KRÁĽ v. SLOVAKIA
Inadmissible
Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra
1. The applicant, Mr Miroslav Kráľ, is a Slovak national, who was born in 1976, habitually resides in Ružomberok, and is currently detained in the Leopoldov prison. He was represented before the Court by Mr J. Čierny, a lawyer practising in Martin. 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 25 October 1999 the applicant and five others were charged with aggravated robbery on the basis of the suspicion that, on 5 September 1999, as an organised group, they had forcibly entered private forest grounds, inflicted injuries to a guard to which he later succumbed, appropriated two tractors and attempted to appropriate a third, and fled the crime scene once it had proved impossible to load the first two tractors onto a lorry. 4. On 28 January 2000 the applicant and the others were indicted to stand trial on the above charges in the Žilina Regional Court (Krajský súd). At the same time, a warrant was issued for the applicant’s arrest, which was followed by another similar warrant on 27 March 2000. 5. At an unspecified time, the Regional Court was sent a letter dated 19 December 2000 which was purportedly written and signed by the applicant, in which the author described what may be surmised to be the applicant’s version of events. The charges against the applicant were denied ‒ their factual basis, in particular, being disputed ‒ and it was alleged that the applicant had gone into hiding out of fear for his life. In his submission to the Court, the applicant has denied the authenticity of this document. 6. On 5 March 2001 the decision was taken that the applicant, who was still missing, should be tried in his absence (konanie proti ušlému). 7. Between 21 March 2001 and 4 March 2002 the Regional Court held ten hearings at which it took and assessed complex written, oral and expert evidence, including a pre-trial deposition by one of the applicant’s coaccused (A.) incriminating the applicant. The applicant’s court-appointed lawyer inspected the case file on her own initiative and attended all but the first of these hearings. 8. Following the hearing of 4 March 2002, on the same day the Regional Court found the applicant and his coaccused guilty. The pre-trial deposition of A. was instrumental in establishing the guilt of the applicant and he was sentenced for thirteen and a half years’ imprisonment. 9. All parties appealed (odvolanie) to the Supreme Court (Najvyšší súd). In the applicant’s case, his lawyer appealed on his behalf, arguing inter alia that the first-instance court had failed to take any notice of the applicant’s letter of 19 December 2000, that A. was not a credible witness, that two of the remaining co-accused had merely presumed that the applicant had been present at the crime scene, and that the other two had not seen him there. The applicant’s lawyer also filed observations in reply to the appeal by the prosecution, in which she addressed the evidentiary situation and submitted that they had misconstrued it to the applicant’s disadvantage. 10. The Supreme Court heard the appeals on 26 September 2002, in the presence of the applicant’s lawyer. Following the hearing, on the same day, it corrected certain technical errors in the first-instance judgment and reduced the applicant’s sentence to twelve and a half years on the grounds that, combined with a previous sentence, the penalty imposed by the Regional Court was in excess of that permitted by statute. 11. On 21 January 2003 the Regional Court issued a warrant against the applicant for the enforcement of his sentence and ordered that he be taken to prison. 12. On 7 July 2004 the applicant was arrested in the Czech Republic and on 9 July 2004 was remanded by the Prague City Court (Městský soud) pending extradition to Slovakia in connection with the above proceedings and conviction. 13. On 5 January 2006 the Minister of Justice of the Czech Republic allowed the applicant’s extradition but at the same time suspended its implementation pending the outcome of unrelated criminal proceedings against him in the Czech Republic and, potentially, the service of his sentence imposed in those proceedings. 14. Later in 2006 the Czech courts found the applicant guilty and sentenced to ten years’ imprisonment, following which a new decision was taken to suspend his extradition to Slovakia pending service of this sentence. 15. According to the applicant, between 3 April 2005 and 14 May 2007 ‒ while still detained in the Czech Republic ‒ he had asked the Czech prison authorities four times to provide him with Slovak criminal legislation, but to no avail. In support of this allegation, he submitted four original handwritten requests. These indicate neither any addressee nor anything to show that they were actually submitted and duly received. 16. On 25 April 2005 the applicant requested that he be served with a copy of the firstinstance judgment. So he was, on 24 May 2005, albeit with no instructions (poučenie) regarding any possible remedies available to him in the specific circumstances of his case. 17. On 30 May 2005 the applicant made a submission to the Žilina Regional Court formulated as an appeal, only to have it dismissed by the Supreme Court of Slovakia on 22 June 2005 as out of time. In that respect, the Supreme Court observed that the applicant had been convicted in his absence, that the conviction had become final and binding and that, under the Code of Criminal Procedure applicable at that time (Law no. 141/1961 Coll., as amended - “the 1961 CCP”), persons convicted in their absence by a final and binding judgment had no right of appeal. At the same time, the Supreme Court noted that the applicant was at liberty to assert his rights by way of an application for a complaint in the interest of the law (sťažnosť pre porušenie zákona) to be lodged on his behalf by the Prosecutor General or the Minister of Justice and by a request for reopening of proceedings (obnova konania). 18. According to the applicant, a written version of the Supreme Court’s decision of 22 June 2005 was not served on him until 5 October 2011. However, according to a postal delivery confirmation slip submitted by the Government, which bears the applicant’s signature, that decision was served on and received by him on 25 July 2005. 19. On 19 June 2006 the applicant made a request for reopening of proceedings under the Code of Criminal Procedure applicable at that time (Law no. 301/2005 Coll., as amended ‒ “the 2005 CCP”) (see paragraph 35 below), which he and his lawyer amended on 11 July 2006 and 3 May 2010, respectively. They submitted that the applicant had only learned about the events underlying the charges from television reports; that he had not been present at the crime scene; that at the request of one of his associates he had only acted as a lookout nearby; that at the time of the impugned events he had not known the remaining four co-accused; that they had implicated him to serve their own interests; and that he had left Slovakia in fear for his life after he had learned that two of his co-accused had been planning to “take out” a witness. In addition, the applicant submitted that at no stage of the proceedings had he been heard, and that although legal representation was mandatory, he had had none at the pre-trial stage of the proceedings, which was in violation of his right to a fair trial under Article 6 of the Convention. Moreover, he argued that the sentence had been disproportionate to his actual involvement, and that the submissions of A. made at pre-trial stage should be reexamined before a court. In terms of new evidence, the applicant identified a fresh witness and asked that he undergo polygraph testing, and he requested a face-to-face confrontation (konfrontácia) with the other co-accused. 20. The request was dismissed by the Regional Court in a public session (verejné zasadnutie) held on 19 May 2010 and, following the applicant’s interlocutory appeal (sťažnosť), by the Supreme Court on 1 February 2011. Both courts noted that the applicant was serving a ten-year sentence in the Czech Republic, which was why he could not be present in person. Under the applicable statutory rules, a reopening of proceedings would be warranted only if there was new evidence that could bring about a different outcome. Although the applicant’s testimony would constitute evidence which was new, in view of the evidential situation as a whole, no other outcome could be expected. The courts also concluded that, since the witness identified by the applicant had refused to give evidence at the original trial, his testimony did not constitute new evidence, nor would there be any new evidence as a result of the face-to-face confrontation. Moreover, results of polygraph testing were not recognised as evidence under the 2005 CCP. Lastly, it was not new to the court that the applicant had lacked legal representation at the pre-trial stage. However, any objection in this respect should have ‒ but had not ‒ been raised by his State-appointed lawyer at the trial stage and on appeal. There were therefore no grounds for reopening the proceedings. 21. Meanwhile, the applicant’s conviction and sentencing by the Czech courts had been recognised in Slovakia with a view to having the applicant serve the remainder of his sentence there. 22. The applicant’s extradition was implemented and he was actually transferred to Slovakia on 19 November 2010. 23. The Slovakian courts then commuted the ten-year sentence imposed on the applicant in the Czech Republic to two years and ten months because, in combination with the twelve and a half year sentence previously imposed in Slovakia, the overall penalty was in excess of that permitted by statute. 24. The applicant is now serving the reduced sentence in Slovakia. 25. On 20 March 2011 the applicant lodged a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) with the Constitutional Court (Ústavný súd). At the same time, he requested that a legal-aid lawyer be appointed to represent him. As for the substance, the applicant relied on Article 6 of the Convention and challenged the dismissal of his request for reopening of proceedings (see paragraphs 19 and 20 above) arguing that he had never been heard, that he had not had legal representation at the pre-trial stage of the proceedings ‒ despite such representation being mandatory ‒ and that the principle of equality of arms had been disregarded. 26. On 15 April 2011 the Constitutional Court declared the complaint inadmissible, essentially relying on its doctrine that the application of a statute in judicial proceedings in a manner consistent with the applicable procedural rules cannot amount to a violation of fundamental rights and freedoms. The complaint was thus manifestly ill-founded and there was no purpose in examining the applicant’s legal-aid request. 27. On an unspecified date the applicant also requested protection of his rights by means of an appeal on points of law (dovolanie) to be lodged on his behalf by the Minister of Justice. In a letter of 6 October 2011 the Ministry informed him that his case was not amenable to the temporal application of the rules of the 2005 CCP on appeals on points of law and that, therefore, no such appeal was available. 28. The applicant also requested leave to appeal against the judgment of 4 March 2002 outside the time-limit. His request was dismissed by the Supreme Court as unfounded on 20 October 2011. 29. Article 127 reads: “1. The Constitutional Court shall decide on complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court. 2. If the Constitutional Court finds a complaint to be justified, it shall deliver a decision stating that the person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash that decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the [person’s] rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order that authority to refrain from violating the [person’s] fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation. 3. In its decision on a complaint, the Constitutional Court may grant appropriate financial compensation to a person whose rights under paragraph 1 have been violated. 4. The liability for damage or other loss of a person who has violated the rights or freedoms as referred to in paragraph 1 shall not be affected by the Constitutional Court’s decision.” 30. The implementation of the above provision of Article 127 of the Constitution is set out in more detail in sections 49 to 56 of the Constitutional Court Act (Law no. 38/1993 Coll., as amended). Pursuant to its section 53(3): “A constitutional complaint shall be lodged within a period of two months from the date on which the decision in question has become final and binding or on which a measure has been notified or on which a notice of other interference has been given. As regards the measures and other interferences, the above period shall commence when the complainant could have become aware of them.” 31. The relevant provisions of the 1961 CCP are summarised in Šupák v. Slovakia ((dec.), no. 4973/03, 23 February 2010). 32. The 2005 CCP entered into force on 1 January 2006 and wholly replaced the 1961 CCP. 33. Under Article 62 § 1 submissions are always to be interpreted according to their content even if they have been given a misleading or erroneous heading. A similar provision existed under the 1961 CCP (Article 59 § 1). 34. The rules concerning proceedings against absent defendants are contained in Section (Oddiel) 5 of Chapter 7 (Hlava) in Part 3 (Časť). Under these rules, convicted fugitives have the right to request, within a period of six months from the date on which they learned of their prosecution or conviction, but in any event within the applicable period of limitation, that their case be re-examined (opätovné prejednanie) by a court in their presence (Article 362 § 1). If these conditions are met, the previous decision must be quashed and the case re-examined on the basis of the original bill of indictment (Article 362 § 2). 35. Requests for reopening of proceedings are governed by the provisions of Section 3 of Chapter 8 in Part 3. In particular, an order to reopen proceedings concluded with the force of final and binding judgment may be issued if there emerge facts or evidence not known to the court in the original trial which ‒ either in themselves or in conjunction with facts and evidence known to the court at the original trial ‒ may result in a different decision as to the accused’s guilt or render the punishment imposed manifestly disproportionate to the gravity of the offence or the circumstances of the offender (Article 394 § 1). 36. In a decision of 7 November 2000 in appeal no. 6To 46/2000, the Supreme Court held that if a criminal trial against an absent defendant ended with a final and binding judgment, the guilty party had no right to have the judgment served on him or her and that, if he or she challenged that judgment by way of an appeal, the appeal was to be rejected as out of time. 37. In a judgment of 3 December 2002 in case no. III. ÚS 133/02, the Constitutional Court found that a criminal court had breached Article 6 §§ 1 and 3 (b) and (c) of the Convention in that it had tried and convicted the complainant in absentia without having properly established whether or not he could be considered a fugitive. The Constitutional Court quashed the conviction, remitted the case to the criminal court for re-examination, ordered the complainant’s immediate release, and awarded him compensation. As regards the statutory two-month period for introducing a complaint, the Constitutional Court held specifically that this period may only commence once the contested decision has been properly served on the complainant and that, as long as this is not the case, the period may not commence (see decision of 23 October 2002 published in the Collection of Judgments and Decisions of the Constitutional Court under no. 163/2002 and also the admissibility decisions of 16 September and 15 October 2003 in unrelated cases nos. III. ÚS 201/03 and III. ÚS 229/03). 38. In the context of complaints about judicial proceedings, the Constitutional Court has ‒ when determining compliance with the twomonth time-limit under section 53(3) of the Constitutional Court Act ‒ consistently considered irrelevant the dismissal of complainants’ requests for an extraordinary appeal to be filed on their behalf. It has instead held the date of the final effect of the contested judicial decisions to be relevant in that context (see, for example, decision of 28 February 2006 in the case no. IV. ÚS 42/06, with further references). A similar approach is taken with respect to terminated proceedings in relation to which a request for reopening which has been dismissed (see decision of 21 February 2008 in the case no. II. ÚS 84/08).