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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.