CYIL vol. 8 (2017)

VÍT ALEXANDER SCHORM CYIL 8 ȍ2017Ȏ face a huge backlog of cases. Only nine new applications were communicated to the Czech Government in 2016 which is a numerical drop to one fifth compared to 2015. The applications decided by the Court concerned a variety of Convention provisions (Articles 3, 5, 6, 8, 13 of the Convention as well as Articles 1 and 2 of Protocol no. 1). All but three judgments (in Dubská and Krejzová ; Červenka ; Maslák and Michálková ) have been classified by the Court as its case law of “low importance”; this is without prejudice to the interest which these judgments or decisions may in reality have for the Czech legal order, in particular where the Court pointed to the need for the applicant to exhaust domestic remedies whose effectiveness (or lack thereof ) was far from being obvious (such as in Žirovnický ). Some of these cases may have triggered a process of change even before they were adjudicated by the Strasbourg Court (e.g. Červenka ; Maslák ). The overwhelming majority of the judgments or decisions, though, concern cas d’espèce , without any significant overlap to systemic considerations (such as Colloredo-Mannsfeld ; Sedlák ; Meissner and others ; Štulíř and others ; Amade ; Adylova and Senese ). In October 2016, the Court held a Grand Chamber hearing in the case of Regner which concerned the judicial review of the withdrawal of a security clearance. The final judgment has been pronounced in September 2017. The Court also gave two Grand Chamber judgments in cases against third States where the Czech Government intervened under Article 36 § 2 of the Convention ( A. B. v. Norway ; Karáscony & Szél v. Hungary ). They related to the ne bis in idem principle enshrined in Article 4 of Protocol no. 7 and to the freedom of expression, safeguarded by Article 10 of the Convention, provisions that are rarely invoked in cases against the Czech Republic. The article below will focus on a selection of the most significant cases decided in the year of reference. Respect for private and family life, home and correspondence Judgments and decisions published in 2016 concerned all these four facets of the human right guaranteed by Article 8 of the Convention. Out of these, more important seem to be the cases which involved private life on one hand and respect for home on the other hand. 1.1 Home birth Under this head reference must be made to the final outcome of the “out-of-hospital deliveries case” of Dubská and Krejzová v. the Czech Republic (nos. 28859/11 and 28473/12, judgment [GC] of 15 November 2016), commented upon in this Yearbook two years ago. The Grand Chamber did not find a breach of the Convention and confirmed by 12 votes to 5 the conclusion previously reached, also after a public hearing, by the Chamber of the Fifth Section of the Court. Let us recall that the Czech legislation does not prohibit mothers from giving birth to their children wherever they wish to do so, but it does prohibit health professionals from assisting them in this endeavour in premises which are not equipped in accordance with regulations adopted by the Ministry of Health, i.e. in reality outside a maternity hospital. The Court found Article 8 applicable to the case at hand and took the view that negative obligations of the State are here at stake as if the applicant mothers had been entitled to receive assistance from midwives. In spite of a certain degree of unclarity of the legislation, 1.

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