CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ THE CZECH REPUBLIC BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS IN 2016 in one of the most important corruption affairs which could have been uncovered virtually only thanks to wiretapping can serve as illustration. 4 Security and liberty The major case in which the Court found a multiple violation of Article 5 of the Convention was that of Červenka v. the Czech Republic (no. 62507/12, judgment of 13 October 2016). It had not been totally unexpected, at least when it comes to a violation of Article 5 §§ 1 and 4 of the Convention, and the legal framework had fittingly changed before the judgment was delivered. 5 The applicant had been suffering from alcoholic dementia, deprived of his legal capacity for that reason and appointed a guardian – a municipal authority. After some incidents and a subsequent discussion with the applicant’s relatives, an agent of that authority concluded in the applicant’s name an agreement with a social care institution and placed him there. The applicant had a limited possibility to leave the facility and soon began to protest against his placement, but to no avail; the power which he gave to a lawyer who started to seek his release was considered invalid by courts. The placement eventually ended only after the guardian terminated the respective agreement. The Court noted that the applicant, who had not been able to leave the institution, was deprived of liberty. The only condition laid down by Czech law for placement, i.e. the guardian’s consent, had been fulfilled, but the current human rights standards require that for the detention of people deprived of legal capacity to be legal, it must also be accompanied by procedural safeguards in the form of judicial review. The applicant had not had at his disposal an avenue which would lead to an assessment of his detention in the social care facility and to putting an end to an illegal situation. In addition, since the applicant was deprived of his liberty for six months, which is not a short period, he should have been entitled to ask for review of his detention. Hence, there was a violation not only of Article 5 § 1, but also of § 4 of that provision of the Convention. The remaining violation established by the Court was that of Article 5 § 5 of the Convention. It is rather regrettable that the Court only persisted in its questionable jurisprudence in this area based on the assumption that there is an automatic breach of that provision as the national authorities did not acknowledge the illegal character of the detention complained of, including in a situation which obtains in the Czech Republic that the legal order in principle does give right to compensation for illegal detention. Moreover, the Court did not really address the possibility for the applicant to ask for reopening of the proceedings on his previous constitutional appeal after the Court’s judgment and to obtain redress for the violations found. 2. 4 See decision of the Supreme Court of 7 June 2017, ref. no. 6 Tz 3/2017 (ECLI:CZ:NS:2017:6.TZ.3.2017.3). It is certainly interesting to see that the parties to the proceedings when commenting upon the applicability of the “fruit of the poisonous tree doctrine” had alluded to the case law of the Strasbourg Court, but the Supreme Court did not feel compelled to analyse the issue from this particular legal perspective. 5 Act no. 189/2016, in force as of 1 August 2016, amending the Act on Social Services and the Act on Special Judicial Procedures. Other changes had been introduced with the New Civil Code, in particular those related to the status of the person under guardianship. All these changes in the Czech legal order should normally prevent the occurrence of cases similar to that of Mr. Červenka.

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