WENNER v. SLOVAKIA
Inadmissible
David Thór Björgvinsson;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
The applicant, Mr Jozef Wenner, is a Slovak national who was born in 1968 and lives in Trnava. Before he changed it in 2007, the applicant’s family name was Sedlák. He was represented before the Court by Mr M. Ficek, a lawyer practising in Bratislava. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. The facts of the case, as submitted by the parties, may be summarised as follows. On 17 August 1999 a single judge of the Trnava District Court (Okresný súd) issued a penal order (trestný rozkaz) finding the applicant guilty of theft and sentencing him to four months in prison. The applicant challenged the order by way of an objection (odpor) which he later withdrew. The order thus became final and binding, on 11 March 2004. Meanwhile, the applicant was charged with embezzlement on two counts (on 17 January 2000 and 16 November 2001, respectively), continuing fraud (on 5 November 2001), breach of the rules on the circulation of goods in foreign trade (on 8 January 2003) and fraud (on 3 December 2003). On 3 December 2003 the applicant was arrested and, on 6 December 2003 a single judge of the Bratislava II District Court remanded him in custody pending trial on the fraud charge of 3 December 2003. The applicant was incarcerated in a detention centre (Ústav na výkon väzby) in Bratislava. On 25 March 2004 the Trnava District Court ordered the enforcement of the penal order of 17 August 1999. The applicant was subsequently transferred from detention and put in prison (Ústav na výkon trestu) in Želiezovce to serve his sentence under that order (for details see section “B” below). On 5 April 2004, while the applicant was detained pending trial on the fraud charge of 3 December 2003, that charge and the remaining charges against him were joined to a single set of proceedings Upon service of his sentence under the penal order of 17 August 1999, the applicant was again remanded in detention pending trial on the fraud charge of 3 December 2003 and the remaining charges (for details see section “C” below). He was incarcerated in the Leopoldov detention centre. On 22 April 2004, sitting in private (neverejné zasadnutie), a single judge of the Trenčín District Court ordered what amounted to an end of the applicant’s detention pending trial (prepúšťa z väzby) and ruled that, immediately thereafter, he be transferred to prison (ihneď dodaný do výkonu trestu) in order to serve his four-month sentence under the penal order of 17 August 1999. The decision was to be implemented on 7 May 2004 and, accordingly, the applicant was due to finish serving that sentence on 7 September 2004. The decision of 22 April 2004 was served on the applicant on 7 May 2004 and a copy of it was sent to the Bratislava detention centre by fax on 13 May 2004. On the latter date the applicant was transferred from the detention centre to prison to serve his sentence under the penal order of 17 August 1999. On 31 August 2004 the prosecution service applied for a new order for detention of the applicant pending trial in view of the approaching end of his four-month prison sentence. On 3 September 2004, sitting in private, a single judge of the Trenčín District Court ordered that, as soon as the four-month sentence under the penal order of 17 August 1999 had been served, on 7 September 2004, the applicant be again detained pending trial in connection with the fraud charge of 3 December 2003 and the remaining charges against him. The District Court judge referred to the order for the applicant’s detention of 6 December 2003 and its contents, including the fact that the applicant was not staying at the place of his registered residence (trvalé bydlisko), that his whereabouts were unknown, that there had been two warrants for his arrest issued and that he had been apprehended while attempting to commit another offence. From 1992 until his arrest the applicant had been involved in various property-related offences in at least three districts, was unemployed and had no source of regular income. It was also observed that the applicant had three previous convictions, mainly for property-related offences. The order of 3 September 2004 was enforced on 7 September 2004 at 4:30 a.m. when the applicant was transferred from the Želiezovce prison to the Leopoldov detention centre. A copy of the decision of 3 September 2004 was served on the applicant’s lawyer on 7 September 2004. He lodged an interlocutory appeal (sťažnosť) on behalf of the applicant on 9 September 2004. He relied on the principle of presumption of innocence, argued that there was no risk that the applicant would reoffend and offered a pledge on the applicant’s behalf that he would live in accordance with the law. A copy of the decision of 3 September 2004 was served on the applicant on 16 September 2004. In addition to the appeal lodged on his behalf by his lawyer, the applicant lodged an interlocutory appeal on his own. In so far as it can be established from the documents submitted to the Court, the applicant argued that the decision of 3 September 2004 had been phrased in general terms, that there had been irregularities in transferring the applicant from the detention centre to prison, that the applicant had not been informed of the reasons for his arrest and had not been heard in person by a judge. On 7 October 2004 the Trenčín Regional Court (Krajský súd) upheld the decision of 3 September 2004. It held that the applicant’s transfer from the detention centre to prison had been in conformity with section 75 of the Code of Criminal procedure, his detention was justified and his pledge could not be accepted as it had not been made directly by him. On 16 September 2004 the applicant lodged a complaint under Article 127 of the Constitution with the Constitutional Court (Ústavný súd). On 10 November 2004 he amended his complaint. Relying on Article 5 §§ 1 (c), 3 and 4 of the Convention and on their constitutional counterparts, the applicant challenged the decisions of the Trenčín District Court of 22 April 2004 and of the Regional Court of 7 October 2004 as being unlawful and arbitrary. In so far as can be established from the documents submitted to the Court, the applicant argued in particular that, in its decision of 7 October 2004, the Regional Court had failed to examine properly his objections against the decision of 3 September 2004. The applicant also asserted that the decision of 22 April 2004 had been taken by a court which had no jurisdiction ratione loci to take it. On 25 December 2004 the Constitutional Court declared the applicant’s complaint inadmissible. It found that, in so far as the complaint related to the decision of the District Court of 22 April 2004, it had been lodged outside the applicable two-month time-limit. As to the remainder of the complaint, the Constitutional Court found no constitutionally relevant error or arbitrariness in the decision of the Regional Court of 7 October 2004. On a number of occasions the applicant sought review by the public prosecution service of the legality of his detention and of the procedure followed in respect of it. The public prosecution service acknowledged in letters of 24 May and 6 June 2005 (the Trenčín Regional Office of Public Prosecution), 14 July 2005 (the Trnava Regional Office of Public Prosecution) and 25 August 2005 (the Office of the Prosecutor General) that the Trenčín District Court had erred in having transmitted its decision of 22 April 2004 to the Bratislava Detention Centre no earlier than 13 May 2004. As the decision was to have taken effect on 7 May 2004, the applicant had been kept in detention six days longer and had started serving his four-month sentence six days late. This, however, had no impact on the lawfulness of the deprivation of the applicant’s liberty as the extra time spent in the detention centre had been deducted from the time spent in prison.