CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ THE CZECH REPUBLIC BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS … to criminal conduct under the previous law. As a result, the applicant was sentenced to a suspended term of imprisonment. As I have already indicated, the Strasbourg Court first examined whether the applicant’s acts, including those carried out prior to the reform of the Criminal Code, constituted an offence defined with sufficient foreseeability by domestic law. Taking as a starting point for its analysis the opinion of the Supreme Court, it pointed to the latter’s finding that the previous assaults amounted to punishable offences under different provisions of the Criminal Code in force at the relevant time. Moreover, the very concept of continuation of the criminal offence had been introduced in the Criminal Code before the applicant’s first assault on his wife. Last but not least, the Supreme Court ruled that the applicant’s conduct also comprised the constituent elements of offences before and after the reform. In that situation, the law was not applied in a retroactive manner, i.e. in breach of the Convention, to the applicant’s behaviour before 1 June 2004 and the applicant could have foreseen that he might be held criminally liable for a continuous offence in the way presented by the Supreme Court. The Court then went on to look into the risk of increasing the severity of the applicant’s punishment in the circumstances. In fact, the Strasbourg judges accepted the respondent Government’s argument that, unlike by virtue of the concept of continuation of the criminal offence, in case of a separate assessment of the acts committed before and after the reform of the Criminal Code, the applicant could have received a harsher sentence on the basis of the occurrence of multiple offences, which normally counts for an aggravating circumstance. Mr Rohlena’s case was also an occasion to single out that the notion of continuous criminal offence was in line with the European tradition. Judge Pinto de Albuquerque commented on these links in more detail in his concurring opinion. In sum, the Court unanimously concluded that there had been no violation of Article 7 of the Convention. It may be added that the Supreme Court itself cast doubt on the classification of a series of assaults within the offence of abusing a person living under the same roof as continuous criminal offence in one of its recent judgments and decided, though under the 2009 New Criminal Code, that it rather constituted a continuing criminal offence. 3 Well, this only shows that European and national legal systems live on their own, and this development leaves the Strasbourg Court’s conclusion unaffected, not only with regard to the applicant but also in general terms.

3 Judgment of 17 December 2014, no. 15 Tdo 887/2014, ECLI:CZ:NS:2014:15.TDO.887.2014.1.

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