Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24211/94

by Ondrej KAJBA

against the Czech Republic

The European Commission of Human Rights sitting in private on

11 January 1995, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

S. TRECHSEL

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Mr. K. ROGGE, 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 24 August 1993 by

Mr. Ondrej Kajba against the Czech Republic and registered on

27 May 1994 under file No. 24211/94;

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 facts of the case, as they have been submitted by the

applicant, may be summarised as follows.

The applicant, born in 1955, is a Czech national. When his

application was introduced he was detained in prison in Ostrava-Poruba

(the Czech Republic).

A. Particular circumstances of the case

On 4 February 1992 the applicant was charged with assault on his

girlfriend under Article 222 para. 1 in connection with Article 8 para.

1 of the Criminal Code.

On the same day the judge at the Ostrava District Court (Okresní

soud) ordered the applicant's detention on remand under Articles 67 a)

b) c) and 68 of the Code of Criminal Procedure. The judge, having

regard to the content of the file, the girlfriend's statement and the

applicant's previous convictions, found a strong suspicion that the

applicant had committed the offence, a risk of his absconding on the

ground of the potentially severe sentence, and a danger of his

influencing witnesses.

On 30 March and 29 May 1992 the judge at the Ostrava District

Court ordered the applicant's continued detention on remand until

3 June and 15 July 1992, respectively. The judge considered that the

reasons for the detention on remand still applied, in view of the

nature of the offence and the danger of repetition of offences of the

same nature.

On 18 July 1992 the Ostrava Municipal Prosecutor instituted

criminal proceedings against the applicant for rape, insulting a person

in public office and physical assault, pursuant to Articles 241 para.

1, 156 paras. 1a), 3 and Article 222 para. 1 in connection with Article

8 para. 1 of the Criminal Code.

On 19 May, 1 July and 29 September 1992 the applicant applied to

the judge at the Ostrava District Court to be released, challenging the

grounds put forward to justify his continued detention. He also

submitted that his girlfriend had expressed the wish that they should

continue to live together. These applications were dismissed on

29 May, 22 July and 4 November 1992. The judge, noting that the

applicant had no stable work and having regard to the potentially

severe sentence, found that there was a risk that the applicant would

not appear at his trial. These decisions were confirmed by the judge

at the Ostrava Regional Court (Krajsky soud) on 16 June, 13 August and

23 November 1992.

In the meantime, on 4 November 1992, the Ostrava District Court

adjourned the hearing of the applicant to allow further witnesses to

be examined.

On 22 January 1993 the applicant's trial opened before the

Ostrava District Court; it was adjourned when the applicant challenged

the impartiality of the court.

On 11 March 1993 the applicant again filed an application for

release with the judge at the Ostrava District Court. However, on

8 June 1993 the judge rejected this application. He relied on the

reasoning in earlier decisions. On 29 June 1993 the judge at the

Regional Court confirmed the findings of the District Court as to a

strong suspicion against the applicant, the risk of repetition of

criminal offences and the danger of his absconding.

On 10 March 1993, the Ostrava District Court again adjourned the

applicant's trial in view of his application to remove his case from

that court.

On 22 July 1993, the Chamber of the Czech Supreme Court (Senát

Nejvyssího soudu), at the request of the President of the Chamber of

the Ostrava District Court, prolonged the period of the applicant's

detention to 15 October 1993, in accordance with Article 71 paras. 4

and 5 of the Code of Criminal Procedure. The Chamber considered that

the preliminary investigations had not been completed and noted

difficulties arising in the examination of witnesses and in view of the

applicant's behaviour. The Chamber considered that, given his previous

convictions, the applicant posed a risk to the public.

On 27 July 1993 the applicant made another application for

release, maintaining that the original grounds for detention were

invalid. His application was rejected on 6 August 1993 by the judge

at the Ostrava District Court, who, referring to the earlier decisions,

considered that the reasons for the applicant's detention were still

pertinent. This decision was confirmed on 24 August 1993 by the judge

at the Ostrava Regional Court.

On 26 August 1993 the Ostrava District Court again adjourned the

applicant's trial because he had challenged the court's impartiality.

On 3 September 1993 the Ostrava Regional Court dismissed the

applicant's challenge and assigned the case to the Ostrava District

Court.

On 20 October 1993 the Chamber of the Czech Supreme Court again

ordered the applicant's continued detention on remand to

15 January 1994, having regard to the developments in the

investigation. The Court based its decision on the content of the

file, the date on which the applicant was first remanded in custody and

the original grounds for detention.

It appears that the proceedings are still pending before the

Ostrava District Court.

B. Relevant domestic law

Constitutional law No. 91/1991 on the Constitutional Court of the Czech

and Slovak Federal Republic

Art. 6

[Translation]

"The Constitutional Court shall determine constitutional

complaints made against an act ... or decision or other

interference by a 'public organ' with the fundamental rights and

freedoms guaranteed by a constitutional law ... or an

international treaty ..."

[Original]

"Ústavní soud rozhoduje o ústavních stíznostech proti opatrením,

... rozhodnutím nebo jinym zásahum orgánu verejné moci, jestlize

stezovatel tvrdí, ze jimi byly poruseny jeho základní práva a

svobody, zarucené ústavním zákonem Federálního shromázdení nebo

mezinárodními smlouvami ..."

Law No. 491/1991 on the Procedure before the Constitutional Court of

the Czech and Slovak Federal Republic

Art. 54

[Translation]

"1. A constitutional complaint may be made ... by any physical

person ... claiming to be the victim of a violation by an act,

... or decision or other interference by a 'public organ' with

the rights and freedoms set out in a constitutional law ... or

an international treaty ..."

[Original]

"1. Ústavní stíznost ... muze podat fyzická ... osoba, která

tvrdí, ze opatrením, ... rozhodnutím nebo jinym zásahem orgánu

verejné moci bylo poruseno její základní právo nebo svoboda,

zarucené ústavním zákonem Federálního shromázdení nebo

mezinárodními smlouvami ..."

Constitution of the Czech Republic

Art. 3

[Translation]

"The Charter of Fundamental Rights and Freedoms is part of the

constitutional order of the Czech Republic."

[Original]

"Listina základních práv a svobod je soucástí ústavního porádku

Ceské republiky."

Art. 87

[Translation]

"1. The Constitutional Court shall determine:

...

(d) constitutional complaints made against ... decisions or

other interference by a 'public organ' with the fundamental

rights and freedoms guaranteed by a constitutional law ..."

[Original]

"1. Ústavní soud rozhoduje

...

d) o ústavní stíznosti proti ... rozhodnutí a jinému zásahu

orgánu verejné moci do ústavne zarucenych základních práv a

svobod, ..."

Charter of Fundamental Rights and Freedoms

Art. 8

[Translation]

"1. Personal liberty is guaranteed.

2. No one shall be deprived of his or her liberty except on

grounds and in a manner prescribed by law ...

3. Any person accused or suspected of having committed a

criminal offence may be detained only in accordance with the law.

Such detained person shall be informed without delay of the

reasons for the detention, questioned, and not more than twenty-

four hours later, be brought before a court. Within twenty-four

hours of having been brought before a court, a judge shall

question such person and decide whether to place the person in

custody or to release him.

4. A person accused of a criminal act may be arrested only on

the basis of a written warrant issued by a judge, which includes

the grounds for its issue. The arrested person shall be brought

before a court within twenty-four hours. A judge shall question

the arrested person within twenty-four hours and decide whether

to place the person in custody or to release him.

5. Nobody may be placed in custody except in accordance with

the law and on the basis of a judicial decision ..."

[Original]

"1. Osobní svoboda je zarucena.

2. Nikdo nesmí byt stíhán nebo zbaven svobody jinak nez z

duvodu a zpusobem, ktery stanoví zákon ...

3. Obvineného nebo podezrelého z trestného cinu je mozno

zadrzet jen v prípadech stanovenych v zákone. Zadrzená osoba musí

byt ihned seznámena s duvody zadrzení, vyslechnuta a nejpozdeji

do 24 hodin propustena na svobodu nebo odevzdána soudu. Soudce

musí zadrzenou osobu do 24 hodin od prevzetí vyslechnout a

rozhodnout o vazbe, nebo ji propustit na svobodu.

4. Zatknout obvineného je mozno jen na písemny oduvodneny

príkaz soudce. Zatcená osoba musí byt do 24 hodin odevzdána

soudu. Soudce musí zatcenou osobu do 24 hodin od prevzetí

vyslechnout a rozhodnout o vazbe nebo ji propustit na svobodu.

5. Nikdo nesmí byt vzat do vazby, lec s duvodu a na dobu

stanovenou zákonem a na základe rozhodnutí soudu ..."

Law No. 182/1993 on the Constitutional Court of the Czech Republic

Art. 72

[Translation]

"1. A constitutional complaint may be made by:

(a) any physical person ... claiming to be the victim of

a violation by ... a decision or an act of a 'public organ'

of the rights or liberties set forth in a constitutional

law or an international treaty ..."

[Original]

"1. Ústavní stíznost jsou oprávneni podat

a) fyzická osoba ..., jestlize tvrdí, ze ... opatrením nebo

jinym zásahem orgánu verejné moci bylo poruseno její základní

právo nebo svoboda zarucené ústavním zákonem nebo mezinárodní

smlouvou ..."

COMPLAINTS

1. The applicant complains under Article 5 paras. 1 and 3 of the

Convention that inadequate reasons were given for the detention and

that the length of the detention is excessive.

2. He also complains under Article 6 para. 1 of the Convention that

he did not have a fair trial before an independent and impartial

tribunal within a reasonable period of time.

3. The applicant complains under Article 8 of the Convention of a

violation of his right to respect for his private and family life by

virtue of the length of his detention on remand.

THE LAW

1. The applicant complains of the reasons for and the length of his

detention on remand. He relies on Article 5 paras. 1 and 3

(Art. 5-1, 5-3) of the Convention. These provide as follows:

"1. 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:

...

c. the lawful arrest or detention of a person effected for

the purpose of bringing him before the competent legal authority

on reasonable suspicion of having committed an offence or when

it is reasonably considered necessary to prevent his committing

an offence or fleeing after having done so;

...

3. Everyone arrested or detained in accordance with the

provisions of paragraph 1.c of this Article ... shall be entitled

to trial within a reasonable time or to release pending trial.

Release may be conditioned by guarantees to appear for trial."

The Commission is not, however, called upon to decide whether the

facts alleged by the applicant disclose any appearance of a violation

of the above provisions. Under Article 26 (Art. 26) of the Convention,

"the Commission may only deal with the matter after all domestic

remedies have been exhausted, according to the generally recognised

rules of international law".

Insofar as the applicant complains about the reasons for his

detention on remand, the Commission notes that the applicant has not

shown that he filed an appeal against the decision of the judge at the

Ostrava District Court, taken on 4 February 1992, ordering his

detention on remand. It is true that against the subsequent decisions

of the District Court of 29 May, 22 July and 4 November 1992 by which

his release was refused he appealed to the Ostrava Regional Court,

which rejected the appeals. He also appealed against the subsequent

decisions of the Ostrava District Court dated 8 June and 6 August 1993

by which his release had been refused, but these appeals were again

rejected by the Regional Court. However, he did not pursue any of these

proceedings by lodging a constitutional appeal with the Constitutional

Court of the Czech and Slovak Republic or the Constitutional Court of

the Czech Republic. Nor did he lodge constitutional appeals against the

decisions of the Supreme Court of 22 July and 20 October 1993 which

prolonged his detention on remand.

The Commission notes in this respect that the applicant was able,

under Article 54 para. 1 of Law No. 491/1991 on the Procedure before

the Constitutional Court of the Czech and Slovak Federal Republic, to

introduce a constitutional appeal before the Constitutional Court

against the decisions of the judge at the Ostrava Regional Court dated

16 June, 13 August and 23 November 1992 which confirmed the refusals

by the judge at Ostrava District Court to release the applicant. The

applicant was able in the same way, pursuant to Article 72 para. 1 of

Law No. 182/1993 on the Constitutional Court of the Czech Republic, to

lodge a constitutional appeal with the Constitutional Court against the

decisions of the judge at the Ostrava Regional Court taken on 29 June

and 24 August 1993 which confirmed the refusal of the judge at the

Ostrava District Court to release him from detention on remand, and

against the decisions of the Supreme Court taken on 22 July and 20

October 1993, prolonging his detention on remand. The Commission notes

that the Constitutional Court of the Czech Republic is also competent

to hear a constitutional appeal against an act of a 'public organ'

which was committed after 1 January 1993 (cf. No. 22926/93, Dec.

7.4.94, D.R. 77-A p. 118).

It follows that in this respect the applicant did not exhaust the

domestic remedies as required by Article 26 (Art. 26) of the Convention

and that the application is in this respect inadmissible according to

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

As regards the applicant's complaint as to the length of his

detention on remand, the Commission recalls that "if there is doubt as

to whether a particular remedy may or may not offer a real chance of

success, the point must be submitted to the domestic courts themselves

before any appeal can be made to the international court" (No. 6861/75,

Dec. 14.7.75, D.R. 3 p. 147; No. 10267/83, Dec. 10.12.87, D.R. 54 p.

5). In Czechoslovak as well as in Czech law, the Constitutional Court

[was] is the final instance before which an allegation of a violation

by a 'public organ' of rights and fundamental freedoms set forth in a

constitutional law or an international treaty [could] can be made.

The Commission notes that in respect of the length of the

applicant's detention on remand, the applicant did not lodge a

constitutional appeal against any of the court decisions by which his

release was refused.

As part of such a constitutional appeal, the applicant could have

complained about the length of his detention, invoking a violation of

Article 8 of the Charter of Fundamental Rights and Freedoms which

guarantees the right to personal freedom.

The Commission considers that such an appeal appears to be an

adequate and effective domestic remedy available in Czech law which

must therefore be exhausted.

Thus, the Commission finds that, as the applicant has not

complied with the requirements under Article 26 (Art. 26) of the

Convention as to the exhaustion of domestic remedies, this complaint

must be rejected under Article 27 para. 3 (Art. 27-3) of the

Convention.

2. The applicant also complains that he did not have a fair trial

before an independent and impartial tribunal within a reasonable time

and invokes Article 6 para. 1 (Art. 6-1) of the Convention, the

relevant part of which reads:

"In the determination ... of any criminal charge against him,

everyone is entitled to a fair trial ... within a reasonable

period of time by an independent and impartial tribunal ..."

While the Commission notes that Article 6 (Art. 6) of the

Convention is applicable to the criminal proceedings against the

applicant, it is not called upon to decide whether the facts alleged

by the applicant disclose any appearance of a violation of that

provision. First, the criminal proceedings are still pending and the

application is therefore, as regards the impartiality and independence

of the tribunals, premature. It follows that in this regard the

complaint is manifestly ill-founded within the meaning of Article 27

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

Secondly, as regards the length of the criminal proceedings, the

applicant has failed to lodge a constitutional appeal with the

Constitutional Court under Article 72 para. 1 of Law No. 182/1993 on

the Constitutional Court of the Czech Republic (cf. mutatis mutandis

No. 23548/94, Dec. 29.6.94, not published). In this regard, the

applicant has not therefore complied with the requirement as to the

exhaustion of domestic remedies and this complaint must be rejected

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

3. With reference to length of his detention on remand, the

applicant also complains, inter alia, of a violation of his right to

respect for his private and family life within the meaning of Article

8 (Art. 8) of the Convention.

However, the Commission has found above that, with regard to the

length of his detention, the applicant has failed to exhaust domestic

remedies.

For these reasons, the Commission, unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (H. DANELIUS)

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KAJBA v. THE CZECH REPUBLIC

KAJBA v. THE CZECH REPUBLIC

LEXI