Prague, 19 January – Citizens who were injured by Czechoslovak border guards while trying to escape through the Iron Curtain are entitled to extraordinary financial compensation, the Czech Constitutional Court announced today. This is another landmark and precedent-setting case in the Justice 2.0 project, which reverses the previous practice of courts awarding minimum compensation.
“The circumstances under which the damage to health occurred must be regarded as genuinely exceptional (compared with an accident at work or an occupational disease) and the amount of compensation should reflect this.” said Judge Rapporteur Vojtěch Šimíček in the decision.
The Constitutional Court upheld the constitutional complaint of Thomas Bartsch, former East German refugee, and annulled the judgments of the Municipal Court in Prague and the District Court for Prague 2 of May 2022. The decisions violated the complainant’s right to judicial protection under the Charter of Fundamental Rights and Freedoms and the right to a fair trial under the Convention for the Protection of Human Rights and Fundamental Freedoms.
Mr Bartsch claimed compensation for personal injuries in the amount of CZK 476 250 in connection with his arrest on 21 July 1989, when, as a citizen of the former German Democratic Republic, he was shot while attempting to cross the border from the Czechoslovak Republic into the Federal Republic of Germany by Czechoslovak border guards.
In 2019, a court in Domažlice rehabilitated Mr Bartsch in relation to the unlawful restriction of personal liberty, detention and shooting while attempting to cross the state border. Following this, the respondent granted the complainant the sum of CZK 1 027. It did not grant the complainant’s claim for compensation for personal injury on the ground that it had not been properly quantified or substantiated. Mr Bartsch therefore commissioned an expert report and applied to the ordinary courts. By judgment of 9 May 2022, the District Court for Prague 2 awarded the complainant the sum of CZK 5 500 and ordered Mr Bartsch to pay the defendant’s costs of CZK 1 200.
The Constitutional Court upheld Mr Bartsch complaint. It recalled that the freedom of movement (and residence) belongs to the group of natural human rights, which should be interfered with by public authorities only in the most necessary cases. It is one of the prerequisites for the freedom of action of man as a creative and thinking being.
However, during the period of totalitarianism from February 1948 to January 1990, the State used the crime of leaving the Republic to commit the most flagrant violations of legality. The prosecution of this offence had a distinctly political character. The applicant had been deprived of his personal liberty and had been shot while attempting to cross the then State border, which was precisely what the State authorities of the time saw as the fulfilment of the attempted offence of leaving the Republic. The applicant was subsequently rehabilitated with all the attendant consequences, including the possibility of compensation, thus effectively recognising that there had been an interference with the applicant’s freedom of movement.