Headnotes:
I. Although it is only the court that can legitimise by its decision the sanction associated with the guilt of the perpetrator of the crime, it is not contrary to the constitutional order if a criminal case concerning the so-called defensible allegations of the victims is postponed by the prosecuting authority. From a constitutional point of view, only the reasons why the criminal proceedings are not continued in accordance with the alleged rights of the victims are relevant, not the nature of the authority that has the power to do so under the law.
II. The constitutional order implies a duty of the state to punish and effectively combat all types of non-consensual sexual conduct that significantly affects the physical or mental integrity of the victim, including the conduct that the victim has not physically resisted. Section 185 of the Criminal Code must also be interpreted in this light.
III. In terms of protecting the rights of victims, the constitutional order prohibits law enforcement authorities from interpreting the conditions of criminal liability for serious human rights violations in an excessively narrow manner in favour of alleged perpetrators. At the same time, the criminal liability of the perpetrator cannot be made conditional on facts that are not mentioned in the Criminal Code or in other legislation.
Summary:
I. The Constitutional Court considered the constitutional complaint of five victims of sexual conduct without consent. There was a dispute between the complainants and the criminal prosecution authorities as to whether the suspect's conduct fulfilled the elements of rape under the Section 185 of the Criminal Code.
The challenged decisions are related to criminal proceedings against a former councillor and Member of Parliament of the Czech Republic on suspicion of having attempted to rape at least nine women between 2015 and 2020. The criminal proceedings were initiated after information about the suspect's behaviour and the statements of the alleged victims were published by several media outlets. After investigating the matter, the police initiated criminal proceedings against the suspect for three sub-acts involving other victims, which were intended to fulfil all the elements of the offence of rape. The courts eventually convicted the suspect of these offences.
The police authority decided to exclude the case of the five complainants from the large criminal case for separate proceedings. Eventually, the police dropped the case. Even though the suspect´s conduct was found sexually predatory, it did not, by its intensity, execution, or other circumstances, fulfil the statutory elements of any criminal offence (even rape), even at the stage of the attempt. The District Public Prosecutor's Office dismissed the complaint against the order of the police authority. The Municipal Public Prosecutor's Office also dismissed the complainants' complaint.
II. The Constitutional Court has emphasized that the state is obliged to punish and combat all types of sexual conduct without consent, even those to which the victim has not physically resisted. At the same time, it is not permissible for the criminal prosecution authorities to interpret the conditions of criminal liability for serious human rights violations in an excessively narrow manner in favour of alleged perpetrators. Victims of crime have the right to an effective investigation if they make a 'defensible allegation' (i.e. an allegation which by its content suggests that a crime has been committed).
In the case of the fourth complainant, the Constitutional Court found the constitutional complaint to be well-founded. The Court proceeded from the fact that during the consensual sexual intercourse between the fourth complainant and the suspect, the suspect removed the condom without the knowledge of the complainant and, although she expressly disagreed, performed intercourse on her. The Constitutional Court rejected the opinion of the criminal prosecution authorities, according to which the suspect had not fulfilled the elements of the criminal offence by removing the condom without the complainant´s consent. The Court found such a conclusion to be categorical and unjustified and found no reason why consent to a certain sexual activity (sexual intercourse with use of a condom) should exclude the criminal liability of the perpetrator who forces the victim (by using violence or taking advantage of his defencelessness) to engage in a substantially different sexual activity (sexual intercourse without use of a condom).
The Constitutional Court further reproached the criminal prosecuting authorities for leaving the complainant´s allegations considerably vague. The authorities did not further interrogate the complainant and did not investigate any details regarding alleged sexual violence; they also did not properly record her statements and made no attempt to secure the relevant evidence (obtain a record of electronic communication, in which the complainant confronted the suspect about his behaviour and demanded an apology, and interview the suspect´s partner at the time, who should have known about the suspect´s conduct). For these reasons the description of the act (sexual intercourse in question) provided by the criminal prosecuting authorities remained completely vague and it was not possible to form a clear picture of the course of the act.
For these reasons the Constitutional Court found a violation of the fourth complainant´s right to an effective investigation arising from Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 36 (1) of the Charter of Fundamental Rights and Freedoms and annulled the relevant part of the challenged decision of the District Public Prosecutor´s Office as well as the decision of the Municipal Public Prosecutor´s Office. In the remaining part (concerning the other complainants), the Constitutional Court rejected the constitutional complaint.
III. The Justice Rapporteur was J. Svatoň. None of the Justices dissented.