SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 76576/01 
by Jaromír FEŠAR 
against the Czech Republic

The European Court of Human Rights (Second Section), sitting on 15 November 2005 as a Chamber composed of:

Mr J.-P. Costa, President
 Mr A.B. Baka
 Mr R. Türmen
 Mr K. Jungwiert
 Mr M. Ugrekhelidze
 Mrs A. Mularoni, 
 Mrs E. Fura-Sandström, judges
and Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged on 20 July 2001 and 27 September 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Jaromír Fešar, is a Czech national, who was born in 1965 and lives in Bayreuth, Germany. He is represented before the Court by Mr M. Mayer, a lawyer practising in Bayreuth.

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

1. First criminal proceedings

In a judgment of the Ostrava District Court (okresní soud) of 14 February 1996, approved by the Ostrava Regional Court (krajský soud) on 27 January 1997, the applicant was convicted of breach of the peace (výtržnictví) under section 202 of the Criminal Code (hereinafter “the CC”) and conditionally sentenced.

Within the framework of these proceedings, on 20 September 1996 the applicant challenged the District Court for bias. According to the applicant, his challenge was not recorded or dealt with by the court.

2. Second criminal proceedings

On 22 May 1996 the applicant was charged with attempted tax evasion (zkrácení daně, poplatku a podobné dávky) under sections 8 § 1, 10 § 1 b) and 148 §§ 1 and 2 c) of the CC.

On 23 May 1996 the District Court ordered the applicant’s detention on remand under section 67 b) of the Code of Criminal Procedure (hereinafter “the CCP”), with backdated effect from 22 May 1996. The court held that there was a risk that the applicant would influence witnesses and his co-accused. The applicant was remanded in Ostrava 1 Prison.

On 24 June 1996 the Regional Court upheld the detention order, stating that the applicant’s detention was necessary, inter alia, in order to confront him with his co-accused and to interview the witnesses.

On 30 October 1996 the District Court released the applicant. On an unspecified date, the Regional Court, upon the Ostrava Regional Prosecutor’s (krajský prokurátor) appeal, quashed the District Court’s decision.

On 16 January 1997 the District Court extended the applicant’s detention on remand until 27 March 1997, concluding that there still persisted a risk that the applicant would influence the witnesses.

On 6 March 1997 the District Court granted the applicant’s request of 24 February 1997 and decided to release him from custody. It found:

“After having examined the applicant’s requests, the opinions of the prosecutor and the ... investigation file, the court drew the conclusion that the reasons for [the applicant’s] detention ... ceased to exist. The accused ... is prosecuted for a single [offence], ... necessary investigative acts were carried out and, on 24 February 1997, the investigation was closed ... In the course of the investigation, nothing was found which would prove or indicate that the accused ... attempted to influence the witnesses or his co-accused or that he tried to jeopardise the discovery of facts, which were essential for the criminal investigation. Thus, there are no longer the original grounds for concern, within the meaning of section 67 b) of the [CCP], and taking into account that there are no other reasons for the detention, [the court] decided to release the accused from custody ...”

On 24 March 1997 the Regional Court, upon the Regional Prosecutor’s appeal of 12 March 1997, quashed the District Court’s decision and remanded the applicant in custody, stating:

“The Ostrava Regional Prosecutor filed a complaint against the decision of the District Court ... maintaining that the reasons for the accused’s detention under section 67 b) of the [CCP] continue to exist, having regard to the fact that there is still a risk that, if released, the accused would influence witnesses and/or the co-accused who were not yet interviewed by the court, and, in addition, the residence of one witness has not yet been established.”

On 27 March 1997 the applicant was officially charged.

On 14 April 1997 he filed a constitutional appeal (ústavní stížnost) with the Constitutional Court (Ústavní soud) against the Regional Court’s decision of 24 March 1997 claiming, inter alia, that there had been no reasons for keeping him in custody.

On 15 December 1997, 6 January, 9 February, 7 and 27 April 1998, the District Court held six hearings.

On 18 May 1998 the District Court convicted the applicant of evading taxes and sentenced him to eighteen months’ imprisonment. On the same day, the applicant was released from custody.

On 13 August 1998 the Regional Court dismissed the applicant’s appeal against the District Court’s judgment.

On 2 September 1998 the District Court approved the deduction of the applicant’s pre-trial detention from his sentence.

On 30 January 2001 the Constitutional Court found that the reasons for the applicant’s continued detention on remand, as provided for in section 67 b) of the CCP, were well-founded. It stated, however, that the Regional Court had failed to sufficiently motivate its decision of 24 March 1997 and that the applicant’s rights to a fair trial, guaranteed by Article 36 § 1 of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod), and to liberty, under Article 5 § 1 of the Convention, were violated. It therefore quashed the Regional Court’s decision.

3. Third criminal proceedings

By a judgment of the District Court of 18 August 1998, the applicant was convicted of attempted bodily harm, under sections 8 § 1 and 222 § 1 of the CC, and sentenced to two years’ imprisonment. This sentence replaced the previous prison sentence. On 7 December 1999 the Regional Court upheld the District Court’s judgment.

4. Fourth criminal proceedings

By a judgment of 20 April 2000 the District Court convicted the applicant of blackmail, under section 235 §§ 1 and 2 b) of the CC, and sentenced him to two and a half years’ imprisonment. The Regional Court upheld this judgment on 30 October 2000. This sentence replaced the applicant’s previous sentence.

COMPLAINTS

1. Invoking Article 5 § 3 of the Convention, the applicant complains that the length of his detention on remand was unreasonably long, that the national authorities did not display “special diligence” in the conduct of the proceedings, and that he should have been released pending trial.

2. He complains under Article 6 § 1 of the Convention about the length of the proceedings held before the Constitutional Court which was required to determine the lawfulness of the applicant’s continued detention.

3. The applicant further complains under Article 6 § 1 of the Convention that the first, third and fourth criminal proceedings lasted an unreasonably long time, and that his challenge for bias in the first criminal proceedings remained undecided.

4. Finally, the applicant complains under Article 3 of the Convention that the living conditions in Ostrava 1 Prison, where he was held, were inhuman.

THE LAW

1. The applicant complains about the length of his detention on remand. He considers that he should have been released pending trial and that the national authorities did not display “special diligence” in the conduct of the proceedings. He relied on Article 5 § 3 of the Convention which reads as follows:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and 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 considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of it to the respondent Government.

2. The applicant further complains of the length of the proceedings before the Constitutional Court which was required to determine the lawfulness of his continued detention.

The Court finds that this complaint falls in substance under Article 5 § 4 of the Convention which provides:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of it to the respondent Government.

3. The applicant also complains that the length of the first, third and fourth criminal proceedings was excessive and that his challenge for bias in the first set of proceedings was not dealt with. He relies on Article 6 § 1 of the Convention which, in so far as relevant, provides:

“ In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. “

The Court recalls that, pursuant to Article 35 § 1 of the Convention, it may only deal with a matter “within a period of six months from the date on which the final decision was taken”.

It observes that the first criminal proceedings were terminated by the Regional Court’s judgment of 27 January 1997, that the third criminal proceedings ended on 7 December 1999 when the appellate court upheld the first instance judgment and that the fourth criminal proceedings brought against the applicant were closed upon the Regional Court’s judgment of 30 October 2000. It follows that, having lodged his application with the Court on 27 September 2002, the applicant failed to bring before the Court the complaints concerning the length of these proceedings within six months of the date of the final judgments.

 It follows that this part of the application was lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

4. The applicant finally complains that the living conditions in Ostrava 1 prison, where he served his pre-trial detention, were inhuman. He invokes Article 3 of the Convention which provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Even assuming that the applicant could be said to have exhausted all the domestic remedies at his disposal in respect of the present issue, the Court finds that the complaint is unsubstantiated. The applicant has not submitted any details in respect of alleged torture or inhuman or degrading treatment or punishment.

It follows that this complaint must be rejected as manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the complaints concerning the length of the applicant’s continued detention and the length of the proceedings to challenge the lawfulness of the applicant’s detention;

Declares the remainder of the application inadmissible.

S. Dollé J.-P. Costa 
 Registrar President

FEŠAR v. THE CZECH REPUBLIC DECISION


FEŠAR v. THE CZECH REPUBLIC DECISION