DUCHOŇOVÁ v. THE CZECH REPUBLIC
Inadmissible
Peer Lorenzen
The applicant, Ms Zuzana Duchoňová, is a Czech national who was born in 1961 and lives in Brno. In a letter of 4 May 2000 the applicant informed the Ministry of Justice (ministerstvo spravedlnosti) that in 1998 and 1999 Ms B., her sister-in-law living in Switzerland, had forced her into prostitution in Ms B.’s establishment under threat that she would tell the applicant’s husband that his wife had prostituted herself during her visits in Switzerland. On 15 May 2000 the Ministry of Justice informed the applicant that her criminal complaint for defamation and blackmail, to which she had joined a claim for damages, had been transferred to the Břeclav District Prosecutor’s Office (okresní státní zastupitelství). On 23 May 2000 the latter informed her that the complaint would be dealt with by the Brno Municipal Prosecutor’s Office (městské státní zastupitelství) which, in turn, on 20 June 2000, transferred it to the Brno-Bystrc Police District Office (obvodní oddělení policie). Having questioned the applicant on 20 July 2000 and her husband and son on 30 July 2000, the Police District Office sent it back to the District Prosecutor’s Office on 19 September 2000. On 4 October and 29 November 2000 respectively, the applicant informed the District Prosecutor’s Office that she maintained her criminal complaint claiming damages of CHF 150,000 (EUR 95,000). She further criticised the prosecutor for the fact that her husband and son had been implicated in the investigation proceedings and interviewed by the police. In a letter of 4 December 2000 the District Prosecutor, having summed up the previous procedural steps taken by the authorities involved in the case, replied that the hearing of the applicant’s husband and son had been necessary in order to established the relevant circumstances. The prosecutor further noted: “In your letters of [4 May, 4 October and 29 November 2000 respectively] ... you further claimed damages of CHF 150,000. At this stage of the proceedings, ... there is nothing which would deprive you from filing a civil action for protection of ‘personal rights’ and claim damages if you feel to be injured by the statements of Ms [B.]. Within the framework of the criminal proceedings, which however are not yet pending because, as you have already been said above, the case is only in a stage of examination of the facts ..., not in a stage of criminal prosecution within the meaning of the Code of Criminal Procedure, you could claim damages caused by a criminal act of a third person. ... [T]his is, however, premature at this stage of the proceedings. I inform you that the case is in the stage of examination within the meaning of section 158(3) of the Code of Criminal Procedure. It was not yet possible to proceed with the criminal prosecution and, so far as you seek the financial compensation, you have to address a civil court with a civil action.” In a letter of 3 March 2001 the Hustopeče u Brna Police District Office informed the applicant that her criminal complaint against Ms B. could not be settled, the District Prosecutor’s Office not yet having received letters rogatory for a Swiss prosecutor to hear Ms B. in Zürich where Ms B. had her residence. On 14 November 2001 Ms B. was questioned. She denied the applicant’s accusation. On 10 May 2002 the applicant’s son was again questioned, but used his right not to testify. On 28 May 2002 the applicant and her husband were reheard. They maintained the contents of their previous arguments and statements. In a letter of 26 June 2002 the District Prosecutor informed the applicant that the examination of her criminal complaint was still pending and should finish by 30 August 2002. On 12 August 2002 Ms B. was again questioned, denying the applicant’s accusation. Her son corroborated Ms B.’s statement. On 20 August 2002 the applicant was informed that the file had been sent to the Břeclav Criminal Police Investigation Service (Služba kriminální policie a vyšetřování) with a proposal to institute criminal proceedings. By a resolution (usnesení) of 16 September 2002 the Criminal Police Investigation Service decided to refuse to act in a matter under section 159a(1) of the Code of Criminal Procedure as there was no reasonable suspicion that Ms B. had committed any criminal offence. The ruling further stated: “Having examined the facts as provided for in section 158 of the Code of Criminal Procedure, [the police authority] did not find any facts which would prove that any criminal offence had been committed. ... Bearing in mind that criminal legal relations were not affected, no criminal prosecution of a particular person could be commenced. [It is clear] that [the problem concerns] the civil legal relations which could be settled in a civil way.” On 27 January 2003 the District Prosecutor, following the applicant’s complaint (stížnost), quashed this resolution, and sent the case back to the Criminal Police Investigation Service for further investigation. By a resolution of 29 July 2003 the latter, having complemented the examination of the facts, again decided to refuse to act in a matter under section 159a(1) of the Code of Criminal Procedure as there were no factors which would confirm the applicant’s incriminating statement that she had been blackmailed by Ms B. or that the latter had defamed her. On 27 November 2003 the Ministry of Justice sent a copy of the resolution to the applicant. In a letter of 4 December 2003 addressed to the Ministry, the applicant expressed her disappointment with the results of the examination proceedings and with the manner in which her criminal complaint had been dealt with. She pointed out that the resolution had not been notified to her. On 13 August 2004 the applicant filed a complaint against the Criminal Police Investigation Service’s resolution of 29 July 2003. On 11 October 2004 the Brno Regional Prosecutor (krajský státní zástupce) found it unsubstantiated stating, inter alia: “Your submission was not examined as a complaint against the aforesaid resolution ..., because while the police authority immediately dispatched the resolution ..., it did not succeed to notify it to you and, after the mail having been consigned at the post office ... , you did not collect it within the ten following days. The last day of this time-limit is considered ... as the day of the delivery of the mail, from which a three-day time-limit for filing a complaint starts running. For these reasons, the complaint filed after the expiry of the time-limit had to be rejected without an examination on the merits ... ... In the examination proceedings [the police authorities] collected all material in evidence necessary for clarification and examination of [your criminal complaint]; however, the suspicion of committing an offence was not confirmed. This conclusion does not affect the fact that you can claim damages [against Ms B.] by way of a civil action brought to a competent court.” Chapter nine of the Code governs the procedure before the formal institution (commencement) of criminal prosecution. Under this chapter, the police authorities inter alia receive and obtain relevant information and evidence and conduct investigations with a view to detecting criminal offences, establishing their perpetrators and preventing criminal activities (examination proceedings – prověřování). The procedure before the formal institution of a criminal prosecution may result in a decision to refuse to act in a matter under section 159a(1)-(4) (odložení věci) or to refer a matter to the minor offences, disciplinary or other authority under section 159a(1) (odevzdání věci), or to institute a formal criminal prosecution (zahájení trestního stíhání) under section 160(1). In accordance with section 159a(1), a prosecutor or police authority is to refuse to act in a matter if there is no suspicion that a criminal offence has been committed and no other steps are appropriate, such as for example referring the matter to the competent minor offences authority or disciplinary authority. Under section 159a(2), a prosecutor or police authority is to refuse to act in a matter also if the institution (commencement) of a criminal prosecution is not permitted pursuant to section 11(1). Under section 159a(4), a prosecutor or police authority is to refuse to act in a matter if there are no factors allowing the institution of a criminal prosecution under section 160. Once the reasons for the refusal ceased to exist, the criminal prosecution shall commence. In accordance with sections 159a(5) and 159a(6), a copy of the decision not to act in a matter is to be served on a victim, who has a right of appeal against it. The person on the basis of whose motion the decision was given is notified about it if he or she asks for. Section 159b provides for a temporary refusal to act in a matter. The institution of formal criminal prosecutions is governed by Chapter ten, Section one. Under section 160(1), a police authority is to immediately instigate a criminal prosecution (zahájení trestního stíhání) if the information obtained indicates that a criminal offence has been committed by a particular person and if there is no reason for refusing to act in the matter pursuant to sections 159a(2), 159a(3) or 159b(1). According to section 11, any natural person has the right to protection of his or her personal integrity (osobnost), in particular his or her life and health, civil and human dignity, privacy, name and personal characteristics. Pursuant to section 13(1), any natural person has the right to request that an unjustified infringement of his or her personal rights should be stopped and the consequences of such infringement eliminated, and to obtain appropriate satisfaction. Section 13(2) provides that in cases when the satisfaction obtained under Section 13(1) is insufficient, in particular because a person’s dignity and position in society has been considerably diminished, the injured person is entitled to compensation for non-pecuniary damage. Under paragraph 3 of section 13, when determining the amount of such compensation the courts have to take into account the seriousness of the prejudice suffered by the person concerned and also the circumstances under which the violation of that person’s rights occurred.