Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 31902/96

by Jozef HRENÁK

against the Slovak Republic

The European Commission of Human Rights (Second Chamber) sitting

in private on 3 December 1997, the following members being present:

Mrs G.H. THUNE, President

MM J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

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 18 March 1996 by

Jozef HRENÁK against the Slovak Republic and registered on 13 June 1996

under file No. 31902/96;

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 1958. At the relevant

time he was detained in the Leopoldov prison.

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

summarised as follows.

A. The particular circumstances of the case

On 7 May 1991 the applicant was remanded in custody. On

20 August 1991 the Povazská Bystrica District Court (Okresny súd)

convicted the applicant of robbery and theft. The court imposed a

combined eight years and four months' prison sentence on the applicant

pursuant to Section 35 (1) of the Criminal Code (see "Relevant domestic

law and practice" below). The District Court's judgment became final

on 15 October 1991 and the applicant started to serve his sentence.

On 10 December 1991 the Povazská Bystrica District Court, in the

context of different proceedings, convicted the applicant of theft.

The District Court set aside the applicant's combined sentence of

20 August 1991 and imposed a consolidated nine years' prison sentence

on him pursuant to Section 35 (2) of the Criminal Code. The judgment

of 10 December 1991 became final on 5 February 1992.

On 8 June 1995 the Supreme Court (Najvyssí súd) found, upon a

complaint lodged by the Public Prosecutor, that the applicant's

conviction of theft of 10 December 1991 was unlawful. The Supreme

Court quashed the District Court's judgment of 10 December 1991 and

discontinued the proceedings leading to that judgment.

On 5 September 1995 the Povazská Bystrica District Court

dismissed the applicant's request for reopening of the proceedings

leading to the judgment of 20 August 1991. On 22 November 1995 the

Banská Bystrica Regional Court (Krajsky súd) rejected the applicant's

complaint against this decision.

The applicant considered that after the judgment of

10 December 1991 had been quashed there existed no legal ground for his

further detention and requested his release.

On 28 September 1995 the president of the Povazská Bystrica

District Court's chamber sent a decision by which the execution of the

applicant's sentence of 20 August 1991 had been ordered to the

Leopoldov prison administration. The accompanying letter stated that

as a result of the Supreme Court's decision of 8 June 1995 the judgment

of 20 August 1991 had become binding and enforceable and that the

applicant had to continue serving his sentence under that judgment.

On 10 October 1995 the Ministry of Justice informed the applicant

that as a result of the Supreme Court's judgment of 8 June 1995 the

binding effect of the Povazská Bystrica District Court's judgment of

20 August 1991 had been renewed ex lege and that the applicant had

therefore to continue the service of the eight years and four months'

prison sentence which had been imposed on him by that judgment. The

Ministry further noted that the applicant was considered to be serving

the aforesaid sentence as from 7 May 1991 and that the order concerning

the execution of that sentence had been delivered to the Leopoldov

prison administration.

On 11 October 1995 the Director-General of the Prisons and Courts

Guard informed the applicant that the Supreme Court's judgment of

8 June 1995 had automatically renewed the binding effect of the

Povazská Bystrica District Court's judgment of 20 August 1991. The

letter further stated that subsequently the District Court had sent the

relevant documents concerning the execution of the applicant's sentence

to the Leopoldov prison administration.

On 24 October 1995 the Public Prosecutor's Office dismissed, for

the same reasons, the applicant's complaint about the unlawfulness of

his detention.

On 9 January 1997 the Trnava District Court granted the applicant

conditional release.

B. Relevant domestic law and practice

Pursuant to Section 35 (1) of the Criminal Code, when a court

convicts a person of two or more offences it shall impose a combined

sentence (úhrnny trest) pursuant to the relevant provision of law

which covers the offence punishable with the severest of the penalties

available for the individual offences.

Section 35 (2) of the Criminal Code provides that a court shall

impose a consolidated sentence (súhrnny trest) according to the

principles set out in Section 35 (1) when it convicts a person of an

offence which he or she had committed before the first instance court

convicted him or her of another offence. Along with its pronouncing

a consolidated sentence the court shall set aside the sentence imposed

by the earlier judgment.

Section 139 (1) of the Code of Criminal Procedure provides as

follows:

"A judgment shall become final and, unless this law provides

otherwise, also enforceable if

a) the law provides for no appeal against it,

b) the law provides for an appeal against it but

aa) no appeal was lodged within the time-limit set for this

purpose,

bb) the persons entitled to lodge an appeal expressly waived

their right to do so or withdrew their appeal, or

cc) an appeal was rejected."

According to the case-law of the Supreme Court (Najvyssí súd)

relating to Section 139 of the Code of Criminal Procedure and published

in the Collection of Judicial Decisions and Opinions (Zbierka súdnych

rozhodnutí a stanovísk) under No. R 58/1977, the binding effect of the

part of an earlier judgment by which a sentence had been imposed and

which was subsequently set aside while a consolidated sentence was

pronounced pursuant to Section 35 (2) of the Criminal Code shall be

renewed when the judgment by which a consolidated sentence was imposed

is quashed.

COMPLAINTS

The applicant complains under Article 5 para. 1 of the Convention

that his detention after 8 June 1995 had no legal basis in Slovak law.

The applicant further complains that his rights under Article 6

para. 1 of the Convention and Articles 3 and 4 of Protocol No. 7 were

violated by the authorities which dealt with his complaints about the

unlawfulness of his detention and with his request for reopening of the

criminal proceedings against him.

THE LAW

1. The applicant complains that his detention after 8 June 1995 was

unlawful as it had no legal basis in Slovak law. He alleges a

violation of Article 5 para. 1 (Art. 5-1) of the Convention which

provides, in so far as relevant, as follows:

"Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the following

cases and in accordance with a procedure prescribed by law:

a. the lawful detention of a person after conviction by

a competent court;"

...

The Commission recalls that the requirement that a person's

deprivation of liberty be "in accordance with a procedure prescribed

by law" and "lawful" set out in Article 5 para. 1 (Art. 5-1) of the

Convention refers back to domestic law and states the obligation to

conform to the substantive and procedural rules of that law. In

addition, it requires that any deprivation of liberty should be

consistent with the purpose of Article 5 (Art. 5), namely to protect

individuals from arbitrariness.

The Commission further recalls that it is in the first place for

the national authorities, notably the courts, to interpret and apply

domestic law. However, since under Article 5 para. 1 (Art. 5-1)

failure to comply with domestic law entails a breach of the Convention,

the Convention organs can and should exercise a certain power to review

whether this law has been complied with (see Eur. Court HR, Tsirlis and

Kouloumpas v. Greece judgment of 29 May 1997, Reports 1997-III, No. 38,

paras. 56-57, with further references).

The Commission notes that in the present case the Povazská

Bystrica District Court sentenced the applicant, on 20 August 1991, to

eight years and four months' imprisonment. On 10 December 1991 the

same court convicted the applicant of another offence and imposed a

consolidated nine years' prison sentence on him. At the same time, the

District Court set aside, pursuant to Section 35 (2) of the Criminal

Code, the original sentence which it had imposed on the applicant on

20 August 1991.

On 8 June 1995 the Supreme Court found the applicant's conviction

of 10 December 1991 unlawful and quashed the relevant judgment of the

Povazská Bystrica District Court. As a result, the decision of

10 December 1991 to set aside the sentence of 20 August 1991 also

became void and, in accordance with Section 139 (1) of the Code of

Criminal Procedure, as interpreted and applied by the Slovak courts,

the part of the judgment of 20 August 1991 by which an eight years and

four months' prison sentence had been imposed on the applicant became

binding and enforceable again. Subsequently the applicant remained

detained for the purpose of serving the remainder of the aforesaid

sentence.

In these circumstances, the Commission considers that the

applicant's detention in question was a lawful detention after

conviction by the competent court within the meaning of Article 5

para. 1 (a) (Art. 5-1-a) of the Convention.

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

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

Convention.

2. The applicant further complains that his right to a fair and

public hearing was violated in the proceedings concerning his requests

for release and for reopening of the criminal proceedings against him.

He alleges a violation of Article 6 para. 1 (Art. 6-1) of the

Convention which, in so far as relevant, provides as follows:

"In the determination of his civil rights and obligations or of

any criminal charge against him, everyone is entitled to a fair

and public hearing ... by an independent and impartial tribunal

established by law..."

a) To the extent that the applicant alleges a violation of Article 6

para. 1 (Art. 6-1) of the Convention in the proceedings concerning his

complaints about the unlawfulness of his detention and requests for

release, the Commission recalls that the right to liberty is not a

civil right within the meaning of Article 6 (Art. 6) of the Convention

(see No. 11352/85, Dec. 10.12.85, D.R. 45, pp. 273 and 275, with

further reference).

Furthermore, the Commission has found above that the applicant's

detention after 8 June 1995 had as its basis his conviction by the

Povazská Bystrica District Court of 20 August 1991. The aforesaid

judgment was final and enforceable and, in the Commission's view, the

applicant's subsequent complaints challenging the lawfulness of his

detention did not concern the determination of any separate criminal

charge against him within the meaning of Article 6 (Art. 6) of the

Convention.

b) To the extent that the applicant alleges a violation of Article 6

para. 1 (Art. 6-1) of the Convention in the proceedings concerning his

request for reopening of the criminal proceedings against him, the

Commission recalls that Article 6 (Art. 6) is not applicable to

proceedings concerning an application for a retrial after conviction

(see No. 13601/88 and No. 13602/88, Dec. 6.7.89, D.R. 62, pp. 284, 291,

with further references).

If follows that this part of the application must be rejected as

being incompatible ratione materiae with the Convention within the

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

3. Finally, the applicant alleges a violation of Articles 3 and 4

of Protocol No. 7 (P7-3, P7-4).

The Commission has examined these complaints but finds that in

so far as they have been substantiated and are within its competence,

they do not disclose any appearance of a violation of the rights and

freedoms set out in the Convention or in its Protocols.

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 G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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HRENÁK v. THE SLOVAK REPUBLIC

HRENÁK v. THE SLOVAK REPUBLIC

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