This opinion addresses the question of whether the resolution of the Regional Court in České Budějovice – Tábor Branch, dated March 5, 2025, case no. 33 Nt 106/2024 (by which the convicted individual, Martin Van Fabián’s, motion for the reopening of proceedings was dismissed), complies with the right to a fair trial.
In particular, we assess whether the rights of a person with a severe hearing impairment to full access to information and the ability to actively participate in the proceedings were violated, whether the courts failed in their duty to protect these rights, and whether the motion to reopen the proceedings was evaluated in accordance with the requirements of Section 278(1) of the Code of Criminal Procedure.
The analysis draws on relevant case law of the European Court of Human Rights (ECtHR), rulings of the Constitutional Court of the Czech Republic, and scholarly literature concerning the right to interpretation, effective legal defense, and the participation of individuals with specific communication needs in judicial proceedings.
Conclusion
We conclude that the actions of the Czech courts in this case were not in accordance with the convicted person’s right to a fair trial. He was not ensured effective exercise of his defense rights in light of his hearing impairment, and the court, in deciding on the motion for reopening the proceedings, failed to meet the standards of fairness when it refused to substantively assess new evidence that indicates a serious violation of his rights.
The Right of a Hearing-Impaired Person to Information and Participation in Criminal Proceedings
The right of an accused to effectively participate in criminal proceedings includes not only physical presence, but also the ability to hear and follow the course of the hearing. These elements are an integral part of adversarial proceedings and can be inferred from the specific rights under Article 6(3) of the European Convention on Human Rights, particularly the right to defense and to an interpreter.
The European Court of Human Rights (ECtHR), in the case of Stanford v. the United Kingdom, stated that poor courtroom acoustics or the accused’s hearing difficulties may, in themselves, raise concerns about the fairness of the proceedings. It is therefore insufficient for the accused to be merely formally present – he must have a real opportunity to perceive what is happening during the proceedings; otherwise, his presence is only symbolic.
The right to a fair trial also entails the right to an interpreter if the accused does not understand the language of the proceedings or has another communication barrier. Article 37(4) of the Charter of Fundamental Rights and Freedoms guarantees that “anyone who declares that they do not understand the language in which the proceedings are conducted has the right to an interpreter.” This constitutional right applies not only to foreigners but also to individuals with sensory disabilities. The Code of Criminal Procedure explicitly provides that a person who cannot be communicated with other than through communication systems for deaf or deafblind individuals must be provided with an interpreter.
In such cases, an interpreter may be a sign language interpreter or another adequate method of making information accessible, such as real-time transcription. The purpose of this right is to ensure that the accused receives all relevant information about their case and can properly exercise their defense.
As emphasized by the European Court of Human Rights (ECtHR) in the judgment Kamasinski v. Austria, the right to an interpreter is a conditio sine qua non for the exercise of all other defense rights—only someone who understands the proceedings can effectively defend themselves.
The ECtHR’s case law establishes that the court has a proactive duty to assess the need for interpretation and to ensure its quality. It cannot rely solely on the accused to raise the issue. For example, in Cuscani v. the United Kingdom, the ECtHR criticized the court for failing to provide an interpreter to a defendant who had limited command of the language of the proceedings, even though the defendant did not explicitly request one.
It is therefore the court’s obligation to verify whether the accused truly understands the proceedings and, if necessary, to remedy the situation. In that case, the court had inappropriately used a family member as an interpreter—an error the ECtHR found to be unacceptable. Likewise, the court has a duty to assess the quality of interpretation if there are doubts that the accused fully understands what is being said.
These principles apply analogously to an accused person with a hearing impairment—the court must ensure a mode of communication (e.g., sign language, real-time transcription, hearing devices) that guarantees genuine comprehension.
The ECtHR addressed this issue, for example, in Timergaliyev v. Russia. The accused suffered from a serious hearing impairment that significantly limited his ability to participate in the proceedings. The ECtHR found that this impairment severely undermined his capacity to actively take part in the appellate hearing and that he should have been provided with a court-appointed defense counsel (ex officio). The Court thereby acknowledged that a health-related disability—whether mental or sensory—may require additional safeguards; otherwise, the principles of equality of arms and the right to a defense are jeopardized.
In the case of Balšán v. the Czech Republic, the ECtHR also found that in certain criminal proceedings against the applicant, his right to defense and to a fair trial had been violated. This case illustrates that the ECtHR does not hesitate to intervene when Czech courts fail in their duty to enable the accused to fully exercise their rights of defense. The result was a finding of a violation of the Convention and the creation of conditions for reopening the case at the national level. Czech law now explicitly allows for the reopening of proceedings in such instances.
The Constitutional Court of the Czech Republic consistently follows the same principles in its case law. For instance, in judgment no. II. ÚS 482/21, it addressed the case of a foreign national who did not understand the proceedings. The Court stated that “it is inadmissible for a person whose case is being decided by a court to be present in the courtroom yet unable to understand anything due to the absence of interpretation, and thus unable to express themselves.” In that case, the Constitutional Court annulled the decisions of the lower courts due to a violation of the complainant’s right to a fair trial and to an interpreter.
From this decision, a general imperative may be inferred: the physical presence of the accused in court without ensuring comprehension is an empty formality and is incompatible with the requirements of a fair trial. Similarly, the Constitutional Court has emphasized that if the accused is effectively excluded from understanding the proceedings, their constitutional rights are violated—particularly the right to a defense under Article 37(2) of the Charter and the right to be present during the hearing under Article 38(2) of the Charter.
Summary
A person with a severe hearing impairment has the right to such arrangements in the proceedings that allow them to fully perceive the course of the hearing and to actively defend themselves. This typically requires the provision of an interpreter in a form appropriate to their needs—for example, a sign language interpreter or a speech-to-text transcriber. The court is obliged to actively verify whether the accused understands everything, and if in doubt, must improve the quality of communication. Failure to fulfill these obligations constitutes a violation of the right to a fair trial as guaranteed by Article 6 of the Convention and Articles 36 et seq. of the Charter.
Failure of the Courts to Protect the Rights of the Convicted Person
In light of the above principles, we now assess the conduct of the Czech courts in the criminal case of Martin Van Fabián (convicted in 2018 by the Regional Court in Tábor, with final judgment in 2019, to 15.5 years of imprisonment for particularly serious criminal conduct). The convicted individual is a person with a severe hearing impairment, reliant on lip-reading (and only under ideal conditions), or on written transcripts of spoken language.
This condition was known to the criminal justice authorities from the outset, and it was clear that he could not perceive standard spoken communication. Nevertheless, the courts virtually ignored these specific needs. The case file shows that the defendant was formally offered the presence of a Czech Sign Language interpreter, but this did not solve his situation—he does not understand sign language. No other mode of communication was offered.
The court thus proceeded with the assumption that the defendant “can lip-read” and that this would suffice. Without any verification, it was presumed that he understood everything happening in the courtroom. This assumption, however, proved to be entirely false. In reality, no conditions were established that would allow the defendant to understand the spoken text through lip-reading. The court proceedings took place in a standard environment—various (unfamiliar) speakers spoke, legal and technical terminology was used, and the pace of speech varied. Under such circumstances, lip-reading cannot be considered an adequate method of communication. This was later confirmed by an expert who described in detail the limitations of lip-reading.
The court interpreted the defendant’s passivity during the hearing as a matter of strategy. It wrongly assumed that silence meant consent to the evidence presented. It explicitly stated that the defendant’s failure to question witnesses or comment on the evidence was understood as “a stance of the accused in the sense of ‘silence means consent’.” This conclusion entirely ignores the possibility that the defendant remained silent because he did not understand the proceedings. The court thus abandoned its duty to verify whether the accused truly comprehended the content of the hearing.
As a result, the defendant was effectively reduced to a passive object in the proceedings. Throughout the main hearing, he had to rely solely on lip-reading, which did not enable true understanding. He had no access to real-time transcription, no hearing aids, and no other assistance. If his counsel conveyed any information to him, it was done indirectly and with delay—he could not respond in real time. According to claims raised later in the motion for a retrial, his appointed attorney even advised him to remain silent and to respond only by stating that “he understands everything and has no questions”—a statement that did not reflect reality.
As a layperson in pre-trial detention, the accused did not know he should insist on his rights and relied on a defense attorney who ignored his needs. These allegations indicate a fundamental failure of the defense. Regardless of how the communication between lawyer and client took place, it does not change the fact that the accused did not understand the course of the proceedings.
These facts came to light only retrospectively, within the motion to reopen the proceedings. However, even during the original trial, there were indications that should have alerted the court. For example, in 2018, there was a dispute over the transcript of the testimony of witness Václav N., where the defendant requested that certain statements be added that he claimed were made but in fact were not. This was likely a misunderstanding caused by inaccurate lip-reading. Yet, this discrepancy was not further examined—the court merely confirmed the accuracy of the transcript without investigating the defendant’s claims. This episode should have signaled to the court that the accused did not understand and was experiencing serious communication difficulties.
The defense also pointed to sections of the transcripts in which the court asked the accused questions and he did not respond. From the context, it appears these were instances where the defendant either did not hear or did not understand the question, rather than intentionally refusing to testify.
It can therefore be concluded that the original criminal proceedings were seriously flawed in that a person with a severe hearing impairment was not provided with full access to information. Neither the court nor the defense effectively informed him about the content of the evidence in real time (e.g., via transcription or notes). The accused thus could not fully exercise his procedural rights (to ask questions, comment on evidence, etc.).
This deficiency constitutes a violation of the right to an interpreter and, consequently, the right to a fair trial. Compared with the standards defined by the Constitutional Court’s case law (e.g., ruling II. ÚS 482/21), it is clear that although the accused was physically present, he “understood nothing and could not express himself.”
What is striking is that the appellate, supreme, and Constitutional Courts, after the conviction, found no error in the trial court’s conduct. According to the currently reviewed decision of the regional court, the defendant’s objections (that he did not understand the proceedings and that his rights were violated) were dismissed as unfounded by all these judicial bodies.
The High Court in Prague, the Supreme Court, and the Constitutional Court all concluded that the defendant’s rights had not been violated. It is likely that the higher courts relied on the formal transcript stating that the accused was present and raised no objections—leading them to conclude that everything was in order. This formalistic approach, however, overlooks the fact that a communication barrier was present and had not been overcome. It is also possible that these courts did not thoroughly examine the specific evidence.
For example, the Supreme Court, according to citations in the decision, argued that the right to an interpreter had not been violated if one was offered and the defendant declined. Such reasoning fails to consider that the form offered (sign language) was unusable for the defendant, and an adequate method of interpretation was not provided.
It is therefore evident that the courts did not take the necessary measures to make the proceedings accessible to a person with a hearing disability, and the higher courts overlooked this failure. This may be characterized as a systemic failure in protecting the rights of the accused.
Only during the proceedings for permission to reopen the case were pieces of evidence presented that objectify the claim of a violation of the right to an interpreter and a defense:
An expert report in the field of ENT (otorhinolaryngology), prepared by Prof. MUDr. Pavel Komínek, CSc., MBA, in 2022, unequivocally concluded that lip-reading was not a sufficient substitute for hearing in the defendant’s case. The expert explained that lip-reading allows understanding only under excellent conditions, with simple sentences and a familiar speaker; in courtroom conditions, with unfamiliar speakers and complex language, lip-reading is insufficient. He identified real-time transcription of speech as a fully adequate communication method—which the court in the original proceedings failed to provide. Even if the accused had consented to lip-reading (which is uncertain), such consent cannot remedy the lack of understanding, as a person with a hearing disability cannot validly waive their right to comprehensible information.
Other documentary evidence (hearing transcripts and audio recordings) point to specific moments when the defendant misunderstood the content of testimony (e.g., the Václav N. incident) or did not respond to questions, which indicates he did not hear or did not understand. These facts were not previously recognized as significant—their importance only becomes clear in light of the expert opinion on lip-reading ability.
The Defendant’s Testimony in the Proceedings for Reopening (Later Clarified in Writing)
The defendant’s testimony in the proceedings for reopening the case (later elaborated in written form) shed light on the nature of his communication with his defense counsel and the instructions he received (e.g., to repeat memorized phrases indicating understanding, despite actual misunderstanding). He also described in detail his hearing impairment and its impact on his daily communication. This testimony further illustrates the extent to which he was effectively excluded from meaningful participation in his defense during the original proceedings.
Assessment of the Court’s Decision on the Motion for Reopening
The central legal issue is whether the Regional Court, in evaluating the motion for reopening, proceeded in accordance with Section 278(1) of the Code of Criminal Procedure. Under this provision, reopening is to be granted “if facts or evidence previously unknown to the court come to light, which, either on their own or in connection with earlier evidence, could lead to a different decision on guilt or punishment.” In other words, the new evidence must have the potential to fundamentally overturn the original factual or legal conclusions.
In the decision dated 5 March 2025, the Regional Court held that the evidence submitted (expert opinion, hearing transcripts, and claims of defense failures) lacked such potential, on the grounds that “these are not pieces of evidence that could lead to a conclusion that the acts occurred differently or did not occur at all, nor to a different finding of guilt or punishment.” The court categorized this evidence as being of a “different nature”—arguing that it merely challenged a procedural flaw in the trial, specifically the violation of the right to an interpreter and to a defense, i.e., the unlawfulness of the original judgment, which cannot be remedied through reopening. The court stated that such defects are to be corrected through appellate remedies, especially appeal, cassation, or constitutional complaint—all of which had been exhausted and had found the objection unfounded. Therefore, it ruled that the new evidence was not relevant under Section 278(1) and denied the motion.
This approach may be characterized as formalistic and problematic in light of the right to a fair trial. The Regional Court essentially refused to substantively examine serious findings of violations of the defendant’s rights by citing a procedural technicality—that reopening serves only to review new factual circumstances regarding the criminal act, not to correct procedural errors from prior proceedings.
It is true that reopening is not traditionally intended to cure every procedural defect. However, the evidence presented here is far from a mere academic complaint about a formal error—it indicates that the original conviction may have been based on proceedings that were not fair, where the defense could not fully present counterarguments. If the defendant was unable to effectively challenge the prosecution’s evidence (because he did not understand it), then it cannot be justly claimed that the factual findings are beyond dispute. In other words, correcting such a fundamental impairment of the right to a defense may indeed result in different factual conclusions, since in a reopened proceeding—conducted under equal conditions—the defendant would be able to present previously unconsidered matters or better contest witness testimonies.
Scholarly literature on reopening acknowledges that new evidence may also be considered in terms of re-evaluating facts known from the original proceedings. The Constitutional Court, in its en banc opinion Pl. ÚS-st. 50/20, emphasized that when deciding whether to grant a retrial, the court should not consider only the prima facie relevance of the new evidence in relation to an alternative factual scenario, but may also examine whether the new evidence could lead to a different evaluation of previously admitted facts. In our case, such “re-evaluation” of original evidence could occur if the defendant finally had a meaningful opportunity to comment on it and identify possible contradictions or weaknesses.
Moreover, this is a situation where all standard remedies have failed—likely because the true depth of the problem only became clear over time with the acquisition of new material (e.g., the expert report). The defendant effectively had no realistic opportunity to achieve redress earlier. A rigid refusal to reopen under such circumstances gives the appearance of a denial of justice.
The ECtHR, in its case law, requires that the state provide an effective remedy in the event of a violation of rights guaranteed by the Convention. If the convicted person were forced to wait for a possible finding against the state by the ECtHR, it would mean an extended period during which he serves a long sentence despite real doubts about the fairness of the process.
By way of comparison, we may refer to Stanford v. the United Kingdom. There, the ECtHR found no violation of Article 6 because the applicant failed to inform the court during the trial of his hearing difficulties. The Court essentially suggested that the defense should have addressed the issue at the time—and that, having failed to do so, it could not complain afterward. In our case, however, the situation is qualitatively different. While the defendant also did not protest during the trial, unlike Stanford, the nature of his disability was evident from the outset, and he relied on instructions from his counsel (who did not encourage him to raise concerns, but rather the opposite). The court should have recognized the problem on its own initiative and arranged for interpretation, which it failed to do. Under such circumstances, strict application of the Stanford approach (i.e., “he didn’t say anything, so it’s his fault”) would be unduly harsh. Modern case law (see Cuscani, Timergaliyev) places a duty on courts to perceive and respond to the defendant’s difficulties even in the absence of an explicit request. The court in 2018 failed in this duty—and so did the defense. This passive failure cannot be attributed to the convicted person—indeed, it is precisely to address such glaring injustices that extraordinary remedies exist.
Special Mention: Judgment of the Constitutional Court No. II. ÚS 482/21
Special attention should be given to the ruling of the Constitutional Court under case no. II. ÚS 482/21, which dealt with a similar issue within the framework of administrative justice (a proceeding on the detention of a foreign national). There, too, the Constitutional Court found a violation of the right to an interpreter and the right to a fair trial, and it annulled the decisions of the general courts, which had downplayed the situation. It logically follows that if a comparable case (absence of interpretation) were to arise in criminal proceedings, the Constitutional Court would have no hesitation in annulling a final judgment for unconstitutionality. The instrument of reopening proceedings would then serve as the procedural means to conduct a new trial. All the more reason, therefore, for the general courts to grant a motion for reopening when the evidence supporting it is already before them.
Conclusion and Recommendations
Based on the above analysis, we conclude that the resolution of the Regional Court in Tábor dated 5 March 2025 was not in accordance with Martin Van Fabián’s right to a fair trial. Specifically, his right to an interpreter—and thereby to an effective defense—was violated, as the courts failed to protect the accused as a person with a hearing disability and did not ensure him meaningful access to information and participation in adversarial proceedings.
In ruling on the motion to reopen the proceedings, the court then dismissed this issue in a formalistic manner and refused to permit reopening, thereby effectively endorsing the result of proceedings tainted by a breach of the right to a fair trial. Such an approach is inconsistent with the case law of the ECtHR (e.g., the requirements set out in Cuscani, Timergaliyev, and others), as well as the jurisprudence of the Constitutional Court of the Czech Republic and the general principles expressed in legal commentary on the right to interpretation and defense.
The Šalamoun Association therefore holds the view that the above-mentioned decision should have been quashed and the motion for reopening granted. Only a new hearing of the case—in which the rights of the accused are fully respected (in particular, through the provision of real-time speech transcription or other suitable interpretation)—can remedy the fairness deficit of the original trial.
If the general courts refuse to provide such redress, the accused should submit a constitutional complaint to the Constitutional Court, and subsequently, if necessary, lodge an application with the ECtHR for a violation of Article 6 of the Convention. The European Court and the Constitutional Court have repeatedly emphasized that a fair trial is not a luxury, but a fundamental right of every individual, and in a democratic rule-of-law state, no one may be convicted without having the opportunity to understand the proceedings and defend themselves on equal footing. Particularly vulnerable persons (such as those with disabilities) require heightened protection—not disregard of their impairment.
The egregious failure of the defense counsel is now time-barred.
The presiding judge, instead of being sanctioned for such conduct, was promoted and now serves as a presiding judge at the High Court in Prague.
Welcome to the rule of law.
Zdravím, fandím vám a myslím, že děláte skvělou práci, ale doporučuji Vám změnit ty fotky – ta „zvracející spravedlnost“ opravdu nepůsobí tak, jak jste asi zamýšleli. Působí to hrozně jeden by si až řekl, co se honilo hlavou tomu, kdo je vybíral…
🙂