FIRST SECTION

DECISION

Application no. 52256/15 Karolina POLCAROVÁ against the Czech Republic

The European Court of Human Rights (First Section), sitting on 15 May 2018 as a Committee composed of:

Krzysztof Wojtyczek, President, Aleš Pejchal, Armen Harutyunyan, judges, and Renata Degener , Deputy Section Registrar ,

Having regard to the above application lodged on 14 October 2015,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Karoli na Polcarová, is a Czech national, who was born in 2013 and lives in Prague. She is represented by her father, Mr Karel Polcar, who authorised Mr T. G ř ivna, a lawyer practising in Prague, to represent her before the Court.

A. The circumstances of the case

1. The factual background

2 . From 2003 onwards the applicant ’ s family was constantly monitored by the social welfare authority ( orgán sociálně-právní ochrany dětí ), on suspicion of child abuse by the mother.

3 . On 5 March 2014 the District Court adopted a decision about the mother ’ s custody of the applicant. At some point in March 2014 the applicant ’ s father took the applicant into his care. On 10 March 2014 the applicant ’ s father notified the social welfare authority that his older daughter had confided in him and told him that the applicant ’ s mother would slap the applicant when she cried. A meeting between the applicant ’ s father and the social welfare authority took place on 19 March 2014.

4 . On 31 March 2014 the social welfare authority drew up a report about the applicant ’ s sister ’ s statement that the mother had slapped the applicant.

5 . On 2 and 3 April 2014 the social welfare authority contacted the applicant ’ s father, who enquired whether he should give the children to the applicant ’ s mother. He was advised to decide for himself, and was informed that he would be contacted the following week to discuss the possibility of applying for an interim measure. The applicant ’ s father was not contacted by the social welfare authority until 9 April 2014.

6 . On 7 April 2014, as agreed with the applicant ’ s father, the applicant ’ s mother took the applicant from her father ’ s care. The applicant ’ s father informed the social welfare authority by email that the applicant had been picked up by her mother.

2. Incident on 8 April 2014 and the authorities ’ response

7 . On 8 April 2014 at around noon the applicant ’ s mother called the applicant ’ s father and complained about the applicant ’ s crying. She said that the child had sustained some injuries from hitting against the rails of her cot. Following another call in the evening, the applicant ’ s father called the police emergency line at 9.09 p.m. to report his concerns about the applicant ’ s health. He described the phone calls with the applicant ’ s mother and stated that the applicant had sustained a few bruises and a bump to the head while in her care, probably as she had hit against the rails of the cot. He also stated that she might need a doctor and that he did not know their actual address. The father sent two emails to the social-welfare authority, at 6.17 p.m. and 8.05 p.m., which were read the following morning.

8 . At around 9.40 p.m. a police patrol from the Čakovice police station contacted the applicant ’ s father. He repeated that the applicant should be seen by a doctor. Later, at around 10.30 p.m., another police patrol of two officers, B.V. and P.B., from the Stodůlky police station visited the apartment where the applicant ’ s mother was staying with the applicant. They inspected the premises, checked on the applicant and photographed her injury. After his return to the police station, B.V. drew up the official report on the situation including the applicant ’ s injury.

9 . At around 11.30 p.m. another officer from the Čakovice local police station called the emergency mobile number of the social welfare authority at the Prague 19 Municipal Office. The officer informed J.V., the social worker on emergency duty, about the applicant ’ s father ’ s report and the police visit. They agreed to continue to deal with the case in the morning.

10 . On 9 April at 7.30 a.m. the social welfare authority called officer S., who agreed to pass on the official record and photograph of the applicant taken on 8 April. At 7.45 a.m. the social welfare authority received an email from the Čakovice police station with the photograph of the applicant attached. At around 8 a.m., having seen the photograph, J.V. immediately contacted the applicant ’ s father and urged him to collect the applicant and take her to the closest hospital. J.V. stated that the situation was serious and it was necessary to act at once.

1 1 . At about 10 a.m. the applicant ’ s father called the Čakovice police station saying that the applicant had a swelling on her head and was not reacting to external stimuli. He called an ambulance, which transported the applicant to the hospital. She was admitted with serious brain injuries with extensive bleeding, and was immediately operated on. After surgery, her condition was described as critical and life-threatening.

12 . According to a medical report of 16 September 2016, the applicant is immobile and requires permanent care. She suffers from severe psychomotor retardation, bilateral blindness, spastic quadriparesis and deformity of the ribcage. She has also undergone a decompression craniotomy. She has approximately five epileptic seizures a day, two of which are severe and last for ten minutes. Occasionally, the epileptic seizures become worse and last up to two days.

3. Criminal proceedings

1 3 . On 9 April 2014 the police opened an investigation against the applicant ’ s mother on suspicion of intentional violent offences. Being interviewed on the same day, she stated that on the previous day, at around noon, she had slapped the applicant hard on her left cheek. The police also interviewed the applicant ’ s father who described the previous events.

1 4 . On 10 April 2014 the police brought charges against the applicant ’ s mother for an offence of abuse of a person in her care under Article 198 §§ 1 and 2 (c) of the Criminal Code (hereafter “the CC”), and an offence of grievous bodily harm under Article 145 §§ 1 and 2 (c) of the CC.

1 5 . On 26 June 2014 the Prague 19 Municipal Office was appointed as the applicant ’ s guardian ad litem in the criminal proceedings.

1 6 . On 1 and 9 July 2014 respectively, the police questioned J.V., the social worker on duty on 8 April 2014, and B.V., one of the officers who had visited the apartment on 8 April 2014.

17 . On 12 August 2014 the applicant submitted, through her counsel, an application for compensation for non-pecuniary damage.

1 8 . On 28 August 2014 the public prosecutor officially indicted the applicant ’ s mother.

1 9 . By a judgment of 23 September 2014 the Prague Municipal Court ( městský soud ) convicted the applicant ’ s mother of grievous bodily harm under Article 145 §§ 1 and 2 (c) of the CC. It sentenced her to ten years ’ imprisonment and ordered her to pay damages. In particular, the criminal court found that she

“... physically assaulted [the applicant], by repeated punches to her face and head ...”

By the same judgment the applicant ’ s mother was acquitted of the charge of abuse of a person in her care, on the grounds of a lack of evidence under Article 226 (a) of the Code of Criminal Procedure (hereafter “the CCP”). The criminal court concluded that it had not been proved that:

“...when crying, [the applicant ’ s mother] repeatedly slapped [the applicant ’ s] face and head ...”

The court also ruled that the applicant ’ s mother was obliged to pay the applicant 4,000,000 Czech korunas (157,424 euros (EUR)) in respect of non-pecuniary damage.

20 . On 8 October 2014 the judgment was notified to the applicant ’ s legal representative.

2 1 . On 13 October 2014 the applicant ’ s mother appealed against her conviction. As the public prosecutor of the Prague municipal prosecutor ’ s office ( městské státní zastupitelství ) did not file an appeal, the ruling acquitting the applicant ’ s mother of abuse of a person in her care under Article 198 § 1 of the CC became final on 16 October 2014.

2 2 . On 21 November 2014 the Prague High Court ( vrchní soud ) quashed the guilty verdict and decided to discontinue the criminal prosecution of the applicant ’ s mother regarding the grievous bodily harm. According to the appellate court, both offences stemmed from the same act ( skutek ). There could not be criminal prosecution of an act which had already been the subject of a final judgment ( res judicata ), and there could not be two different verdicts regarding the same act once the first decision had become final ( ne bis in idem ). On 3 December 2014 the High Court ’ s judgment was served on the applicant ’ s legal representative.

2 3 . The applicant, not being entitled to lodge an appeal on points of law with the Supreme Court ( Nejvyšší soud ), asked the Supreme Prosecutor ( Nejvyšší státní zástupce ) to lodge such an appeal. On 14 January 2015 the latter refused this extraordinary remedy, endorsing the legal opinion of the High Court, according to which the result of the criminal proceedings was unjust from a material point of view, but the only possible result from a procedural point of view.

2 4 . On 23 January 2015 the applicant ’ s father authorised a new legal representative to act for the applicant, who filed a constitutional complaint, relying on the applicant ’ s right to life, right to protection against any ill-treatment, right to respect for her private life, and right to judicial protection. Firstly, the applicant complained that the police and the social welfare authority had failed to take appropriate action to protect her life and security, and secondly she complained that the authorities with competence had not complied with their positive obligation as to effective criminal proceedings. In her view, the Municipal Court had erred in assessing and qualifying the acts perpetrated by her mother. As a consequence, she had also been denied the damages awarded by the first-instance court.

25 . On 25 June 2015 the Constitutional Court ( Ústavní soud ) dismissed the constitutional complaint, finding that it was manifestly ill-founded with regard to the High Court ’ s decision, and belated in respect of the acquittal verdict of the Municipal Court (given that the applicant, as a victim, could only appeal against the decision on damages, and had to file a constitutional complaint within two months after the notification of the Municipal Court ’ s judgment, as provided for in section 72(3) of the Constitutional Court Act, i.e. on 8 December 2014 at the latest). It considered that the way in which the High Court had interpreted the principle of res judicata and weighed the applicant ’ s right to effective criminal proceedings against the accused ’ s right not to be prosecuted for a crime of which she had been acquitted had not been excessively disproportionate. The Constitutional Court added that, as to the claim for damages, the outcome of the criminal prosecution had not rendered the applicant ’ s procedural position in respect of civil proceedings for damages or proceedings on protection of personal rights which were still available to her.

4. Proceedings relating to custody

2 6 . On 10 April 2014, upon an application by the social welfare authority, the District Court granted an interim measure and prohibited the applicant ’ s mother from having contact with her two daughters, pending the result of the investigation. On 18 August 2014 itt placed both children in the care of the applicant ’ s father. The prohibition on contact introduced on 10 April 2014 was extended.

2 7 . On 27 November 2014, after the release of the applicant ’ s mother from custody, the District court granted an interim measure prohibiting her from having contact with the applicant.

2 8 . On 27 February 2015 the District court stripped the applicant ’ s mother of her parental responsibility in relation to both daughters.

5. Financial compensation proceedings for the victims of crime

2 9 . On 20 March 2015 the applicant asked the Ministry of Justice to provide her with financial support within under Act no. 45/2013 on the Victims of Crime. She requested CZK 200,000 (EUR 7,871), the maximum possible financial award, on the grounds of loss of earnings.

30 . On 27 May 2015 the Ministry dismissed her claim, considering that she did not meet the statutory requirements, as she had failed to prove future loss of earnings. There is no information as to whether the applicant challenged that decision before the administrative courts.

B. The relevant domestic law and practice

1 . The State Liability Act (Act. No. 82/1998, as amended)

3 1 . The relevant provisions of the State Liability Act are set up in the Court ’ s judgment in the case of Eremiášová and Pechová v. the Czech Republic , no. 23944 /04, §§ 49-51, 16 February 2012, and its decision in the case of Vomo č il and Art 38, s.a. v. the Czech Republic (dec. - Annex), §§ 76-87, 5 March 2013).

3 2 . In their observations, the Governme nt cited two cases (nos. 30 Cdo 3875/2009 and 28 Cdo 1388/2012). In the first case, the Supreme Court considered that the erroneous delivery of a decision on expulsion by the police would be typical irregular conduct under Act no. 82/1998. In the second case, the Supreme Court found possible irregular conduct where a fireman had failed to disconnect a car battery which might have caused a second fire and damage to a car parked on the premises of a police station at the material time.

2. The Special Court Proceedings Code

3 3 . Article 400 et seq. of the Special Court Proceedings Code (Act n o. 292/2013) provide for the possibility to apply for an interim measure concerning protection against domestic violence. The relevant provisions read:

Article 403 § 2

“If the applicant is a minor, the application shall be submitted in his name by an authorised representative, the social welfare authority, or a lawyer, on the basis of an authority to act, if the minor has adequate intellectual and voluntary capacity to grant this. ...”

Article 404

“The court shall deliver a decision within forty-eight hours, without holding a hearing.”

3 . The Constitutional Court Act (Act No. 182/1993, as amended)

3 4 . Under section 72(1)(a) a constitutional complaint may be submitted by a natural or legal person, if she alleges that her fundamental rights and basic freedoms guaranteed in the constitutional order have been infringed as a result of the final decision in a proceeding to which she was a party, of a measure, or of some other encroachment by a public authority.

35 . Under section 72(3) a constitutional complaint may be submitted within two months of the delivery of the decision in the final procedure provided by law to the complainant for the protection of his rights; such procedures are understood to mean ordinary remedial procedures, extraordinary remedial procedures, with the exception of a petition for rehearing, and other procedures for the protection of rights with the assertion of which is associated the institution of a judicial, administrative, or other legal proceeding.

3 6 . Under section 72(5) if the law affords a complainant no procedure for the protection of his rights, the constitutional complaint can be submitted within two months of the day the complainant learned of the encroachment by a public official upon one of his constitutionally guaranteed fundamental rights or basic freedoms, at the very latest, however, within one year of the day when this encroachment occurred.

COMPLAINTS

3 7 . Relying on Article 2 § 1 of the Convention, the applicant complained that the authorities involved had not complied with their positive obligations to carry out a proper and adequate criminal investigation and to act in a competent and efficient manner. Instead of protecting the applicant ’ s fundamental rights, they had wrongly qualified the acts of her mother and had adopted a formalistic approach.

38 . Under Article 6 of the Convention, the applicant considered that the above shortcomings amounted also to a violation of her right to a fair trial.

THE LAW

39 . The applicant complained under Article 2 and Article 6 § 1 of the Convention that the State had failed to protect her life, and that the investigation into her injury had not been effective.

40 . The Court considers that the applicant ’ s complaint relates to a failure on the part of the domestic authorities to take all necessary measures to afford her protection from the violent acts of her mother, and to the effectiveness of the investigation carried out by the national authorities into her injury in the trial phase of the criminal proceedings. The master of characterisation to be given in law to the facts of the case (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 54, 17 September 2009), the Court takes the view that the complaint is to be examined under Article 2 of the Convention (see Yotova v. Bulgaria , no. 43606/04, § 64, 23 October 2012, and Toptanış v. Turkey , no. 61170/09 , § 29, 30 August 2016), which, in so far as relevant, reads as follows:

“1. Everyone ’ s right to life shall be protected by law. ...”

1. The parties ’ arguments

(a) The Government

4 1 . The Government maintained that the applicant had failed to exhaust domestic remedies. Firstly, she had failed to use an interim measure under Act no. 292/2013 by acting through her father to seek protection against the domestic violence threatening her life by, inter alia , imposing an order that she refrain from meeting her mother. Secondly, the applicant could have brought an action for damages under the State Liability Act, even though there was an absence of domestic case-law where people in similar situations had been awarded damages. However, the Government referred to two examples: a statement by the Ministry of the Interior of 20 August 2008 dismissing a claim for compensation as no irregular conduct by police officers had been established, and a settlement concluded between victim ’ s family members and the Ministry of the Interior on 9 February 2011, in accordance with which the victim ’ s family members had been awarded compensation in a lump sum.

42 . Alternatively, the Government argued that if the applicant had had a reasonable suspicion that specific people whose conduct could be attributed to the State had acted with the intention to harm her or had acted negligently, she should have used either a criminal complaint or a complaint against the course of action taken by the authority which had allegedly made a mistake in the case.

43 . The Government further claimed that the application was inadmissible because of a failure to comply with the six-month time-limit. As regards the claim of a violation of the substantive aspect of Article 2, the period for filing the application had begun to run from the moment the authorities had allegedly made a mistake, which is on 8 April 2014, while the application was filed on 14 October 2015. With regard to the procedural aspect of Article 2 of the Convention, in the Government ’ s opinion, the applicant should have claimed such a violation not later than within six months from the day on which the lawyer chosen by her father started to represent her, i.e. 23 January 2015; as a renowned expert in criminal law, he could have anticipated that once the acquittal by the court of first instance became final, whereby the obstacle of res judicata was established and the principle ne bis in idem started to apply, lodging of a constitutional complaint did not have any reasonable prospects of success. Thus, the acquittal of the applicant ’ s mother had constituted a de facto final domestic decision, from which point the time-limit had started to run.

4 4 . The Government further noted however that the applicant could not have been expected to lodge an application before the Court immediately after the delivery of the court of first instance ’ s judgment, particularly because she could have hardly anticipated the negative decision of the appellate court. Considering that neither the public prosecutor, nor the first-instance court itself, were conscious of observing the judgment ’ s hidden flaw, counting a six-month period for filing application with the Court from the moment when the first-instance court ’ s judgment became final would be overly formalistic and stringent.

(b) The applicant

45 . The applicant contested these views, arguing in essence that the suggested remedies were not effective. She submitted that lodging an application for an interim measure with a court would not have prevented the incident itself, nor would it have been more effective than the steps her father had actually taken. As regards an action for damages under the State Liability Act, she submitted that the Government had failed to prove the effectiveness of this remedy in practice, as they had not cited any relevant case-law of the domestic courts, and had only referred to a voluntary agreement on damages concluded by the parties in question, which did not prove that this remedy would have any prospects of success in a case where there was a dispute. Further, lodging a complaint could not have prevented the incident of 8 April 2014, nor could such a complaint have brought her any compensation.

4 6 . As to the Government ’ s objection that the application was belated, the applicant argued that complaints regarding the violation of both the substantive and procedural aspects of Article 2 of the Convention could not be separated from each other as suggested by the Government. It was only in the criminal proceedings against the applicant ’ s mother that the events of 8 April 2014 had been examined, and the criminal proceedings should be considered for the purposes of Article 35 § 1 of the Convention as a whole, including the proceedings before the Constitutional Court.

2. The Court ’ s assessment

(i) General principles

47 . The Court reiterates that Article 35 § 1 of the Convention requires that complaints intended to be brought subsequently before the Court should be made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but does not require that recourse should be had to remedies which are inadequate or ineffective (see Aksoy v. Turkey , no. 21987/93, §§ 51-52, ECHR 1996-VI, and Akdivar and Others v. Turkey , no. 21893/93, §§ 65-67, ECHR 1996-IV).

48 . Furthermore, as regards legal systems, which provide constitutional protection for human rights, such as that of the Czech Republic, it is incumbent on the aggrieved individual to test the extent of that protection. The Court has also held previously that the Czech constitutional review, as a rule, satisfies the requirements of Article 35 § 1 of the Convention and it usually requires, in respect of applications against the Czech Republic, that the applicants lodge a constitutional appeal unless they can provide cogent reasons that it is not an effective remedy in their case (see Vomo č il and Art 38, a.s. v. the Czech Republic (dec.), § 48 with further references).

4 9 . As regards the burden of proof, it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, capable of providing redress in respect of the complaints made, and offered reasonable prospects of success (see Akdivar and Others , cited above, § 68, and Mižigárová v. Slovakia (dec.), no. 74832/01, 3 November 2009).

50 . In respect of a substantive complaint of a failure by the State to take adequate positive measures to protect a person ’ s life, in violation of Article 2, the possibility of obtaining compensation for the death of a person will generally, and in normal circumstances, constitute an adequate and sufficient remedy (see E. and Others v. the United Kingdom , no. 33218/96, § 110, 26 November 2002 , and Branko Tomašić and Others v. Croatia , no. 46598/06, § 38, 15 January 2009 ).

5 1 . In respect of the six-month rule under Article 35 § 1 of the Convention, the Court notes that the dates of the final decisions in the case for the purposes of Article 35 § 1 of the Convention should be established, with due regard being had to the subject matter of the case and the essential purpose which the applicant wished to achieve (see Wisniewska v. Poland , no. 9072/02, § 71 with further references, 29 November 2011). The Court reiterates, at the same time, that the purpose of this rule is to promote the security of law and ensure that cases raising issues under the Convention are dealt with within a reasonable time (see Treskavica v. Croatia , no. 32036/13 , § 37, 12 January 2016).

(ii) Application of these principles to the present case

5 2 . The Court does not consider necessary to deal with the Government ’ s all preliminary objections as the application is inadmissible for the following reasons.

5 3 . Focusing on the compensatory remedy offered by the State Liability Act, the Court reiterates that under section 1 , subject to the conditions stipulated by this Act, the State shall be liable for damage caused during the exercise of the State ’ s power. Under section 2, this liability cannot be excluded. Moreover, section 13(1) provides that the State is liable for damage caused by an incorrect official procedure (first sentence).

5 4 . The Court accepts that in view of the nature of the claim for damages against the State, which was not specifically created to remedy situations such as the one denounced in the present case, which requires, in particular, that the action or omission alleged against the authorities is considered to be unlawful, it may not be fully or partially effective in all cases where the conduct of State authorities, including social welfare service or police, is put in question and, eventually, may raise a problem under Article 2 of the Convention.

5 5 . The Court reiterates, however, that if there is any doubt as to the effectiveness of an internal appeal, this is a point which must be submitted to the national courts (see Roseiro Bento v. Portugal (dec.), no. 29288/02, 30 November 2004). In the case at hand, in so far as the applicant did not bring a claim for damages under the State Liability Act, the Court cannot speculate on what the approach of the Ministry of Justice or/and domestic courts, duration or outcome of the proceedings if it had done so. Moreover, the applicant has not presented any arguments enabling it to conclude at first sight that such remedy is not effective in her particular case, while the Government presented some elements which indicate that this legal avenue was not unlikely to succeed (see paragraph 31 above). That being so, this part of the preliminary objection raised by the Government must be accepted.

5 6 . In the light of these observations, the Court considers that, in respect of the substantive part of Article 2 of the Convention, the applicant has not exhausted the remedies available to her under domestic law and that the objection raised by the Government must be granted.

5 7 . Regarding the procedural part of Article 2 of the Convention, the Court observes that by the judgment of 23 September 2014, the applicant ’ s mother was convicted and sentenced of grievous bodily harm under Article 145 §§ 1 and 2 (c) of the Criminal Code , and, a t the same time, she was acquitted of the charge of abuse of a person in her care, on the grounds of a lack of evidence under Article 226 (a) of the Code of Criminal Procedure. The judgment was notified to the applicant ’ s representative on 8 October 2014, and became final on 16 October 2014 (see paragraphs 18 ‑ 20 above).

5 8 . In these circumstances, the Court considers, relying on the Constitutional Court ’ s opinion (see paragraph 24 above), that the applicant should have filed a constitutional complaint within the legal time limit of two months from the notification of the judgment of the Municipal Court on 8 October 2 014, that is no later than on 8 December 2014. However, she addressed the constitutional jurisdiction only on 23 January 2015 (see paragraph 23 above). The Court reiterates that it is the applicant ’ s procedural obligation to exhaust domestic remedies properly and in compliance with the formal requirements laid down in domestic law. It observes that the judgment of the High Court by which the court had quashed the guilty verdict and had decided to discontinue the criminal prosecution of the applicant ’ s mother was known to her original legal repre sentative on 3 December 2014 (see paragraph 21 above), that is before the expiration of the afore-mentioned time-limit. Therefore, she should have responded to the ongoing procedural situation with greater diligence and, being legally represented, to lodge the constitutional complaint within the two month time-limit counting from the judgment of the Municipal Court, that is no later than 8 December 2014 .

5 9 . Against this background, the Court considers that having lodged her constitutional complaint belatedly on 23 January 2015, the applicant deprived the Constitutional Court of the effective opportunity to examine the merits of her complaint relating to the verdict of the Municipal Court by which her mother had been acquitted.

60 . Accordingly, the applicant did not satisfy the formal requirements under Article 35 § 1 of the Convention with regard to the procedural part of Article 2 of the Convention.

6 1 . In these all circumstances, the Court finds that the present application is inadmissible under Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 7 June 2018 .

             Renata Degener Krzysztof Wojtyczek Deputy Registrar President