CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ THE CZECH REPUBLIC BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS IN 2018 counts as one of the most unfortunate affairs submitted to the Court, at least concerning the Czech Republic, both on the underlying facts and on its outcome in Strasbourg. It could have been an event but was none. The following overview should prove it. As to the facts, it can be presumed, in the light of the criminal proceedings against the person who cared for the child at the relevant time – in the circumstances the mother of the little girl –, that she caused serious injuries to the baby who disturbed her by ongoing crying. On the suspicion voiced by the father, the police found out the whereabouts of the mother and the child and visited them at night. After the police officers examined the body of the child who reacted to external stimuli, without finding other injuries, the bruise on her head did not seem serious enough to them as to require an urgent treatment. The mother also promised to see the doctor. Having consulted the situation with the child welfare authority over the phone, the police officers took some photos and sent them to that authority in the morning. On that basis, the father was then alarmed, visited the child and took her immediately to hospital. The doctors established that the girl was in a life-threatening situation and in spite of all the medical care provided to her, her brain was gravely and irreversibly damaged, which made the child fully dependent on external assistance in her future life. The mother was charged with two intentional violent offences, namely that of abuse of a person in her care and that of grievous bodily harm. The first instance criminal court found the mother guilty of grievous bodily harm, sentenced her to prison, and ordered her to pay damages, but acquitted her of the other criminal charge for lack of evidence since that charge supposed a series of attacks, which was not proven. While the mother appealed against the judgment, the prosecution did not; consequently, the acquittal became final. The appellate court held that both charges stemmed from the same act, that there could not be criminal prosecution of an act which had already been subject of a final judgment, and that there could not be two different verdicts regarding the same act once the first had become final. It therefore applied the principles of res iudicata and ne bis in idem , quashed the first instance guilty verdict, and discontinued the criminal proceedings. As a result, the mother escaped any punishment for her acts. The applicant child later filed a constitutional appeal pointing out the authorities’ failure to protect her life and to carry out an effective criminal investigation. The Constitutional Court rejected this appeal for it considered that it had been submitted out of time with regard to the first instance judgment and was manifestly ill-founded with regard to the judgment of the appellate court, leaving the applicant the possibility to sue the mother for damages in civil proceedings. The applicant reiterated her complaints before the Court, which rejected them on the grounds of non-exhaustion of domestic remedies, as already pointed out. As to the response of the police and the child welfare authority on the critical night which, in theory, could have prevented or at least mitigated the damage to the applicant’s health, but which also may have failed to show the requisite vigilance, the Court agreed with the Government that the applicant could have sued the State for damages caused by an incorrect official procedure even if she could have doubted the prospects of success of using this legal avenue. As to the paradoxical outcome of the criminal proceedings against the mother, the Court referred to the argument previously used by the Constitutional Court (and not underlined

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