CASE OF MACKO AND KOZUBAL v. SLOVAKIA
No violation of Art. 6-1
Nicolas Bratza
7. Mr Viktor Macko, the applicant in application No. 64054/00 (the first applicant), was born in 1965 and lives in Humenné. Mr Miroslav Kozubaľ, the applicant in application No. 64071/00 (the second applicant), was born in 1963 and lives in Hanušovce. 8. Between 19 November 1993 and 29 January 1996 the second applicant was the representative of the company ILaS Vranov, s.r.o. and he was entitled to act on the company's behalf in that capacity. On 30 January 1996 he was replaced by the first applicant who carried out that function until 2 September 1997. Prior to that, on 14 August 1995, the second applicant had authorised the first applicant, then director of company ILaS Vranov, s.r.o., to act on the company's behalf. From 3 September 1997 to 13 September 1998 Mr I. succeeded the first applicant as the above company's representative. 9. On 16 December 1998 Mr T., a police investigator of the Regional Office of Investigation in Prešov, accused Mr I. of unauthorised trading in foreign currency. I. was accused of having authorised, as a co-owner of the company ILaS Vranov, a sale of bills of exchange in Austria without the approval of the central bank. The transaction had been carried out in 1994. The investigation file had the number KÚV-80/20-98. 10. On 2 July 1999 investigator T. accused Mr I. of a different offence in the context of proceedings KÚV-80/20-98. I. was accused of fraud and money laundering on the ground that he had unlawfully obtained and used a sum of money while acting as the representative of companies Classinvest Slovakia o.c.p., a.s. and C.S.I. Slovenka Vranov, a.s. According to the accusation, I. had issued bills of exchange which had been uncovered and void. The transaction had allegedly been made in Vienna in 1997 and it had involved the same person as the above transaction of 1994. 11. The police investigator summoned the first applicant to an interview as a witness in the case against I. The first applicant appeared before the investigator and indicated that he wished to avail himself of the right under Article 100 § 2 of the Code of Criminal Procedure to remain silent with a view to avoiding any criminal proceedings against him. This fact is recorded in the minutes of the first applicant's interview of 5 October 1999. 12. On 23 November 1999 investigator T. issued a decision, under Article 66 § 1 of the Code of Criminal Procedure, in which he imposed a procedural fine of SKK 20,000 on the first applicant. The decision stated that the applicant had refused, on 5 October 1999, to make a witness statement in the criminal case against I. concerning fraud. The decision also stated that the applicant had relied on Article 100 § 2 of the Code of Criminal Procedure and that the investigator had concluded, after having considered the position in the case, that the applicant's statement as a witness could not result in the initiation of criminal proceedings against him. The decision had the number KÚV-80/OVEK-98. 13. The second applicant, like the first applicant, was summoned to an interview by investigator T. in the context of criminal proceedings brought against Mr I. On 18 November 1999, prior to interviewing the second applicant, the investigator informed him that he could remain silent, pursuant to Article 100 § 2 of the Code of Criminal Procedure, if his statement could result in his or his close relatives' prosecution for a criminal offence. The second applicant used that right. According to the minutes, he had stated that he would not mention the reasons for his decision to remain silent. 14. In a decision of 23 November 1999 the investigator imposed a procedural fine of SKK 20,000 on the second applicant under Article 66 § 1 of the Code of Criminal Procedure. The decision stated that the applicant had refused, without justification, to make a witness statement in a criminal case and that he had been warned that he could be fined therefor. According to the decision, the applicant had not indicated any reason for his refusal and the investigator concluded, after having considered the evidence in the case, that his witness statement had not been susceptible of resulting in his prosecution. 15. On 22 February 2000 the police investigator accused the first applicant of conspiracy to defraud on the ground that he had been involved in the fraudulent elaboration of a contract with a view to obtaining a considerable sum of money from the State. The decision had the file number KÚV4/OVEK2000. 16. On 1 August 2000 investigator T. issued two decisions under investigation file number KÚV-83/20-98 accusing several persons of criminal offences. 17. In the first decision Mr I., the two applicants and five other persons were accused of conspiracy to defraud. The case concerned the transfer of securities of the joint stock company Transpetrol, a.s. The alleged offence had been committed in 1998. A public prosecutor at the Regional Prosecutor's Office in Prešov quashed the investigator's decision on 7 August 2000. No further criminal proceedings have been brought against the second applicant subsequently. 18. In the second decision dated 1 August 2000 investigator T. accused the first applicant, together with Mr I. and another person, of preparatory acts relating to money laundering. It was imputed to the first applicant that, as representative of the company Brilant, a.s., he had participated in the fraudulent elaboration of a contract in 1996, and that he had transferred securities of the company Transpetrol, a.s. to his company. 19. On 2 August 2000 the police investigator joined to a single set of proceedings the above cases against Mr I. and, inter alios, the first applicant registered under file numbers KÚV-80/20-98, KÚV-83/20-98 and KÚV4/OVEK-2000. On 2 July 2001 the investigator discontinued the proceedings against Mr I. (file number KÚV-80/20-98) brought on 16 December 1998 as no offence had been committed. 20. On 10 December 2001 the public prosecutor indicted the first applicant, Mr I. and six other persons before the Regional Court in Prešov in the context of transfer of securities of Transpetrol, a.s. The first applicant was charged with two offences. 21. Firstly, the applicant was accused of fraud, together with Mr I. and two other persons, on the ground that they had fraudulently elaborated a pre-dated contract, in 1996, after a tax authority had issued a warrant with a view to securing a possible debt of company ILaS Vranov, s.r.o. As the warrant had prevented the company ILaS Vranov, s.r.o. from complying with its obligations under the above contract, the State had later been ordered to pay SKK 43,265,591 as compensation for the fine foreseen under that contract. The State's alleged debt had subsequently been enforced by means of a transfer of securities of the company Transpetrol, a.s. The public prosecutor concluded that, as a result, the Ministry of Economy had suffered a financial loss totalling SKK 2,184,000 million. 22. Secondly, the first applicant was accused of having engaged in preparatory acts relating to money laundering in that he had acquired, as representative of the company Brilant, a.s., 98 shares in the company Transpetrol a.s. which had been obtained by means of the above transasction and that he had intended to sell those securities abroad through his co-accused Mr I. 23. On 3 August 2004 the Regional Court in Žilina returned the case to the public prosecutor for further investigation. 24. On 25 May 2006 the Supreme Court quashed the Regional Court's decision of 3 August 2004 and ordered the first-instance court to proceed with the case. In its decision the Supreme Court referred to the fact that the second applicant had refused to make statements as a witness at interviews on 11 February 2000, 10 May 2000 and 20 March 2001 with reference to Article 100 § 2 of the Code of Criminal Procedure. Further questioning of the second applicant would in such situation amount to undue pressure with a view to forcing him to make a statement which he had refused to make in accordance with the relevant provisions of the Code of Criminal Procedure. The Supreme Court concluded that any evidence obtained in those circumstances could not be used in subsequent proceedings. 25. The criminal proceedings are pending. 26. On 10 December 1999 the first applicant filed a complaint against the decision of 23 November 1999 to impose a fine on him. He argued that he had availed himself of his right to remain silent as he had considered that his statement could give rise to criminal proceedings against him. He had not been warned that a fine could be imposed on him, and the investigator had not informed him that the position in the case excluded the bringing of criminal proceedings against the first applicant. 27. On 30 December 1999 the Prešov Regional Deputy Prosecutor dismissed the complaint. The decision stated that the first applicant had not indicated the reason for his refusal to make a statement. Under Article 100 § 2 of the Code of Criminal Procedure, a witness was obliged to inform an investigator why he or she refused to make a statement. Where the investigator did not accept the reasons invoked, the witness was obliged to answer the questions. 28. The first applicant requested that an extra-ordinary complaint be filed against the above decision imposing a fine for his refusal to make statement as a witness. 29. On 19 February 2001 a public prosecutor at the General Prosecutor's Office dismissed the request. In his letter the public prosecutor summed up the relevant facts as follows. On 5 October 1999 the first applicant had to be heard as a witness in the context of criminal proceedings KÚV-80/20-98 against Mr I. Those proceedings concerned an unlawful sale of bills of exchange, in 1994, which had resulted in the transfer of approximately SKK 19 million to the account of the company ILaS Vranov, s.r.o. on 7 July 1994. The offences imputed to the accused comprised also several other actions including the misuse, in 1996, of bonds issued by a company of which Mr I. had been the director and transfer of that company's assets to several persons including the applicant. The police investigator had joined the above proceedings, on 2 August 2000, as both the applicant and Mr I. had been accused in the case registered under file number KÚV-83/20-98. However, the actions imputed to Mr I. in proceedings KÚV-80/20-98, in the context of which the applicant had refused to make a witness statement, were entirely unrelated to the facts of the other cases. 30. The public prosecutor held that a witness could remain silent only to the extent that a specific part of his statement was susceptible of resulting in the introduction of criminal proceedings against the witness or his or her next of kin. As the first applicant had had no apparent reason for refusing to make a witness statement, and since he had given no specific reason for such a refusal, the decision imposing a procedural fine had been justified. 31. The second applicant filed a complaint against the decision imposing a fine on him. He argued, with reference to the record of the interview with the investigator, that he had remained silent as he had considered that a statement could give rise to criminal proceedings against him. The fine amounted to the application of psychological pressure to him. 32. On 30 December 1999 the Prešov Regional Deputy Prosecutor dismissed the second applicant's complaint. The decision stated that the applicant had not given any reason for his refusal to make a statement. Under Article 100 § 2 of the Code of Criminal Procedure, a witness was obliged to inform the investigator why he or she refused to make a statement. Where the investigator did not accept the reasons invoked, the witness was obliged to answer the questions. 33. On 12 December 2000 the second applicant petitioned the General Prosecutor's Office for a complaint in the interest of the law to be filed on his behalf. He challenged the above procedural fine. The fact that the same investigator had accused him of an offence on 1 August 2000 proved that the fine had been imposed with a view to coercing the second applicant to make a statement on the relevant facts. 34. In a letter of 19 February 2001 a public prosecutor of the General Prosecutor's Office refused to file an extra-ordinary complaint on the second applicant's behalf for reasons similar to those set out above in respect of the petition filed by the first applicant. 35. On 25 July 2001 a different public prosecutor of the General Prosecutor's Office confirmed that conclusion. The letter stated, in particular, that the interview in question had concerned offences imputed to other persons and that the second applicant, therefore, had had no valid reason for refusing to answer the questions. The offence of which the second applicant had been accused subsequently concerned facts different from those on which he had been asked to make a witness statement. 36. Article 47 § 1 reads as follows: “Everyone is entitled to refuse to make a statement where it would be susceptible of resulting in his or her prosecution for a criminal offence or in prosecution of a different person close to him or her.” 37. Under Article 66 § 1, a person who, despite previous warnings, disturbs proceedings or behaves in an offensive manner in relation to a court, a public prosecutor, an investigator or a police authority or, without sufficient excuse, does not obey an order or does not comply with an instruction addressed to him or her under the Code of Criminal Procedure, can be punished with a procedural fine of up to SKK 50,000. 38. Pursuant to Article 97, everybody is obliged to appear before a prosecuting authority upon summons and to make a statement as a witness about facts which he or she knows about an offence, its perpetrator or issues which are considered important for the purpose of criminal proceedings. 39. Article 100 § 2 reads as follows: “A witness is entitled to refuse to make a statement where such a statement would entail the risk that criminal proceedings would be brought against him, against his relative in direct line, his sibling, a person whom the witness adopted or by whom he was adopted, against the spouse or partner of such a witness or against any other person with whom the witness has family-like relations and whose harm the witness would justifiably perceive as being his own harm.” 40. The domestic authorities have held that a person who wishes to remain silent pursuant to Article 100 § 2 of the Code of Criminal Procedure must state the reason for his or her refusal to make a statement. The decision whether or not such a person's recourse to Article 100 § 2 is justified lies with the authority by whom the witness is to be heard. Where the authority concerned does not accept the reasons invoked, the witness is obliged to make a statement. 41. Where the refusal of a witness to make a statement is justified, an investigator cannot circumvent the witness's right to remain silent by inquiring into the reasons for such a refusal and facts related to the subject-matter of the envisaged interrogation, and by mentioning those facts subsequently in the minutes of the interrogation. The information contained in such an unlawfully obtained statement cannot be used as evidence in criminal proceedings.