FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 67431/01 
by Mikuláš ČERNÁK 
against Slovakia

The European Court of Human Rights (Fourth Section), sitting on 1 March 2005 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr G. Bonello
 Mr K. Traja
 Mr S. Pavlovschi
 Mr L. Garlicki
 Ms L. Mijović, 
 Mr J. Šikuta, judges
and Mr M. O'Boyle, Section Registrar,

Having regard to the above application lodged on 12 January 2001,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Mikuláš Černák, is a Slovakian national who was born in 1966. He normally lives in Brezno but is currently serving a prison sentence in Ilava. The applicant was represented before the Court by Mr F. Hadušovský, a lawyer practising in Rožňava.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1.  Criminal proceedings against the applicant

In December 1997 the applicant was detained on remand (väzba). He was charged with conspiracy, extortion, tax fraud, kidnapping and murder.

Under Article 71 § 2 of the Code of Criminal Procedure, as applicable at that time, the duration of detention could not exceed two years. In exceptional circumstances the Supreme Court (Najvyšší súd) could authorise an extension of the two years' time-limit by up to an additional year. The total duration in any event could not exceed three years.

In December 1999 the Supreme Court authorised an extension of the applicant's detention until 30 September 2000.

On 28 January 2000 the Banská Bystrica Regional Court (Krajský súd) found the applicant guilty of extortion, kidnapping and murder and sentenced him to fifteen years in prison. The prosecution and the applicant appealed to the Supreme Court.

On 10 August 2000 the Supreme Court authorised a further extension of the applicant's detention until 19 December 2000.

On 7 November 2000 amendment no. 366/2000 Coll. to the Code of Criminal Procedure entered into effect. It inter alia introduced an amendment to Article 71 § 2 to the effect that in exceptional circumstances the Supreme Court could extend the duration of detention as necessary up to a maximum of five years. If the case was already before a court, it was the President of that court's Chamber who was to request the extended detention.

On 23 November 2000 judge K. of the Supreme Court who was the President of the Chamber dealing with the parties' appeals applied under amendment no. 366/2000 Coll. for an extension of the applicant's detention until 19 June 2001 and the Supreme Court agreed to it on 28 November 2000. The decision was signed by judge K.

On 15 January 2001 one of the applicant's co-accused challenged judge K. on grounds of bias on the ground that he had made statements about the case to the mass media. The co-accused also argued that judge K. had both requested the extension of his detention under amendment no. 366/2000 Coll. and participated in the determination of the request. The co-accused finally challenged another judge of the Supreme Court Chamber for bias on the ground that he had previously participated in the determination of his requests for release from detention.

In a letter of 18 January 2001 the President of a different Chamber of the Supreme Court informed the applicant's co-accused that under Article 31 § 6 of the Code of Criminal Procedure a challenge on grounds of bias could not be dealt with unless it had been raised without undue delay pursuant to Article 30 § 4 of that Code. The President expressed the view that the challenges of 15 January 2001 had not been so raised and therefore could not be entertained.

On 7 February 2001 the Supreme Court Chamber presided over by judge K. upheld in substance the conviction for extortion and reduced the sentence to eight and a half years' imprisonment. The Supreme Court further quashed the remainder of the judgment of 28 January 2000 and remitted the applicant's outstanding charges to the Regional Court for a new determination.

On 5 October 2001 the Regional Court found the applicant guilty of tax fraud and ruled that in view of the sentence for extortion a further penalty was not required. The Regional Court acquitted the applicant of the charges of kidnapping and murder.

On 23 April 2002, on appeal by the prosecution, the Supreme Court modified the conviction of 5 October 2001 in that it found the applicant guilty of tax fraud and customs fraud. It too however considered that there was no need to increase the applicant's sentence. The Supreme Court finally upheld the acquittals in respect of the alleged kidnapping and murder.

The Prosecutor General challenged the judgment of 23 April 2002 by an extraordinary remedy, a complaint in the interest of law (sťažnosť pre porušenie zákona), which the Supreme Court dismissed on 26 November 2002.

2.  Other facts and alleged interference with the applicant's right to be presumed innocent

On an unspecified date a weekly magazine published an article suggesting that in November 1997 the minister of the interior had referred to the applicant as the “boss of the criminal underground”.

On 27 January 2000 a daily newspaper published an interview with a high official of the Ministry of Justice which was headed “[The applicant], if found guilty, should receive a life sentence”. In this interview the official expressed his views as regards the manner in which the prosecution had handled the case, the seriousness of the offences of which the applicant had been accused and an adequate punishment in respect of them.

On an unspecified date a weekly magazine published an interview with the President of the Regional Court's Chamber which had delivered the judgment of 28 January 2000 in which he described the proceedings, the judgment and expressed his views on the case in a broader context.

Without providing any further details the applicant alleges that judge K. had made public comments on the case.

Several daily newspapers reported that in September 2000 the Prime Minister had said that “[The applicant] will really not be released from jail”. He was further said to have added that the police also had strategies in place in the event that the [applicant's] conviction did not become final and binding.

In November 2000 several newspapers published articles implying that amendment no. 366/2000 Coll. had been passed at an unusually rapid pace, that the legislative procedure had been flawed by irregularities and that the amendment had the specific aim of preventing the applicant's release on expiry of the three years' maximum duration of detention.

In an interview published on 4 November 2000 the same official of the Ministry of Justice stated that: “...Every amendment and legislative act has its purpose. The suspicion of highly dangerous crimes of which [the applicant] is accused justifies such a radical legal intervention...”

COMPLAINTS

1.  The applicant complained under Article 5 § 3 of the Convention that his detention on remand was unwarranted and too lengthy and especially that amendment no. 366/2000 Coll. had been arbitrarily enacted for the sole purpose of enabling the extension of detention in his very case. The applicant further objected that the extension of his detention under this amendment had been requested by judge K, the President of the Chamber of the Supreme Court which had then determined the request.

2.  Relying on paragraphs 1, 2 and 3 of Article 6 the Convention the applicant further complained:

(a)  that his proceedings had been conducted in an arbitrary fashion;

(b)  that there had been an inappropriate interference with his proceedings in that various public figures had been improperly expressing in public their views of the case and, often shortly before major procedural events, they had been pressing for his most severe treatment;

(c)  that the appellate proceedings had been conducted before the same Chamber of the Supreme Court which at earlier stages of the proceedings had been involved in matters concerning his detention and that this Chamber included judge K. who had been improperly commenting on the case outside the courtroom;

(d)  that there had been numerous violations of his right to be presumed innocent by the above public officials including the President of the Regional Court Chamber who had commented on the case prior to its final conclusion.

3.  The applicant finally complains under Article 7 of the Convention that amendment no. 366/2000 Coll. had been applied with retrospective effect to his detention notwithstanding the fact that the detention had commenced prior to that amendment's entry into force.

THE LAW

1.  The applicant complained that his detention had been arbitrary and that in particular as a result of the application of amendment no. 366/2000 Coll. he had not had a trial within a reasonable time contrary to Article 5 § 3 of the Convention which, in so far as relevant, provides as follows:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

The Court reiterates that Article 5 § 3 applies to detention prior to “the day on which the charge is determined, even if only by a court of first instance” (see, among other authorities, Wemhoff v. Germany, judgment of 27 June 1968, Series A no. 7, pp. 23-24, § 9). The applicant's detention pending trial for the purposes of Article 5 § 3 of the Convention therefore ended on 28 January 2000 when he was convicted and sentenced by the Banská Bystrica Regional Court. The application was however introduced only in January 2001.

It follows that, in so far as substantiated, this part of the application is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

2.  The applicant further complained that he had not had a fair hearing before an impartial tribunal and that his right to be presumed innocent had been violated contrary to Article 6 of the Convention which, in so far as relevant, stipulates that:

“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by ... impartial tribunal...

2.  Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3.  Everyone charged with a criminal offence has the following minimum rights:

(a)  to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b)  to have adequate time and facilities for the preparation of his defence;

(c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e)  to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”

(a)  To the extent the applicant's complaints under Article 6 §§ 1 and 3 of the Convention of the unfairness of his proceedings, of their arbitrary course and of the inappropriate external interference with them have been substantiated, the Court finds no appearance of a violation of the applicant's rights protected under the said provisions of the Convention.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

(b)  As to the complaint of the lack of impartiality of judge K. on account of his alleged public utterances, the Court observes that this part of the application is wholly unsubstantiated.

As to the applicant's remaining objections under this head, the Court observes first of all that he has not shown that he has exhausted domestic remedies as required by Article 35 §1 of the Convention by means of a challenge on grounds of bias in accordance with the applicable procedural requirements (see Akdivar v. Turkey [GC], no. 21893/93, § 67, ECHR 1996-IV).

The Court further considers that, in any event, the specific complaint of the lack of impartiality of the Supreme Court judges who at earlier stages of the proceedings participated in determining matters concerning the applicant's detention is inadmissible for the following reasons.

The Court reiterates that the mere fact that a trial judge has made decisions on detention on remand cannot be held as in itself justifying fears that he is not impartial. Normally the questions which the judge has to answer when deciding on detention on remand are not the same as those which are decisive for his final judgment (see, among other authorities, Lutz v. Germany, judgment of 25 August 1987, Series A no. 123, pp. 25-26, § 62). Only special circumstances may in a given case be such as to warrant a different conclusion (see Hauschildt v. Denmark, judgment of 24 May 1989, Series A no. 154, p. 22, § 51).

However, the Court has found no indication of such special circumstances in the present case.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

(c)  As regards the complaint of the violation of the applicant's right to be presumed innocent, the Court observes that, in so far as they have been substantiated, out of the contested statements only those of the Prime Minister of September 2000 and of the official of the Ministry of Justice of November 2000 fall within the six months' time-limit prescribed by Article 35 § 1 of the Convention.

The Court observes that these statements were made with reference to the applicant's detention and the enactment of amendment no. 366/2000 Coll. and that they contained neither express nor implied allegations that the applicant was guilty of any criminal offence.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3.  The applicant complained that the enactment and application of amendment no. 366/2000 Coll. had violated his rights guaranteed by Article 7 of the Convention which, in so far as relevant, reads as follows:

“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

The Court observes that amendment no. 366/2000 Coll. had an impact on the applicant's detention which was a procedural measure. Its application to the applicant's case in no way included a finding of guilt of any criminal offence within the meaning of Article 7 of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O'Boyle Nicolas Bratza 
 Registrar President

ČERNÁK v. SLOVAKIA DECISION


ČERNÁK v. SLOVAKIA DECISION