Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26962/95

by Milan SULKO

against the Slovak Republic

The European Commission of Human Rights (Second Chamber) sitting

in private on 6 September 1995, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

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 11 July 1994 by

Mr. Milan SULKO against the Slovak Republic and registered on

3 April 1995 under file No. 26962/95;

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 1953. He is a

bricklayer and is serving a prison sentence.

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

summarised as follows.

The applicant was charged with an offence and detained from

5 April 1990 until 27 November 1991 when the charges were dropped. On

24 April 1992 he requested compensation for the detention from the

Ministry of Justice. On 11 January 1994 the applicant received a sum

which he considered inadequate. On 4 July 1994 he lodged an action for

damages before the Supreme Court (Najvyssí súd).

The action was transferred to the Banská Bystrica District Court

(Okresny súd) which has jurisdiction in the case. Upon the request of

the court the applicant made further submissions on 25 October 1994.

The applicant lodged a complaint before the Constitutional Court

(Ústavny súd) in which he alleged that there were excessive delays in

the proceedings concerning compensation for the detention. On

15 November 1994 the Constitutional Court informed the applicant that

he had failed to exhaust the available remedies, namely to lodge a

complaint with a higher court and the Ministry of Justice.

On 8 November 1994 the Banská Bystrica Regional Court (Krajsky

súd) found the applicant guilty of murder. The court established that

on 24 February 1994 the applicant had stabbed an acquaintance whom he

had suspected of having stolen money and a tape from him. At an early

stage of the investigation the applicant admitted this fact (in the

presence of his lawyer), however later he alleged that the victim had

stumbled and fallen on the sabre which the applicant held. There were

no eye witnesses.

According to four witnesses heard by the court the applicant had

alleged immediately after the incident that he wanted to stab his

opponent but not to kill him, and that the latter deserved the

punishment. The experts concluded that the victim, who had been

stabbed in the arm and in the heart, could not have wounded himself as

alleged by the applicant. It was established that blood stains on the

sabre and on the applicant's clothes corresponded to the victim's blood

group.

The court concluded from the way in which the victim had been

wounded (the attack had been repeated and violent, it was directed at

vital organs) that the applicant had intended to kill his opponent.

Furthermore, the medical expert opinion proved that the wounds were the

cause of the victim's death. In its judgment the court noted, inter

alia, that the motive for the act (punishment of a presumed thief) and

the applicant's readiness to put financial issues before human life

showed the serious nature of the offence.

The applicant was sentenced to twelve years' imprisonment. In

addition, he was ordered to pay damages, and the court confiscated the

sabre with which the offence had been committed.

In the proceedings before the Banská Bystrica Regional Court the

applicant was represented by a lawyer, he participated in the

reconstruction of the incident and had the opportunity to challenge the

evidence against him.

The applicant lodged an appeal with the Supreme Court. He

alleged that he had not intended to wound his opponent. He claimed

that by admitting, immediately after the incident, that he stabbed his

opponent he had meant that he had merely held the sabre and the victim

had fallen onto it.

In his appeal the applicant also referred to witnesses whom he

had told that he had not intended to kill his opponent. Finally, he

complained that the evidence against him before the Regional Court had

not been sufficient, the facts had not been established correctly, and

the court had relied on expert evidence which was erroneous and

superficial.

On 19 January 1995 the Supreme Court (after an oral hearing)

upheld the prison sentence and the order to pay damages. It quashed

the decision to confiscate the sabre since it was not clear whether the

applicant owned it.

The Supreme Court found that the Regional Court had examined the

evidence before it, drawn the correct conclusions from the facts it had

established and given detailed reasons for its decision. In

particular, the Supreme Court noted that the expert evidence (which

corresponded to the applicant's first statements made after the

incident) as well as the other evidence available were sufficient proof

that the wounds had been caused by the applicant.

In the Supreme Court's view, the applicant must have had at least

an indirect intention to murder his opponent since he had attacked him

repeatedly with a weapon capable of causing death, the attack had been

violent and had been directed at vital organs. The applicant must have

been aware of the possible consequence of his acting. Finally, the

Supreme Court noted that the aforesaid conclusions were confirmed also

by the witnesses who had been heard by the court.

COMPLAINTS

The applicant complains that from 5 April 1990 until

27 November 1991 he was unlawfully detained and that he did not receive

compensation for this detention. He alleges a violation of Article 5

para. 5 of the Convention. He also complains of the length of the

proceedings concerning compensation for the detention.

The applicant further alleges a violation of his rights in the

proceedings which led to his conviction for murder in that (i) the

expert opinion was contradictory, erroneous and could not be considered

as a sufficient proof of his guilt, (ii) he could not defend himself

since the courts failed to establish the real facts of the case and

convicted him without sufficient direct evidence against him, (iii) the

reconstruction of the incident was not correct and did not correspond

to the reality, (iv) the Regional Court wrongly concluded that he put

financial issues before respect for human life although he had not been

examined by a psychiatrist, (v) one of the witnesses gave different

evidence in preliminary proceedings and later before the Regional

Court, (vi) there could have been no blood stains on his clothes since

the clothes sent for the analysis were different from those which he

had had on during the incident. The applicant expressly alleges a

violation of Articles 3 and 17 of the Convention.

THE LAW

1. The applicant alleges a violation of Article 5 para. 5

(Art. 5-5) of the Convention in that from 5 April 1990 until

27 November 1991 he was unlawfully detained. The Commission notes that

the facts complained of relate to a period prior to 18 March 1992,

which is the date of the ratification of the Convention by the former

Czech and Slovak Federal Republic, as well as to 1 January 1993, which

is the date of the entry into force of the Convention with respect to

the Slovak Republic. However, the Convention only governs, for each

Contracting Party, facts subsequent to its entry into force with

respect to that Party.

It follows that this part of the application is incompatible

ratione temporis with the Convention within the meaning of Article 27

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

2. a) To the extent that the applicant complains that the Slovak

authorities failed to pay compensation for the detention, and even

assuming that an issue under the Convention arises in this respect, the

Commission notes that the proceedings are still pending before the

Banská Bystrica District Court. This complaint is therefore premature.

b) As to the complaint of the length of the proceedings which

concern compensation for the detention, and again assuming that issues

arise under the Convention, the Commission recalls that the

Constitutional Court refused to examine the applicant's petition since

he had failed to exhaust other remedies available under Slovak law.

c) The applicant further alleges a violation of his rights in the

proceedings relating to his charge with murder in that (i) the

reconstruction of the incident was not correct and did not correspond

to the reality, (ii) the Regional Court wrongly concluded that he put

financial issues before respect for human life, (iii) one of the

witnesses gave different evidence in preliminary proceedings and later

before the Regional Court, (iv) there could have been no blood stains

on his clothes as alleged by the Regional Court.

However, it appears from the documents submitted that the

applicant did not raise these issues in his appeal before the Supreme

Court. He therefore 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.

3. Finally, the applicant alleges a violation of his rights in the

proceedings before the Banská Bystrica Regional Court and the Supreme

Court in that (i) the expert evidence was contradictory, erroneous and

could not be considered as sufficient proof of his guilt, (ii) the

courts violated his right to defend himself since they failed to

establish the real facts of the case and convicted him without

sufficient direct evidence against him. He alleges a violation of

Articles 3 and 17 (Art. 3, 17) of the Convention.

The Commission finds that in substance these complaints fall

under Article 6 (Art. 6) of the Convention and considers it appropriate

to examine them under this head.

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

guarantees to everyone charged with a criminal offence a fair and

public hearing by a tribunal, the right to defend himself in person or

through legal assistance of his own choosing and to examine and have

examined witnesses against him.

The applicant alleges that the courts failed to establish the

facts properly and based their decision on erroneous evidence which

could not be regarded as sufficient proof of his guilt. The Commission

recalls that its task is to determine whether the proceedings

considered as a whole were fair (cf. Eur. Court H.R., Barberà, Messegué

and Jabardo judgment of 6 December 1988, Series A no. 146, p. 31,

para. 68, with further references).

In particular, the Commission has no general jurisdiction to

consider whether domestic courts have appraised the evidence correctly

or incorrectly; its task is to establish whether evidence produced for

or against the accused was presented in such a way as to ensure a fair

trial (cf. No. 9000/80, Dec. 11.3.82, D.R. 28 p. 127).

In the present case, the applicant was represented by a lawyer.

He took part in the hearings on his case and it does not appear from

his submissions that he was deprived of the opportunity to challenge

the evidence against him in an adversarial procedure and to comment on

the evidence in argument. Furthermore, both the Banská Bystrica

Regional Court and the Supreme Court gave detailed reasons for their

decisions.

Under these circumstances the Commission considers that the

proceedings which resulted in the conviction of the applicant 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.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

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SULKO v. THE SLOVAK REPUBLIC

SULKO v. THE SLOVAK REPUBLIC

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