DOMINKA v. SLOVAKIA
Inadmissible
Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Pere Pastor Vilanova
1. The applicant, Mr Peter Dominka, is a Slovak national who was born in 1988. At the time he lodged his application he was serving a sentence in Leopoldov Prison. He was represented before the Court by Mr P. Gračík, a lawyer practising in Nitra. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On the evening of 21 February 2009, while walking home together from the centre of the city of Nitra, two individuals, A and B, were assaulted by C and another person. The assailants pepper-sprayed A and B and unsuccessfully attempted to rob them. 4. On 12 June 2009 C was taken to an investigator for questioning. After he had been charged, the investigator questioned him again on 13 June 2009 while a remand judge examined him on 15 June 2009. 5. In the questionings of 13 and 15 June 2009 C was assisted by a lawyer. He confessed in all three of the questionings that he himself had attempted to rob B while the applicant had allegedly assaulted A. 6. C stated on the record each time he was questioned that he had not been subjected to any form of physical or psychological pressure by the authorities. The records of the questionings contain no mention of the influence of any drugs or any discussion on that matter. However, neither the applicant nor anybody on his behalf was present. 7. Following C’s allegations the police searched for the applicant on four occasions between 12 and 17 June 2009 but were unable to find him. 8. In a further questioning on 25 June 2009, C changed his account of events and denied any involvement in the incident by him or the applicant. He submitted that during his arrest on 12 June 2009 police officers had presented him with an account of the incident of 21 February 2009 that had stated that he and the applicant had been involved and that they had made his release dependant on his acceptance of that version of events. As he had wished to go home, he had simply responded by agreeing to it. The questioning of 25 June 2009 took place in the presence of C’s lawyer and a lawyer for the applicant, who had been charged in connection with the assault in the meantime. 9. In response to these allegations, on 26 June 2009 another investigator questioned two arresting officers and the investigator who had had contact with C on 12 and 13 June 2009. C’s lawyer was present, although the applicant’s was not, despite having been duly summoned. The arresting officers and the investigator denied putting any physical or psychological pressure on C, leading him in any other way to present any particular version of the events, or witnessing the use of any such pressure or influence. 10. Meanwhile, on 12 June 2009, the applicant himself had been charged with robbery in connection with the incident of 21 February 2009 and with another, unrelated offence. However, the charge sheet was served on him only on 22 June 2009 when he was arrested during a road traffic control. 11. On 30 June 2009 a face-to-face confrontation was carried out between C and a certain D, who stated that C had previously confessed to him that he had committed the attempted robbery of 21 February 2009 together with the applicant. C’s defence counsel was present at the confrontation while neither the applicant nor his counsel were, although the latter had been properly requested to attend. 12. On 25 August 2009 the applicant was indicted to stand trial on the charges along with C, who faced a charge of robbery in the same proceedings. 13. On 11 May 2010 the District Court found the applicant and C guilty and imposed prison sentences on them. The applicant was sentenced to ten years and four months’ imprisonment. The court observed that the applicant had at all times denied any involvement in the robbery, while C had denied his involvement from 25 June 2009 onwards. As for C, in particular, the court noted that he had maintained his allegation of police coercion into making his initial confession. In addition, he had stated that he had been intoxicated while making the confession and that he had confirmed the confession later as he had been concerned about changing his original statement. However, having heard the officers involved in C’s arrest, the court found that the allegation of coercion had not been confirmed. It did not find C’s changed version credible as his participation in the robbery had been proven by his statements of 12, 13 and 15 June 2009 and by B and D. As regards the applicant, the District Court noted that neither A nor B had identified him. However, he had been incriminated by the early statements of C and by D, as mentioned above. 14. The applicant challenged the judgment of 11 May 2010 by way of an appeal to the Nitra Regional Court. He argued that his conviction had been based on C’s initial statements, that those statements had been unlawful as evidence and that his conviction had accordingly been arbitrary. However, the District Court had completely ignored his arguments on that point. In particular, the applicant referred to a position taken by the criminal law bench of the Supreme Court (no. Tpj 63/2009 of 7 December 2009) that if witness evidence was the only or decisive incriminating evidence, the witness had to be heard or, as the case may be, re-heard after the accused had been charged in order to safeguard the accused’s rights of defence and to adversarial proceedings. He argued that, although formally speaking C was his co-accused and not a witness, mutatis mutandis, the precedent fully applied to his case. Accordingly, C’s initial statements had not been admissible as evidence and the only admissible submissions he had made about the applicant had been those of 25 June 2009 and afterwards. 15. The prosecution also appealed, alleging that the first-instance court had erred in the determination of the applicant’s sentence. 16. On 31 August 2010 the Regional Court decided on the appeals by increasing the applicant’s sentence to eleven years and seven months. It held that C’s early statements were not excluded as evidence because two of them had been made in the presence of his lawyer and that one of those two had actually been made before a judge, which meant any coercion was excluded. The Regional Court also found that the statements had not been the only evidence against the applicant, that he had also been incriminated by D and by the fact that the general description of the incident by A and B had corresponded to that in C’s early testimony. 17. In a subsequent appeal on points of law and constitutional complaint the applicant raised similar arguments to those above. He added specifically that he was not relying on any coercion of C when the latter made his initial statements since any such coercion or lack of it was of relevance for the admissibility of those statements as evidence in relation to C, but was irrelevant in relation to the fact that he himself had been unable to exercise his rights of defence during those statements. 18. The appeal and constitutional complaint were dismissed on 29 June and 29 September 2011. In their respective decisions, the Supreme Court and the Constitutional Court referred to the reasoning behind the lower courts’ decisions, considered that the applicant had merely disagreed with their assessment of the evidence, and found no unlawfulness or arbitrariness in the decisions. 19. On 27 March 2013 the applicant applied to have his trial reopened, relying on a Constitutional Court judgment of 28 November 2012 which had declared unconstitutional some statutory provisions that had played a role in his sentencing. 20. A reopening of the trial was allowed and on 22 April 2014 the District Court reduced the applicant’s prison term to seven years. The ruling became final and the applicant finished serving his sentence on 22 July 2016.