CYIL vol. 10 (2019)

VÍT ALEXANDER SCHORM CYIL 10 ȍ2019Ȏ by the Government in their observations) that the applicant, basically, should have lodged a constitutional appeal after the first instance judgment, i.e. against the partial acquittal of her mother. The Court seems to have applied the admissibility criterion quite strictly, depriving the case of its human and legal potential. There was a small window for manoeuvre of several days between when the judgment of the appellate court was served on the applicant’s representative (who was coincidentally a lawyer appointed by the child’s public guardian ad litem ) and the expiry of the two-month time-limit for filing a constitutional appeal against the first instance judgment. Unlike the first instance judge and the prosecutor, the victim was supposed to discern the flaws in the legal qualification of the perpetrator’s act and to counter it by turning to the Constitutional Court without awaiting the full outcome of the proceedings. The Court not only left interesting questions raised by the case unanswered – such as whether the principle of ne bis in idem could be understood the way in which it was interpreted and applied by the domestic courts to the detriment of the victim’s procedural rights under Articles 2 and 3 –, but it also left the applicant without any hope of receiving money from the State, which is solvent, unlike, one can presume, her unfortunate mother. One can also wonder whether the Court would take the same stance in the absence of any real possibility to resort to the Constitutional Court against the first instance ruling after the decision of the appellate court. 7 2. Denial of paternity decades after the birth of the child In the case of Novotný v. the Czech Republic (no. 16314/13, Chamber judgment of 7 June 2018), the Court was confronted with the wish of a man to deny his paternity of a woman born out of wedlock in 1966. The applicant was established father of the child by a court decision in 1970 on the grounds of evidence available at that time, such as witness statements, documents, and a blood test. In 2012, he turned to the Supreme Prosecutor’s Office with unequivocal results of a DNA test, allowed in the meantime by the progress of science and undergone by both people concerned, which proved that he was not the father of the lady. He thereby requested the Supreme Prosecutor to challenge his paternity, i.e. to exercise a competence provided for by law, but to no avail, since the final judicial decision that had established the disputed paternity constituted an irrebuttable presumption according to civil law. The Constitutional Court, in which the applicant sought redress, did not alter this unfavourable conclusion of the Public Prosecution. The parties agreed that the domestic decisions were “in accordance with the law” and aimed at protecting legal certainty, security of family relationships, and interests of children. The question was whether they had struck a fair balance between these interests and the applicant’s one to re-review his paternity in the light of a fresh DNA test. The Court had 7 This approach can be compared to that adopted in Antoni v. the Czech Republic (no. 18010/06, Chamber judgment of 25 November 2010), both on the admissibility of the application and on the merits of the complaint based on Article 13 of the Convention. In Tesař and others v. the Czech Republic (no. 37400/06, Chamber judgment of 9 June 2011), the applicants had at their disposal an even longer period to use a newly introduced remedy against the length of proceedings. Admittedly, these situations differ from the one in the Polcarová case, but there is nonetheless a significant similarity, namely the random character of the lapse of time available for lodging a legal remedy. It proved to be much shorter than the usual two months and it could even have become impossible to lodge any remedy without looking into an imaginary crystal ball to predict how the appellate court would decide.

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