A decision of the European Court of Human Rights can lead to a retrial before the Constitutional Court as well. The case of A. B., a victim of sexual violence who did not succeed before the Czech authorities, shows how the intervention of the international court opened the way to a re-evaluation of the constitutional complaint. The Constitutional Court subsequently acknowledged the seriousness of the errors made by law enforcement and criminal justice and reopened the case.

Retrial before the Constitutional Court

The extraordinary remedy of retrial can also be used before the Constitutional Court. These are situations in which the Constitutional Court decides a case, and a later review by an international court finds that a fundamental human right or freedom was violated. A participant in the proceedings in whose favor the international court decided may file a petition to retrial before the Constitutional Court. The Constitutional Court previously interpreted this standing requirement restrictively in the case Heglas v the Czech Republic (Pl. ÚS 11/07). It considers as having standing only the specific participant in the proceedings before the Constitutional Court who also filed the complaint with the European Court of Human Rights and in whose favor that court decided. According to that decision of the Constitutional Court, a petition cannot be filed by a person against whom the domestic proceedings were conducted jointly if that person did not file the international complaint.

Together with the petition for retrial, it is possible to submit a petition to annul a law or other legal regulation that led to the violation of a human right or fundamental freedom. Retrial is not possible if the consequences of the violation no longer persist, if redress has been provided and just satisfaction awarded. However, the Constitutional Court will not dismiss the petition if the matter is in the public interest and that interest substantially outweighs the interest of the petitioner.

The case of A. B. who became a victim of sexual conduct

While studying at secondary school, A. B.[1] became a victim of sexual conduct by a priest who touched her inappropriately when she was only seventeen. Later, when A. B. began studying at a faculty of theology in Prague, she met a lecturer, also a priest, who became the supervisor of her thesis. Over time, the lecturer gained her trust and A. B. confided in him about the traumatic memories of the touching during her secondary school years. The lecturer offered to help, but it later turned out that this help consisted of exposing and touching A. B.’s body. He repeatedly visited her under the pretext of spiritual conversation and demanded sexual intercourse, during which A. B. felt paralyzed. She managed to cut off contact with the lecturer only after completing her studies. This experience led to serious health problems, including post-traumatic stress disorder and secondary depression.

Failure before the criminal justice authorities

Criminal proceedings were initiated against the priest lecturer in a different matter than A. B.’s case. In that other matter, the priest had allegedly committed sexual abuse, but the prosecution was time-barred. In the course of those proceedings, A. B. was also questioned. Based on the information provided, law enforcement and criminal justice  initiated in November 2019 another set of proceedings concerning A. B.’s case. In June of the following year, the police filed and disposed of A. B.’s case on the grounds that the suspect’s conduct bore the features of the offence of sexual coercion under the Criminal Code, but the acts occurred before that legislation took effect. Therefore, the criminality of the act had to be assessed under the previous Criminal Code, and the elements of the offence were not fulfilled under that earlier statute. A. B. disagreed, considered the decision premature, and decided to turn to the Constitutional Court.

Proceedings before the Constitutional Court

A. B. filed a constitutional complaint against the decision, arguing that the law enforcement and criminal justice erred and infringed her right to personal inviolability, the prohibition of inhuman and degrading treatment, and the right to privacy. In her view, the authorities failed to address her arguments and did not sufficiently establish the facts. The public prosecutor’s office and the reviewing prosecutor’s office dealt with her case only formally and fully accepted the police conclusions. A. B. considered the conduct of the authorities insufficient and also unreviewable.

In May 2021 the Constitutional Court dismissed A. B.’s complaint as manifestly ill-founded. In its reasoning, the Constitutional Court stated that there had been no interference with constitutionally guaranteed rights. The Court stressed that it is not a further instance of the ordinary judiciary and does not reassess findings of fact unless there is a serious error. In its view, the authorities acted in accordance with the law in force at the time, and he did not find their conclusions  arbitrary.

Proceedings before the European Court of Human Rights

After failing before the Czech authorities, A. B. used her last option and turned to the European Court of Human Rights. In her complaint, she argued that the Czech Republic had violated her rights under Articles 3 and 8 of the Convention[2], particularly by failing in its positive obligation to conduct an effective investigation following the report of sexual violence. The European Court criticized the overly restrictive interpretation, even of the old legal framework, adopted by the domestic authorities. The Court upheld her complaint and found that the state had breached its positive obligation to criminalize and effectively prosecute all non-consensual sexual acts. The state has had this obligation at least since 2003, when the Court delivered its judgment in M. C. v Bulgaria. The Court awarded A. B. compensation for non-pecuniary damage as well as reimbursement of the costs of the proceedings.

Retrial  before the Constitutional Court

After the European Court delivered its judgment, A. B. filed a petition to retrial before the Constitutional Court. The Court first examined whether the conditions for initiating retrial were met under Sections 119 and following of the Constitutional Court Act. It found that the petitioner had been a participant in the original proceedings and that the international court had decided in her favor, which satisfied the standing requirement. The Court then examined whether the consequences of the violation persisted or whether redress and just satisfaction had already remedied them. It concluded that the violation had not been fully compensated, not even by the award of a relatively large amount as damages. Retrial was therefore in order.

In the proceedings about the possibility of retrial, the Constitutional Court annulled its original decision and stated that on the basis of the reopened case the original constitutional complaint would be heard again. Judge Tomáš Langášek issued a dissenting opinion, disagreeing with retrial before the Constitutional Court. In his view, the Court decided contrary to settled case law of the European Court, according to which retrial in this situation is inadmissible. He argued that the consequences of the state’s failings, in particular those of the law enforcement and criminal justice, had been sufficiently compensated both by the award of just satisfaction and by the state’s fulfillment of its positive obligation to adopt appropriate criminal legislation. The condition laid down in Section 119a of the Constitutional Court Act was therefore not met.

Conclusion

The case of A. B. is a significant example of the interconnection between domestic and international protection of human rights. It shows that the intervention of an international judicial body, in this instance the European Court of Human Rights, can lead to redress at the constitutional level through reopening proceedings. This extraordinary remedy thus becomes a tool to correct domestic failures in protecting fundamental rights. At the same time, the case demonstrates that the path to justice is often exceptionally demanding for victims - not only in terms of time but above all psychologically. In cases of sexual violence, there is the added sensitivity of the matter, which can lead to secondary victimization and a real hindrance to access to legal protection. The case of A. B. therefore shows not only the possibilities of the legal system but also its limits, and the need for it to be more accommodating and sensitive to victims of sexual violence and thus truly effective.

Translated by Alexandra Eštoková and Kryštof Urban.

 

Notes

[1] This is a pseudonym.

[2] Article 3 provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. Article 8 guarantees the right to respect for private and family life, the home, and correspondence.

 

Sources

Sections 119 to 119b of Act No. 182/1993 Coll., on the Constitutional Court.

Resolution of the Constitutional Court dated September 4, 2007, file no. Pl. ÚS 11/07. Available at: https://nalus.usoud.cz/Search/GetText.aspx?sz=Pl-11-07 .

Resolution of the Constitutional Court dated May 15, 2021, file no. I. ÚS 3363/20 #1. Available at: https://www.mezisoudy.cz/databaze-judikatury/detail-rozhodnuti/8e632824-92a8-11ee-b597-2cea7f51f963_i-us-3363-20-1.

Resolution of the Constitutional Court dated May 7, 2025, file no. Pl. ÚS 2/25 #2 - Retrial after an ECtHR judgment in Z. v the Czech Republic. Available at: https://nalus.usoud.cz/Search/GetText.aspx?sz=Pl-2-25 .

European Convention for the Protection of Human Rights and Fundamental Freedoms. Available at: https://www.echr.coe.int/documents/d/echr/convention_ces.

Judgment of the European Court of Human Rights dated June 20, 2024, application no. 37782/21 - Z. v the Czech Republic. Available at: https://www.mezisoudy.cz/databaze-judikatury/detail-rozhodnuti/3d1823d9-2f61-11ef-96f7-005056b43026_z

Judgment of the European Court of Human Rights dated December 4, 2003, application no. 39272/98 - M. C. v. Bulgaria. Available at: https://hudoc.echr.coe.int/eng?i=001-61521