CYIL 2012

THE CZECH REPUBLIC AND THE EUROPEAN COURT OF HUMAN RIGHTS IN 2011 wanted to return to Romania. The girls testified that they had been forced into prostitution and that the applicant had threatened their families. Mr. Breukhoven was therefore charged with trafficking in human beings and procuring prostitution. The applicant was arrested in Bulgaria and extradited to the Czech Republic. During the proceedings before the Regional Court, other witnesses were questioned and plenty of police reports were presented. The Regional Court found the applicant guilty. Subsequently, Mr. Breukhoven challenged the judgment before the ECtHR relying on the right to a fair trial [Article 6 paragraphs 1 and 3 (d)], complaining that he was not able to cross-examine witnesses in the initial stage of the investigation. During the proceeding before the ECtHR the Czech Government pointed out that the special circumstances of the human trafficking justified the behaviour of the state authorities. 32 To the disappointment of the Czech Republic, the Strasbourg Court stated that under the established case-law all evidence must normally be produced in the presence of the accused. 33 The state authorities were criticized for making no effort to secure the presence of the witnesses or to interview them in Romania. 34 Consequently, as the applicant’s conviction for trafficking in human beings was based solely on the testimony of the witnesses whom he had no opportunity to question, the Czech Republic was found in violation of Article 6 of the Convention. T he Tesař 35 case concerned problematic restitution proceedings. The Czechoslovak authorities confiscated a house and sold it to the applicants in 1977. The former owner of the house brought restitution proceedings which lasted from 1992 to 2008. As a result, the house was transferred back to him and the applicants were given compensation corresponding to the original purchase price of the house in 1977. Subsequently, they complained about the length of the restitution proceedings brought against them and the deprivation of their property acquired in good faith without adequate compensation. 36 As for the length of the proceedings the ECtHR 32 The Government based the argumentation on the case of Rantsev v Cyprus and Russia App no 25965/04 (ECHR, January 2010) in which the ECtHR established a positive obligation of states to combat trafficking in human beings. However, the ECtHR rejected the comprehension of such obligation as an excuse to infringe the defence rights of persons charged with trafficking. 33 There are exceptions to this principle; however they must not infringe the rights of the defence. It is incompatible with Article 6 that a conviction is based solely, or in a decisive manner, on the deposition of a witness whom the accused had no opportunity to examine. See A.M. v Italy ECHR 1999-IX 37019/97 and Sadak and Others v Turkey ECHR 2001-VIII 29900/96, 29901/96, 29902/96, 29903/96. When it is impossible to examine the witnesses due to the fact that they are missing, the state authorities must make a reasonable effort to secure their presence, para 43 in Bonev v Bulgaria App no 60018/00 (ECHR, June 2006). 34 See Scheper v the Netherlands App no 39209/02 (ECHR, April 2005) and Berisha v the Netherlands App 36 The entitlement to the property was not acknowledged by the ECtHR. The Court found the intervention with property rights proportionate, stating that a person who had utilized its privileged position in a totalitarian regime (one of the applicants had been an active member of the Communist Party) or had acted in contradiction with law in order to gain property could not expect that they could keep this property in a democratic society. no 42965/98 (ECHR, May 2000) and S.N. v Sweden ECHR 2002-V 34209/96. 35 Tesař and Others v the Czech Republic App no 37400/06 (ECHR, June 2011).

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