Communicated on 28 January 2016

FIRST SECTION

Application no. 52256/15 Karolina POLCAROVÁ against the Czech Republic lodged on 14 October 2015

STATEMENT OF FACTS

The applicant, Karolína 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

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 8 April 2014 the applicant ’ s father contacted the Police as he suspected the applicant ’ s mother to have caused her heavy injuries. The Police found out that the applicant had sustained bruises but was not in imminent danger. The social protection authority was informed and allegedly decided to deal with the situation the next day, despite the mother ’ s violent history.

The following day, the applicant was brought to a hospital as a matter of emergency since her life was in danger; the injuries sustained to her brain led to her lifelong disability (partial blindness, psychomotor retardation) .

Following investigation, the applicant ’ s mother was charged ( i ) with having abused a person living under the same roof , i.e. with having ill ‑ treated the applicant by repeatedly beating her in the face and head at an undetermined period between 16 September and 2013 and 9 April 2014, and (ii) with having physically assaulted the applicant, repeatedly hitting her on her face and head, at an undetermined period between 8 and 9 April 2014 and caused her a serious bodily harm.

By the judgment of 23 September 2014 based on numerous witness statements, two medical reports and several items of written evidence, the Prague Municipal Court convicted the applicant ’ s mother of having caused a serious bodily harm to a minor child and sentenced her to ten years ’ imprisonment and payment of damages. By the same judgment, the applicant ’ s mother was acquitted from the charge of abuse on the ground of lack of evidence.

The applicant ’ s mother appealed against the conviction. The prosecutor having filed no appeal, the acquittal became final.

On 21 November 2014, the Prague High Court quashed the guilty verdict and decided to stay the criminal prosecution of the applicant ’ s mother regarding the serious bodily harm. According to the appellate court, both offences stemmed from identical acts, thus the criminal prosecution could not be led for an act which has already been the subject of a final judgment ( rei iudicata ).

The applicant not having been entitled to file an appeal on points of law with the Supreme Court, she asked the Supreme Prosecutor to lodge it. The latter allegedly refused, endorsing the legal opinion of the Prague High Court, according to which the result of the criminal proceedings was unfair from the material point of view but the only possible from the procedural point of view.

On 23 January 2015, the applicant filed a constitutional appeal, relying on her rights to life and protection against any ill-treatment, to respect for a private life and to judicial protection. She complained, first, that the Police and the social protection authority had failed to take appropriate action to protect her life and security and, second, that the competent authorities had not complied with their positive obligation of effective criminal proceedings. In her view, the bill of indictment issued by the prosecution had been vitiated and the Prague Municipal Court had erred in assessing and qualifying the acts perpetrated by her mother. As a consequence, she was also denied the damages awarded by the first-instance court.

By the decision of 25 June 2015 (no. III. ÚS 226/15), the Constitutional Court dismissed the applicant ’ s constitutional appeal, considering that it was manifestly ill-founded with regard to the decision of the High Court and belated with regard to the acquittal verdict of the Municipal Court (given that the applicant as a victim could appeal only the decision on damages). It considered that the way in which the High Court had interpreted the principle of res iudicat a and weighed the applicant ’ s right to effective criminal proceedings against the accused ’ s right not to be prosecuted for a crime for which she had been acquitted was not excessively disproportionate. The Constitutional Court added that, as to the claim for damages, the outcome of the criminal prosecution had not worsened the applicant ’ s procedural position in the civil proceedings which were still available to her.

B. Relevant domestic law and practice

In the decision no. I. ÚS 2886/13 of 29 October 2013, the Constitutional Court summarised the relevant Court ’ s case-law regarding the procedural obligation of the State to conduct effective investigation. It observed that effective implementation of the provisions of the Criminal Code aimed at protecting human life requires appropriate and diligent investigation in all cases where there is a suspicion that offences against human life have been committed. The Czech criminal law does not operate with the concept of a private of subsidiary action permitting to the victim himself to effectively implement those provisions. Moreover, to establish the facts and the liability of a person for the death of another person is easier for criminal authorities than for the individual who could defend himself only through a civil action. Referring the victims solely to civil proceedings thus weakens the effectiveness of the protection of the right to life in practice.

COMPLAINTS

1. Relying on Article 2 § 1 of the Convention, the applicant complains that the authorities involved did not comply 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 wrongly qualified the acts of her mother and adopted a formalistic approach.

2. Under Article 6 of the Convention, the applicant considers that the above shortcomings amount also to a violation of her right to a fair trial.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention, with regard to her complaints likely to fall within the scope of Articles 2 and 3 of the Convention?

2 Has the applicant ’ s right to life, as guaranteed by Article 2 of the Convention, been violated in the present case? Has the applicant been subjected to inhuman or degrading treatment by her mother, in breach of Article 3 of the Convention?

Having regard to the procedural protection from inhuman or degrading treatment ( Labit a v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV), was the criminal prosecution in the present case by the domestic authorities in breach of Articles 2 and 3 of the Convention?