the
examination  of witnesses R., K., A., S, B., D, and  an  expert
opinion from a court doctor would be dispensed with.  As  there
was  no  further  offer  of evidence in the  matter,  following
closing  arguments, the court handed down  its  judgment.   The
court's reasoning entirely failed to mention why testimony  was
not  taken in the main trial from several witnesses,  at  least
some  of  which (judging from the record of the examination  of
witnesses  in  the  preliminary proceeding) would  be  able  to
testify  in the complainant's favor.  As was stated  above,  an
ordinary  court is not obliged in this situation to  admit  all
offered evidence, if that court believes that the ascertainment
of  the  facts of the case is not in doubt.  As follows from  §
125 of the Criminal Procedure Code, however, it was obliged  to
deal  with  the  issue as to why it refused offers  to  examine
witnesses  R.,  K.,  A.,  S., B., D.  and  dispensed  with  the
admission  of  an  expert opinion from  a  court  doctor.   The
Constitutional   Court  in  its  constant   jurisprudence   has
confirmed  the  requirement of due reasoning in  the  indicated
respect  on the issue of omitted evidence (in particular,  III.
ÚS  61/94, III. ÚS 95/97, III. ÚS 87/99).  In those cases,  the
Constitutional Court emphasized that the statutorily prescribed
manner  of  asserting ones rights (principles of  fair  process
resulting  from  Art.  36  para. 1  of  the  Charter)  must  be
understood  in  the  sense  that a  party  must  be  given  the
opportunity  to  give  her views on the the  admitted  evidence
(Art.  38  para.  2 of the Charter) and on the  merits  of  the
matter  itself,  but also to designate (offer)  evidence  whose
admission she considers necessary for the ascertainment (proof)
of  her  assertions;  this  procedural  right  of  the  parties
corresponds  to  the  court's  duty,  not  only  to  decide  on
submitted motions (including offers of evidence), but also,  to
explain  in  its decision the grounds upon which (generally  in
relation to substantive law enactments which it applied and the
legal  conclusions which it reached on that factual  basis)  it
refused  to admit the evidence (§ 125 of the Criminal Procedure
Code).  Nor were the described defects in the proceeding  cured
in  the  appellate proceeding.  In his appeal  from  the  first
instance court's decision, the complainant referred to the fact
that  the  mentioned  court heard only  certain  witnesses  and
omitted  to  hear others who would, in the complainant's  view,
have  testified  in  his  favor.  He  stated  that  there  were
contradictions  in  the testimony, and that the  described  act
could  not,  as an objective matter, have taken  place  in  the
manner described.  In this connection, at the 21 February  2000
public  hearing before the appellate court, he proposed that  a
re-enactment of the crime be carried out.  The appellate  court
affirmed  the first instance court's decision.  It was  evident
from  its reasoning that it did not see any flaws in the manner
in  which the first instance court proceeded, and it failed  to
give its views, one way or the other, on his doubt.  Of course,
it  did not take into account the complainant's above-mentioned
motion,  made  within  the context of the appellate  proceeding
(that  is, with the offer to admit evidence by re-enactment  of
the crime).

     By omitting to introduce evidence, or neglecting to reason
their  refusal  to  introduce  it,  the  ordinary  courts  have
burdened  their decisions with defects consisting in violations
of  the  general  procedural codes as well  as  the  principles
expressed  in Chapter Five of the Charter (above  all  Art.  36
para.  1  and  Art.  38  para. 2).  These  defects  render  the
contested  decisions  in  principle  unreviewable  as  well  as
unconstitutional in the sense of Art. 36 para. 1 of the Charter
(compare,   for   example,  Judgement  No.   III.   ÚS   61/94,
Constitutional  Court  of  the Czech Republic:   Collection  of
Judgments and Rulings, Vol. 3, No. 10, p. 51 and following).

     Neither  could  the Constitutional Court  reject,  without
more,   the   complainant's  objection  that  "he   could   not
understand" on what factual basis the first instance court came
to  its decision to increase his term of imprisonment from  six
to  twenty months.  Pursuant to § 314e para. 1 of the  Criminal
Procedure  Code, a single judge is authorized, without  hearing
the  matter in a full trial, to issue a criminal order, if  the
facts  of  the  case  have been reliably  demonstrated  by  the
obtained  evidence.   Pursuant to para.  2,  let.  a)  of  that
section  of the Criminal Procedure Code, a maximum of one  year
imprisonment  may  be  imposed by means of  a  criminal  order.
Pursuant  to  § 314g para. 2, first sentence, of  the  Criminal
Procedure  Code, if within the time limit an authorized  person
submits  an  objection to the criminal warrant, it  is  thereby
invalidated and the single judge should call a hearing  in  the
main  proceeding;  when hearing the matter in  the  trial,  the
single judge is not bound, either by the legal qualification or
the  type  or  extent of punishment contained in  the  criminal
warrant.  The principle of the prohibition of reformationis  in
peius does not generally apply in this case, and the court  may
impose  a more severe punishment or may find the accused guilty
of  a  more serious criminal offense.  The imposition of a more
severe punishment (which occurred in the instant case) may not,
of  course, be based on the court's arbitrary decision,  rather
it  must correspond to the ascertained facts.  It follows  from
the  reasoning  of  both contested decisions  that  the  courts
imposed  a  decidedly more severe punishment  in  view  of  the
complainant's  criminal  past, which increased  the  danger  to
society of the criminal offense committed, and that it was  not
possible  to have an impact on the complainant as a perpetrator
other than by the imposition (of such a more severe) punishment
of  imprisonment.  The Local Court for Prague 9 then based  its
imposition  of the higher punishment on facts which  must  have
been  known to it already at the time of its decisions  in  the
criminal order, on 28 February 1999, cj. 2 T 57/99-62, in which
it  decided on the punishment of imprisonment for a  period  of
six   months.   Following  the  main  trial,  the  complainant,
nonetheless,  was sentenced to imprisonment  for  a  period  of
twenty  months.   The Constitutional Court  is,  thus,  of  the
opinion that, at various stages in the criminal proceeding, the
local  court attached divergent weight to the facts  justifying
the  imposition  of a more severe punishment, moreover  to  the
detriment   of  the  defendant,  without  giving  a  reasonable
explanation therefor.  Doubts surrounding the manner  in  which
the   punishment  was  imposed  are  also  evidenced   by   the
circumstance that the court necessarily must have assessed  the
same  criminal  act, or the same perpetrator, as  presenting  a
smaller  risk  to  society as, having reliably ascertained  the
facts  of  the  case (§ 314e para. 1 of the Criminal  Procedure
Code),  it  decided  to employ the institute  of  the  criminal
warrant,  which  does  not enable it to impose  a  sentence  of
imprisonment in excess of one year.

      Finally,  the  complainant  also  asserts  that,  without
authorization,  the  court held a hearing in  his  absence  and
thereby enroached upon his rights as a criminal defendant.   It
was  ascertained  in  the  instant case  that  the  complainant
repeatedly  failed  to appear for the main trial.   As  appears
from  the  file, in the last instance (summons to trial  on  10
November  1999) his legal counsel, due to illness, excused  her
absence by a note dated 9 November 1999, sent to the court  the
same   day  by  fax.   At  the  same  time,  she  excused   the
complainant's absence as well, since he declined to attend  the
hearing  in her absence.  The first instance court reached  the
conclusion  that all the conditions were met  to  allow  it  to
proceed  in  accordance  with § 202 para.  2  of  the  Criminal
Procedure  Code, which authorizes exceptions from the otherwise
valid principle requiring the defendant's presence at the  main
trial.   It therefore held the main trial in his absence.   The
appellate  court  affirmed that it had been proper  for  it  to
proceed in this manner.

    The Constitutional Court is aware of the fact that formally
the  ordinary  courts proceeded in conformity with  the  above-
mentioned  §  202  para.  2  of the  Criminal  Procedure  Code.
Nonetheless, it does not consider the manner in which the court
proceeded  in  the instant case to have been  correct  at  all.
That certain persons must be present for the main trial is both
a  rule  and  also one of the guarantees of due legal  process,
including the principle that hearings must be public.  In  view
of  the  fact that the defendant is the central figure  in  the
entire  criminal  prosecution, the conditions for  holding  the
main  trial  in his absence are especially limited.   The  main
trial should in principle be held in his presence since, as one
of  the  parties  to  the proceeding, he has important  rights,
which  can be asserted in their full measure precisely  in  the
course  of  the  trial  (compare Šámal  et  al.:  The  Criminal
Procedure Code:  Commentary, 2nd edition, C.H. Beck,  1997,  p.
950).  This rule may be diverged from only in quite exceptional
cases.  In this connection, the Constitutional Court refers  to
the case decisions of the European Court of Human Rights, which
supports  the Constitutional Court's conclusion.  The  European
Court  is  of  the  view  that "in a criminal  proceeding,  the
presence  of  the  defendant  has capital  importance  for  the
proceeding's fairness.  The interest in the defendant receiving
an  adequate defense also, however, holds key significance  for
the fairness of the proceeding.  In the view of the Court, this
last-mentioned view prevails.   Therefore, even the  fact  that
the  defendant, in spite of having been properly summoned, does
not  appear  for a hearing cannot – even in the absence  of  an
excuse - justify depriving him of his right under Art. 6  para.
3  of  the  Convention to be defended by counsel” (compare  the
cases  of Pelladoah and Lala).  The Constitutional Court cannot
overlook  the  fact  that it was only the  complainant's  legal
council  who  excused herself from the ordered main  trial,  at
which  the first instance court decided to hold the hearing  in
the  complainant's absence, while the complainant in the  given
circumstances  only  insisted on his right resulting  from  the
cited  Art. 6 para. 3, let. c) of the Convention, since he  did
not  intend  to  appear at the main trial without  his  defense
council  being present.  The first instance court's  manner  of
proceeding - by which it decided in the complainant's  absence,
despite  the  fact  that he did not himself  bring  about  this
impediment to his participation in the main trial and that  his
absence  was justified by the need to have his defense  counsel
present  for  the  main  trial - raises  in  the  eyes  of  the
Constitutional Court serious doubts on its being in  conformity
with  the standards of criminal proceedings guaranteed  by  the
Convention.

     Thus in the adjudicated matter the ordinary courts did not
comply   with  the  constitutional  requirements  placed   upon
criminal   proceedings  and  in  this   manner   violated   the
complainant's  rights to judicial protection and fair  process.
The Constitutional Court therefore quashed the 10 November 1999
judgment  of the Local Court for Prague 9, file no. 2 T  57/99-
112,  and the 21 February 2000 judgment of the Municipal  Court
in  Prague, file no. 9 To 18/2000-128 [82 para. 3, let.  a)  of
Act  No.  182/1993  Coll., as subsequently amended].   In  view
thereof,  the Constitutional Court did not concern itself  with
the  alleged violation of further constitutional rights, as  it
considered that superfluous.

Notice:   The  decision of the Constitutional Court  cannot  be
appealed.

Brno, 20 February 2002