Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 32110/96

by Peter POBOZNY

against the Slovak Republic

The European Commission of Human Rights (Second Chamber) sitting

in private on 16 April 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 17 October 1995

by Peter POBOZNY against the Slovak Republic and registered on

2 July 1996 under file No. 32110/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Slovak national born in 1961. He is serving

a custodial sentence in the Banská Bystrica prison.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

On 19 May 1993 the Banská Bystrica police investigator accused

the applicant and his father-in-law of theft. As from that date both

accused were remanded in custody pursuant to a decision of the Banská

Bystrica Regional Court (Krajsky súd) of 20 May 1993. On 8 June 1993

the Supreme Court (Najvyssí súd) dismissed the applicant's complaint

against this decision. On 15 July 1993 and on 11 January 1994 the

Banská Bystrica Regional Court dismissed the applicant's requests for

release.

On 19 May 1993 the applicant's father-in-law admitted to the

police investigator, in the presence of his lawyer, that he and several

other persons including the applicant had stolen cigarettes from a

warehouse in which he worked as a watchman. The applicant's father-in-

law stated that the theft had been initiated by the applicant and that

it had been caused by their financial problems. He described in detail

how he had permitted the other persons involved to commit the theft.

On 20 May 1993 the applicant's father-in-law confirmed the aforesaid

statement before a judge of the Banská Bystrica Regional Court.

At a later stage of the proceedings the applicant's father-in-law

denied the truth of his statements of 19 and 20 May 1993 and alleged

that he had been attacked by unknown persons who had threatened him

with a pistol. He explained that he had invented his earlier

statements in revenge for the applicant's bad behaviour to his

daughter.

On 16 December 1993 the Banská Bystrica Regional Prosecutor

indicted the applicant and his father-in-law of theft. Charges were

also brought against three other persons.

On 19 August 1994 the Banská Bystrica Regional Court convicted

the applicant of theft and sentenced him to eight years' imprisonment.

The Regional Court established that in the night of 15 May 1993

the applicant's father-in-law, while being on duty as a watchman, had

permitted several unknown persons to enter a warehouse and to steal

cigarettes in the value of 3,313,465 Slovak crowns from it. The court

further found that the perpetrators had tied the applicant's father-in-

law with a view to faking a robbery. Subsequently, the stolen

cigarettes had been transported to a house in Turová where the police

had later found them.

At the main hearing before the Regional Court the driver of the

truck in which the cigarettes had been transported confirmed that he

had seen the applicant, for the first time, on 15 May 1993 at about

9 p.m. near a hotel in Banská Bystrica. The applicant had been talking

to a man by whom the driver had been hired for that night. After the

cigarettes had been loaded on the truck in the warehouse, the driver

had been asked to drive to a parking. He further stated that at about

11.25 p.m. the applicant had come to the parking and had shown him the

way to a house in Turová where the cigarettes had been unloaded. The

applicant had then rewarded him for the transport.

Another witness stated that the applicant had been present in the

yard of the house in Turová at the moment when the truck transporting

the cigarettes had been unloaded. Two other witnesses confirmed that

at the relevant time the truck in question had moved on the road

between the warehouse and Turová.

The court further established that the aforesaid house in Turová

had been rented by an accused according to an agreement with the

applicant.

At the main hearing the applicant's father-in-law decided not to

give evidence. The court read out his statements of 19 and 20 May 1993

in which he had described in detail the circumstances which had

preceded the theft, and had admitted that he had instructed the

applicant and another person how to enter the warehouse. The court

recalled that he had also admitted that on 16 May 1993 the applicant

had informed him that the cigarettes had been at a safe place in a

house outside Banská Bystrica. Finally, the Regional Court noted that

at the moment when the applicant's father-in-law had been found tied,

he had indicated to a witness which warehouse had been broken into

notwithstanding that the warehouse could not be seen from the place

where he had been found.

The court also heard the applicant's wife and mother-in-law who

stated that in the night of 15 May 1993 the applicant had not left his

home after 10.45 p.m. However, it considered their statements

unreliable as the applicant had been seen both by the driver of the

truck transporting the cigarettes and by another witness at the moment

when the cigarettes had been unloaded in Turová.

The Regional Court also noted that two other witnesses for the

defence had confirmed that they had been with the applicant in the

centre of Banská Bystrica at approximately the same time when the

driver of the truck had seen him for the first time near a hotel.

However, the court found that both places were close to each other and

held that the applicant's presence in the centre of Banská Bystrica did

not exclude his being, a few minutes later, at the place where he had

been seen by the truck driver.

At the main hearing the applicant requested that he should be

cross-examined together with his father-in-law, but his request was not

granted.

The applicant appealed. He claimed that the Regional Court had

erroneously relied on the statements made by his father-in-law on

19 and 20 May 1993. He complained that the first instance court had

not taken into account that his father-in-law had revoked these

statements and that it had disregarded the evidence in his favour. The

applicant considered that the evidence on which the Regional Court had

based its decision was not sufficient to conclude that he had committed

the offence in question.

On 12 April 1995 the Supreme Court quashed the first instance

judgment as in the operative part of its judgment the Regional Court

had committed an error when specifying the stolen goods. The Supreme

Court then convicted the applicant of theft and sentenced him to eight

years' imprisonment.

The Supreme Court held that the Regional Court had taken all

necessary evidence and assessed it correctly after having considered

all relevant facts. In the Supreme Court's view, the Regional Court

had clearly stated which facts it had considered to be established, on

what basis it had considered them to be established, and what had been

its considerations when assessing the evidence before it and specifying

why it had not relied on the arguments of the defence.

In particular, the Supreme Court recalled that in his statements

of 19 and 20 May 1993 the applicant's father-in-law had admitted that

the applicant had informed him, on 16 May 1993, that the stolen

cigarettes had been stored in a house outside Banská Bystrica

notwithstanding that this fact had not been known at the moment when

the statement had been made. It therefore considered that the

subsequent denial of this statement by the applicant's father-in-law

was tendentious and unreliable.

The Supreme Court further noted that in the course of the

relevant night the applicant had shown the way to the driver of the

truck transporting the stolen cigarettes and had rewarded him for the

transport, and that another witness had seen the applicant in the yard

of the house where the truck had been unloaded. The Supreme Court held

that the aforesaid witnesses were independent of each other and

considered that their evidence was sufficiently reliable to exclude the

possibility of an error. It therefore found it established that the

applicant had been involved in the theft.

At the main hearing before the Supreme Court the applicant

complained that the first instance court had not granted his request

for his cross-examination together with his father-in-law.

COMPLAINTS

Under Article 5 of the Convention the applicant complains that

both his complaint against the decision to remand him in custody and

his requests for release from detention on remand were rejected.

The applicant further complains that his conviction was based on

the statements of his father-in-law made in the course of pre-trial

proceedings notwithstanding that the latter had denied the truth of

these statements. The applicant also complains that he did not have

an opportunity to have his father-in-law cross-examined and that the

courts disregarded the evidence in his favour, relied on false evidence

and decided arbitrarily. He invokes Article 8 of the Convention.

THE LAW

1. The applicant complains that both his complaint against the

decision to remand him in custody and his requests for release from

detention on remand were rejected. He alleges a violation of Article 5

(Art. 5) of the Convention.

The Commission notes that the applicant was remanded in custody

pursuant to a decision of the Banská Bystrica Regional Court of

20 May 1993, and that the Supreme Court rejected the applicant's

complaint against this decision on 8 June 1993. Since the application

was introduced on 17 October 1995, this part of it must be rejected for

the applicant's failure to respect the six months' time-limit laid down

in Article 26 (Art. 26) of the Convention.

The Commission further notes that it does not appear from the

documents submitted that the applicant lodged a complaint against the

decisions by which the Banská Bystrica Regional Court had dismissed his

requests for release from the detention on remand. In this respect,

the applicant has failed to comply with the requirement as to the

exhaustion of domestic remedies laid down in Article 26 (Art. 26) of

the Convention.

It follows that this part of the application must be rejected

pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.

2. The applicant further complains under Article 8 (Art. 8) of the

Convention that the judicial proceedings in his case were not fair and

that his conviction was arbitrary. The Commission finds that in

substance these complaints fall under Article 6 (Art. 6) of the

Convention and will examine them under this head.

Article 6 (Art. 6) of the Convention, in so far as relevant,

provides as follows:

"1. In the determination of ... any criminal charge against

him, everyone is entitled to a fair and public hearing ... by an

independent and impartial tribunal established by law.

...

3. Everyone charged with a criminal offence has the following

minimum rights:

...

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) The applicant complains that his conviction was based on the

statements of his father-in-law of 19 and 20 May 1993 notwithstanding

that the latter had denied the truth of these statements. He further

complains that he did not have an opportunity to have his father-in-law

cross-examined.

The Commission has examined this complaint under paras. 1 and

3 (d) of Article 6 (Art. 6-1, 6-3-d) of the Convention taken together

(see Eur. Court HR, Isgrò v. Italy judgment of 19 February 1991, Series

A no. 194-A, p. 12, para. 31).

The Commission notes that the applicant's father-in-law, who was

a co-accused in the proceedings complained of, revoked his statements

made to the police investigator and to a judge on 19 and 20 May 1993

respectively and availed himself of his right not to give evidence at

the trial. However, the aforesaid statements, as taken down in writing

and then read out at the main hearing, were before the courts

determining the criminal charge against the applicant, which took them

into account. The Commission therefore considers that the applicant's

father-in-law should, for the purposes of Article 6 para. 3 (d)

(Art. 6-3-d) of the Convention, be regarded as a witness (see Eur.

Court HR, Artner v. Austria judgment of 28 August 1992, Series A no.

242-A, p. 10, para. 19).

The Commission recalls that the admissibility of evidence is

primarily a matter for regulation by national law and, as a rule, it

is for the national courts to assess the evidence before them. The

Convention organs' task is to ascertain whether the proceedings

considered as a whole, including the way in which evidence was taken,

were fair.

In particular, all the evidence must normally be produced in the

presence of the accused at a public hearing with a view to adversarial

argument. This does not mean, however, that the statement of a witness

must always be made in court and in public if it is to be admitted in

evidence. The use in this way of statements obtained at the pre-trial

stage is not in itself inconsistent with paras. 3 (d) and 1 of

Article 6 (Art. 6-1, 6-3-d) of the Convention, provided that the rights

of the defence have been respected. As a rule, these rights require

that the defendant be given an adequate and proper opportunity to

challenge and question a witness against him, either when he was making

his statements or at a later stage of the proceedings (see Eur. Court

HR, Asch v. Austria judgment of 26 April 1991, Series A no. 203, p. 10,

paras. 26 and 27).

The Commission considers that the right on which the applicant's

father-in-law relied in order to avoid giving evidence could not be

allowed to block the prosecution. Subject to the rights of the defence

being respected, it was therefore open to the Slovak courts to have

regard to his statements of 19 and 20 May 1993, in particular in view

of the fact that they could consider these statements to be

corroborated by other evidence before them (see Eur. Court HR, Asch

v. Austria judgment cited above, pp. 10 and 11, para. 28; Artner

v. Austria judgment cited above, p. 10, para. 22).

In this respect, the Commission notes that both the Regional

Court and the Supreme Court, when deciding on the applicant's case,

also had regard to the evidence given by the truck driver. They noted

that the latter had seen the applicant talking to the man who had hired

him for the relevant night. According to the driver's statement, the

applicant had shown him, after the truck had been loaded with the

cigarettes, the way to a house in Turová in which the cigarettes had

been found later. The driver also stated that the applicant had

rewarded him for the transport.

The courts also relied on the evidence of another witness who had

seen the applicant in the yard of the aforesaid house at the moment

when the truck transporting the cigarettes had been unloaded. They

further noted that the house in question had been rented by another

accused following an agreement with the applicant.

Accordingly, the statements made by the applicant's father-in-law

on 19 and 20 May 1993 did not constitute the only item of evidence on

which the domestic courts based their finding that the applicant had

been involved in committing the offence in question.

In these circumstances, the Commission considers that the fact

that it was impossible for the applicant to have his father-in-law

cross-examined in the course of the judicial proceedings was not

incompatible with the requirements of paras. 1 and 3 (d) of Article 6

(Art. 6-1, 6-3-d).

b) To the extent that the applicant complains that the courts

evaluated the evidence in his case erroneously and convicted him

arbitrarily, the Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties in the Convention. In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved

apossible violation of any of the rights and freedoms set out in the

Convention. The Commission refers, on this point, to its constant

case-law (see, e.g., No. 25062/94, Dec. 18.10.95, D.R. 83, pp. 77, 86).

In the present case the Regional Court examined the evidence

before it and came to the conclusion, for reasons expressly set out in

its judgment, that the applicant had been actively involved in the

theft of cigarettes committed in the night of 15 May 1993. Its

findings on both the facts and the law were shared by the Supreme Court

which held that the first instance court had taken all necessary

evidence and assessed it correctly after having considered all relevant

facts. The Commission considers that the reasons on which the courts

based their above decisions are sufficient to exclude that the

evaluation of the evidence in the applicant's case had been arbitrary.

In these circumstances, the Commission considers that the

proceedings leading to the applicant's conviction were not contrary to

the requirements laid down in Article 6 (Art. 6) of the Convention.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER J.-C. GEUS

Secretary President

to the Second Chamber of the Second Chamber

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POBOZNY v. THE SLOVAK REPUBLIC

POBOZNY v. THE SLOVAK REPUBLIC

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