Czech court issues remarkable sentence in case of racist attack on Romani worker

A first-instance court in the Czech Republic has handed down a verdict in the case of an assault committed against Mr Š.L. of Havířov last August. Judge Lubomíra Bínová sentenced a local youth, Martin Šmolka, to three years in prison without parole and ordered him to pay damages to the victim in the amount of CZK 100 000 (EUR 3 900). According to the court, the defendant (age 22) committed racially motivated grievous bodily harm and rioting (as per section 146, paras. 1, 2 letter e, 3; and section 358 of the Criminal Code).

The decision was made to sentence the defendant to only three years, one of the lowest possible sentences, because of his young age. He was not granted the possibility of parole because he committed the crime just after coming off of probation for a robbery charge. Prior to this incident he had been sentenced on three other separate occasions, for shoplifting, among other crimes.

The court acceded to most of the demands made by state prosecutor Roman Liška. However, in his closing arguments, he had asked for a sentence length of six years. He did not ask the court to sentence the defendant to compensate the victim for the harm caused.

The victim’s attorney-in-fact disagreed with this approach. While he supported the state prosecutor’s legal evaluation of the crime, in his closing arguments he emphasized the significance of a punishment that would consist of financial compensation, noting that previous prison sentences had not forced the young defendant to change his behavior.

The attorney-in-fact asked the court to recognize the victim’s right to compensation in the amount of roughly CZK 250 000, or 10 times the calculation of the amount owed for his pain and suffering. He also acknowledged that he had not yet managed to provide the court with a total of the amount of financial harm caused the victim in terms of lost income.

The defense attorney recognized that a physical conflict had taken place between the perpetrator and the victim. In her view, however, it had not been proven that the defendant had caused the victim serious harm. She proposed a suspended sentence for rioting only. Moreover, she objected to what she considered a factual error in the charges filed which she believes an appeals court could use to completely acquit the defendant.

Indirect grievous bodily harm

Unlike the state prosecutor, the judge did not consider it proven that the main injuries to the victim arose as a result of the defendant kicking him, as she believed they could have been caused by the victim’s fall. The victim fell after he was attacked by the defendant, backed away, and evidently tripped on a meridian in the middle of the road. If the defendant had not struck him a blow to the face, he would not have had to back into the road and the tragic fall would not have occurred. Therefore, his injuries were demonstrably indirectly caused by the defendant.

What has Šmolka been convicted of? Last August, on the busy Hlavní třída (Main Street) in the center of Havířov, he and his brother encountered a Romani man waiting at a bus station whom they vulgarly insulted and chased along the road. The defendant then struck him once in the face, but denies kicking the man in the legs, the part of the victim’s body that suffered the most injury.

Following his attorney’s advice, the defendant instructed his father to send the victim several thousand crowns on the basis of a calculation made by a district physician of the amount appropriate to compensate for the pain and suffering caused for leg injuries.

When the victim’s attorney-in-fact asked the defendant prior to the trial whether he knew what the money sent to the victim was for, Šmolka answered that he knew the money was supposed to have been "for the leg". When the attorney-in-fact asked why he wanted to pay for something he claims not to have done, the defendant said "I feel a certain share of the blame." This is a de facto admission of the fact that, at a minimum, he is co-responsible for the injuries to the victim’s legs. When asked by the attorney-in-fact, Šmolka confirmed that the victim had never caused him any harm at any time.

Eyewitnesses testified to the court that they heard someone say "You black whore" during the attack and that they witnessed the defendant fleeing the scene of the crime. A municipal police officer described to the court how he and his colleague apprehended the defendant nearby just after the crime was committed and how he continued to be extremely aggressive. The defendant was remanded into custody immediately once he was apprehended.

Precedent on financial compensation

During criminal trials in the Czech Republic, victims are usually instructed to pursue their claims for compensation through a civil proceedings. This is usually demanding, expensive, and lengthy for most people. The criminal court’s instruction to the defendant that he financially compensate the victim’s damages should therefore be considered an enormous and completely unusual success.

On the day that the court handed down its verdict, the attorney-in-fact delivered the court an updated calculation of the pain and suffering experienced by the victim as assessed by surgeons at a local clinic (220 "points", which corresponds to the amount of CZK 26 400). How, then, did the judge arrive at the amount of CZK 100 000?

The victim claimed lost wages for the fact that he had been unable to return to work because of the assault and his subsequent disability. However, he was unable to convince his employer, a subcontractor of manual labor to the Ostrava-based firm of Arcelor Mittal, to confirm his income in writing. A representative of the subcontractor told the victim’s attorney-in-fact, "If I were to sign off on such a thing, I would face jail time." The attorney-in-fact then related that communication to the court.

The judge took as the sole sufficient piece of evidence what she apparently viewed as the victim’s completely reliable testimony that at the time of the assault he had been working for CZK 90 per hour. Based on that, she calculated that the victim could have made a total of CZK 73 600 had he not suffered injury.

Both sides are deciding whether to appeal. However, the victim’s attorney-in-fact believes the defendant will eventually decide to accept the verdict as favorable. An appeals court could double his sentencing as per the state prosecutor’s motion. After all, according to the defendant’s criminal record, he is a dangerous recidivist.

Appeals to collective blame didn’t work

The father of the defendant expressed his anger to the judge after the verdict was announced, accusing her of awarding an outrageous amount of damages to the victim even though his claims to have been working at the time had not been proven. The judge answered him decisively: "If the victim, after being assaulted, had gone to a psychiatrist and said he was afraid to leave his house for fear of being attacked solely because of how he looks, and if the psychiatrist had confirmed his claim of yet another CZK 100 000 as compensation for pain and suffering, the court would have gladly recognized CZK 200 000 as compensation for damages."

The father then objected that his son had allegedly been assaulted by Romani people twice in the past and claimed the state prosecutor had never done anything about it. The judge replied: "Look, I’ve been divorced twice. Do you believe I should be allowed to beat up every man I see just because some guy hurt me once?"