POLEDNOVÁ v. THE CZECH REPUBLIC
Inadmissible
Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger
The applicant, Ms Ludmila Polednová, is a Czech national who was born in 1921 and lives in Plzeň. She was represented before the Court by Mr V. Kovář, of the Czech Bar. The respondent Government were represented by their Agent, Mr V. A. Schorm. The facts of the case, as submitted by the parties, may be summarised as follows. After the communist coup in February 1948, a number of political trials were conducted in former Czechoslovakia in order to consolidate the power of the Communist party and eliminate opponents of the new totalitarian regime. The State Court (Státní soud) and State Prosecutor’s Office were created for this purpose by a special law and subject to direct political control by the party. The most important trial was the 1950 trial of Ms Milada Horáková and other opponents of the communist regime for high treason and espionage, and the applicant was appointed to act as a member of the prosecutorial steering group. It was later established that the trial had been manipulated in that the issues of guilt and sentencing had been decided on by the political authorities well in advance of the trial and that the defendants had been compelled, by means of inhuman investigation techniques, to admit to offences they had not committed. The trial culminated in a State Court judgment of 8 June 1950 by which four of the defendants were sentenced to death and the others received lengthy prison sentences. After having their appeal dismissed on 24 June 1950 by the Supreme Court (Nejvyšší soud), the four persons sentenced to death were executed on 27 June 1950. On 30 June 1968, in a climate of political détente, the Presidium of the Supreme Court quashed the convictions of 8 and 24 June 1950 following an appeal in the interests of the law lodged on behalf of those convicted. On this occasion it was found that the investigation had been carried out, using illegal methods, by investigators of the Ministry of the Interior and not by the investigating judge. It was also found that many legal provisions (in particular those of the 1983 Code of Criminal Procedure (Law no. 119/1873)) had been infringed during the trial, that the facts had not been sufficiently established, that numerous pieces of evidence had been omitted, that the defendants’ actions had been partly incited by the State Security Service and that all the relevant authorities had single-mindedly focused on fabricated charges aimed at eliminating the so-called “class enemies”. The Supreme Court therefore ordered the competent prosecutor to re-examine the case; consequently, evidence was heard from several persons who had participated in the trial with Milada Horáková. It appears from a statement made in April 1969 by one of the defendants sentenced to life imprisonment that the accused had been forced, through physical and psychological coercion, to learn their statements of evidence, which had been written beforehand, off by heart; that the confrontations at the hearing had been previously prepared in minute detail and that the minutes of the hearing had in fact been a script which determined the exact questions to be asked by the prosecutors and the answers that the defendants were expected to provide. This witness also reported that the applicant had displayed a hard and pitiless attitude. Renewed consolidation of the communist regime in the 1970s meant that there was no further interest in investigating the case and it was discontinued in 1975 because the criminal prosecution was time-barred. The case was not definitively settled until after the collapse of the communist regime in November 1989. On 29 June 1990 the Prosecutor General ruled that there was no case to answer in respect of all those charged. Referring to the judgment of 30 June 1968, he found that they had been wrongfully convicted of actions which were in accordance with the principles of a democratic society and that the criminal proceedings had been designed, for political ends, to arbitrarily eliminate opponents of the totalitarian dictatorship under the communist regime. On 8 September 2005 the police questioned the applicant about her participation in the trial of Milada Horáková and others. She claimed to be unable to remember certain facts and stated that at the time she had been convinced, having trusted the judgment of the other, more experienced prosecutors and judges, that the activity concerned was designed to undermine the Republic. On 6 October 2005 criminal proceedings were instituted against the applicant for acting as an accessory to murder (účastenství na vraždě). She was accused of having acted as a prosecutor in the political trial of Milada Horáková and others in 1950. On 13 October 2005 the applicant appealed against this decision, arguing that the authorities had not specified which of her acts or omissions constituted the offence in question, for which mens rea was required. She emphasised that the situation of that time should not be viewed emotionally merely because mindsets had changed since then, and that it would have to be proved that she had committed a criminal offence under the law applicable at the material time. According to the applicant, the decision to open the above-mentioned proceedings was set aside following her complaint, and the police were ordered to reinvestigate the case. She submitted that as soon as the police knew that a prosecution for acting as accessory to murder would be time-barred, new criminal proceedings were brought against her in January 2007 for the offence of murder. It is clear from the case file, however, that the new decision to bring criminal proceedings, taken by the police on 8 January 2007, still concerned the offence of acting as an accessory to murder under the 1961 Criminal Code (Law no. 140/1961). The applicant appealed against this decision, claiming that at the time of the trial she had been a mere student, answering to a higher-ranking prosecutor, and that she had not been able to work independently. She claimed that the charge she was facing was imprecise and did not specify either her intention to commit the offence or in what way she had broken the laws of the time. She also maintained that she had not participated in the investigation and that the investigation file had convinced her of the guilt of the defendants, who had spontaneously confessed during the hearing. She felt it normal to have been present at preparatory meetings, as they were preparing for a public trial, and stated that she had followed the instructions of her supervisors. During her questioning by the police on 1 March 2007 the applicant exercised her right to silence. On 19 April 2007 the applicant’s lawyer inspected the file, added some press cuttings from the time of the events and requested that the case be discontinued on the grounds of lack of evidence indicating that her client was guilty. She subsequently asked that the evidence be supplemented by any that might prove the applicant’s intention to commit the crime in question and expressed surprise at the fact that proceedings had been brought only in 2005, when all of the other participants were deceased. On 12 July 2007 the prosecutor allegedly informed the applicant, before formally charging her and without further explanation, that her acts were henceforth to be classified as murder committed as a joint principal (trestný čin vraždy ve spolupachatelství). In September 2007 the applicant submitted documents to the court attesting to the fact that, having been in her first year of legal studies at university at the time of the trial, she had been under the instructions of her supervisors and could in no way influence the course of events. She also argued that the provisions of the 1873 Code of Criminal Procedure that she was accused of having infringed were very general and concerned only the due diligence of the proceedings, and that the charge against her was not founded on any actual responsibility on her part. On 10 October 2007 the applicant requested that the hearing be held without her attendance, for health reasons, and exercised her right to silence on the ground that she had already communicated her comments to the authorities. Between 16 and 18 October 2007 the Prague Municipal Court (Městský soud) held the hearing in the absence of the applicant, who was represented by a lawyer. Her deposition was read out, along with many other written documents, and audio and visual recordings of the trial were projected. In response to counsel for the applicant’s objection that the defence had not yet had the possibility of giving their views on the charge and the evidence read out in court, the court observed that, according to Article 214 of the Code of Criminal Procedure, that right was reserved solely for the defendant herself. At the end of the hearing the applicant’s lawyer did not file a motion to submit additional evidence and delivered a closing address, noting that the criminal proceedings could have been instituted at the time of the judgment of 30 July 1968 and that the proceedings brought against the applicant, as the sole survivor, were possible at present only because the limitation period had been changed after 1989. The lawyer admitted that her client had, in participating in the trial, shown her loyalty to the communist regime, but emphasised that at the material time the Communist Party, together with the KGB, had run everything, and that the psychosis in society had turned into a general acceptance of breaking the law. However, the prosecution had not presented any real evidence proving the criminal responsibility of the applicant. Indeed, having had no legal training at the time, she had not been in a position to understand the shortcomings of the trial, particularly since the State Prosecutor’s Office had been directly run by the Ministry of Justice, and had been in no position to influence or change the course of the trial. By taking part in the drafting of the charges and the assessment of the trial the applicant had merely been following the orders of her more experienced supervisors and she had not proposed a sentence in her written submissions. Moreover, no minutes existed from any political meeting bearing the applicant’s signature as a sign of her attendance. On 1 November 2007 Prague Municipal Court found the applicant guilty of murder under Article 219 of the 1961 Criminal Code (in force at the time of the judgment), committed jointly with the other prosecutors and judges involved in the aforementioned trial and since deceased, and sentenced her to eight years’ imprisonment. The court considered it to be proven that, having participated in the trial in 1950 of Milada Horáková and others as a member of the prosecution, the applicant had acted in breach of the 1873 Code of Criminal Procedure in force at the time, as she had been aware of the fact that the questions of guilt and sentencing had been decided on by the political authorities well in advance of the trial, which she knew had been designed only to confer an appearance of legality on the physical elimination of the defendants. The court held that the applicant’s defence, submitted by her lawyer in court, had been refuted by the evidence taken. Among this evidence, in particular, were written documents bearing witness to the fact that the trial had been prepared by the Ministries of Justice and the Interior with the help of the State Security Service and a group of prosecutors within which the applicant, having already proven herself during other political trials, had acted as a “people’s prosecutor”. They showed that the scripted trial and the minutes had been prepared in advance by the Ministry of the Interior, that the case file of the prosecution had been subject to political approval, that counsel for the defence, the prosecutors and the judges had been instructed by the Ministry of Justice as to how the trial should unfold and that political meetings at which the applicant had been present had taken place every day after the hearing. The file also contained a written assessment of the trial, signed by the applicant, which emphasised the importance of the political investigations and commended the very good cooperation with the State Security Service. The Municipal Court also had at its disposal an appeal in the interests of the law lodged on behalf of the defendants in July 1968, which had led to a Supreme Court judgment on 30 July 1968. The court considered that this evidence proved that the 1950 trial had been manipulated to the point where it amounted in fact to a quadruple murder carried out through the justice system and that the applicant had made a significant contribution to it by failing to comply with, among other provisions, Articles 3, 30 and 34 of the Code of Criminal Procedure of the time relating to the authorities’ obligation to look for incriminating and exonerating evidence, to protect the interests of the State and to establish the truth by all available methods. The Municipal Court held that, at the time, the applicant should have known that the death sentences imposed had not been a legal measure and that, jointly with others, she had contributed to conferring an appearance of legality on the political trial in question, and consequently to the murder of four people on the basis of their political beliefs. Given that under the 1852 Criminal Code, which had been in force at the time of the offence, murder was punishable by the death penalty, the court held that the charges against the applicant should be classified as murder under Article 219 of the 1961 Criminal Code, which was more favourable to her. Although the Code provided for a twenty-year limitation period, it was also necessary to take into account section 5 of Law no. 198/1993 on the Illegality of the Communist Regime, which suspended the limitation period between 25 February 1948 and 29 December 1989 when political motives incompatible with the fundamental principles of a democratic legal system had thwarted a conviction or acquittal. In the present case, therefore, the offences with which the applicant was charged were not time-barred. Taking into account the extenuating circumstances (the applicant’s subordinate status and her law-abiding life), the amount of time that had passed since the offence had been committed and since she could have first been prosecuted, her age, the state of her health and her degree of involvement in the offence (less than that of the renowned judges and prosecutors), the court imposed a lesser sentence on the applicant than the normal minimum. The applicant lodged an appeal, arguing that under the original legislation, which was more favourable to her, the offence was time-barred (as in a similar case concerning the prosecutor K.V. which ended with the charges being dropped). She also complained that the rights of the defence had not been respected, alleging that the court had not taken into account the closing address of her lawyer, who, moreover had not been given the opportunity to comment on the criminal charge or the evidence, and that the court had not responded to the submissions of the defence in any way. Furthermore, she deemed evidence consisting of an anonymous letter from a former prison guard, which had prejudiced her in the eyes of the court and the public, to be illegal. In her opinion, there was no evidence to prove that she had intentionally participated in the murder of four people based on their political beliefs, that she had knowingly been part of a plan designed to eliminate enemies of the regime regardless of the established facts, that she should have known that the judges had been influenced or that she had taken part in meetings with the political authorities. The applicant criticised the court for not taking into account the fact that, at the time of the events, she had only completed one year of preparatory legal studies and had been a first-year law student, which did not enable her to understand all of the circumstances surrounding the trial, let alone any potential political manipulations. In a judgment of 4 February 2008 delivered in closed court, the Prague High Court (Vrchní soud) quashed the Municipal Court’s judgment on appeal and discontinued the proceedings on the ground that the limitation period had expired. The court observed firstly that no significant procedural defects had occurred in the proceedings before the Municipal Court, that all the evidence necessary in order to elucidate the facts had been properly taken and decided on by the judges and that the court had explained its reasoning as well as the elements supporting its findings. The High Court did not therefore agree with the applicant’s opinion that her guilt had not been proven and found it established that the questions of guilt and sentencing had been decided on before the trial had even begun, that the applicant had taken part in it as a “people’s prosecutor” even though she had not yet finished her studies at university and that she must have been aware, at least broadly, that the provisions of the Code of Criminal Procedure of the time were being breached. The court also rejected her submission that the rights of the defence had not been respected. In this regard it noted that when defendants waived their right to appear before the court, they also waived the right to comment on the evidence taken. Furthermore, when a defendant was not present at the hearing but his or her lawyer was, the right to comment on the evidence and the charges was exercised through the closing address, which was what had happened in this case. The High Court nonetheless held that the Municipal Court had not given the aforementioned correctly established facts the appropriate legal classification. It did not accept the Municipal Court’s opinion that the 1961 Criminal Code was more lenient than the 1852 Code, applicable at the material time. Taking into account, in the light of the principle of individual criminal responsibility, the ancillary and limited role of the applicant, the court held that she could not be considered as having committed murder as a joint principal. The court remarked in this regard that the political system of the time had created a mechanism which fabricated political trials and was operated by political leaders (in particular the secretariat of the Communist Party), the security services (the State Security Service and Soviet advisers) and the judicial service; judgments were therefore predetermined. Thus, in the chain of command of those who had participated in the trial of Milada Horáková and others, the prosecutors had played a part which was key to the trial but not decisive for its outcome, and the applicant had been at the end of this chain. An objective assessment of her role therefore led to classifying her actions not as murder committed as a joint principal but rather as acting as an accessory to judicial murder, as in the preliminary proceedings. Under Article 137 of the 1852 Code, such acts could be classified only as indirect participation in ordinary murder, carrying a sentence of five to ten years in prison and with a five-year limitation period. In these circumstances, even having regard to section 5 of Law no. 198/1993, the limitation period had expired on 30 December 1994, and since the proceedings in question had been brought after that date there was no case to answer. An appeal on points of law against the High Court’s ruling was lodged by the Supreme Prosecutor, who argued that the present case did not concern indirect participation in murder, but murder committed jointly, an offence which, under the 1852 Code, was punishable by the death penalty and not subject to a limitation period. In the prosecutor’s opinion it was therefore necessary to apply the 1961 Criminal Code, which was more lenient as it did not provide for the death penalty and fixed the limitation period at twenty years. Under section 5 of Law no. 198/1993, the limitation period therefore ran from 30 December 1989 to 30 December 2009. The applicant objected to the grounds of the appeal and consented to it being heard in camera. Nonetheless, on 4 June 2008 a public hearing took place before the Supreme Court, in the absence of the applicant, who was represented by her lawyer. The latter commented on the appeal, without requesting leave to add to the evidence, and asked the court to uphold the finding that there was no case to answer for lack of evidence proving that his client had been aware of the manipulation and that she had intended to infringe the procedural provisions. After this hearing, the Supreme Court quashed the judgment of 4 February 2008 and ordered the High Court to give a new decision, respecting its binding legal opinion. In the Supreme Court’s opinion, to find the correct legal classification in this case, it was necessary to compare the applicant’s involvement in the trial with the immutable ethical standards required of a prosecutor. In this regard, the court referred to its decision no. 7 Tz 179/99 of 7 December 1999 which defined the conditions in which a judge could be held criminally responsible for the murder of innocent people sentenced to death. In view of these principles, applicable mutatis mutandis to prosecutors, the actions of the applicant, who had taken part in the fraudulent manipulation of legal proceedings designed to eliminate opponents of the communist regime, had been completely unethical. As the Municipal Court had established, the case was about a political trial the outcome of which had been decided in advance by the political organ of the Communist Party together with the State Security Service. All those who had agreed to take part as judges and prosecutors were in a similar position, that of key enforcers of the will of a political organ, and there was no convincing reason for differentiating between them in terms of criminal responsibility. The fact that the applicant had been chosen after having proved herself in other political trials, had been a member of the main group of prosecutors which had prepared the prosecution, had taken part in the political meetings and delivered the prosecutor’s closing address, had signed the assessment of the trial and had taken part in the execution of those convicted showed to what extent she had identified with the aim of the trial, namely the physical elimination of innocent victims. Given that the trial, ending in the sentencing to death and execution of the defendants, had constituted the murder mechanism, it was correct to conclude that the applicant, as a prosecutor, had actively participated in the joint commission of the murder and had thus committed a crime which, according to Article 136 of the 1852 Criminal Code, was punishable by death and hence had no limitation period. It was the Supreme Court’s opinion that the High Court’s decision was therefore founded on an erroneous legal assessment of the facts and that the conditions for finding that there was no case to answer had not been met. Given that the 1961 Criminal Code, which was more favourable to the applicant, provided for a limitation period of twenty years (suspended between 25 February 1948 and 29 December 1989), the proceedings in the instant case were not time-barred. Having agreed to the applicant’s request that the hearing, planned for 29 July 2008, be postponed, the Prague High Court held a public hearing on 9 September 2008 in the courtroom of the Regional Court of Plzeň, the city where the applicant resided. The latter attended the hearing with her lawyer and commented on her case by describing her childhood and her experience of the war and by maintaining that her participation in the trial of Milada Horáková had been presented to her as an opportunity to work with and learn from some excellent lawyers. She had not been aware of any manipulation having occurred, had never spoken to the defendants and had trusted the judgment of those more experienced than herself. At the end of the hearing, the Prague High Court quashed the Municipal Court’s judgment of 1 November 2007 and found the applicant guilty of ordinary murder as a direct participant within the meaning of Article 136 (a) of the 1852 Code of Criminal Procedure, for which she was sentenced to six years’ imprisonment. After reiterating its previous findings on the absence of irregularities in the proceedings before the Municipal Court, the High Court, bound by the legal opinion of the Supreme Court and its reasoning regarding the responsibility of the applicant, concluded that the latter had been directly involved in the murder by having participated in a trial breaching Articles 3, 30, 34 and others of the 1873 Code of Criminal Procedure, breaches of which she must at least have been broadly aware. Under the 1852 Criminal Code the offence had no limitation period, whilst the 1961 Criminal Code provided for a limitation period of twenty years (suspended between 25 February 1948 and 29 December 1989, by virtue of section 5 of Law no. 198/1993). The criminal proceedings were therefore not time-barred in either case at the time of their instigation in 2005. Given that under the 1852 Code the above-mentioned offence carried a maximum sentence of twenty years’ imprisonment when at least twenty years had passed since the events, whereas the 1961 Criminal Code provided for a life sentence, it made sense to sentence the applicant under the 1852 Code. In doing so the High Court took into account the extenuating circumstances (the applicant’s law-abiding life, the fact that she had committed the offence de facto by obeying orders, the amount of time that had passed since the offence had been committed, the age and health of the applicant and the part she had played in the trial), and determined that the sentence should be shorter than the normal minimum. On 14 October 2008 the applicant lodged an appeal on points of law with the Supreme Court, complaining of the media uproar, the defence’s inability to comment on the evidence taken, the court’s reading of an anonymous letter from a former prison guard supposedly describing her behaviour during the execution of those convicted, and the application of the principle of collective guilt (without distinguishing between people according to their function and their ranking in the hierarchy). She submitted that the guilty verdict against her was contrary to Article 4 § 3 of the Charter of Fundamental Rights and Basic Freedoms (hereinafter “the Charter”) since an analogous case against K.V., a former military prosecutor, had been discontinued on 15 January 2002 because it was time-barred, a decision upheld by the Supreme Court on 12 June 2002. She also argued that the verdict had relied on a mere moral conviction, as a substitute for the lack of evidence refuting her defence; however the case had to be approached not solely from a moral and ethical perspective, but also from a legal one. Finally, the applicant submitted that it was unacceptable and against the principle of independence of the courts that the High Court, bound by the Supreme Court’s legal opinion, should have been influenced, in this regard, in establishing the facts and examining the evidence. After a request by the applicant that her appeal be considered by a different panel to the one having already ruled on the appeal lodged by the Supreme Public Prosecutor, it was decided on 5 March 2009 that the panel would not withdraw from examining the case. On 19 March 2009, after a session held in camera (to which the applicant had consented), the Supreme Court dismissed the appeal for lack of grounds. It noted firstly that in its judgment of 4 June 2008 it had given the High Court no instructions as to the establishment of the facts or the assessment of the evidence, having limited itself to commenting on the legal assessment of the established facts and the application of the 1852 Criminal Code. This assessment had in no way been influenced by the media coverage of the criminal proceedings or by the reading of the anonymous letter, on which the Municipal Court had in any case not relied in its findings. The Supreme Court also rejected the argument relating to collective guilt, finding that it was only in cases where justice functioned normally that there was cause to distinguish between judges and prosecutors. However, given that in the trial of Milada Horáková and others the judges and prosecutors had all contributed to the pursuit of a political objective, which was to physically eliminate the victims, by conferring an appearance of legality on it, the responsibility borne by the applicant, although less than that of the judges, was not so different that it was incomparable. The court went on to find that the objection that the applicant’s criminal responsibility was based solely on ethical or moral failings was unfounded, stating that the applicant had been responsible for illegal conduct which infringed the provisions of the 1873 Code of Criminal Procedure. Concerning the violation of Article 4 § 3 of the Charter alleged by the applicant with reference to the K.V. case, the Supreme Court stated that it was not its place to assess the judgment in a case concerning a different defendant, different facts and different criminal legislation, when the binding nature of the judgment referred to was limited to the case in question. The fact that the Supreme Court had not taken this decision into account in the applicant’s case could not amount to a breach of Article 4 § 3 of the Charter, which in any case was not applicable to specific judicial decisions. In March 2009 the applicant began to serve her prison sentence. On 27 April 2009 the applicant challenged the Supreme Court’s decisions of 4 June 2008 and 19 March 2009, as well as the High Court’s judgment of 9 September 2008, in a constitutional appeal in which she relied on Articles 4 § 3, 10 and 36-40 of the Charter. She complained of the application of the principle of collective guilt and the admission into evidence of the defamatory anonymous letter. She also argued that the contested judgments had not specified which evidence was meant to have proved that she had been aware that the trial had been manipulated, and that it was not possible to commit murder either through ethical or moral failings or by infringing the provisions of the Code of Criminal Procedure. She further complained of the fact that the Supreme Court, in its decision of 4 June 2008, had given instructions to the High Court regarding the assessment of evidence and of the High Court’s subsequent failure to further investigate the case or hear evidence from the applicant, allowing her only a closing address. Referring once again to the K.V. case, the applicant objected to the courts’ findings as to which legislation was more favourable to her. Finally, she questioned the reasons for not having initiated proceedings earlier, when other participants in the trial would still have been alive and when she could have more actively defended herself. She believed that the courts had been influenced in the instant case by the objective of convicting her, as she was the last survivor of the trial in question. On 16 July 2009 the Constitutional Court (Ústavní soud) dismissed the appeal as manifestly ill-founded in that the applicant had failed to prove that there had been a violation of her fundamental rights. It found firstly that the applicant’s claims before the court were identical to those which had been put forward in her appeal on points of law, on which the Supreme Court had duly ruled; the applicant was therefore just pursuing the same claim and was treating the Constitutional Court as a court of fourth instance. Agreeing with the other courts’ view that there was no need to differentiate, for the purposes of criminal responsibility, between the different persons who had taken part in the trial, the Court noted that the other courts had nonetheless considered the applicant’s individual conduct. The decisive legal findings had been reached on the basis of facts which had been established by the Municipal Court with the help of numerous items of written evidence, as stated in its judgment. These documents, the authenticity of which had not been challenged by the applicant, named the applicant as having taken part in the political meetings and included an assessment of the trial signed by her. In response to the applicant’s claim that the High Court had not accepted her deposition, the Constitutional Court referred to the courts’ reasoning regarding the consequences of the applicant’s request that the hearing in the court of first instance take place without her. It also noted that the High Court had adequately considered the closing address made for the applicant and that therefore her right to address the court had not been infringed. Moreover, the Municipal Court had no obligation to approve every motion to take evidence. Concerning the anonymous letter, the Constitutional Court found that it was unnecessary evidence as the courts had not based their decisions on it and thus had not had to assess it. The applicant’s allegations about the influence of the media on the outcome of the proceedings were described as vague and hypothetical. The Constitutional Court also upheld the Supreme Court’s decision of 4 June 2008, in which the latter had merely expressed its opinion on the correct legal classification of the facts which had been established up until that time. The decision had therefore not bound the High Court in any way in terms of the facts. Concerning the applicant’s claims that she could not have committed murder, the court referred to the findings of the lower courts according to which the applicant had misused her role as a prosecutor and had not fulfilled it in accordance with the legal provisions, and had thus actively participated in the murder as a joint principal. The Constitutional Court also considered it impossible to interpret Article 136 of the 1852 Criminal Code as not applying to certain methods of committing murder, such as a manipulated trial infringing the procedural provisions; such an interpretation would guarantee impunity for murders committed through manipulated trials, which would be tantamount to the State renouncing the protection of life. In the Constitutional Court’s opinion, the courts had, moreover, sufficiently explained why they had considered the 1852 Criminal Code to be more favourable to the applicant, even with regard to limitation periods. From a constitutional perspective it was irrelevant that the criminal proceedings against K.V. had led to a different result; as the Supreme Court had already stated, Article 4 § 3 of the Charter could not be relied on in that context. Finally, the question of why the criminal proceedings had not been brought earlier was considered to be speculative and abstract. The Constitutional Court therefore held that the interpretation and application of the law by the courts and their conduct of the proceedings had not exceeded the limits of constitutionality. On 24 February 2010 the Hradec Králové Regional Court (Krajský soud) decided of its own motion that three presidential amnesties, from 1953, 1955 and 1990, were applicable to the applicant, each of which took two years off her prison sentence. However, this decision was set aside on 24 March 2010 by the Prague High Court, which ruled that only the 1953 and 1990 amnesties were applicable to the applicant and that it was appropriate to grant her a pardon in respect of three years of her sentence in total. In this decision, the High Court referred to other criminal cases where it had been established that the 1955 amnesty did not apply to persons convicted of murder. On 2 March 2010 the applicant’s lawyer was informed that the Supreme Public Prosecutor had not agreed to her request that an appeal in the interests of the law be lodged on her behalf. On 21 December 2010 the President of the Czech Republic pardoned the applicant in respect of the rest of her sentence. She was released the same day. Article 2 guaranteed the right to individual liberty and no one was to be deprived of that liberty except by law. Article 3 § 1 provided that no one could have proceedings brought against him or her except in cases provided for by the law, and only by a court or authority competent under the law and in accordance with a procedure prescribed by law. Under Article 36, all holders of public authority had to conform to the laws and regulations of the people’s democratic regime during the exercise of their functions and powers; any agent of the public authorities failing to fulfil this obligation was to be punished by law. Under Article 134, any person who acted against another with the intention of causing his or her death and in a way which led to his or her death was guilty of murder. According to Article 136 (a), the death penalty was to be imposed not only on the person who carried out the murder, but also on any person who had ordered it, had laid hands on the victim during the murder or had acted as a joint principal during it. Article 137 provided for sentences for accomplices to and indirect participants in the murder. Under Article 231, offences punishable by the death penalty were not subject to limitation. However, where the offence had been committed twenty years before the criminal proceedings were brought, this provision stipulated that the accused could only receive a sentence of between ten and twenty years’ imprisonment. Article 3 required the competent criminal authorities to duly consider all the circumstances which might incriminate the accused as well as those relevant to his or her defence, and to inform the accused of his or her rights. Pursuant to Article 30, members of the prosecution were required, within their areas of competence, to defend the well-being of the State and act independently of the courts. Under Article 34, prosecutors were required to prosecute of their own motion all offences brought to their attention and to ensure that the investigation was carried out before the competent court and that the persons responsible were punished. They also had to ensure that all methods capable of leading to the discovery of the truth were correctly employed. They had the right to consult files, obtain information about the progress of investigations and formulate appropriate proposals. If they noticed any irregularities or delays they were required to take measures provided by law to remedy them. Article 4 § 3 provides that any statutory restriction of the fundamental rights and freedoms must apply equally to all cases meeting the conditions laid down. Under Article 10 § 1, everybody is entitled to respect for his or her human dignity, personal integrity and good reputation, and to the protection of his or her name. Articles 36 to 40 guarantee the right to an independent and impartial court, a fair and public trial held without unnecessary delay, the rights of the defence and the principles of the presumption of innocence and of penalties being strictly defined by law. Article 214 provides that, after taking each item of evidence, the judge must ask the defendant if he or she wishes to comment on it. The defendant’s comments must appear in the minutes of the proceedings. Under section 5, the limitation period for prosecuting offences is suspended between 25 February 1948 and 29 December 1989 if a legally effective conviction or acquittal did not take place owing to political motives incompatible with the fundamental principles of a democratic legal system. In this decision, the Supreme Court considered the possibility of prosecuting a State Court judge, who had sentenced innocent people to death in another political trial in the 1950s, for murder. Noting that, at the time of the trial, the Constitution and laws in force had established rules aimed at ensuring that judges could decide in an independent, impartial and fair manner, the Supreme Court held: “Even if we must take into account the departure, in reality, of judicial practice from these principles due to the external influence of the executive bodies and the prosecution, it is unacceptable to conclude that judges did not bear responsibility for their decisions. Being in the role of a judge is never purely a matter of applying the law ... but is based first and foremost on ethics. This ethical basis is characterised by certain immutable ethical standards ... even though they are not codified. In order for a judgment to be fair ... and constitute an act of justice, certain principles, which must be respected regardless of the external political situation, must incontestably form part of these unwritten rules. Whilst recognising that the notion of justice is always, in some way, dependent on the conditions of the historical context or the time, the Supreme Court remains nonetheless convinced that, at the very least, certain fundamental ethical requirements can be formulated, applicable to the notions of justice and fair judgment that are not subject to such temporal conditions. To be considered fair, a sentence must at the very least fulfil the requirement of punishing the convicted person for an offence actually carried out by them. The judgment must truly be the result of the trial preceding it. The proceedings leading up to the judgment must not be mere formal, insignificant precursors to a predetermined decision. The judgment must genuinely result from the court’s work and not be imposed from the outside, in other words by institutions outside the judicial system such as political bodies, the executive, etc. The court’s decision-making process must involve distancing itself from any vested interests in the outcome of the proceedings, including political interests. The judgment must not have the sole objective of becoming a tool in the political struggle conducted by one part of society against the other. It must not be a simple act of elimination of individuals or groups of individuals in the context of such a struggle. The value of these rules lies in the fact that if judges do not abide by them, they deeply betray the fundamental ethical principles of their vocation, regardless of the reason, even if for example they have succumbed to political influence. If, when making their decision, judges are exposed to influences that are contextual or specific to the time, they must not forget that this decision must stand even after those influences are gone. Judges must be aware that, even later, their decisions must fulfil the fundamental requirements of justice. If a person’s life is taken as a result of a decision sentencing him or her to death, the question is: when does that judgment constitute a criminal offence, when is it an abuse of power by the judge, and when is it what is known as judicial murder? Although this question is very difficult to answer, it is not impossible. We must first identify a certain hierarchy of the unlawful elements in the judgment. There can be times when a judgment is the result of proceedings which have been duly conducted and are based on the assessment of concrete evidence, the issue of guilt or innocence having simply been the subject of differing opinions throughout the various judicial proceedings. At other times, a judgment may be the result of irregular proceedings where there was insufficient evidence. However these are irregularities which, in substance, testify only to poor decision-making, with no actual intent on the part of the judge to harm the accused. A judgment of this kind is still the result of justice that functions normally. There can also be cases where a judgment is vitiated because the judge intended to harm the accused or favour someone, but where the judgment was delivered following a trial conducted according to the requirements of proper legal proceedings. Here, the irregular judgment constitutes a substantive breach of the principles of impartiality and objectivity required for exercising the duties of a judge. The most serious case is that of a judgment given in circumstances devoid of those immutable ethical attributes inherent in the duties of a judge, in particular because (a) there was premeditated intent to physically eliminate a person; (b) the judgment was chosen as the tool with which to physically eliminate that person; (c) the judge identified with that aim of the judgment, regardless of the reason; (d) the judge subordinated the way in which he or she conducted the proceedings or participated in the decisions to the objective of delivering, as planned, a judgment amounting to murder; (e) the judge sentenced or participated in the sentencing of the accused with no heed to the course or outcome of the trial; in reality, the results of the proceedings were not a criterion in determining the judgment – on the contrary, the proceedings were adapted to the objective of securing a conviction which amounted to murder; and (f) the accused had no real chance of reversing the premeditated intention to eliminate him, even if, to an outside observer, the proceedings might have given the impression that their content had led to the judgment (for example if the accused had been coerced into confessing). In these circumstances, the decision to sentence someone can be regarded as a necessary and irreplaceable part of a lethal mechanism. The issue here is not one of a mere abuse of power on the judges part, but of murder. That is what is meant in legal terms by judicial murder. The sentencing here is an act that is totally estranged from the ethical foundations on which the duties of a judge rest. It is thus apparent that in order to decide whether, in the case of a judge, there has been an abuse of power or judicial murder, it is not sufficient to examine the sentence solely in the light of whether or not it is in accordance with the law as a normative act of public authority. The issue can be properly and convincingly resolved only if the sentence is scrutinised in the light of the criteria stemming from the ethical foundations of the office of a judge. ... It is clear from the circumstances surrounding the adoption of the judgment in case no. 1 Ts II 57/51 of the former State Court that in determining the case, the accused had betrayed the ethics of the judicial decision-making process in an extremely serious way. The judgment had not been an act of justice but an act of elimination of the persons convicted by it. That act of elimination had only the appearance of a judgment; in terms of its content and values, it had nothing to do with justice. It was a case of the person adopting the judgment not being, in reality, the judge in the case but an assistant to or joint principal with those who, at the time, determined that the objective of the trial would be the physical elimination of the accused. Thus, it would not do to exclude one of the forms of criminal responsibility of a person accused of murder. The accused cannot exonerate him or herself from that responsibility by referring to the responsibility of others who may have also participated in the physical elimination of those convicted. ...” In this decision, the Supreme Court dismissed an appeal on points of law lodged by the Supreme Public Prosecutor to the detriment of the person concerned, K.V. In a judgment of the Prague Municipal Court, K.V. had been found guilty of murder under Article 219 § 1 of the 1961 Criminal Code for having contributed, as a military prosecutor and subsequently an investigating judge, to the unjust conviction in 1949 of General H.P., who received the death sentence. K.V. had been accused of, among other things, forging parts of the case file, distorting the minutes of the proceedings, leading the investigation in a way that was not objective and was influenced by Soviet advisers, and proposing the death penalty. Following K.V.’s appeal, the High Court had nonetheless classified the same facts as participation in ordinary murder within the meaning of Article 414 § 4 of the Military Criminal Code in force at the material time, an offence for which that law provided a limitation period of five years. The High Court had therefore concluded that, even taking section 5 of Law no. 198/1993 into account, the limitation period had expired before criminal proceedings had been instituted against K.V. on 9 March 1998. The Supreme Court noted that the Municipal Court and the High Court had relied on the same facts and that the significant difference in their legal assessment of those facts was due to the importance and gravity attached to the forging of parts of the case file. Therefore, after having freely assessed the evidence before them, the two courts had come to different legal conclusions based on the same description of the facts. In examining the lawfulness of the legal classification decided on by the High Court, from the point of view of the legal assessment of the facts, and noting that it was not its place to interfere in the appellate court’s procedural assessment of the evidence, the Supreme Court found that the said classification corresponded to the facts described. Consequently, the Supreme Public Prosecutor’s appeal on points of law was dismissed as manifestly ill-founded.