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VÍT ALEXANDER SCHORM
CYIL 7 ȍ2016Ȏ
In
Rohlena v. the Czech Republic
, the Grand Chamber had already confirmed the
Chamber’s conclusion with regard to the principle of legality of criminal offences and
punishments and the application was definitively rejected. In the “out-of-hospital
deliveries case” of
Dubská and Krejzová v. the Czech Republic
, commented on last year,
the Grand Chamber held a hearing in December 2015 and since then the case has
been awaiting final judgment. The least mature of the three is the case of
Regner v. the
Czech Republic
, assessed from the standpoint of the right to adversarial proceedings
and equality of arms, whose referral was accepted only in May 2016.
The article below will focus on the first and the last of the three cases pointed out.
1. No punishment without law
The above title appears above the text of Article 7 of the Convention, applied
in the case of
Rohlena v. the Czech Republic
(no. 59552/08, judgment [GC] of
27 January 2015). Paragraph 1 of Article 7, relevant in the context, comprises two
sentences, out of which the Court took into account both. The first of them reflects
the principle of
nullum crimen sine lege previa,
while the second refers to the principle
of
nulla poena sine lege previa
.
The Court was confronted with a case in which the applicant had been accused
of committing a series of acts of domestic violence against his wife, but the applicable
criminal legislation had been amended in between these assaults, with the aim to
better tackle this reprehensible phenomenon.
1
Various national authorities, dealing
step by step with the case, adopted slightly different approaches to the classification
of the facts.
2
For the prosecution, Mr Rohlena was guilty of the criminal offence of abusing
a person living under the same roof; his actions prior to the introduction of that
offence into the Criminal Code on 1 June 2004 amounted to the offence of violence
against an individual or group of individuals and assault occasioning bodily harm,
punishable under specific Articles of the Criminal Code of that time. The first
instance criminal court found the applicant guilty of a newly formulated offence,
applying this classification also to the acts committed prior to 1 June 2004, since
at that time they had amounted at least to one of the previously defined offences.
Finally, the Supreme Court established a continuation of the criminal offence in the
case; hence, the applicant’s acts needed to be assessed under the criminal law in force
at the time of the last occurrence of the offence, provided that the acts also amounted
1
It would be possible to refer to various international recommendations aiming at providing effective
protection to the victims of domestic violence, in particular that directed against women. The Court
has already dealt with affairs of this nature and found deficiencies in the protection afforded. So the case
at hand reflected also the need to improve domestic legislation in this ambit.
2
Being acquainted with the case file, I can mention the paradoxical fact that the Strasbourg Court
devoted much more time, energy and resources to processing this case than the national authorities had
done altogether.