CEDH · CASELAW;CLIN;ENG — 21 juin 2011

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 142 June 2011 Polednová v. the Czech Republic (dec.) - 2615/10 Decision 21.6.2011 [Section V] Article 7 Article 7-1 Nullum crimen sine lege Conviction for murder of a former prosecutor, who had been involved in the elimination of opponents through a political trial: inadmissible   Facts – In 1950 the applicant participated, as a prosecutor, in the trial of Milada Horáková and other opponents of the communist regime, which was conducted under the direct control of the political authorities of the time and culminated in the sentencing to death and execution of several persons. In 1990 the Prosecutor General ruled that there was no case to answer in respect of all those charged, finding that they had been wrongly convicted of actions which were in accordance with the principles of a democratic society and that the criminal proceedings had been designed, for political ends, to arbitrarily eliminate opponents of the totalitarian dictatorship under the communist regime. In 2008 the applicant was convicted of having committed murder by participating in the trial on the basis of the 1852 Criminal Code, applicable at the time of the events. On the basis of numerous pieces of written evidence, the national courts found that the trial had been a mere formality designed to confer an appearance of legality on the physical elimination of the opponents of the communist regime, and that the course of the proceedings and their outcome had been decided in advance by the political organ of the Communist Party in cooperation with the State Security Service. They found that the fundamental principles of fairness of the proceedings and the immutable ethical requirements of judicial power had therefore been flouted during the trial; hence, the resulting judgment could not be considered an act of justice and the participants in the trial, of which the applicant was the only survivor, could not avoid this criminal liability by claiming to have merely been fulfilling their duties. They also considered that, through her active and deliberate participation in the trial, the applicant had significantly contributed to giving it an appearance of legality and to fulfilling its political aim. Seeing as the trial, culminating in the sentencing to death and execution of the convicted persons, had been the murder mechanism, they concluded that the applicant, as a prosecutor in the legal system, had committed this murder as a joint principal. Having regard to the extenuating circumstances such as the applicant’s law-abiding life, her age and the state of her health, as well as the fact that she had committed the offence de facto by obeying orders, the applicant was given a six-year prison sentence, which was shorter than the normal minimum. In March 2009 the applicant began to serve her sentence. In December 2010 the President of the Czech Republic granted her a pardon in respect of the remainder of her sentence and she was released. Law – Article 7 § 1: The Court’s task was to examine whether, at the time it was committed, the applicant’s act had constituted an offence defined with sufficient accessibility and foreseeability by the law of the former Czechoslovakia. The Court considered that the domestic courts’ application and interpretation of the provisions of criminal law in force at the material time had not been arbitrary in any way. It further considered that the strict interpretation of the relevant Czechoslovakian legislation was compatible with Article   7 of the Convention and that the practice of eliminating opponents to a political regime through the death penalty, imposed at the end of trials which flagrantly infringed the right to a fair trial and above all the right to life, could not benefit from the protection of that Article. In the present case, this practice had emptied of their substance the Constitution and law of the time, on which it was supposedly based, and could not therefore be described as “law” within the meaning of Article   7. The Court also could not accept the applicant’s argument that she had simply been obeying the instructions of her more experienced superiors whom she had trusted completely. The applicant had not claimed that she had not had access to the texts of the Constitution and relevant laws; the maxim “ignorance of the law is no excuse” therefore applied to her. Having already held that even a private soldier should not show total, blind obedience to orders which flagrantly infringed not only the principles of national legislation but also internationally recognised human rights, in particular the right to life, the Court considered this observation to be wholly applicable to the case of the applicant, who had acted as a prosecutor after having completed preparatory law studies and acquired some practical experience of trials. Moreover, the national courts had found, relying on evidence, that the applicant must have been aware of the fact that the questions of guilt and sentencing had been determined by the political authorities well in advance of the trial and that the fundamental principles of justice had been completely flouted as a result. In these circumstances the applicant, who, in her role as a prosecutor, had helped to confer the appearance of legality on the political trial of Milada Horáková and the other opponents of the regime and had identified herself with that unacceptable practice, could not rely on the protection afforded by Article   7. To reason otherwise would run counter to the object and purpose of that provision, namely to ensure that no one was subjected to arbitrary prosecution, conviction or punishment. Moreover, the fact that the applicant had been prosecuted and convicted by the Czech courts only after the restoration of the democratic regime did not in any way mean that her acts had not constituted an offence according to the Czechoslovakian law in force at the material time. Although the applicant did not argue that the proceedings against her were time-barred, the Court found it relevant to note that proceedings had been initiated against her as late as 2005, fifty-five years after the trial in question, because section   5 of the 1993 Law on the Illegality of the Communist Regime provided for the suspension of the limitation period between 1948 and 1989 where offences had not resulted in a conviction or acquittal because of underlying political motives incompatible with the fundamental principles of a democratic legal system. Similar legislation had also been enacted in Poland and in reunified Germany. With the above-mentioned law, the Czech State had been trying to remedy a problem which it considered prejudicial to its democratic regime, and distance itself from an unacceptable practice of the totalitarian regime which allowed serious violations of its own legislation to go unpunished; thus, such an approach by the Czech legislature did not seem prima facie incompatible with the values protected by the Convention. Having regard to all the above considerations, the Court considered that the applicant’s act, at the time it was committed, had constituted an offence defined with sufficient accessibility and foreseeability by Czechoslovakian law. The principle enshrined in Article 7 §   1 whereby only law could define a crime and prescribe a penalty had thus been observed. Conclusion : inadmissible (manifestly ill-founded).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes