Monitoring of necessary defense # 15 – Prague 7, 2018 [policista mimo službu dává za vyučenou opilci s pepřovým sprejem]
As in Monitoring No. 8, this is another case where both parties to the conflict in the subsequent proceedings applied the necessary defense. On one side was a man with two per mille of alcohol in his blood, who had apparently accidentally smashed a glass pint glass. On the other hand, a friend of the waitress – a member of the emergency and motorized unit of the Police, who wanted to persuade the drunk to clean up the shards.
After a few pushes, when he was pushed back about four meters, the drunken regular drew a pepper spray. Which spray in the form of mist hit both the police officer and both waitresses (losses lost the ability to perceive the further development of the incident), a police officer with a very strong physical predominance responded to this with repeated blows to the face.
Basic information for driving
- The incident took place on 4 August 2018 from 9:30 pm to 9:40 pm in the garden of a restaurant in Prague 7.
- Final decision issued on 13 January 2021:
- Judgment of the District Court in Prague 7 File no. 3 T 32 / 2019-453 of 4.2.2020 (single judge Mgr. Roman Podlešák), police officer sentenced for 18 months of imprisonment with a suspended sentence of two years’ imprisonment for criminal offenses of bodily injury and rioting (+ inter alia price 169,891, – CZK). [Dále v tomto textu policista jako “útočník“]
- Resolution of the Municipal Court in Prague file no. 8 To 159/2020 of 24.6.2020 (President of the Chamber JUDr. Vladana Woratschová), the appeal was dismissed as unfounded.
- Resolution of the Supreme Court in Brno file no. 5 Tdo 3/2021 of 13 January 2021 (Chairman of the Senate JUDr. Bc. Jiří Říha, Ph. D.), to dismiss the appeal because it was filed for an inadmissible reason.
Facts
- In the proceedings, the other versions are assessed in two fundamental ways:
- According to the defender, from the beginning, the policeman led an unreasonably very strong fist attack, which he tried unsuccessfully to defend with the use of pepper spray. Previously, he had just accidentally thrown a pint off the table.
- According to the attacker, the defender first quarreled with his acquaintances, the others deliberately broke the pint. Subsequently, he was to act aggressively towards the waitress, so he committed himself to prevent a threatening attack on the waitress. Only the men put their hand on their shoulder and politely asked him to clean up, after which there was an unexpected attack with pepper spray. Then he had to pacify the man with two blows. Because he had pepper spray in his eyes, he left.
- In addition to the actors themselves, three witnesses in particular were crucial for the assessment:
- Friend of the defender. He admitted that they had a very passionate discussion, but so far aggression on the part of the defender. He paid for the expenses and a broken pint and left. He did not see the incident itself.
- Waitress 1 – attacker’s girlfriend. He described the court as unreliable, partly because she told the arriving police officers that she did not know the attacker, she had to identify him.
- Waitress 2 – sent an SMS to the defender “I stand behind you“However, the court assessed her statement as credible, which, together with the expert opinions, became the initial version:
- The defender waved his hands during a discussion with a friend, thus breaking a pint.
- A friend paid and left.
- The defender wanted to leave, the waitress first wanted him to calm down. When she saw that he was drunk outside the picture, she resigned.
- But the assailant intervened, ordering him to calm down.
- Waitress 2 wanted to calm down the attacker, but waitress 1 told her she was a police officer, so she knew what she was doing. Waitress 2 left for a whisk and a shovel.
- The defender sent the attacker “fuck or shit“.
- The attacker pushed the defender back about four meters into the chest with two pushers into the chest, then with his shoulder (the nurse ruled out that the enemy would lead fist attacks in the face before using the spray, as the defender claimed).
- Waitress 2 stepped forward to calm the situation before she reached the men, the defender used pepper spray.
- Both waitresses were hit, they could not describe another story.
- The defender suffered “contusion of the head, bleeding of the left cheek and periocular landscape, abrasion of the left eyebrow, fragmentary fracture of the lower surfaces of the left orbit, fracture of the lateral surface of the left orbit, contusion of the left eye, fracture of three surfaces during the upper jaw on the left, arch“, Restricted in everyday life for 5 weeks.
- The attacker did not stay on the spot, the waitress told 1 police officers that it was a random customer whom she did not know.
Legal issues
The legal assessment of the cases was, in principle, determined by the court’s assessment in relation to the facts. On the contrary, it cannot be overlooked that lower courts in particular often have trouble recognizing what constitutes an attack within the meaning of the Criminal Code. Attacks of a lower intensity are often neglected by Mr. when it comes to the assessment of criminally relevant factual circumstances.
In this case, however, no such mistake was made. The District Court for Prague 7 correctly assessed the self-enforcement of the defender as an attack in the sense of the Criminal Code. Due to the underserved condition of the defender, the clear physical superiority of the attacker and the gradual gradation of his aggression, according to Judge Podlešák’s conclusions, the defender was not unreasonably expected not to escalate the attack, so the use of pepper spray was clearly not disproportionate. Judicially, due to the threat of gradation attack, he referred primarily to the conclusions of the Constitutional Court resolved in the case described in Part 6 of the monitoring regarding the risk of ineffectiveness of the defense in the event of excessive delay.
The judgment of the court of first instance is interesting especially with regard to the detailed factual and legal assessment, including the assessment of the conditions of necessary defense. In the practice of the district courts, this is an extremely well-crafted judgment in terms of assessing the necessary defense.
From a legal point of view, therefore, the assessment was crucial:
Legal sentence
Thus, it was not possible to justly demand that the injured party be “surprised” by how the defendant would continue to behave – ie whether he would be satisfied with being pushed out of the corner of the restaurant, or whether his violence would increase further. The injured party was thus not obliged to wait until, after the aggressive actions of the accused who had already attacked him, the situation developed further, with unsubstantiated hope and a vision that, despite his speeches, there would be no further physical attack. It would be a disproportionate requirement for the injured party as a defender to deal with the defense until it is absolutely clear that the threat of another attack, evidently legible in the defendant’s previous conduct, has already grown into another direct attack. It is therefore acceptable that he did not want to obtain the defendant’s equipment so that its initial surprise and possibly partial disorientation caused by the influence of alcohol could continue to attack, and therefore he must pepper spray. (OSP7 3 T 32/2019)
Practical commentary
Police and repeat offenders are fleeing, even though they are right
Although it finally worked out for him, at the end of the incident with his escape from the crime scene, he kept the police quite logical. From his point of view, it was a banal skirmish in a pub. They don’t pay much attention to his colleagues in the normal course of things. Instead of risking an uncertain outcome in the judiciary, he bet that there were a few conflicting submissions in the case, and everything would then be postponed as a potential misdemeanor dealing with an unknown perpetrator.
For naive people, leaving the scene of an incident can be a de facto confession. On the other hand, in the case of persons familiar with criminal proceedings, whether police officers or repeat offenders, this is not an exceptional procedure, even if they are perfectly lawful.
Unfortunately for the police officer, however, the combination of the extent of the victim’s injuries (at first the case looked like severe injuries, ie 3-10 years in prison), and the mention of his affiliation with the police, which fell from waitress 1 to waitress 2 during the incident, to a “serious” investigation.
Here, on the other hand, leaving the places specifically harmed him, and the subsequent attempt by her girlfriend to deny her essentially put their green facts on the sidelines.
Defense necessary defense and absence of regret
In my practice, I have already advised several people not to try to defend the necessary defense in a situation where no evidence situation proves it, or if there was an obvious excess of the necessary defense.
Defending the necessary defense in most situations means the absence of remorse. On the one hand, this closes the possibility of terminating cases within the framework of diversion (eg Settlement, conditional cessation of criminal prosecution). Above all, however, the expression of effective remorse represents a mitigating circumstance in the sense of § 41 letter o) of the Criminal Code, which the courts usually place very strong emphasis on when deciding on the amount of the sentence.
It was no different in this case.
Damage compensation
It is also worth noting that out of a total of 13 pages of the judgment, the court of first instance assessed the entire four parties to assess the right to compensation.
The court awarded a total of CZK 134,891 for compensation for pain and CZK 35,000 for suffering mental suffering.
Intense excess
In conclusion, in view of the intense excess, it is essential not to forget the very obvious physical superiority of the police. The approach of courts of all levels to the use of spray during periods of circumstances (intense attack on physical integrity) cannot therefore be generalized on the basis of this case. This is especially important for the more able readers.
More articles on the topic can be found at portal necessary defense.