Czech court hears appeals in case of racist attack against Romani man last August

Yesterday the Regional Court heard appeals from convicted offender Martin Smolko and from the Havířov District Attorney in the matter of a racist attack committed last August in Havířov. A first-instance court issued its verdict in the case in January 2013.

First-instance Judge Lubomíra Bínová had sentenced Martin Smolko, a local youth, to three years without parole in prison and ordered that he pay damages to the plaintiff in the amount of CZK 100 000. According to the court, the 22-year-old defendant committed racially motivated battery resulting in grievous bodily harm and rioting (as per Section 146, para. 1, 2 letter e, 3 and Section 358 of the Criminal Code).

The first-instance judge chose a prison sentence at the lower end of the scale because of the defendant’s youth and chose not to grant parole because he had committed this crime just after being released on parole from serving time for robbery. Prior to that he had been convicted by the courts a total of three times, for shoplifting among other things.

As far as the legal qualification was concerned, the first-instance court somewhat acceded to the recommendation of District Attorney Roman Liška that the crime was one of grievous bodily harm (as per Section 146), but the judge ruled that Smolko had only committed battery resulting in grievous bodily harm (Section 145, para. 3).

Liška appealed that verdict, saying he disagrees with a lower prison sentence when the convicted man is evidently a recidivist and committed his crime while on parole for a previous crime. Liška sought six years in prison but did not ask the court to sentence the defendant to compensating the victim for all the injuries resulting from the crime.

Smolko’s appeal asked that he be convicted of rioting only, claiming that no active assault had been proven on his part and that he had merely slapped the victim’s face. Smolko argued that it was not his fault the victim fell and injured himself while retreating.

Smolko also does not recognize the victim’s right to compensation, alleging the victim was unable to prove lost income as a result of his injuries. The first-instance court awarded compensation solely on the basis of believing the victim’s testimony to the court and to police.

What was Smolko convicted of? In August of last year he and his brother encountered a Romani man on the busy Hlavní třída in the center of Havířov who was waiting at a bus stop to go work the night shift at Arcelor Mittal in Ostrava. Martin Smolko shouted racist, vulgar curses at the man, chased him down the road and struck him once in the face, but denies kicking him in the legs, the part of the victim’s body that suffered the greatest injury.

At the advice of his attorney, the defendant instructed his father to send several thousand Czech crowns to the victim prior to the start of the trial. The amount of money was based on the calculation of a district physician of how much damages would be owed for injured legs. Smolko has indirectly admitted that this payment was for the injuries caused.

Unlike the state prosecutor, the first-instance judge in Havířov did not consider it proven that the main injuries caused to the victim had been caused by the defendant kicking him and believed they could have occurred when the victim fell. That happened when he backed into the road while being threatened by the defendant and evidently tripped against the curb of the central meridian.

If the defendant had not struck the victim in the face, he would not have had to back into the road and the tragic fall would not have occurred. The defendant, therefore, demonstrably indirectly caused the victim’s injuries at the very least.

Yesterday the appeals court agreed with the first-instance judge and upheld the three-year prison sentence, but also agreed with the District Attorney’s appeal on one count:  Instead of a minimum security prison, the court sentenced Smolko to do time in a maximum-security facility given the fact that he had already done time in a similar facility for robbery.

The appeals court also agreed with the defendant’s appeal on one point, namely, that the victim is not entitled to compensation for lost wages because he had been unable to provide an official estimate of them. Despite repeated requests, his employer, a sub-contractor to Arcelor Mittal in Ostrava, refused to issue him a confirmation of his earnings.

The appeals court ruled that the victim has the right only to the amount of CZK 26 4000 in compensation, or the amount of damages calculated by the defendant’s physician, taking into account the fact that the defendant paid roughly CZK 7 500 to the victim prior to the trial. The appeals court has instructed the victim to seek the rest of the money owed him through civil court. This verdict cannot be appealed.