CASE OF NESTAK v. SLOVAKIA
Violation of Art. 5-4;Violation of Art. 6-2;Violation of Art. 6-1 (impartial tribunal);Not necessary to examine Art. 6-1 (procedural unfairness);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
Nicolas Bratza
5. The applicant was born in 1979 and lives in Moravské Lieskové. 6. On 6 April 2000, at around 1.30 a.m., two individuals robbed a gambling house in Liptovský Mikuláš. They were masked with stockings pulled over their heads and entered the club after closing time. They forced the last remaining employee to hand over cash and a stock of cigarettes by threatening him with a starting pistol and an electric paralyser. 7. On 6 April 2000, after 6 a.m., the police detained and subsequently charged the applicant and his former classmate and friend, R., with armed robbery within the meaning of Article 234 §§ 1and 2 (b) of the Criminal Code (CC). The applicant who was assigned an ex officio lawyer did not appeal against the charge. 8. At his first interrogation R. confessed to having committed the robbery together with the applicant and gave all relevant details. The applicant only confessed to having planned and prepared the robbery. According to him he had withdrawn from the plan at the last minute because he had become anxious. He had driven R. to the scene and had agreed to wait for him in a place agreed upon, but R. had not come to that place. 9. In his subsequent interrogation before a judge of the Liptovský Mikuláš District Court (Okresný súd) the applicant repeated the above version. He did not know the person who had committed the robbery with R. and had no explanation as to why R. wished to inculpate him. The applicant added that he had a debt which he intended to pay off from the proceeds of the planned robbery. He and R. had previously wanted to burgle a holiday cottage, but had abandoned the idea after a light had gone on inside. The applicant also stated that he was a self-employed entrepreneur and could settle his debt using money from his business or obtained from his father. 10. On 7 April 2000 the District Court remanded the applicant in detention. Testimonies of R. and a witness and other evidence provided a basis for a strong suspicion against the applicant. Even assuming that he had not taken part in the robbery as such, his involvement had in any event amounted to the offence of aiding and abetting under Article 10 § (c) of the CC. As the motive of his actions was his need to obtain money to pay off his debt, it could be presumed that, if released, the applicant would carry on his criminal activities to achieve that objective. This rendered his detention justified under Article 67 § 1 (c) of the Code of Criminal Procedure (CCP). On 12 April 2000 the District Court corrected clerical errors in the decision. 11. The applicant filed a complaint (sťažnosť) against his detention arguing that he had no previous convictions and that the weapon had been used by R. 12. On 16 May 2000 the Žilina Regional Court (Krajský súd) dismissed the applicant’s complaint observing that the testimony of R. and documentary evidence justified the suspicion that the applicant had been at least an accomplice to the robbery. It was true that he had no previous convictions but, at the same time, it was clear from his own submissions that his objective was to obtain money to discharge his debt. The reasons for detaining him, as established by the District Court, were therefore valid. 13. On 19 June 2000 the applicant discharged his lawyer and appointed a new one. 14. On 22 June 2000 the applicant was indicted to stand trial in the District Court on charges of conspiracy and robbery (Articles 9 § 2 and 234 §§ 1 and 2 (b) of the CC). 15. On 6 July 2000 the applicant’s new lawyer lodged a petition for the applicant’s release. He relied on extracts from the applicant’s accounting books and argued that the recent profits of his business were sufficient to settle the applicant’s debt. There was therefore no need to detain him. 16. On 11 July 2000 the District Court informed the applicant that a request for his release had been submitted on his behalf by a lawyer but that it could not be processed because the lawyer had not shown that he had a valid power of attorney from the applicant. On the same day the previous lawyer informed the District Court that his power of attorney had been terminated and that the applicant had new legal representation. 17. On 17 July 2000 the District Court held a private session (neverejné zasadnutie) to examine the petition of 6 July 2000 for the applicant’s release. The session was attended by a public prosecutor, but neither the applicant nor his lawyer was present. The District Court dismissed the petition. It referred to a previous statement by the applicant according to which it was the applicant who had proposed to R. that they should find a way to obtain money. The fact that the applicant had income from his business was not new. However, the information submitted by him as to the amount of his earnings was inconsistent and had no impact on the necessity to keep him in detention. 18. On 26 July 2000 the applicant complained of the decision of 17 July 2000 to the Regional Court. He argued that at the time of his remand he had not had detailed information about his financial situation. He now had such information and it showed that his financial standing had improved and was better than expected. 19. On 16 August 2000 the Regional Court held a private session to decide on the applicant’s complaint. It was attended by the prosecutor but not by the applicant and his lawyer. The Regional Court dismissed the complaint. It considered that the concern that the applicant might commit further offences was still justified. He had a debt which he could not repay and the evidence available indicated that this was the reason why he and R. had decided to carry out the robbery. As for the extracts from the accounting books which he had submitted, it could not be established whether they related to the business of the applicant or his father’s. 20. On 25 September 2000 the District Court held a hearing (hlavné pojednávanie) in the case. It took evidence from the applicant and R. and examined depositions of four witnesses. The applicant again petitioned for release arguing that he had sufficient means to pay off his debt and that the initial reason for detaining him therefore no longer existed. His petition was dismissed as the court found no new relevant facts which would invalidate the reasons for the applicant’s detention as set out in the earlier decisions. The hearing was adjourned until 23 October 2000 in order to await a judgment of the Nové Mesto nad Váhom District Court in a different criminal trial against R. 21. On 28 September 2000 the applicant filed a complaint against the dismissal of his petition for release. He argued that the courts had not convincingly refuted his argument that he had sufficient means to settle his debt. The applicant further complained of a violation of his right to be presumed innocent in that in their previous decisions the courts had expressed the view that he had committed the robbery despite the fact that he had not yet been convicted. 22. On 11 October 2000 the Regional Court held a private session to consider the applicant’s complaint. It was attended by the prosecutor in the absence of the applicant and his lawyer. The Regional Court dismissed the complaint holding that: “The accused was indicted for complicity in robbery ... The evidence which has been taken so far has proved that the accused Nešťák committed that offence as he needed money to pay off his debts (“...bolo preukázané, že obžalovaný Nešťák uvedeného trestného činu dopustil sa z dôvodu, že potreboval peniaze ...”). On this basis the authorities dealing with the case established that [the applicant’s] detention was necessary within the meaning of Article 67 § 1 (c) of the Code of Criminal Procedure, as the specific fear persisted that the accused would continue criminal activities in case of his release. Having examined the challenged decision and the reasons for the complaint against it, the Regional Court [considers] that the danger still exists that the accused will continue committing offences in case of his release regardless of his argument that his financial situation has improved and that he can pay off the debt. The Regional Court reached this conclusion also having regard to the fact that the accused had been tried by the District Court in Nové Mesto nad Váhom on 25 September 2000 and the District Court in Liptovský Mikuláš adjourned the hearing only because the judgment of [25 September 2000] had not become final and [the District Court in Liptovský Mikuláš] may be required to impose a consolidated penalty. The above thus shows that the accused has a tendency to commit offences regardless of his financial situation. The risk that, if released, he may continue to commit further offences with a view to obtaining financial means therefore still persists. The way in which the offence was committed also indicates the extent to which the accused is corrupt. This confirms the conclusion that he could commit further offences.” 23. On 23 October 2000 the District Court held another hearing following which, on the same day, it found the applicant guilty as charged and sentenced him to five and a half years’ imprisonment. The District Court noted that, at the pretrial stage of the proceedings, the applicant had admitted that he had come up with the idea of illegally obtaining money and that with R. they had explored the possibilities of doing so. At that time he had claimed that he had participated in preparing the robbery but had finally abandoned the idea of carrying it out. However, at the hearing, the applicant had changed his testimony and alleged that he had informed R. beforehand that he would not participate in the crime. The District Court also noted that R. had described in detail how the offence had been committed. According to him the initiative to steal money had come from the applicant and the applicant had actually carried out the robbery with him. This version of facts was supported by other evidence, in particular by the statements of the employee of the club and two other witnesses. It was corroborated by police reports concerning the discovery of weapons and other items connected with the robbery and the booty. The District Court found no grounds to disbelieve the version of R. The applicant’s version was however not supported by any evidence and was thus unreliable. 24. The applicant appealed. He argued that the first-instance court had failed to establish adequately the relevant facts and to give convincing reasons for its conclusion. In particular it had relied exclusively on the statements of R. and had given no relevant reasons for rejecting the applicant’s version. There was no evidence showing that the applicant had actually committed the robbery and the District Court had failed to address his argument that there were inconsistencies in the submissions of R. 25. On 7 November 2000 the District Court dismissed another request for release lodged by the applicant. 26. On 10 November 2000 the applicant complained about the decision of 7 November 2000 and challenged the judges of the Regional Court dealing with his case. He contended that in the above decision of 11 October 2000 they had expressed the view that the applicant had a tendency to commit offences and, in that connection, referred to the judgment of the Nové Mesto nad Váhom District Court of 25 September 2000. That judgment, however, concerned R. and not the applicant. According to the applicant, in the circumstances, the impartiality of the Regional Court’s judges was open to doubt. 27. On 15 December 2000, under Article 31 § 5 of the CCP, a different chamber of the Regional Court found that the three Regional Court judges dealing with the applicant’s case were not biased. It acknowledged that the reference in the decision of 11 October 2000 to the judgment of 25 September 2000 was a mistake. However, that mistake had no impact on the determination of the charges against the applicant. 28. On 10 January 2001 the Regional Court modified the first-instance judgment in that it reduced to five years the sentence imposed on the applicant. The chamber of the Regional Court was composed of the same judges who had delivered the decision of 11 October 2000. In its judgment the Regional Court addressed the applicant’s arguments. It found no discrepancy in the relevant part of the statements of R. indicating that he had committed the offence together with the applicant. Relying on the contents of the case file, the Regional Court upheld the conclusion that the applicant had initiated the offence and that he had committed it together with R. 29. On 10 January 2001 the Regional Court dismissed the applicant’s complaint against the decision of 7 November 2000. It noted that the applicant’s conviction had become final and that he was to start his sentence. In any event, at the relevant time the applicant’s detention under Article 67 § 1 (c) of the CCP had been justified. 30. On 25 August 2003 the Trenčín District Court released the applicant on parole. 31. Article 11 provides that international instruments on human rights and freedoms ratified by the Slovak Republic and promulgated under statutory requirements have precedence over national laws, provided that they guarantee greater constitutional rights and freedoms. 32. Under the Constitutional Court’s case-law (see, for example, the decision of 22 March 2000, file no. I. ÚS 9/00) ordinary courts are obliged in civil proceedings to interpret and apply the relevant laws in accordance with the Constitution and with international treaties. Accordingly, the ordinary courts have the primary responsibility for upholding rights and fundamental freedoms guaranteed by the Constitution or international treaties. 33. Pursuant to Article 17 § 2 no one shall be prosecuted or deprived of their liberty except for reasons and in a manner provided for by law. 34. Under Article 50 § 2 any person against whom criminal proceedings are conducted is to be presumed innocent until proved guilty by a final judgment by a court of law. 35. Article 9 § defines criminal complicity. Pursuant to that provision if a criminal offence has been committed by a common action of two or more individuals, each of them is criminally liable as if he or she committed the offence alone. 36. The offence of robbery is defined in Article 234. It provides that anyone who uses violence or a threat of immediate violence against another with the intention to take hold of someone else’s property is to be punished by imprisonment of two to ten years (§ 1). Imprisonment of five to twelve years applies if a weapon is used (§ 2 (b)). 37. Article 2 lays down fundamental principles of criminal proceedings. Pursuant to its paragraph 2 a person against whom the proceedings are conducted cannot be considered guilty until convicted by a final judgment of a court of law. 38. Basic legal rules concerning exclusion of judges are encompassed in Article 30. Judges should be excluded from taking part in steps in criminal proceedings if their impartiality is open to doubt on account of their link to the subject-matter of the proceedings, the persons directly concerned, the legal representatives or the prosecuting authorities involved (paragraph 1). After the bill of indictment (obžaloba) is lodged, judges should be excluded who at the pre-trial stage of the proceedings took part in deciding on the detention of the indicted person (paragraph 2). 39. Article 31 governs the procedure on exclusion of biased judges. If judges themselves declare that they are biased, the question of their exclusion is to be resolved by a chamber of a superior court (paragraph 1). In other situations the question of exclusion is to be decided by the body concerned (paragraph 2). If a Regional Court sits as a court of appeal, the exclusion of its judges is to be determined by a different chamber of the same court (paragraph 5). 40. Detention on remand is governed by the provisions of Articles 67 et seq. A person charged with a criminal offence (obvinený) can be detained inter alia when there are reasonable grounds for believing that he or she would continue criminal activity, complete an attempted offence or commit an offence which he or she prepared or threatened to commit (Article 67 § 1 (c)). 41. Article 68 § 1 provides that a person can be remanded in custody only after he or she has been charged. The detention order 42. Under Article 72 § 1 an investigator, a prosecutor or a judge has to examine at every stage of the criminal proceedings whether the reasons for detention persist. When the reasons for detention fall away, the detainee has to be released immediately. 43. Private sessions (neverejné zasadnutie) of courts in criminal matters are governed by the provisions of Chapter 15. Article 240 stipulates that decisions are to be taken in private if the law does not envisage their being taken at a hearing (hlavné pojednávanie) or in a public session (verejné zasadnutie). 44. Pursuant to Article 241 the president of the chamber notifies the public prosecutor that the court is to hold a private session as a rule at least three days in advance. 45. Under Article 242 a private session requires the permanent presence of all members of the court’s chamber and of a minutes recorder (paragraph 1). 46. Until 1 October 2002, unless the law provided otherwise, the presence of the public prosecutor at a private session was possible but not obligatory (paragraph 2). As from 1 October 2002 this provision was abolished by virtue of Act No. 422/2002 Coll. 47. The presence of any other person at a private session is excluded (former paragraph 3, now paragraph 2). 48. Under Article 11, natural persons have the right to protection of their personality rights (personal integrity), in particular their life and health, civil and human dignity, privacy, name and personal characteristics. 49. Under Article 13 § 1, natural persons have the right to request that unjustified infringements of their personality rights be discontinued and that the consequences of such infringements be eliminated. They also have the right to appropriate just satisfaction. 50. Article 13 § 2 provides that, in cases where the satisfaction obtained under Article 13 § 1 is insufficient, in particular because the injured party’s dignity or social standing has been considerably diminished, the injured party is also entitled to financial compensation for non-pecuniary damage. 51. In an action of 26 June 2002 a married couple asserted a claim against the Ministry of Justice for financial compensation for non-pecuniary damage caused to them by detention on remand and criminal proceedings against them, which ended with their acquittal. The principal thrust of the claim was that their prosecution and the whole trial had been unlawful and arbitrary. The action was examined on appeal by the Banská Bystrica Regional Court under file number 16Co 256/05. In its judgment of 7 July 2006 the court interpreted the claim as a claim for protection of personal integrity under Article 11 of the Civil Code. It reviewed briefly the course of the criminal proceedings against the plaintiffs and concluded that they had failed to establish that there had been any unlawfulness. Relying on the judgment of the Supreme Court of 20 October 2005 file number 5Cdo 150/03, the court held that criminal proceedings which were conducted in compliance with the applicable laws could not constitute an unjustified interference with personal integrity even if they ended with an acquittal. The court also addressed briefly the length of the plaintiffs’ detention and concluded that it had not been excessive. The above claim was thus not accepted, unlike other claims made in the same action (compensation for lost profit, legal costs and infringement of the presumption of innocence). 52. Further details concerning protection of personal integrity under Articles 11 et seq. of the Civil Code are summarised in Kontrová v. Slovakia ((dec.), no. 7510/04, 13 June 2006). 53. Article 8 defines the jurisdiction of the ordinary courts. Pursuant to its first paragraph, unless jurisdiction is conferred by statute on other authorities, the ordinary courts examine and decide upon matters stemming from relations under civil law, labour law, family law, the law of cooperatives, and commercial law. Under paragraph 2, other matters may be examined and decided upon by the ordinary courts only if a statute so provides. 54. Under the terms of Article 135 civil courts are bound, inter alia, by the decisions of the competent authorities that a criminal offence has been committed and by whom (paragraph 1). Other questions which normally fall to be decided by other authorities can be decided by a civil court. However, if the competent authorities decided upon such a question, the civil court will adopt their decision (vychádza z ich rozhodnutia). 55. The Act lays down rules for State liability for damage caused by unlawful decisions (Part (Časť) One) and wrongful official conduct (Part Two). 56. The general scope of State liability for damage caused by unlawful decisions is defined in section 1 (1). Pursuant to this provision the State is liable for damage caused by unlawful decisions by its bodies and agencies inter alia in criminal proceedings. However, decisions concerning detention and sentencing are excluded. 57. Special rules concerning State liability for damage caused by decisions on detention are embodied in sections 5 et seq. The State is liable for damage caused by such decisions only in respect of persons against whom the proceedings have been discontinued or who have been acquitted (section 5 (1)). 58. Section 18 (1) renders the State liable for damage caused by wrongful official conduct on the part of its bodies and authorities in carrying out their functions. A claim for compensation may be allowed where the claimant shows that he or she suffered damage as a result of a wrongful act of a public authority, quantifies its amount, and shows that there is a causal link between the damage and the wrongful act in question. The Act does not allow for compensation for non-pecuniary damage unless it is related to a deterioration in a person’s health (for further details, see Havala v. Slovakia (dec.), no. 47804/99, 13 September 2001).