KOKY v. SLOVAKIA
Inadmissible
Alena Poláčková;Branko Lubarda;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
1. The applicant, Mr Jozef Koky, is a Slovak national who was born in 1977 and is detained in Ilava. Having been granted legal aid, he was represented before the Court by Mr M. Kuzma, a lawyer practising in Košice. 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 3 February 2009 the Dolný Kubín District Court found the applicant guilty of armed robbery and theft and sentenced him to twentyfive years’ imprisonment. Following an appeal by the Public Prosecution Service, the ruling on the sentence was quashed and a new sentence of life imprisonment was imposed by the Žilina Regional Court on 30 April 2009. On that day the ruling became final and binding. 4. The relevant part of the appellate judgment may be summarised as follows. The applicant was found guilty of an offence specified in Article 47 § 2 of the Criminal Code (Law no. 300/2005 Coll., as amended) after having already in the past twice been found guilty of offences specified in that provision, with unconditional prison sentences being imposed on him. Thus, pursuant to the “three strikes” rule embodied in that provision, he had to be sentenced to imprisonment for life. ’s situation, and other factors, such as the level of his involvement in the preparation of and attempt to commit the offence in question and his cooperation in uncovering the offence, as well as his reduced sanity and plea bargain. In that respect, the court of appeal found that the trial court had erred when it had accepted as fulfilling one of the conditions stipulated by Article 39 § 1 of the Criminal Code for the imposition of a twenty-five-year prison sentence the fact that the applicant had used a firearm exclusively as a threat and that neither the offence in issue nor the two earlier similar offences had attained a high degree of gravity. More specifically, the court of appeal observed that the fact that the applicant had committed the offence while armed constituted an element of the offence in question and held that this excluded the possibility of accepting as a mitigating circumstance the fact that the firearm had only been used as a threat. 5. Nevertheless, the applicant twice availed himself of an extraordinary remedy – lodging an appeal on points of law with the Supreme Court. His first appeal of 3 June 2009 was declared inadmissible on 28 August 2009. His second appeal was lodged on his behalf by a legal-aid lawyer after being appointed on 2 May 2012. 6. In his second appeal, the applicant relied in particular on Law no. 576/2009 Coll., amending Article 47 § 2 of the Criminal Code as of 1 January 2010. In its amended form, this provision only allowed for the imposition of a life sentence in a situation such as his if it was necessary to ensure the effective protection of society and there was no hope that a prison sentence of twenty-five years would sufficiently ensure the convict’s rehabilitation. 7. On 26 September 2012 the Supreme Court rejected the applicant’s second appeal, upholding the reasoning of the Regional Court. As amendment no. 576/2009 Coll. had only entered into force once the applicant’s trial had been completed with final effect, it could not be relied on to improve his situation. 8. On 16 January 2013 the applicant challenged the judgments of the Supreme Court and the Regional Court before the Constitutional Court by lodging what he considered to constitute a complaint under Article 127 of the Constitution. He invoked mainly his right to a fair trial and the prohibition of torture, arguing that imprisonment for life was clearly a disproportionate sentence, given the circumstances of his case. Moreover, he contended that the higher courts’ conclusions regarding the presence of any circumstances justifying the imposition of a twenty-five-year sentence had been arbitrary, partly because they had assessed some of the relevant facts erroneously and partly because they had failed to assess some of them at all. 9. In a letter of 25 January 2013 a single Constitutional Court judge informed the applicant under Section 23a of the Constitutional Court Act that his submission could not be dealt with as it clearly fell short of the requirements for a constitutional complaint. 10. The applicant’s subsequent request for the re-opening of his proceedings was dismissed by the District Court on 13 November 2014 and, following the applicant’s interlocutory appeal, by the Regional Court on 13 January 2015. 11. Release on parole is governed by the provisions of Articles 66 et seq. of the Criminal Code. 12. Article 66 § 1 allows for release on parole where a convicted prisoner’s behaviour and compliance with the obligations imposed demonstrate his or her rehabilitation and where that prisoner can be expected to behave properly. 13. Under Article 67 § 2, a whole-life prisoner can be released on parole after having served at least twenty-five years of the sentence. 14. Article 67 § 3, as in force until 31 December 2009, prohibited the conditional release of persons (i) repeatedly sentenced to life imprisonment, or (ii) who were sentenced to life imprisonment under Article 47 § 2 of the Criminal Code. 15. As from 1 January 2010, reference to the latter category of convicts was deleted from that provision by virtue of the above-mentioned Law no 576/2009 Coll. (see paragraph 6 above). 16. In proceedings brought under file no. PL. ÚS 6/09 on 3 November 2008, the Pezinok District Court asked the Constitutional Court to examine whether Articles 47 § 2 and 67 § 3 of the Criminal Code (as in force at that time) were in conformity with the Constitution and Articles 3 and 5 § 4 of the Convention. 17. On 2 November 2011 the Constitutional Court discontinued the proceedings in respect of the latter provision with reference to amendment no. 576/2009 Coll. A majority of judges then concluded that Article 47 § 2 of the Criminal Code was not contrary to Article 3 of the Convention. It was admitted that in a small number of cases the effects of that provision reached the limits of conformity with Constitution from the viewpoint of their proportionality. Emphasis was put on the fact that the amendment which had taken effect on 1 January 2010 gave judges wide discretion to take into account the particular circumstances of each case. In separate opinions three judges disagreed with that conclusion. Views were expressed that Article 47 § 2 of the Criminal Code provided for disproportionate penalties. The offence of less serious robbery was referred to by way of example.