CASE OF ROHLENA v. THE CZECH REPUBLIC
No violation of Article 7 - No punishment without law (Article 7-1 - Heavier penalty;Nullum crimen sine lege;Time when act or ommission was committed)
Aleš Pejchal;André Potocki;Dean Spielmann;Dmitry Dedov;Egidijus Kūris;Elisabeth Steiner;Ganna Yudkivska;Guido Raimondi;Helena Jäderblom;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Mark Villiger;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Paul Lemmens;Paulo Pinto De Albuquerque;Robert Spano
9. The applicant was born in 1966 and lives in Brno. 10. On 29 May 2006 the applicant was formally indicted by the Brno municipal prosecutor for having, at least between 2000 and 8 February 2006, repeatedly physically and mentally abused his wife while he was drunk. He was accused of having subjected her to verbal abuse, hit her on the head with his hand and fist, slapped her, held her by the throat, tried to strangle her, thrown her against the furniture or onto the ground, pushed her down stairs and kicked her. He was further accused of having hit the children, gambled away the household’s money on gaming machines and smashed the crockery. As a result, his wife had sustained haematomas, bruising and a fractured nose and had been obliged to seek medical assistance on that account on 26 June 2000, 18 July 2003 and 8 February 2006, following assaults committed on 24 June 2000, 17 July 2003 and 8 February 2006 respectively. The applicant had allegedly sought to undermine his wife psychologically in order to control her. According to the prosecutor, the applicant had thus committed the “continuing” criminal offence (trvající trestný čin) of abusing a person living under the same roof within the meaning of Article 215a §§ 1 and 2(b) of the Criminal Code, given that his conduct prior to the introduction of that offence on 1 June 2004 had amounted to the offence of violence against an individual or group of individuals under Article 197a of the Criminal Code and assault occasioning bodily harm under Article 221 of the Code. 11. On 18 April 2007 the Brno Municipal Court found the applicant guilty of the offence of abusing a person living under the same roof, committed at least between 2000 and 8 February 2006, as described in the bill of indictment, which also referred to the fact that the abuse had occurred repeatedly. It sentenced him to a suspended term of two and a half years’ imprisonment and placed him on probation for five years. The applicant was also placed under supervision and ordered to undergo treatment for alcohol dependency. The court based its decision on the statements given by the applicant, the victim (his wife) and several witnesses, including the couple’s two children – who reported, among other incidents, ten instances of the applicant verbally insulting his wife, four instances of the applicant grabbing his wife by the arms and strangling her, and verbal and/or physical assaults committed by the applicant on his wife at monthly intervals – and on documentary evidence and expert reports. It also took into account the fact that the applicant had confessed to quarrels and physical violence in his relationship with his wife; he admitted in particular that he had sometimes slapped his wife or hit her with his fist. The court adopted the classification of the offence as abuse of a person living under the same roof within the meaning of Article 215a §§ 1 and 2(b) of the Criminal Code as in force since 1 June 2004, taking the view that this classification also extended to the acts committed by the applicant prior to that date since they had been punishable at the material time and amounted at least to the offence of violence against an individual or group of individuals under Article 197a of the Criminal Code. Lastly, the court considered that, owing to the duration of the conduct in question, the offence committed in the present case presented a relatively high degree of danger which justified a sentence ranging from two to eight years’ imprisonment under paragraph 2 of Article 215a of the Criminal Code. Taking into consideration the extenuating circumstances (in particular the fact that the applicant had confessed and that he had no previous convictions), it imposed a suspended sentence situated at the lower end of the range. 12. On 6 September 2007 the Brno Regional Court dismissed an appeal by the applicant in which he contested the facts as established by the Municipal Court and the unilateral assessment of the evidence. The Regional Court found no defects in the previous proceedings and considered that the classification of the applicant’s conduct was in conformity with the provisions of the Criminal Code. 13. On 21 February 2008 the Supreme Court dismissed as manifestly illfounded an appeal on points of law lodged by the applicant in which he complained that the trial court had applied Article 215a of the Criminal Code even to his conduct prior to 1 June 2004, when the offence of abuse had not yet existed in domestic law. On this point the Supreme Court noted, referring to its ruling Tzn 12/93 of 8 December 1993, that where there was, as in the case at hand, a “continuation of the criminal offence” (pokračování v trestném činu), which was considered to constitute a single act, its classification in criminal law had to be assessed under the law in force at the time of completion of the last occurrence of the offence. That law therefore also applied to the earlier acts, provided that these would have amounted to criminal conduct under the previous law. In the instant case the Supreme Court considered that the applicant’s conduct prior to the amendment of the Criminal Code on 1 June 2004 had amounted at least to an offence punishable under Article 197a or Article 221 § 1 of the Criminal Code. After having examined the file it also concluded that the accused’s actions as described in the operative part of the first-instance court judgment disclosed all the legal elements of the offence of abusing a person living under the same roof within the meaning of Article 215a §§ 1 and 2(b) of the Criminal Code. Concerning the continuation of the offence, the Supreme Court noted that the abuse itself amounted to ill-treatment characterised by a certain duration. For the offence to be regarded as having continued over a long period of time it had to have lasted for some months. As the applicant had perpetrated the offence in question at least from 2000 until 8 February 2006, that is, over a period of several years, his conduct certainly disclosed the material element of continuation of the offence of abuse under Article 215a § 2(b) of the Criminal Code. 14. On 10 June 2008 the Constitutional Court dismissed as manifestly ill-founded a constitutional appeal lodged by the applicant in which he complained that the proceedings had been unfair and that the Criminal Code had been applied retroactively, to his detriment. Referring to the ruling of the Supreme Court and to its relevant case-law, the Constitutional Court held that the decisions given by the courts in the present case had been logical and coherent and had not had any retroactive effect prohibited by the Constitution. 15. As the applicant committed another offence while on probation and did not undergo any treatment for his alcohol dependency, he was required to serve the prison sentence imposed by the judgment of 18 April 2007. He began serving his prison sentence on 3 January 2011. According to the Government, he was granted conditional release on 17 May 2012.