HW Legal
Many criminal offences are not reported because the injured party believes that, in a situation of “assertion against assertion”, the Police will take no action. But what is the position in reality? Can the Police of the Czech Republic really dismiss a case on the grounds that an isolated allegation is not supported by other evidence?
This typically concerns the criminal offence of rape. Rape often occurs together with so-called domestic violence, namely the abuse of a person living in a shared household. These criminal offences are usually difficult to prove, as they take place “behind closed doors”. As a result, the victim often reports the offence to the Police without submitting any additional evidence.
Many victims of these offences fear that the Police will not believe their testimony, or will even trivialise the entire matter — and dismiss the case. But what is the actual legal position?
The Police cannot simply state that the case is one of “assertion against assertion” and dismiss the matter. If the injured party, as the reporting person, raises an “arguable claim”, the State, acting through the Police of the Czech Republic, has a duty to conduct an effective investigation.
What is an arguable claim?
An arguable claim is an allegation made by a potential victim that is sufficiently specific, consistent over time, possible in terms of time and place, probable, and credible. In other words, the account must make sense, and the alleged act must realistically have been capable of occurring. The victim is not required to submit evidence in support of such a claim.
What is an effective investigation?
The Police must carry out a thorough and sufficient examination of arguable claims. They must establish the facts of the case to the greatest extent possible and secure all available evidence for that purpose. This evidence must be assessed with particular care. The victim’s testimony must not be taken lightly.
Tip: Did you know that if you have reported the criminal offence of rape or abuse, you have the right to an effective investigation? If the Police have dismissed your case without sufficient reasoning, you may challenge that decision. The injured party may file a complaint against the resolution dismissing the case within three days of receiving the resolution. It is also possible to request a review of the actions of the police authority or the public prosecutor. Finally, a constitutional complaint may also be filed.
A Recent Judgment of the Constitutional Court
The Constitutional Court recently intervened in a case in which the injured party had been subjected to long-term domestic violence by her partner. The domestic violence allegedly included rape. The injured party reported the matter to the Police of the Czech Republic, but the Police dismissed the case, referring to a lack of evidence — typically treating it as a situation of “assertion against assertion”. A subsequent review by the public prosecutor’s office did not lead to any change.
Only the Constitutional Court upheld the injured party’s position and emphasised an important principle: where a victim presents an arguable claim, meaning a specific, credible, and realistically possible allegation, the State is under a duty to ensure an effective investigation. Law enforcement authorities cannot simply dismiss the matter for “lack of evidence”; rather, they must actively establish the facts, supplement the evidence, and provide clear and persuasive reasoning for their conclusions.
What evidence could the Police have secured? In the specific judgment, the Constitutional Court mentions, for example, an expert assessment of the injured party or the suspect. Based on our own practice, we add that rape and domestic violence are often proven through further indirect evidence, such as witness statements from persons to whom the victim confided or who observed changes in the victim’s behaviour; electronic communication between the victim and the perpetrator or acquaintances in which the criminal conduct is mentioned; medical reports concerning accompanying injuries; and similar evidence.
Victims have the right to a thorough and effective investigation, not merely a formal examination of the matter. If State authorities fail to respect this right, it is possible to defend oneself — ultimately even by filing a constitutional complaint with the Constitutional Court. This judgment of the Constitutional Court sends a clear message to all injured parties: even in cases of “assertion against assertion”, where you have not gathered a large amount of evidence of the criminal offence, it makes sense to defend yourself and insist on your rights.
Our law firm provides legal assistance to injured parties, as well as criminal defence representation. Please do not hesitate to contact us — we will be happy to discuss your options and the next steps with you.