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FOURTH
SECTION
CASE OF Z. v. SLOVAKIA
(Application
no. 5868/02)
JUDGMENT
STRASBOURG
13 May
2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Z. v. Slovakia,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza, President,
Lech
Garlicki,
Giovanni
Bonello,
David
Thór Björgvinsson,
Ján
Šikuta,
Päivi
Hirvelä,
Ledi
Bianku, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 22 April 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 5868/02) against the
Slovak Republic lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Slovak national, Mr R.Z. (“the
applicant”), on 19 November 2001. On 12 March
2008 the President of the Chamber granted the applicant's request for
anonymity (Rule 47 § 3 of the Rules of Court).
- The
Slovak Government (“the Government”) were represented by
their Agent, Mrs M. Pirošíková.
- On
26 March 2006 the
President of the Chamber decided to give notice of the application to
the Government. Applying Article 29 § 3 of the Convention, it
was decided to rule on the admissibility and merits of the
application at the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1972. He is serving a prison sentence in the
Košice-Šaca prison.
- On
23 July 1996 the applicant's father, a former police officer,
attacked the applicant's sister with a knife. She suffered moderate
injuries to her left arm. When the applicant began to defend his
sister, the father turned to attack him. The applicant suffered
several injuries to his arms. During the struggle the applicant
seized a machete from his father and inflicted a number of blows on
him. The applicant's father died of a haemorrhage shortly thereafter.
- On
24 July 1996 criminal proceedings were brought against the applicant.
A lawyer was appointed to defend him. Between August and November
1996 several expert opinions were obtained and a number of witnesses
were heard.
- On
27 November 1996 the investigator transmitted the case to the Košice
Regional Prosecutor's Office, with the proposal that the applicant be
indicted for murder.
- On
13 December 1996 the Košice Regional Prosecutor's Office
discontinued the proceedings, concluding that the applicant had acted
in self-defence. This decision became final on 24 December 1996.
- On
5 March 1997 the General Prosecutor filed a complaint in the interest
of the law against the above decision. On 16 April 1997 the Supreme
Court upheld the complaint and quashed the decision of 13 December
1996. The Supreme Court sent detailed instructions to the Regional
Prosecutor's Office on the action to be taken with a view to
establishing the relevant facts. The case was returned to the police
investigator.
- Between
24 June 1997 and 11 November 1997 the investigator took action at
regular intervals with a view to establishing the facts of the case.
This included questioning of a number of witnesses and obtaining
expert opinions and documentary evidence. The applicant's counsel was
notified of and had the option of attending the questioning of
witnesses.
- In
the meantime, on 18 August 1997 and 9 September 1997 the applicant
requested that a different lawyer be appointed to defend him, as he
had lost confidence in the lawyer who had been appointed on 24 July
1996. On 8 September 1997 the applicant asked the police investigator
to notify him of all steps taken in the criminal proceedings, so that
he could attend and defend his rights in person. On 11 September 1997
the investigator replied to the applicant that the law did not
require his presence during the interrogation of witnesses. The
applicant would be summoned whenever his presence was required under
the relevant provision of the Code of Criminal Procedure. On 16
September 1997 different counsel was appointed to assist the
applicant.
-
On 25 September 1997 the applicant consulted the file. On 1 October
1997, in the presence of his counsel, he submitted his comments on
several witness statements.
- On
12 December 1997, after the applicant had perused the file, the
Regional Prosecutor indicted the applicant before the Regional Court
in Košice.
- On
18 December 1997 the Regional Court judge asked for permission to
withdraw, as he had known the victim. On 19 December 1997 the
case was transferred to a different judge.
- On
3 March 1998 the Regional Court returned the case to the Regional
Prosecutor. The decision stated that the prosecuting authority had
failed to comply in full with the instructions set out in the Supreme
Court's decision of 16 April 1997.
- On
14 April 1998 the Regional Prosecutor lodged a complaint, submitting
reasons. On 21 May 1998 the Supreme Court dismissed the prosecutor's
complaint. The decision was delivered to the Regional Court on 22
June 1998.
- On
20 July 1998 the investigator requested information about the
applicant's criminal record. In August 1998 the investigator examined
and cross-examined witnesses and the applicant. Further investigative
measures were also carried out. Documentary evidence was obtained and
an expert was heard in September 1998. Three witnesses were examined
in October 1998. On 30 October 1998 the investigator submitted the
file to the Regional Prosecutor's Office.
- On
5 November 1998 the prosecutor filed a new indictment against the
applicant with the Regional Court.
- On
23 and 26 March 1999 the Regional Court heard an expert in forensic
medicine. On 30 March 1999 it again returned the case to the
prosecuting authorities, noting that several of the Supreme Court's
instructions relating to the establishment of the facts of the case
had not yet been complied with. The applicant and the public
prosecutor challenged this decision. The public prosecutor later
withdrew his complaint.
- On
7 July 1999 the Supreme Court dismissed the applicant's complaint.
The decision stated that the public prosecutor had complied with the
Supreme Court's earlier instructions taken as a whole. However, there
had been substantial procedural shortcomings in the examination of
the applicant and several witnesses. Those shortcomings needed to be
rectified.
- On
30 August 1999 and on 4 and 24 September 1999 the applicant and
several witnesses were cross-examined.
- On
4 October 1999 the Regional Prosecutor again indicted the applicant
on a murder charge before the Regional Court in Košice.
- At
a preliminary hearing on 1 December 1999 the public prosecutor
withdrew the indictment. The case was returned to the police
investigator as a result.
- On
11 January 2000 the applicant, his mother and sister refused to make
statements.
- On
10 February 2000 the public prosecutor lodged an indictment against
the applicant. As the Regional Court judge involved considered
himself biased, the case was transferred to a different judge on 22
February 2000.
- On
22 May 2000 the Regional Court adjourned the main hearing as the
applicant's counsel was unable to attend for serious family reasons.
- On
12 June 2000 the applicant refused to make a statement before the
Regional Court. His statements made in the course of the pre-trial
proceedings were read out and the applicant confirmed them. The
Regional Court heard a witness. It decided that the hearings should
be held in the applicant's presence. The case was adjourned with a
view to hearing other witnesses.
- On
19 June 2000 the Regional Court heard witnesses. The case was
adjourned as the expert in forensic medicine was ill. The court later
established that she would be on sick leave until 14 September 2000.
- On
27 September 2000 and 18 October 2000 the Regional Court heard
several witnesses and experts. On 28 November 2000 it took further
evidence.
- On
6 December 2000, after both the applicant and the public prosecutor
had stated that they had no further proposals for evidence to be
taken, the Regional Court in Košice convicted the applicant of
murder and sentenced him to ten years' imprisonment. With reference
to the experts' conclusions, the Regional Court found that the
applicant had exceeded the limits of legitimate defence in the
circumstances of the case.
- On
22 February 2001 and 20 March 2001 the applicant appealed. Relying on
the evidence in the case he argued that the first-instance court had
erred in the legal qualification of his action. He had acted in
self-defence and his action did not constitute a criminal offence.
- On
6 June 2001 the Supreme Court, referring to the evidence included in
the file, upheld the first-instance conclusion that the applicant had
committed murder. The Supreme Court accepted that the applicant had
initially acted in legitimate defence, in that he had protected his
sister from their father's attacks. In the subsequent stage, however,
after he had separated his father from his sister, the applicant had
inflicted more than 50 injuries on his father using a machete that
was 45 centimetres in length. That action had been in excess of
legitimate defence. After the attack the applicant had tied up his
wounded father, and then rolled him up in a carpet without attempting
to provide assistance. In view of the circumstances of the case the
Supreme Court reduced the applicant's sentence to seven years'
imprisonment.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that his right to a fair hearing within a
reasonable time had been violated. He relied on Article 6 §§
1 and 3(c) and (d) of the Convention, the relevant parts of which
provide:
“1. In the determination of ... any criminal
charge against him, everyone is entitled to a fair ... hearing within
a reasonable time by [a] ... tribunal...
3. Everyone charged with a criminal offence
has the following minimum rights: ...
(c) to defend himself in person or through
legal assistance of his own choosing ...
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him;
...”
A. Admissibility
1. Alleged unfairness of the proceedings
- The
applicant complained that the domestic courts had arbitrarily
convicted him of murder despite the fact that he had acted in
self-defence. Referring to the police investigator's letter of 11
September 1997 (see paragraph 11 above), he further complained that
he had not been able to defend himself and to examine witnesses
against him in person.
- The
Court recalls that it is not its function to deal with errors of fact
or law allegedly committed by a national court unless and in so far
as they may have infringed rights and freedoms protected by the
Convention (see Schenk v. Switzerland, judgment of 12 July
1988, Series A no. 140, p. 29, § 45, and García
Ruiz v. Spain [GC], no. 30544/96, § 28,
ECHR 1999-I).
- In
the instant case the Court observes that the applicant, who was
assisted by counsel, had the benefit of adversarial proceedings and
that he was able to submit the arguments he considered relevant to
his case. The courts gave reasons for their decisions with reference
to the evidence available.
- As
regards the complaint about the investigator's letter of 11 September
1997 in particular, the Court notes that the applicant's counsel had
had an opportunity to attend the questioning of witnesses and that
the applicant had been cross-examined on several occasions along with
the witnesses. The applicant consulted the case file and submitted
his comments on the statements of several witnesses at the pre-trial
stage. Prior to his conviction by the Regional Court on 6 December
2000, the applicant expressly stated that he had no further proposals
for evidence to be taken. In the proceedings before the appellate
court the applicant did not allege that his right to defend himself
and to have witnesses examined had been infringed.
- In
the above circumstances, the Court finds no indication that the
national courts' decisions were arbitrary or that the proceedings
were otherwise unfair or in breach of Article 6 §§ 1
and 3 of the Convention.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
2. Length of the proceedings
- The
Government maintained that the case was complex in that, inter
alia, twenty-seven witnesses had been heard and seven expert
opinions had been ordered. The overall duration of the proceedings
was not excessive in the particular circumstances of the case.
- The
applicant disagreed.
- The
period to be taken into consideration lasted from 24 July 1996 to 24
December 1996 (when the public prosecutor's decision to discontinue
the proceedings became final) and from 16 April 1997 (when the
Supreme Court quashed that decision) to 6 June 2001 (when the Supreme
Court decided on the appeal). It thus lasted 4 years, 6 months and 22
days for the pre-trial stage and judicial proceedings at two levels.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities (see, among
many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to that in the present
case (see Pélissier and Sassi, cited above).
- The
Court accepts the Government's argument that the case was complex to
a certain extent. There is no indication that the applicant
contributed by his conduct to the length of the proceedings in a
significant manner. As to the conduct of the domestic authorities,
the Court notes, in particular, that between 3 March 1998 and 7 July
1999 the courts involved twice returned the case to the prosecuting
authorities on the ground that the latter had failed to comply with
earlier instructions from the Supreme Court or had made procedural
errors. Subsequently, on 1 December 1999, the public prosecutor
withdrew the indictment which he had filed on 4 October 1999. The
case was returned to the investigator and a new indictment was filed
on 10 February 2000. The above indicates that the authorities dealing
with the case at the pre-trial stage failed to proceed in an
effective manner. This resulted in unjustified delays in the
proceedings.
- In
these circumstances, and having regard to its case-law on the
subject, the Court considers that in the instant case the length of
the proceedings was excessive and failed to meet the “reasonable
time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL NO. 7
- The
applicant complained that the criminal proceedings against him had
been resumed notwithstanding that the case had been dropped by
a decision given by a public prosecutor on 13 December 1996
which had become final. He relied on Article 4 of Protocol No. 7,
which provides:
“1. No one shall be liable to be tried
or punished again in criminal proceedings under the jurisdiction of
the same State for an offence for which he has already been finally
acquitted or convicted in accordance with the law and penal procedure
of that State.
2. The provisions of the preceding paragraph
shall not prevent the reopening of the case in accordance with the
law and penal procedure of the State concerned, if there is evidence
of new or newly discovered facts, or if there has been a fundamental
defect in the previous proceedings, which could affect the outcome of
the case...”
- Even
assuming that this complaint was filed within the six-month
time-limit laid down in Article 35 § 1 of the Convention (see
Paulow v. Finland
(dec.), no. 53434/99, 14 February 2006), the Court notes that the
investigation against the applicant was discontinued by the
prosecutor as he found that the applicant
had acted in
self-defence. It cannot be said that the applicant was finally
acquitted as no court of law had ruled on the matter prior to the
public prosecutor's decision to set the case aside (see, mutatis
mutandis, Wassdahl
v. Sweden (dec.),
no. 36619/03, 29 November 2005). Consequently, the applicant cannot
claim to have been tried twice as a result of the fact that the
Supreme Court later quashed the public prosecutor's decision to
discontinue the proceedings.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 400,00 Slovakian korunas (SKK) in respect of
pecuniary damage and SKK 600,000 in respect of non-pecuniary damage.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant 2,800 euros (EUR) in respect
of non-pecuniary damage.
B. Costs and expenses
- The
applicant indicated that he was unable to substantiate his claim for
the costs and expenses as the relevant documents were not available
to him in prison.
- The
Government considered that the Court should make no award under this
head.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the applicant, who was not
represented by a lawyer, the sum of EUR 100 for his out-of-pocket
expenses related to the proceedings before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, the following amounts, to be
converted into Slovakian korunas at the rate applicable at the date
of settlement:
(i)
EUR 2,800 (two thousand eight hundred euros), plus any tax that may
be chargeable, in respect of non-pecuniary damage;
(ii) EUR 100 (one hundred euros), plus any tax that may be
chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months
until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 13 May 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President