ROZEHNAL v. THE CZECH REPUBLIC
Inadmissible
Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva
The applicant, Mr Aleš Rozehnal, is a Czech national who was born in 1970 and lives in Prague. He was represented before the Court by Mr T. Otty, a lawyer practising in London. The Czech Government (“the Government”) were represented by their Agent, Mr. V.A. Schorm, from the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. In April 2001 Z., one of the applicant’s clients, was detained on suspicion of having attempted to defraud a creditor. On 12 April 2001 the applicant was heard as a witness. On 3 November 2001 the applicant was charged with an attempt to defraud a creditor together with Z. Being Z.’s lawyer, he had allegedly tried to transfer Z.’s assets to certain private companies controlled by acquaintances and had prepared documents certifying non-existent rights and obligations to the detriment of not only the creditor, a private company, C., but also of the Czech State in connection with enforcement proceedings. A search of the applicant’s home and office was carried out on 5 and 6 November 2001. On 7 November 2001 his detention was ordered under sections 67(1)(b) and 67(2) of the Code of Criminal Procedure. The judge at the Prague 1 District Court found that there was a danger of the applicant’s influencing witnesses, referring in particular to Z. and three other persons. He did not accept the applicant’s pledge and a written guarantee offered in return for his release. On 4 December 2001 the Prague Municipal Court quashed that order and decided anew, ordering the applicant’s pre-trial detention pursuant to sections 67(1)(a), (b) and 67(2) of the Code of Criminal Procedure, finding his detention necessary in order to prevent his absconding and influencing witnesses. The court, having regard to the contents of the file, found that there was a strong suspicion that the applicant had committed the offence. It stated that the applicant might influence witnesses who would have to give evidence again (as their first examination had taken place before the applicant had been charged, which made it inapplicable to his case), that it appeared from a transcript of his telephone conversation with Z. that some documents relating to the criminal proceedings might be concealed, and that he was under the threat of a heavy prison sentence and had contacts abroad, which justified the court’s concern that he might abscond and avoid the criminal proceedings. Referring to the applicant’s new status as an accused, the court dismissed his argument that should he have wished to abscond, he could already have done so between April 2001 (when Z. had been charged) and November 2001 (when he himself had been charged). The court refused the pledge offered by the applicant as well as the guarantee offered by third persons. On 5 December 2001 the applicant applied to be released. On 24 December 2001 the District Court decided to release the applicant on bail, requiring the payment of 5,000,000 Czech korunas (CZK – 166,667 euros (EUR)). On 22 January 2002 the Municipal Court, on an appeal by the Prague Municipal Prosecutor, quashed that decision for formal shortcomings and remitted the application for release to the Municipal Prosecutor for further consideration. On 31 January 2002 the Municipal Prosecutor decided that there was no longer any risk that the applicant would influence witnesses, but considered that his continued detention was necessary under section 67(1)(a) of the Code of Criminal Procedure as there was a risk that he might abscond. On the same day, the prosecutor, further to an application lodged by the applicant on 29 January 2002, decided to release him on bail, requiring the payment of CZK 10,000,000 (EUR 333,333). On 30 January 2002 the applicant lodged a constitutional appeal against the District Court’s decision of 7 November 2001 and that of the Municipal Court of 4 December 2001, alleging that they had violated his rights to a fair trial, judicial protection and personal liberty and invoking, inter alia, Article 5 § 1 and Article 6 § 1 of the Convention. He claimed that the decisions ordering his pre-trial detention were not based on concrete facts indicating a risk of his absconding or influencing witnesses. On 2 April 2002 the Constitutional Court (Ústavní soud) dismissed the constitutional appeal as ill-founded. The criminal proceedings are still pending. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court’s decision in the case of Vokurka v. the Czech Republic (no. 40552/02 (dec.), §§ 11-24, 16 October 2007). At the material time, the relevant provisions of the Code of Criminal Procedure read as follows: “(1) An accused person may be remanded in custody only if there exist specific grounds for believing that he or she (a) will abscond in order to avoid prosecution or punishment, in particular if his or her identity cannot be immediately established, if he or she has no permanent residence or if he or she is liable to a heavy penalty; (b) will try to influence the witnesses or co-accused who have not been heard yet or otherwise frustrate the investigation into the facts which are of importance for the conduct of the proceedings; or (c) will carry on the criminal activity for which he or she is prosecuted, will accomplish an offence attempted by him or her or will commit an offence which he or she was preparing or threatening to commit. (2)