FIFTH SECTION
CASE OF FAJSTAVR v. THE CZECH REPUBLIC
(Application no. 48303/21)
 
 
JUDGMENT
 
Art 6 § 1 (criminal) • Fair hearing • Applicant’s drug-trafficking conviction decisively based on the testimony of co accused, having been granted the status of “cooperating accused”, who eventually benefitted from a more lenient sentence, not rendering trial unfair
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
16 October 2025
 
FINAL
 
16/01/2026
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Fajstavr v. the Czech Republic,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 María Elósegui, President,
 Georgios A. Serghides,
 Gilberto Felici,
 Andreas Zünd,
 Diana Sârcu,
 Sébastien Biancheri, judges,
 Pavel Simon, ad hoc judge,
and Victor Soloveytchik, Section Registrar,
Having regard to:
the application (no. 48303/21) against the Czech Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Czech national, Mr Aleš Fajstavr (“the applicant”), on 23 September 2021;
the decision to give notice of the application to the Czech Government (“the Government”);
the parties’ observations;
the decision of the President of the Section to appoint Mr P. Simon to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1 (a) of the Rules of Court), Ms K. Šimáčková, the judge elected in respect of the Czech Republic, having withdrawn from sitting in the case (Rule 28 § 3);
Having deliberated in private on 16 September 2025,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns the applicant’s criminal conviction for drug trafficking, which was based to a decisive extent on the testimony of the applicant’s co‑accused, who had been granted the status of “cooperating accused”. It raises issues under Article 6 § 1 of the Convention. THE FACTS
2. The applicant was born in 1957 and lives in Jihlava. He was represented by Mr F. Seifert, a lawyer practising in Prague. 3. The Government were represented by their Agent, Mr P. Konůpka, of the Ministry of Justice. 4. The facts of the case may be summarised as follows. PRE-TRIAL PROCEEDINGS
5. On 13 July 2016 the police brought criminal charges against N.M. for drug trafficking; on the same day, she largely confessed to the charges. Her ex-partner, J.J., also provided a statement to the police in which he mentioned that on one occasion the applicant had been present when O.K. had given N.M. drugs to transport to Switzerland. 6. On 20 July 2016, when N.M. was questioned again, she supplemented her previous statement by saying that her second trip to Switzerland in April 2015 had been organised by both O.K. and the applicant, who had come to her flat, packaged the drugs and put them in a suitcase before driving her to Prague to take the bus; on her return from Switzerland, they had waited for her in Prague and collected money from her. O.K. and the applicant had also allegedly accompanied her to the Prague bus station on her third trip to Switzerland in June 2015. On 15 September 2016 she reiterated that, in her opinion, both O.K. and the applicant had been involved in the drug trafficking, since they had always made arrangements together, but that she did not know more about their specific roles. At the end of those interviews, N.M. asked to be recognised as a “cooperating accused” within the meaning of Article 178a § 1 of the Code of Criminal Procedure (hereinafter “the CCP”). 7. On 20 November 2016 the police brought criminal charges against N.M., O.K. and the applicant for the particularly serious offence of manufacturing and trafficking illegal drugs, committed within an organised group between January and June 2015. 8. The following day the applicant was appointed a lawyer, his case warranting mandatory legal representation. 9. On 22 November 2016 the applicant was questioned in the presence of his lawyer and stated that he had known N.M. since he had once accompanied her and O.K. to the bus station in Prague and had been to her flat several times, but that he did not remember why. 10. On 16 December 2016 N.M. was questioned by the prosecutor, as a cooperating accused, in the presence of all the accused’s lawyers, including the applicant’s. The latter asked her detailed questions about both her history of drug addiction and the applicant’s alleged role in the criminal activity. The applicant’s lawyer did not attend N.M.’s interview on 20 January 2017 and did not ask her any questions during her subsequent interview on 14 February 2017. 11. On 19 January 2017 the police took a new statement from N.M.’s ex-partner, J.J., so as to allow the accused’s lawyers to ask him questions. However, J.J. only referred to his initial statement and refused to make any further comments. 12. On 18 February 2017 a psychiatric expert, who had been commissioned by the police, delivered an expert report on N.M.’s mental state. According to the report, N.M.’s character was disharmoniously structured but she did not suffer from any mental illness; she was able to understand the purpose of criminal proceedings and to fully participate in them. However, given that she had been taking drugs since she was 14 years old, he recommended an outpatient drug addiction treatment. 13. On 6 October 2017 the applicant, O.K., N.M. and J.J. were formally indicted by the prosecutor; N.M. was designated as a cooperating accused. CRIMINAL TRIAL
14. The applicant and his lawyer attended the hearings held before the Ústí and Labem Regional Court on 26 April 2018, 27 June 2018, 23 November 2018, 15 January 2019 and 28 August 2019. The applicant denied engaging in the criminal activity in question, claiming that he had an alibi for the dates of both of N.M.’s trips to Switzerland in which he had allegedly been involved according to the indictment. Concerning the trip on 14-16 April 2015, he submitted a medical certificate stating that he had been hospitalised from 15 to 18 April 2015. As to the second trip on 12-14 June 2015, he asserted that during that period he had transported cars to Belgium, which he intended to prove by written evidence (namely documents pertaining to international carriage) and the hearing of witnesses J.V. and H.K. He further argued that N.M. had testified against him because he had insulted her in the past and because she was trying to obtain a reduced sentence; moreover, her reliability was doubtful, given that she had been a long-term drug addict. N.M., designated as a cooperating accused, stated that she had told the truth and confirmed her pre-trial statement which had been read out. She also responded to questions asked by the prosecutor, the court and her co-accused’s lawyers and admitted that she did not remember whether the applicant had been to Prague with her one time or two times. The court further heard J.V., a witness for the applicant, who stated that, according to the relevant carriage document, he and the applicant had loaded a car to be sold abroad, on 11 June 2015, and had remitted it to the buyer in Belgium on 13 June 2015; he could not, however, remember when exactly they had left together for Belgium, only that on their return journey they had spent one night at H.K.’s home in Belgium and had returned on 15 June 2015. A request by the applicant to hear H.K. was refused by the court without written reasoning. In his closing speech of 28 August 2019, the prosecutor admitted that N.M. was not a person of integrity but emphasised that she had incriminated herself in respect of a more serious offence (see paragraphs 5-7 above), had described the activities of the whole group and had shed light on the criminal activity under investigation, and that her statement had been supported by other pieces of evidence, in particular by statements of six other persons related to the acts committed by O.K. In his view she had satisfied the conditions set out in the CCP to be granted the status of cooperating accused and recommended that she receive a length of sentence below the lower statutory range (three years were proposed). 15. On 26 September 2019 the Regional Court found the applicant, O.K. and N.M. guilty of the particularly serious crime of manufacturing and trafficking illegal drugs committed within an organised group. The applicant was sentenced to ten years in prison and N.M. was given a three-year prison sentence. The court based itself on the statements of N.M., given both at the pre-trial stage and at trial, which it considered reliable since they described the actions of all members of the group in a logical and consistent way and were corroborated by other pieces of evidence, namely the statement of her ex-partner given on 13 July 2016, telephone recordings, a search of O.K.’s home and information provided by the bus company and the Swiss authorities. Referring to, inter alia, the expert report (see paragraph 12 above), the court found no reasons to consider N.M., designated as a cooperating accused, unreliable and it observed that there had been no major conflict between her and the applicant in the past, contrary to what the latter had claimed, which might have driven N.M. to falsely incriminate him. It also considered untenable the applicant’s alibi, holding that his hospitalisation had not prevented him from being present when N.M. had left for Switzerland on 14 April 2015, and that his assertion that he and J.V. had left on 10 June 2015 had been refuted by J.V., according to whom the cars had been loaded only on 11 June 2015 and who had not remembered when exactly they had left. 16. The applicant appealed against that decision to the Prague High Court, which dismissed his appeal on 13 March 2020 following a public hearing. It considered that the Regional Court had conducted a comprehensive examination of the evidence, pointing out that the hearing of the defence witness H.K. had been considered redundant in view of the evidence taken up to that point. Indeed, even if H.K. had been heard and had confirmed that the applicant had spent the night of 14-15 June 2015 at his home, this would not have refuted N.M.’s statement that the applicant had accompanied her to Prague on 12 June 2015. 17. On 25 November 2020 the Supreme Court dismissed an appeal on points of law lodged by the applicant, endorsing the lower courts’ findings. As to the fact that the witness, H.K., had not been heard, it observed that that did not amount to “omitted evidence” since the proposal to hear him had been considered and dismissed orally on the basis of adequate, albeit brief, grounds. 18. Subsequently, the applicant lodged a constitutional appeal, which the Constitutional Court dismissed as manifestly ill-founded on 24 March 2021 (decision no. II. ÚS 617/21). In the Constitutional Court’s view, the applicant only disagreed with the interpretation of law by the lower courts and with their guilty verdict; however, all his concerns and arguments had been duly addressed. 19. On 7 September 2021 the applicant was arrested in Germany, following from a European arrest warrant issued by the Regional Court. He was transferred to the Czech Republic on 3 November 2021 to serve his prison sentence. RELEVANT LEGAL FRAMEWORK AND PRACTICE
CODE OF CRIMINAL PROCEDURE (LAW No. 141/1961)
20. The concept of cooperating accused was introduced into the Czech Code of Criminal Procedure, with effect as of 1 January 2010, with a view to facilitating investigations and clarification of particularly serious crimes. It is governed by Article 178a. 21. Article 178a § 1 provides that in proceedings concerning an offence, the public prosecutor may designate in the indictment an accused as cooperating if he or she:
(a) reports to the prosecutor facts that are likely to significantly contribute to the clarification of an offence committed by members of organised groups and undertakes to provide a comprehensive and truthful statement about those facts both in pre-trial proceedings and at trial;
(b) confesses to the crime for which he or she is being prosecuted and there is no reasonable doubt that that confession is free, serious and definitive;
(c) declares that he or she agrees to be designated as a cooperating accused. In addition, the prosecutor must consider such designation necessary, given the nature of the criminal offence which the accused has undertaken to clarify, also taking into account the offence referred to in the accused’s confession, the character of the accused and the circumstances of the case, especially whether and how the accused participated in committing the offence which he or she has undertaken to clarify and what consequences were caused by his or her actions. 22. Under Article 178a § 2, if the cooperating accused has not committed a crime that is more serious than the crime he or she helped to clarify, if he or she did not participate as an organiser or instigator in the crime he or she helped to clarify, if he or she did not intentionally cause serious bodily harm or death, and if there are no grounds for an extraordinary increase of the prison sentence, the prosecutor may, under certain conditions, propose in the indictment that the punishment be waived. 23. Pursuant to Article 178a § 3, before the prosecutor designates the accused as cooperating, he or she must question the accused, in particular about the content of the information provided and about his or her confession. The accused will also be asked whether he or she is aware of the consequences of his or her actions. Prior to the examination of the accused, the prosecutor must inform the accused of his or her rights, the substance of being designated as a cooperating accused, the obligation to maintain his or her confession and comply with the obligations set out in paragraph 1 of Article 178a, and must inform the accused of the fact that if he or she violates his or her obligations in the pre-trial proceedings or at trial, he or she will no longer be regarded as a cooperating accused. CRIMINAL CODE (LAW No. 40/2009), AS IN FORCE AT THE MATERIAL TIME
24. Article 39 § 1 provided that, in determining the type and length of a sentence, the court had to take into account, inter alia, whether a perpetrator designated as a cooperating accused made a significant contribution to the clarification of a crime committed by members of an organised group. 25. Under Article 41m, the court had to consider a mitigating circumstance, inter alia, the fact that the perpetrator had contributed, in particular as a cooperating accused, to the clarification of a criminal activity committed by members of an organised group. 26. Article 46 § 2 allowed the court to refrain from punishing a perpetrator designated as a cooperating accused if the conditions laid down in Article 178a §§ 1 and 2 of the CCP had been satisfied and if the cooperating accused had provided a comprehensive and truthful statement, both in the pre-trial proceedings and at trial, about facts that were likely to contribute significantly to the clarification of a crime committed by members of an organised group. 27. Under Article 58 § 4, the court could reduce a prison sentence imposed on a perpetrator designated as a cooperating accused to a length below the lower limit of the statutory range if the conditions laid down in Article 178a § 1 of the CCP had been satisfied and if the cooperating accused had provided a comprehensive and truthful statement about the relevant facts. In doing so, the court had to take into account the nature of the offence referred to in the cooperating accused’s confession in comparison with the offence committed by members of the organised group whose clarification he or she had contributed to, the significance of that offence, the character of the perpetrator and the circumstances of the case, in particular whether and how he or she had participated in it and which, if any, consequences his or her actions had caused. DOMESTIC COURT PRACTICE
28. The Supreme Court stated in its decision no. 7 Tdo 1315/2012 of 12 December 2012 that the institution of cooperating accused was viewed as an effective tool in combatting serious organised crime and as a legitimate means of gathering evidence. It emphasised that, according to the Court’s case-law, a statement of a cooperating accused could be used, provided that such evidence and the motivation behind it had been subjected to a careful assessment. Thus, there was always a need to consider the equivocal nature of that kind of statement and the risk of it being self-serving. Also, such evidence could not stand alone and had to be assessed critically. 29. In decision no. 8 Tdo 661/2015 of 17 September 2015 the Supreme Court held that the position of a prosecutor who designated an accused as cooperating was not decisive or binding for the court, which had to consider all the circumstances relevant to the application of Article 58 § 4 of the Criminal Code in an autonomous and independent manner. 30. The Constitutional Court stated in its decision no. III. ÚS 859/13 of 13 March 2014 that the application of the institution of cooperating accused must be subject to the most stringent requirements and the process of assessing the credibility of a cooperating accused’s statement must be exceptionally thorough. In particular, it considered it necessary to examine his or her motives for cooperating and the compatibility of his or her statement with the other evidence gathered. 31. On 7 August 2018 the Constitutional Court held, in judgment no. II. ÚS 3525/16, that by accepting the status of cooperating accused the accused waived his or her right to refuse to testify, implying the privilege not to worsen his or her procedural situation, which was motivated by the expected, albeit discretionary, benefit of an extraordinary reduction of his or her prison sentence. 32. In decision no. IV. ÚS 3816/18 of 29 January 2019 the Constitutional Court held that the regulation of the institution of the cooperating accused was meant to be optional, with a very wide range of discretion on the part of the prosecutor, and without any direct (compulsory) consequences for the material rights of the accused persons; those could only occur after the court had taken account of all the relevant circumstances. 33. On 28 August 2019 the Constitutional Court confirmed, in decision no. III. ÚS 3193/18, that even if the prosecutor designated an accused as cooperating in the indictment, that position could not be binding on the court hearing the case, which had to ascertain that the conditions set out in Article 178a § 1 of the CCP had been satisfied. 34. In decision no. I. ÚS 2038/20 of 16 September 2020 the Constitutional Court held that while the findings of a criminal court could be based solely on the statement of a cooperating accused, the court had to explain, in a sufficient and logical manner, why it considered that statement credible. In the case at hand, the main reason for concluding that the statement of a cooperating accused was credible was the fact that it was consistent with other pieces of evidence. THE LAW
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
35. The applicant complained under Article 6 §§ 1 and 2 of the Convention that his criminal conviction had been based on unreliable statements of his co-accused, who had cooperated with the criminal authorities in exchange for a reduction of her sentence. The Court, which is the master of the characterisation to be given in law to the facts of the case, will examine the complaint from the standpoint of Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Admissibility
36. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions

37. The applicant asserted that his conviction had been based almost exclusively on the statement given by the cooperating accused, N.M. Moreover, her allegations about her second and third trips to Switzerland, in which he had allegedly been involved, had been inaccurate and contained contradictions, which had made them unreliable. Also, her statement had been significantly influenced by what she had been told by the prosecution or had read in the file. However, instead of being particularly cautious, the courts had downplayed or ignored those deficiencies and considered unreliable any evidence in his favour which had contradicted N.M.’s statement, such as the witness statement by J.V. They had also refused to hear H.K., who could have corroborated J.V.’s statement. 38. The applicant further argued that, contrary to the Government’s allegations (see paragraph 42 below), N.M.’s testimony had not been corroborated either by J.J.’s statement, which had not implicated him in the offence, or by any other piece of evidence. He further argued that he had not been able to attend J.J.’s interview of 13 July 2016, as he had not yet been charged at that time, while on 19 January 2017 J.J. had refused to make any further comments (see paragraph 11 above). As to the other evidentiary material, such as telephone recordings and information provided by the bus company, they had not proved that he had played any role in N.M.’s trips to Switzerland or that he had himself exported or sold any illegal drugs. 39. As to the institution of cooperating accused as regulated by Czech law, the applicant submitted that it was devoid of virtually any guarantees. In pre-trial proceedings, it was at the prosecutor’s discretion whether an accused would be designated as cooperating within the meaning of Article 178a of the CCP, and there was no formalised agreement on the benefits for the accused. Yet, in the applicant’s view, the Court’s case-law presupposed the existence of a transparent agreement between the cooperating accused and the prosecutor, whose terms could be reviewed by a court. The fact that under Czech law the cooperating accused could only expect a discretionary benefit, which was to be determined by the court (see paragraph 43 below), confirmed in his view the problematic nature of that institution. In the present case, the applicant disagreed that the use of the institution of cooperating accused had been subjected to proper judicial review, emphasising that the Regional Court had given N.M. the same sentence as that proposed by the prosecutor, that is, a three-year prison sentence. Given that she had faced a sentence of between ten and eighteen years, the advantage she had obtained as a cooperating accused had thus been considerable. 40. Moreover, the courts had failed to explain how the conditions set out in Article 178a § 1 of the CCP and Article 58 § 4 of the Criminal Code had been met. In this connection, the applicant emphasised that N.M. had given her key statement during the interview on 20 July 2016, which he or his lawyer could not attend, but she had not repeated it in full at any later occasion or, in particular, at trial. Lastly, the courts had not properly dealt with the issue of possible motives on N.M.’s part to incriminate him. 41. Referring to the general principles set out in Xenofontos and Others v. Cyprus (nos. 8725/16, 74339/16 and 74359/16, 25 October 2022), the Government submitted that the present case had to be distinguished from those in which the Court had found a violation of Article 6 (see Adamčo v. Slovakia, no. 45084/14, § 71, 12 November 2019, and Erik Adamčo v. Slovakia, no. 19990/20, § 76, 1 June 2023), in which the cooperating accused had practically been granted immunity. In their view, it was rather similar to cases which had been dismissed as manifestly ill-founded (they referred to Shiman v. Romania (dec.), no. 12512/07, 2 June 2015, and Czerski v. Poland (dec.) [Committee], no. 20170/14, 30 January 2024) and in which sufficient counterbalancing factors had compensated for the fact that the statement of the cooperating accused had constituted the main evidence against the applicants. They also emphasised the wide margin of appreciation enjoyed by the State in the fight against organised crime, especially in the field of international drug trafficking. 42. The Government argued that, while the applicant’s conviction had rested significantly on the statement of the cooperating accused, N.M., which had been corroborated by the pre-trial statement of her ex-partner, J.J. (see paragraph 5 above), it had also been supported by a substantial amount of objective evidence, such as telephone recordings and information provided by the bus company (see paragraph 15 above). In their view, the proceedings had been accompanied by appropriate procedural safeguards. In particular, the applicant had been assisted by a lawyer, he had been aware of N.M.’s identity and informed that she had been designated as a cooperating accused, and his lawyer had been allowed to attend all the examinations of N.M. during the pre-trial proceedings and ask her questions at the trial hearing. The applicant had also used the opportunity to put forward his account of the events and to challenge N.M.’s credibility, to which the court had duly responded; moreover, N.M.’s mental state had been subjected to an expert examination (see paragraph 12 above). As to the applicant’s argument that the key incriminating statement had been made by N.M. in the pre-trial proceedings, the Government submitted that such fact was not sufficient to render the applicant’s conviction unfair (they referred again to Shiman, cited above). 43. The Government further argued that the domestic courts had subjected the applicant’s case to an appropriate degree of scrutiny. They asserted that there had been no formalised agreement between N.M. and the prosecutor and that, contrary to the applicant’s allegations (see paragraph 39 above), such an agreement was not required by the Court’s case-law (they referred, in this respect, to Souroullas Kay and Zannettos v. Cyprus, no. 1618/18, 26 November 2024). Under the applicable legislation, it had been up to the court to assess whether N.M. could be granted the status of cooperating accused and given a reduction of her sentence, which had amounted to a discretionary benefit (see paragraph 31 above). The Regional Court had also duly examined and explained why it had considered N.M.’s statement credible, pointing out that it had been sufficiently detailed, consistent and logical and that there had been no reasons for her to falsely incriminate the applicant (see paragraph 15 in fine). In the Government’s view, had N.M. been motivated solely by a desire to gain benefits from her procedural status of cooperating accused, she would not have incriminated herself in respect of a more serious offence, as pointed out by the prosecutor (see paragraph 14 above). Lastly, the Government emphasised that N.M. had not received practical immunity or impunity, but only a reduction of her prison sentence, which was a benefit considerably less significant than that granted to the cooperating accused in Adamčo and Erik Adamčo (both cited above).

Outcome for Article 6: no_violation