The protocol as a weapon: how the court record distorts due process

In Czech civil practice, the negotiation protocol is often perceived as a technical document - something that "only" captures the course of negotiations. In fact, it is one of the most sensitive procedural tools that can fundamentally affect the outcome of a proceeding as well as its review. A log is not just a write-up; it is a normative picture of reality from which the Court of Appeal and, in the last resort, the Constitutional Court are based. Once this image is distorted, the steering itself is distorted.

The basic framework is provided by Section 40 of the Code of Civil Procedure. It stipulates that minutes are taken of proceedings, that actions are audio-recorded, and that in the event of a conflict, the recording takes precedence. At the same time, the protocol must contain, among other things, the course of the meeting and the presentations of the participants. Clear rules at first glance. However, practice shows that it is in this area that the most serious process deformations occur.

A typical problem is selective logging. Naturally, the judge has some discretion in how to structure the transcript, but he does not have the right to decide which parts of the participant's speech are "recordable" and which are not. As soon as the court starts to filter the content according to its own idea of ​​its meaning, it goes beyond the scope of § 40 of the Civil Code and at the same time interferes with the participant's right to be heard according to Article 38, paragraph 2 of the Charter.

In one particular case, which can be considered a model, the litigant explicitly responded to the opposing party's presentation, developed an argument about the probative value of the documents, and at the same time objected to the inequality of arms. The court declined to record this response on the grounds that it was not a "substantial part of the proceedings". Subsequently, he concluded the protocol by stating that the participants had no objections to the protocol. Such a combination is legally unsustainable: on the one hand, there is an incompleteness of the protocol, on the other hand, its internal contradiction, and above all, a distortion of procedural reality.

The second fundamental risk is the formal existence of an objection without its real capture. The Constitutional Court in the case of stamp IV. ÚS 2087/15 emphasized that objections to the protocol must be made directly during the meeting. However, this presupposes that such an objection will actually be caught. If the participant raises an objection and the court subsequently "dissolves" or even denies it in the protocol, a paradoxical situation occurs: the participant has fulfilled his procedural obligation, but the system does not recognize it.

The relationship between the protocol and the audio recording deserves special attention. The law makes it clear that in the event of a conflict, the record prevails. However, this does not mean that the log can be inaccurate. Although the audio recording is a "safeguard", in common practice it is the protocol from which the other procedural steps are based. If the protocol produces a distorted image, it is up to the participant to actively initiate its correction. Otherwise, the Court of Appeal risks working with a distorted basis.

Another problematic area is anticipating legal evaluation within the protocol. In the preliminary hearing, the court is supposed to define disputed facts and evidence (§ 114c o. s. r.), not to evaluate their relevance in advance in a way that limits the procedural space of the participant. If, already at this stage, the court downplays certain evidence – for example, court records as bearers of defamatory statements – and at the same time refuses to record argument that responds to this approach, there is a shift from an impartial proceeding to a proceeding governed by a preconceived opinion.

Related to this is the issue of burden of proof and negative facts. In personal protection proceedings, the focus of the dispute is whether the defendant made certain statements and whether they are true. If the court directs the participant to prove that he "didn't do something" without adequately reflecting on the statements themselves, the evidentiary framework is disproportionately shifted. Such access must be captured in the log, otherwise it is not reviewable.

The timing aspect of the claim and concentration of management is also quite crucial. According to § 114c and § 118b o. s. r., the participants have the opportunity to supplement their statements and evidence until the end of the preparatory meeting or until the expiration of the provided period. If the participant at this stage applies new facts - for example, other defamatory statements that came to light only after the filing of the lawsuit - and the court immediately rejects them as "outside the subject of the proceedings" without allowing them to be seized procedurally, this is a procedure on the verge of violating the right to a fair trial. It is all the more essential that such a procedure be accurately recorded in the protocol.

What does this mean for practice? Above all, the party to the proceedings must not be passive in the matter of protocol. Anyone handling a dispute should keep a few principles in mind:

First, any material submission must be expressly designated as a motion to record. If it is not recorded, it is necessary to raise an objection immediately.

Second, the objection to the protocol needs to be formulated specifically—what exactly is missing and why it is relevant.

Third, it is necessary to monitor the conclusion of the protocol. Formulations of the "no objection" type must be contradicted immediately if they do not correspond to reality.

Fourth, it is advisable to always work with an audio recording. The latter is the final point of reference and can fundamentally support the subsequent argumentation.

Finally, it must be understood that protocol is not just a technical discipline, but part of the constitutionally guaranteed right to a fair trial. As recalled by the Constitutional Court in the finding no. stamp III. ÚS 84/94, court proceedings must exclude arbitrariness and be reviewable. Without faithful protocol, this requirement becomes an illusion.

So a protocol is more than just a record. It is a process map of the dispute. And whoever loses control over it often loses control over the whole process

Source:

1. Act No. 99/1963 Coll., Code of Civil Procedure, § 40 - Record and protocol.Available from:Code of Civil Procedure - Section 40

2.FINDEJS, S. (2022)Audio recording, its transcription and logging in civilmanagement.Prvestibule space. Available from:Article on logging and audio recording

3.The Constitutional Court of the Czech Republic. (2015)Resolution sp. stamp IV. ÚS 2087/15.Available from:Decision of the Constitutional Court IV. ÚS 2087/15