Ethical Commission Conclusion no. 2

concerning new facts and proposals for dealing with new evidence presented in appeal proceedings

The Ethics Commission of the Czech Republic for recognition of participants in anti-communist opposition and resistance (hereinafter referred to as the “Ethics Commission”) will only deal with new facts and proposals for addressing new evidence presented in appeals by the Party to the proceedings, an applicant for a certificate of a participant in anti-communist opposition and resistance pursuant to Act No. 262/2011 Coll., on the participants in anti-communist opposition and resistance, or during the appeal proceedings, within the meaning of Section 82 paragraph 4 of Act No. 500/2004 Coll., the Administrative Procedure Code, as amended (hereinafter referred to as the “Administrative Procedure Code”), in the case of new facts (allegations of facts relating to acts for which the applicant submitted the application) or evidence the Party to the proceedings could not present earlier, during the proceedings before the Ministry of Defence of the CR (hereinafter referred to as the “ministry”).

(Ethics Commission CR Decision of 1 August 2012, ref.no. 9840/2012-EKO)

The reasoning:

It is clear from the appeal by the Party to the proceedings that it challenges the ministry’s decision in its entirety, but the Party to the proceedings has not stated where he sees the violation of legal regulations or the incorrectness of the decision or the previous proceedings held by the ministry, within the meaning of Section 82 paragraph 2 of the Administrative Procedure Code. The appeal is only based on other claims, which are not included in the application.

With regard to the following, after the discussions in the appeal proceedings, the Ethics Commission did not address the new claims, which the Party to the proceedings did not bring before the administrative proceedings held by the ministry, i.e. claims relating to his activities connected to Charter 77, its signature and distribution, visits to the Jazz Section and help provided to the family N. and Mr. P.C., or the claim that he was the victim of provocation by the StB, etc. According to the provisions of Section 82 paragraph 4 of the Administrative Procedure Code, new facts and new motions to execute new evidence mentioned in the appeal or in the course of the appellate proceedings will be taken into consideration only if the participant could not assert these facts or the evidence earlier.

For completeness, the Ethics Commission states, with regard to the provisions of Section 82 paragraph 4 of the Administrative Procedure Code, that, should the Party to the proceedings dispute the new facts relating to the acts for which the Party to the proceedings submitted his application, (with the exception of those he could not objectively have asserted earlier) at the appeal proceedings, he might be, in the event he disagreed with the decision of the Ethics Commission relating to these new claims, deprived of his right of appeal against that part of the decision. Under the provisions of Section 91 paragraph 1 of the Administrative Procedure Code, a further appeal against a decision of the Ethics Commission is not allowed. This approach would also be contrary to the principle of multiple instances in administrative proceedings. In the case under discussion, this concerns in particular new claims by the Party to the proceedings that on the occasion of his second attempt to leave the republic he became the victim of provocation by the StB, and also a claim by the Party to the proceedings, expressed in a written addition to his appeal, that he informed P.C., an editor at VONS (the Committee for the Defence of the Unjustly Persecuted), of his case, and that his case was subsequently described in communications from VONS.

In the case of the other claims by the Party to the proceedings, included in his appeal and relating to his cooperation with Charter 77, the Jazz Section etc. or the claim in the written addition to his appeal that in the summer of 1977 he burned a large transparent/billboard on Letna (probably on the anniversary of the October Revolution), this entails the introduction of totally new facts, which in their content do not relate directly to the reasons for the submission of the application, i.e. to acts for which the Party to the proceedings requested a certificate, and their assessment can therefore not be the subject of these proceedings.

The Ethics Commission hereby expresses its regret for the persecution of the Party to the proceedings during the period of the communist regime and for the wrongs that were done to him, and at the same time warns that the decision of the Ethics Commission, which confirms the ministry’s decision to reject the application for a certificate of a participant in anti-communist opposition and resistance, does not affect the right of the Party to the proceedings to apply for a certificate of a participant in anti-communist opposition and resistance within the meaning of Section 6 paragraph 1 of the Act for other acts than those for which the applicant has already applied and for which an effective decision has been made (i.e. to apply for opposition activities within the meaning of the law that were carried out in a different form or at a different time than in the original application). However, these claims by the Party to the proceedings must be supported by the relevant evidence, within the meaning of Section 52 of the Administrative Procedure Code (documents, witness statements, etc.). This is particularly important when the file/documentation held by the StB on the Party to the proceedings (or a part thereof) has been destroyed and cannot be traced in the relevant archives. If no witnesses have been named or no other evidence can be submitted, neither the ministry nor the Ethics Commission have sufficient information in the archival sources to decide on the issue of confirmatory information submitted by the Party to the proceedings which they could rely on to issue a decision.

At the same time, the Party to the proceedings should ensure that the designated evidence is sufficiently clear and can be verified by partner institutions, i.e. archives and institutions, as these generally only provide the requesting authorities (the ministry or the Ethics Commission) with relevant material, which can be traced on the basis of specific information provided in the application and its justification.