CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ THE CZECH REPUBLIC BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS IN 2016 but incomparably lesser than in the only previous home birth case of Ternovszky v. Hungary (no. 67545/09, judgment of 14 December 2010), the Court did not object to the fulfilment of the requirement of legality. The interference undoubtedly pursued a legitimate aim of the protection of health and rights of others, mentioned in Article 8 § 2 of the Convention. Finally, as to the proportionality of the interference, the Court pointed to the complex nature of the functioning of the system of health in the respondent State and to the lack of consensus at the European level. While this leads to a wide margin of appreciation of the domestic authorities, the Court still has to ascertain whether balance has been struck between the competing interests. It admitted that during delivery sudden complications may occur, so it is in principle safer to give birth in a hospital which is able to face urgent situations. Even if some experiences with the practice in Czech maternity hospitals cast doubt on the conditions in which deliveries are performed there, including when it comes to respect for the mothers’ wishes, the Government have taken steps to improve the overall situation. The Court found that in light of the margin of appreciation enjoyed by the respondent State the interference with the applicants’ rights had not been disproportionate. It however invited the authorities to “make further progress by keeping the relevant legal provisions under constant review, so as to ensure that they reflect medical and scientific developments whilst fully respecting women’s rights in the field of reproductive health, notably by ensuring adequate conditions for both patients and medical staff in maternity hospitals across the country” (§ 189 of the judgment). It must be borne in mind, however, that progress in an area where there are deeply rooted traditions, even if only since the period of the Communist regime, which institutionalised care surrounding childbirth, is necessarily quite slow. The question of whether it is safer to give birth in a hospital is one of those on which an overwhelming majority of people, and not only medical professionals, have a firm opinion which is undoubtedly related to the very sensitive nature of safety at childbirth. It can also be pointed out that there were a number of intervening third parties 2 in the proceedings before the Grand Chamber that nonetheless concluded the controversy in a way which even more resembles classical patterns of the Court’s case law than the approach previously adopted by the Chamber. 1.2 Home search The Court opened the year 2016 vis-à-vis the Czech Republic by two judgments and one decision regarding searches carried out in private homes in the framework of criminal proceedings, though possibly before prosecution is triggered against an identified individual. The Court addressed certain procedural safeguards which must be in place in order for a home search to be compatible with Article 8 of the Convention. Amongst the three cases, that of Maslák and Michálková v. the Czech Republic (no. 52028/13, judgment of 14 January 2016) is the most complex one and worth giving insight into, the two others being Duong v. the Czech Republic (no. 21381/11, judgment of 14 January 2016) and Tykvová v. the Czech Republic (no. 54737/13, decision of 8 December 2015). In Maslák and Michálková , a search in the first applicant’s house, garage and vehicles was ordered by a judge since that applicant was suspected of extortion. The applicants had 2 Including the Czech Ombudsperson. This is at first sight hardly compatible with the fact that she is a State authority and the respondent State cannot be represented before the Court by various authorities at the same time. The Court, however, accepted her intervention without any explanation.

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