Judgment I. ÚS 1222/22

The First Panel of the Constitutional Court (Justice Rapporteur Jaromír Jirsa) revoked part of the judgment of the High Court in Prague of 16 December 2021, file No 1 Tmo 11/2020, which referred the complainant to civil proceedings for the remainder of her claim for compensation for other than proprietary harm. The decision violated the complainant’s right to inviolability of the person and privacy under Article 7(1) of the Charter of Fundamental Rights and Freedoms in conjunction with the fundamental right to judicial protection under Article 36(1) of the Charter.

The minor complainant has not identified with her male gender since childhood, feels she is a girl and identifies as a girl in everyday life. In 2014, she was diagnosed with a developmental defect – autism spectrum disorder. In 2018, the complainant was admitted to the boys’ ward of the child psychiatry department. After her hospitalisation, the complainant confided to her mother that she had been repeatedly raped by (at least) one co-patient during the hospitalisation. The juvenile perpetrator was charged with the offence of rape in the criminal proceedings, and the complainant sought compensation for other than proprietary harm in the amount of CZK 500 000 as the victim. The Regional Court convicted the juvenile of the offence of rape and imposed a punitive measure on him and referred the complainant’s claim for compensation for other than proprietary harm to civil proceedings. The High Court overturned the decision of the Court of First Instance and decided the case anew by again classifying the defendant’s conduct as rape and imposing a criminal measure for it, and also ordered the juvenile to compensate the complainant for other than proprietary harm in the amount of CZK 75 000; the rest of the claim was referred to the civil proceedings. In its judgment File No II. ÚS 3003/20 of 3 August 2021, the Constitutional Court annulled the above judgment of the High Court on compensation for harm, as it concluded that the complainant’s fundamental right under Article 7(1) of the Charter had been violated by awarding her, as a particularly vulnerable victim, an excessively low compensation for other than proprietary harm and referring her to civil proceedings with the remainder of her claim, without respecting the evolution and development of the criminal courts’ approach to victims. Following the Constitutional Court’s judgment, the High Court made a new decision in the judgment challenged by the constitutional complaint and (leaving unchanged the original verdict on the juvenile’s obligation to compensate the victim for other than proprietary harm in the amount of CZK 75 000) ordered the juvenile to compensate the complainant for another CZK 75 000; it once again referred the complainant to civil proceedings with the remainder of her claim (CZK 350 000).

The Constitutional Court upheld the complainant’s subsequent constitutional complaint and again annulled the decision of the High Court. The High Court once again failed to take sufficient account of the complainant’s specific position as a particularly vulnerable victim and awarded her low compensation for other than proprietary harm. The situation still being the same, it failed to respect the binding conclusions of the previous judgment of the Constitutional Court (file No II. ÚS 3003/20), and violated the complainant’s fundamental right to inviolability of the person and privacy, in conjunction with the right to judicial protection. Although the complainant was in the specific position of being a particularly vulnerable victim, the High Court again referred her remaining claim to civil proceedings, even though no further evidence was required and the High Court was capable of making the decision on its own. In the complainant’s case, it is not only the amount of the compensation awarded for other than proprietary harm that is at issue, but the need for a comprehensive assessment of the nature of the harm suffered by the complainant and the intensity of the interference with her personality rights as well, particularly taking into account the defenceless and vulnerable nature of her person.

In its previous judgment, the Constitutional Court has already addressed the broader context of the claim of particularly vulnerable rape victims for compensation for other than proprietary harm. Criminal courts were entrusted with deciding on (adhesion) claims for harm compensation precisely so that victims could obtain full satisfaction of their claims in criminal proceedings and not have to undergo further (traumatising) civil proceedings. When the criminal courts themselves do not decide on compensation and the legitimacy of the claim must be repeatedly proven in civil proceedings, the victims are further confronted with their traumatic experiences, which can lead to feelings of injustice and secondary harm.

The mental suffering caused by rape does not need to be proved by expert opinions. According to the Constitutional Court, it is necessary to distinguish between “mental suffering” (Section 2956 of the Civil Code), which is more likely to be a non-permanent psychological injury caused by the invasive act of rape itself, and “post-traumatic stress disorder” as a diagnosis (Section 2958 of the Civil Code), which has more permanent health consequences for the rape victim and may require an expert medical opinion to prove. According to the Constitutional Court, these categories represent different consequences which must not be confused and which may give rise to different claims. In the adhesion proceedings, the High Court did not make a legal conclusion on the existence of the complainant’s post-traumatic stress disorder without further evidence and failed to sufficiently explain the conclusion on the absence of mental suffering, although it follows from the nature of the proven act. It is irrelevant under which specific statutory concept the criminal court classifies the traumatic experience of the complainant’s rape (i.e. whether it considers it to be “mental suffering” or “other non-pecuniary harm”). The injured party cannot be required to qualify its claim according to substantive law, since the legal qualification and the decision on the adequacy of compensation for other than proprietary harm is the exclusive responsibility of the judge, which cannot be delegated to an expert or a party to the proceedings. This is all the more true since the established facts of the case enabled the court to assess the legal aspects of the intensity of the mental or psychological suffering caused to the complainant as a particularly vulnerable victim, without any reason to require further evidence of her subjective perception of the rape.

According to the Constitutional Court, the newly determined total amount of compensation (CZK 150 000) still does not correspond to the gravity of the violation of the right to inviolability of the person and privacy of the complainant in her position as a particularly vulnerable victim, especially since the High Court did not explain its reasoning on the amount of compensation awarded in a constitutionally compliant manner. The Constitutional Court did not find the High Court’s references to cases in which victims were awarded low compensation for rape to be persuasive. The Constitutional Court further supported its conclusion that the compensation awarded so far is too low in view of the specific circumstances of the case of the particularly vulnerable complainant by referring to the results of a study by the Legal Data Hub Institute of the Faculty of Law of Charles University. Although the Constitutional Court emphasises that each case must be assessed carefully and individually, the data established by the study nevertheless indicate that the amount claimed by the complainant is not excessive.

It will now be up to the High Court to reconsider the remainder of the complainant’s claim (CZK 350 000) and to strive to decide in the adhesion proceedings on a decent compensation, the amount of which would correspond to the violation of the complainant’s fundamental rights in view of her position as a particularly vulnerable person.