Current Affairs

Výpis aktualit

General courts to revisit a case of complainant who was shot by Czechoslovak border guards while attempting to cross the then State border. Reasonable compensation for personal injury to be reconsidered

III. ÚS 3025/22

The Third Panel of the Constitutional Court (Justice Rapporteur Vojtěch Šimíček) upheld the complainant’s constitutional complaint and annulled the judgment of the Municipal Court in Prague of 18 August 2022, ref. No 17 Co 242/2022-46, as well as statements II and III of the judgment of the District Court for Prague 2 of 9 May 2022, ref. No 37 C 118/2021-32. These decisions violated the complainant’s right to judicial protection under Article 36(1) of the Charter of Fundamental Rights and Freedoms and the right to a fair trial under Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms.

The complainant, in his capacity as plaintiff, sought compensation from the defendant, the Czech Republic – the Ministry of Justice, for personal injury in the amount of CZK 476 250 in connection with his arrest on 21 July 1989, when, as a citizen of the former German Democratic Republic, he was shot while attempting to cross the border from the Czechoslovak Republic into the Federal Republic of Germany by Czechoslovak border guards. On 6 August 2019, the District Court in Domažlice decided on the complainant’s participation in judicial rehabilitation in relation to the unlawful restriction of personal freedom, being detained and shot while attempting to cross the State border. In response to this, the defendant granted the complainant the sum of CZK 1 027. It did not grant the complainant’s claim for compensation for personal injury on the grounds that it had not been properly quantified or documented. Therefore, the complainant had a personal injury score drawn up and turned to the general courts. 

In the proceedings before the District Court, the complainant partially withdrew his action and further sought an award of CZK 27 750. He now claimed compensation only to the extent of the undisputed 370 scoring points at CZK 15 per point [in accordance with Decree of the Ministries of Health and Justice, the State Social Security and the Central Council of Trade Unions No 32/1965 Sb., on compensation for pain and loss of amenity in the event of occupational accidents and diseases and on the implementation of Section 444 of Act No 40/1964 Sb., as amended before 28 January 1993 (hereinafter the “Decree”)]. The complainant requested that the basic compensation under the Decree be increased to five times the amount of the compensation, as there had been a violation of the International Covenant on Civil and Political Rights in his case. Moreover, the persons alleged to have violated the complainant’s rights were under criminal prosecution at the time of the District Court’s decision. The complainant referred to the possible criminal liability of former Prime Minister Lubomír Štrougal, former Minister of the Interior Vratislav Vajnar and former Secretary of the Central Committee of the Communist Party of Czechoslovakia Jan Fojtík. By judgment of 9 May 2022, the District Court for Prague 2 ordered the defendant to pay the complainant the sum of CZK 5 500, dismissed the action as regards the sum of CZK 22 200 (statement II) and ordered the complainant to pay the defendant the costs of the proceedings in the amount of CZK 1 200 (statement III). On appeal, the Municipal Court in Prague decided to uphold the judgment of the District Court in its dismissing statement II and to amend it in statement III so that neither party was entitled to the reimbursement of the costs of the proceedings.

The Constitutional Court upheld the complainant’s complaint and annulled the decision to the extent challenged. It recalled that freedom of movement (and residence) belongs to the group of natural human rights, which should be interfered with by public authorities only in the most urgent cases. It is one of the prerequisites for the freedom of action of man as a creative and thinking being. However, during the period of totalitarian one-party rule from February 1948 to January 1990, the State used the criminal offence of emigration to commit the most flagrant violations of the law. The prosecution of this offence was strongly political in its nature. The complainant had been restricted in his personal freedom and had been shot while attempting to cross the then State border, which the State authorities of the time saw as precisely fulfilling the attempted crime of emigration. Subsequently, the complainant was rehabilitated with all the consequences arising from that, including the possibility of compensation, which effectively acknowledged that the complainant’s freedom of movement had been interfered with. 

In the proceedings before the general courts, the amount of damages for pain and suffering became a matter of dispute. However, the circumstances of the complainant’s injury were not in dispute. And the Constitutional Court considered these circumstances to be extraordinary. The situation in which the complainant was shot at and injured by border guards in the exercise of his fundamental right and the circumstances of an occupational accident or disease – however much the wording of the Decree in question might invite this – cannot be equated. The complainant must have suffered much worse mental distress when he could not be sure of the quality of treatment he would receive as a person who had committed a political offence. If the communist totalitarian regime had not collapsed shortly after, he could have expected further punishment by the then ruling power. The circumstances under which the complainant suffered injury must be considered truly exceptional (compared to an occupational accident or disease) and, according to the Constitutional Court, the amount of his compensation should reflect this.

The complainant cannot be disadvantaged by the fact that he only brought his claim after several years. In order to make a real and successful claim for compensation, it was necessary not only for a legal framework to be created that would anchor the tools for enforcing such a claim, but also for an actual change in the social situation to come about. The assertion of a personal injury claim has previously been distorted by the overall image of an individual. The interests and needs of an individual were assessed only as a means to other ends. It was only later that public power began to see the individual person and the protection of his interests as the meaning and reason for the existence of such power. It was only at this point that the individual became more important that the State. Therefore, in order to claim compensation for the injustice caused by totalitarian power, it was necessary, in addition to the existence of a positive right, to overcome the long-standing and ubiquitous notion of the inviolability of state power. 

According to the Constitutional Court, the general courts violated the complainant’s right to a fair trial and judicial protection by failing to adequately assess the exceptional circumstances of the complainant’s case in their deliberations on the appropriate amount of compensation awarded. Therefore, it annulled their decisions. In further proceedings, the courts are not bound by subordinate legislation, which includes the Decree in question – to the extent that they could not award the complainant “reasonable compensation” on the basis of that Decree.