CASE OF FESAR v. THE CZECH REPUBLIC
Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 5-4
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva
7. The applicant was born in 1965 and lives in Bayreuth, Germany. 8. On 22 May 1996 the applicant was charged with attempted tax evasion under sections 8 § 1, 10 § 1 b) and 148 §§ 1 and 2 c) of the Criminal Code. 9. On 27 March 1997 the applicant and eight other persons, inter alia J.R., were officially indicted. 10. A main hearing before the Ostrava District Court (okresní soud) was scheduled as early as 28 April 1997 to be held in July 1997. It took place on 1 to 8 July 1997 and then on 17 July 1997. During the hearing of 3 July 1997 the applicant declared that he refused to attend further hearings; these then took place in his absence. The court requested a report from the prison doctor on the applicant’s bizarre behaviour during the main hearing of 3 July 1997 and with regard to the report on the applicant’s injury that occurred on 3 July 1997 in custody and to the report of 4 July 1997 on the use of a coercive measure against the applicant in custody due to his aggressiveness. It his report the prison doctor noted that the applicant was not able to attend the main hearings. It became necessary to carry out a psychological and psychiatric examination of the applicant, and the prison doctor did not recommend that the applicant attend the new main hearing. On 7 July 1997 the applicant’s and J.R.’s criminal case was severed for separate consideration and decision. 11. On 22 July 1997 the applicant was moved to the prison hospital whence he was transported back to the custody prison on 4 September 1997. 12. On 20 August 1997 the Regional Court submitted the applicant’s and J.R.’s criminal case to the Olomouc High Court (Vrchní soud) for the purpose of a decision on the regional prosecutor’s complaint that concerned, inter alia, J.R.’s detention during judicial proceedings. The Regional Court’s presiding judge asked the High Court for the file in order to make a copy for the applicant’s and J.R.’s severed criminal case. According to the Government, the file was lent to the Regional Court on 28 November 1997. Therefore, between 20 August and 28 November 1997 the Regional Court did not have the relevant file at its disposal. 13. On 19 December 1997 the Ostrava Regional Court (krajský soud) transferred the applicant’s and J.R.’s criminal case to the District Court as a court with jurisdiction in rem and local jurisdiction. 14. On 18 May 1998 the District Court convicted the applicant of tax evasion and sentenced him to eighteen months’ imprisonment. On the same day, the applicant was released from custody. 15. On 13 August 1998 the Regional Court dismissed an appeal by the applicant against the District Court’s judgment. 16. On 2 September 1998 the District Court approved the deduction of the applicant’s pre-trial detention from his sentence. 17. On 23 May 1996 the District Court remanded the applicant in custody under Article 67 b) of the Code of Criminal Procedure (“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. 18. 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 J.R., to interview the witnesses and eventually to confront the witnesses with the co-accused. The court found, therefore, that in this stage of the proceedings, the applicant’s detention was justified under 67 b) of the CCP. 19. On 17 July 1996 the District Court rejected the applicant’s first request for release, noting that the grounds for custody still persisted under Article 67 b) of the CCP. The court noted that other persons would be examined, which was supported by the content of the confrontation carried out between the applicant and J.R. There continued to be concerns that the applicant would interfere with witnesses. 20. On 26 August 1996 the Regional Court rejected the applicant’s complaint filed on 1 August 1996 against this decision. 21. On 30 October 1996 the District Court decided to release the applicant on a request for release lodged by him on 24 September 1996. On 26 November 1996 the Regional Court, on an appeal by the Ostrava Regional Prosecutor, (krajský prokurátor), quashed the District Court’s decision. In the court’s opinion, grounds for custody still existed under Article 67 b) of the CCP, which consisted of the possibility of his interfering with witnesses who had not yet been examined, and there was also a risk of possible interference with the co-accused. 22. On 23 October 1996 the Regional Prosecutor requested an extension of the applicant’s detention due to the fact that his custody would end on 22 November 1996 and it would not be possible to conclude the case by then because of its scope. 23. On 8 November 1996 the Regional Prosecutor filed a complaint against the District Court’s decision of 5 November 1996 in which the court had rejected the Regional Prosecutor’s motion. On 26 November 1996 the Regional Court granted this complaint, quashed the District Court’s decision and extended the applicant’s custody to 26 January 1997 pursuant to Article 71 § 2 of the CCP. 24. On 16 January 1997 the District Court extended the applicant’s detention until 27 March 1997, on a request by the Regional Prosecutor of 7 January 1996, concluding that a risk still persisted that the applicant would influence witnesses. On 17 February 1997 the Regional Court rejected a complaint filed by the applicant on 22 January 1997 against the District Court’s decision, referring, inter alia, to the complex character of the case. 25. On 6 March 1997 the District Court granted a request made by the applicant on 24 February 1997 and decided to release him from custody. It found: “After examining 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 ...” 26. On 24 March 1997 the Regional Court, upon the Regional Prosecutor’s appeal of 12 March 1997, quashed the District Court’s decision and ordered the applicant’s continued remand 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 have not yet been interviewed by the court, and, in addition, the residence of one witness has not yet been established.” 27. On 7 May 1997 the Regional Court dismissed a further request by the applicant for release from custody, filed on 5 May 1997. On 29 May 1997 the High Court rejected a complaint by the applicant of 13 May 1997 against the Regional Court’s decision. 28. On 18 September 1997 the Regional Court rejected a request by the applicant for release from custody of 28 August 1997. On 22 October 1997 the High Court rejected a subsequent complaint by the applicant of 23 September 1997 against the Regional Court’s decision. 29. While transferring the case to the District Court (see paragraph 11 above), the Regional Court dealt of its own motion under Article 72 § 1 of the CCP with the question whether grounds for remaining the applicant in custody continued to apply, and decided to keep him in detention. On 5 January 1998 the applicant filed a complaint against this decision, which was rejected by the High Court on 22 January 1998. 30. On 20 February 1998 the applicant requested release, which the District Court rejected on 19 March 1998. The Regional Court dismissed a complaint by the applicant against this decision on 25 March 1997. 31. On 27 April 1998 the High Court rejected a request by the District Court of 9 April 1998 for an extension of the applicant’s detention under Article 71 § 3 of the CCP by four months over two years, that is to 22 September 1998. 32. On 18 May 1998 the applicant was released from custody at his request, made on 15 April 1998. 33. On 14 April 1997 the applicant lodged 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 reason for keeping him in custody. 34. On 9 May 1997 the Regional Court and the Regional Prosecutor were invited to submit their observations on the constitutional appeal. The Regional Court’s observations were submitted on 28 May 1997 and the Regional Prosecutor’s observations on 13 June 1997. 35. In subsequent period, the Constitutional Court regularly requested the ordinary courts to lend it file materials. From the Constitutional Court’s file it can be seen that requests to lend the file materials or furnish information as to the location of the file materials were made on 5 August, 2 September and 10 December 1997, 25 March, 9 April, 7 and 21 May, 18 June, 2 July, 2 and 26 October 1998, 19 January, 9 June and 4 November 1999, and 21 June, 7 July and 24 August 2000. 36. On 30 January 2001 the Constitutional Court found that the reasons for the applicant’s continued detention, as provided for in section 67 b) of the CCP, were well-founded. It stated, however, that the Regional Court had failed to reason its decision of 24 March 1997 sufficiently 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, had been violated. It therefore quashed the Regional Court’s decision. 37. Under Article 67 b) an accused person may be remanded in custody only if there exist specific grounds to believe that he or she will try to influence witnesses or co-accused who have not yet been heard by the court or otherwise frustrate the investigation into the facts which are of importance for the criminal proceedings, or will commit an offence which he or she was preparing or threatened to commit. 38. Pursuant to Article 71 § 2, a person’s detention may last as long as is necessary. If the detention lasted more than six months at the pre-trial stage and the release of the accused person would have jeopardised or substantially complicated the achievement of the aim of the proceedings, a judge can extend the detention for one year, or a chamber for two years. 39. Under Article 71 § 3 a person’s detention at the pre-trial stage and at trial should not exceed two years. If, because of the complexity of the matter or for other serious reasons, it has not been possible to complete the criminal proceedings within this period, and if the release of the accused person would jeopardise or substantially complicate the achievement of the aim of the proceedings, the High Court can extend the detention for the necessary period.