CYIL vol. 8 (2017)

VÍT ALEXANDER SCHORM CYIL 8 ȍ2017Ȏ Finally, it can be pointed out that the Court declared inadmissible for non exhaustion of domestic remedies the applicant’s complaint of discrimination based on his disability and motivated by the absence of a reasonable accommodation in the form of provision of community social services, which would otherwise be an interesting question related to the extent the Court would be inclined to adopt the stance contemplated in the U.N. Convention on the rights of persons with disabilities. In any event, it was not willing to go so quickly in this direction when rejecting the case of Hrazdíra v. the Czech Republic (no. 62565/14, decision of 23 February 2016) submitted under Article 2 of Protocol no. 1 which guarantees the right to education. Some of the remaining issues tackled The author of these lines has already taken a selective approach to the contents of this article and this section will only supplement it with a couple of remarks. Firstly, the Court found a breach of the right to adversarial proceedings, covered by Article 6 § 1 of the Convention, in the case of Colloredo-Mannsfeld v. the Czech Republic (nos. 15275/11 and 76058/12, judgment of 15 December 2016) which concerned a property restitution claim, but confirmed on the basis of its well established case law in this field that such a breach does not entail in itself a violation of the right to property under Article 1 of Protocol no. 1 and declared this complaint incompatible ratione materiae with the Convention. Secondly, the Court declared inadmissible a rather complex case of Žirovnický v. the Czech Republic (nos. 60439/12 a 73999/12, decision of 15 November 2016) where it addressed the issue of existing domestic remedies to be exhausted in relation to complaints under Articles 3 and 6 of the Convention, concerning prison conditions and length of judicial proceedings respectively. The applicant criticised an alleged overcrowding of the cells in which he had been placed as well as passive smoking to which he had been exposed. The Court pointed out that the applicant could resort, and indeed had resorted, to actions for compensation either based on the responsibility of the State for damages or on the protection of personality rights, in spite of them being rather lengthy in the applicant’s case. These remedies of compensatory nature are, however, only complementary to those of preventive character in a situation where a prisoner remains in allegedly bad conditions. The Court therefore went on to say that the applicant should have requested the public prosecution to supervise the observance of law in prison. Both aspects complained of are dealt with in domestic legislation and the public prosecutor is obliged to deal with such a motion, can visit and hear the prisoner and may issue an order which is binding on the prison administration and must be executed immediately. In addition, such a motion is considered to be a prerequisite for lodging a constitutional appeal and the prison overcrowding in the Czech Republic at the relevant time did not amount to a structural problem. Since the Court examined this issue for the first time with regard to the Czech Republic, it declared its readiness to reassess the situation, if need be, in light of further information about the national authorities’ approach to the seriousness of the international prohibition of inhuman and degrading treatment. As to the length of various proceedings conducted by the applicant, the Court referred to its case law and confirmed that he needs to exhaust remedies of preventive or compensatory 3.

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