On 2 April 2019 the Third Chamber of the Constitutional Court (judge rapporteur Jan Filip) granted the constitutional complaint and quashed the resolution of the Kladno District Court.
Defendant D. Š. was convicted in the criminal proceedings before the District Court of a criminal offence of expressing sympathy for a movement aimed at suppressing human rights and freedoms, allegedly committed on 28 November 2016 by making a hate and publicly accessible post at the Facebook profile of the complainant in response to the complainant’s departure from the Český slavík awards for 2015, after music band Ortel and its lead singer Tomáš Hnídek were awarded a prize. He was sentenced to community service for the above-mentioned criminal offence. The complainant joined the criminal proceedings in June 2017, claiming compensation for non-property damage allegedly arising from interference with his personal rights. He considered the conduct of the defendant as an attack on and as a threat towards him. The District Court did not admit the complainant as an aggrieved person to the trial pursuant to Section 206 (3) of the Criminal Procedure Code as it concluded that the complainant was “obviously not entitled” to the rights of the aggrieved person in the given criminal case. The action filed and the evidence available to the court did not demonstrate that the defendant acted in a targeted effort to directly attack the complainant and threaten him. Although it was a statement made in the virtual space established by the complainant, the court held that the text of the statement was completely general and targeted broadly defined segments of the population in an unacceptable and demagogic manner. The complainant argued in the constitutional complaint that the court could not exclude him as an aggrieved person as the concerned provision should only be applied to the cases where it is clear that a particular person is obviously not entitled to the rights of aggrieved person. The complainant holds that, if in doubt, the court should, on the contrary, admit that person as an aggrieved person.
The Constitutional Court concluded that the constitutional complaint is justified. Deciding in accordance with Section 206 (3) of the Criminal Procedure Code is only possible in the initial stage of the court proceedings, while the court concludes that the specific person is “obviously not entitled” to the rights of an aggrieved person. According to the Constitutional Court, with regard to its constitutional interpretation, the mentioned provision projects to the Criminal Procedure Code and only for court proceedings the principle of the presumption of granting the status of an aggrieved person to which anyone who seeks admission into the criminal proceedings is entitled, until the court by its negative decision removes that position from that person. Above all, however, the phrase “obviously not entitled” contained in law expresses an enhanced extent of demonstration of facts decisive for such assessment. Applying the mentioned principle is also supported by a relatively broad and by general legal concepts defined position of an aggrieved person under Section 43 (1) of the Criminal Procedure Code. The District Court, however, chose a completely opposite approach when construing those concepts to the detriment of the complainant.
The court cannot assess the likely success of a person in adhesion proceedings only based on findings known (but unproven) at the beginning of the trial, except for an obvious thing. The decision pursuant to Section 206 (3) of the Criminal Procedure Code does not serve as a preliminary ruling under Sections 228 and 229 of the Criminal Procedure Code, which decides on the property claims of aggrieved persons. The purpose of the participation of aggrieved persons in criminal proceedings is broader. The position of aggrieved persons is connected with a number of procedural rights based on the Criminal Procedure Code. Any resolution pursuant to Section 206 (3) of the Criminal Procedure Code must be supported, on the contrary, by indisputable (usually undisputed) facts or legal obstacles to the admission of an aggrieved person to the trial (for example, if the co-defendant seeks the position of an aggrieved person). In case of any doubt, the person exercising the rights of aggrieved person must be admitted to the trial.
When issuing the contested resolution, the District Court proceeded in conflict with Section 43 (1) and (2) and Section 206 (3) of the Criminal Procedure Code, as it failed to state the reason for which the complainant was obviously not entitled to the right of aggrieved person, while it had no proper support in the evidence and construction of Section 206 (3) of the Criminal Procedure Code. Its considerations were not related to legal or undisputable factual obstacles to granting such status and did not concern at all the possibility of considerable damage in the legal sphere of the complainant and the possible causal connection between the origination of such damage and the conduct of the defendant. In this respect, also reviewable dealing with a number of objections of the complainant’s petition claiming compensation for non-property damage is missed. The mentioned misconduct as a whole resulted in a violation of the complainant’s right of access to the court under Article 36 (1) and (4) of the Charter in defending their rights under Article 1 and Article 10 (1) and (2) of the Charter (right to the protection of honour, dignity, and private life).
The Criminal Procedure Code connects the position of an aggrieved person with a number of procedural rights, while exercising those rights might not lead to granting a property claim at all. An aggrieved person who is also a victim of a criminal offence shall have the right to make a statement on the impact of a criminal offence on his/her life (cf. Section 43 (4) of the Criminal Procedure Code). The meaning of all those rights then consists in the fastest possible establishment of legal certainty of all those persons concerned and in minimising the harmful effects of victimisation. The important consequences of exercising those rights also include the possibility of aggrieved persons to present to the court their views of the criminal case as a whole (not only as witnesses). In addition, the specific nature and variability of the criminal offences known as hate crimes oblige the courts to assess the nature of each such attack from the perspective of their specific potential victims. At the same time, the Constitutional Court recognises that the political and social dimension of the criminal offence, the “inventiveness” of perpetrators, and almost the incomprehensible development of means of communication used for committing such offences make the given mentioned duty of the courts quite difficult. The appalling historical experience with the social stigmatisation of minorities cannot only be manifested in the adoption of the “generally protective” criminal legislation but should also be reflected in a deeper understanding of damage to the addressees of the legislation, who are also recipients of such attacks. The courts must always examine how each attack is manifested in the individual sphere of specific individuals (e.g. as a result of threats, concerns, damage to reputation, etc.), and whether it is only an inadmissible and unaddressed political campaign. However, the courts cannot avoid such difficult situations by preventively ignoring the voice of potential aggrieved person by means of applying their court procedures.