THIRD SECTION

DECISION

Application no. 14630/12 Peter DOMINKA against Slovakia

The European Court of Human Rights (Third Section), sitting on 3 April 2018 as a Chamber composed of:

Helena Jäderblom, President, Dmitry Dedov, Pere Pastor Vilanova, Alena Poláčková, Georgios A. Serghides, Jolien Schukking, María Elósegui, judges, and Stephen Phillips, Section Registrar ,

Having regard to the above application lodged on 7 March 2012,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Peter Dominka, is a Slovak national who was born in 1988. At the time he lodged his application he was serving a sentence in Leopoldov Prison. He was represented before the Court by Mr P. Gračík, a lawyer practising in Nitra.

The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.

The circumstances of the case

2. The facts of the case, as submitted by the parties, may be summarised as follows.

1. Background

3. On the evening of 21 February 2009, while walking home together from the centre of the city of Nitra, two individuals, A and B, were assaulted by C and another person. The assailants pepper-sprayed A and B and unsuccessfully attempted to rob them.

4. On 12 June 2009 C was taken to an investigator for questioning. After he had been charged, the investigator questioned him again on 13 June 2009 while a remand judge examined him on 15 June 2009.

5. In the questionings of 13 and 15 June 2009 C was assisted by a lawyer. He confessed in all three of the questionings that he himself had attempted to rob B while the applicant had allegedly assaulted A.

6. C stated on the record each time he was questioned that he had not been subjected to any form of physical or psychological pressure by the authorities. The records of the questionings contain no mention of the influence of any drugs or any discussion on that matter. However, neither the applicant nor anybody on his behalf was present.

7. Following C ’ s allegations the police searched for the applicant on four occasions between 12 and 17 June 2009 but were unable to find him.

8. In a further questioning on 25 June 2009, C changed his account of events and denied any involvement in the incident by him or the applicant. He submitted that during his arrest on 12 June 2009 police officers had presented him with an account of the incident of 21 February 2009 that had stated that he and the applicant had been involved and that they had made his release dependant on his acceptance of that version of events. As he had wished to go home, he had simply responded by agreeing to it. The questioning of 25 June 2009 took place in the presence of C ’ s lawyer and a lawyer for the applicant, who had been charged in connection with the assault in the meantime.

9. In response to these allegations, on 26 June 2009 another investigator questioned two arresting officers and the investigator who had had contact with C on 12 and 13 June 2009. C ’ s lawyer was present, although the applicant ’ s was not, despite having been duly summoned. The arresting officers and the investigator denied putting any physical or psychological pressure on C, leading him in any other way to present any particular version of the events, or witnessing the use of any such pressure or influence.

2. Charges against the applicant and trial

10. Meanwhile, on 12 June 2009, the applicant himself had been charged with robbery in connection with the incident of 21 February 2009 and with another, unrelated offence. However, the charge sheet was served on him only on 22 June 2009 when he was arrested during a road traffic control.

11. On 30 June 2009 a face-to-face confrontation was carried out between C and a certain D, who stated that C had previously confessed to him that he had committed the attempted robbery of 21 February 2009 together with the applicant. C ’ s defence counsel was present at the confrontation while neither the applicant nor his counsel were, although the latter had been properly requested to attend.

12. On 25 August 2009 the applicant was indicted to stand trial on the charges along with C, who faced a charge of robbery in the same proceedings.

13. On 11 May 2010 the District Court found the applicant and C guilty and imposed prison sentences on them. The applicant was sentenced to ten years and four months ’ imprisonment.

The court observed that the applicant had at all times denied any involvement in the robbery, while C had denied his involvement from 25 June 2009 onwards.

As for C, in particular, the court noted that he had maintained his allegation of police coercion into making his initial confession. In addition, he had stated that he had been intoxicated while making the confession and that he had confirmed the confession later as he had been concerned about changing his original statement. However, having heard the officers involved in C ’ s arrest, the court found that the allegation of coercion had not been confirmed. It did not find C ’ s changed version credible as his participation in the robbery had been proven by his statements of 12, 13 and 15 June 2009 and by B and D.

As regards the applicant, the District Court noted that neither A nor B had identified him. However, he had been incriminated by the early statements of C and by D, as mentioned above.

14. The applicant challenged the judgment of 11 May 2010 by way of an appeal to the Nitra Regional Court. He argued that his conviction had been based on C ’ s initial statements, that those statements had been unlawful as evidence and that his conviction had accordingly been arbitrary. However, the District Court had completely ignored his arguments on that point.

In particular, the applicant referred to a position taken by the criminal law bench of the Supreme Court (no. Tpj 63/2009 of 7 December 2009) that if witness evidence was the only or decisive incriminating evidence, the witness had to be heard or, as the case may be, re-heard after the accused had been charged in order to safeguard the accused ’ s rights of defence and to adversarial proceedings. He argued that, although formally speaking C was his co-accused and not a witness, mutatis mutandis , the precedent fully applied to his case. Accordingly, C ’ s initial statements had not been admissible as evidence and the only admissible submissions he had made about the applicant had been those of 25 June 2009 and afterwards.

15. The prosecution also appealed, alleging that the first-instance court had erred in the determination of the applicant ’ s sentence.

16. On 31 August 2010 the Regional Court decided on the appeals by increasing the applicant ’ s sentence to eleven years and seven months. It held that C ’ s early statements were not excluded as evidence because two of them had been made in the presence of his lawyer and that one of those two had actually been made before a judge, which meant any coercion was excluded. The Regional Court also found that the statements had not been the only evidence against the applicant, that he had also been incriminated by D and by the fact that the general description of the incident by A and B had corresponded to that in C ’ s early testimony.

17. In a subsequent appeal on points of law and constitutional complaint the applicant raised similar arguments to those above. He added specifically that he was not relying on any coercion of C when the latter made his initial statements since any such coercion or lack of it was of relevance for the admissibility of those statements as evidence in relation to C, but was irrelevant in relation to the fact that he himself had been unable to exercise his rights of defence during those statements.

18. The appeal and constitutional complaint were dismissed on 29 June and 29 September 2011. In their respective decisions, the Supreme Court and the Constitutional Court referred to the reasoning behind the lower courts ’ decisions, considered that the applicant had merely disagreed with their assessment of the evidence, and found no unlawfulness or arbitrariness in the decisions.

3. Subsequent developments

19. On 27 March 2013 the applicant applied to have his trial reopened, relying on a Constitutional Court judgment of 28 November 2012 which had declared unconstitutional some statutory provisions that had played a role in his sentencing.

20. A reopening of the trial was allowed and on 22 April 2014 the District Court reduced the applicant ’ s prison term to seven years. The ruling became final and the applicant finished serving his sentence on 22 July 2016.

COMPLAINTS

21. The applicant complained that his trial had been contrary to the requirement of fairness under Article 6 § 1 of the Convention. In that respect, in substance, he also relied on Article 6 § 3 (d) of the Convention.

22. In his observations in reply to those of the Government, the applicant also alleged a violation of his rights under Article 6 § 1 of the Convention to a fair hearing and a hearing before an impartial tribunal on the grounds that the judge convicting him at first instance had been biased and that the higher courts had failed to give adequate reasons for their decisions to dismiss his objections to that effect. Moreover, he argued that, in the circumstances, the deprivation of his liberty had lacked a lawful basis and had thus been contrary to Article 5.

THE LAW

A. Fairness of the proceedings on the applicant ’ s criminal charge

23. The applicant complained that his trial had been unfair within the meaning of Article 6 § 1 and, in substance, also Article 6 § 3 (d) of the Convention. The Court, being the master of the characterisation to be given in law to the facts of a case (see, for example, Margaretić v. Croatia , no. 16115/13, § 75, 5 June 2014), considers that on the specific facts this complaint most naturally falls to be examined under Article 6 § 1 of the Convention, the relevant part of which reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

1. The parties ’ arguments

24. The applicant argued that the use of C ’ s initial statements as evidence for his conviction had been contrary to his defence rights and that, accordingly, his trial had been unfair.

25. The Government observed that it was not the Court ’ s task under the Convention to give a ruling on the admissibility of evidence in proceedings before domestic courts, which was primarily a matter for regulation by national rules and assessment by those courts. The task of the Court was rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair. In so doing, regard had to be had to whether the rights of the defence had been respected, whether the applicant had been given the opportunity to challenge the authenticity of the evidence and of opposing its use, and the quality of the evidence in question, including the circumstances in which it had been obtained.

They acknowledged that although C had been in the position of a co ‑ accused, under Article 6 § 3 (d) of the Convention he was to be viewed as a witness. They recapitulated the chronology of the early stages of the proceedings, with a particular focus on the content of C ’ s contested statements. The applicant and his lawyer had not been present during those statements because the applicant had been untraceable and thus unavailable for the purposes of the proceedings. Once that obstacle had been removed, all procedural steps from 25 June 2009 had been taken with full respect for the principle of an adversarial trial. However, the failure of the applicant ’ s lawyer to attend some of them, such as the face-to-face confrontation between C and D, or that he had otherwise failed to exercise the applicant ’ s rights of defence, such as questioning C and D, was imputable to the applicant.

The Government emphasised that C ’ s explanation for changing his version of the events by alleging police coercion had not been substantiated at the domestic level or before the Court. In particular, C had confirmed his initial confession incriminating the applicant before a pre-trial judge and in the presence of his lawyer, which had excluded the potential for coercion. Moreover, his evidence incriminating the applicant had not been the only or the decisive evidence since, as established by the domestic courts, the applicant had also been incriminated by D ’ s statement and by the fact that the general description of the incident by the victims A and B had corresponded to how it had initially been portrayed by C.

26. In reply, the applicant reiterated that he wished to rely on the Supreme Court ’ s opinion of 7 December 2009 (see paragraph 14 above), pointing out that except for the compromised pre-trial evidence of C, the only evidence incriminating him had been that of a hearsay nature from D, which he considered as manifestly insufficient. He submitted that the case was not about the fairness of the trial in relation to C but about the curtailment of his rights of defence. In his view, the Government ’ s remark that the proceedings had been conducted with due respect for the principle of an adversarial trial from 25 June 2009 was tantamount to an admission that the opposite had been the case prior to that date.

2. The Court ’ s assessment

(a) General principles

27. The Court considers that the applicable general principles are the same as those that it summarised in the case of Erkapić v. Croatia (no. 51198/08, §§ 70-73, 25 April 2013, with further references) as follows:

- The Court ’ s duty, pursuant to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting States to the Convention. In particular, it is not its function to deal with errors of fact or of law allegedly committed by a national court, unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law.

- Even if the primary purpose of Article 6, as far as criminal proceedings are concerned, is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, it does not follow that the Article has no application to pre-trial proceedings. Article 6 may be relevant before a case is sent for trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions.

- In determining whether the proceedings as a whole were fair, regard must be had to whether the rights of the defence were respected. It must be examined in particular whether the applicant was given the opportunity to challenge the authenticity of the evidence and to oppose its use. In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy.

- In this context the Court ’ s task under Article 6 § 1 of the Convention is to establish whether the evidence produced for or against the accused was presented in such a way as to ensure a fair trial, irrespective of the type or gravity of the charges held against an accused since the public interest in investigation and punishment of a particular offence cannot justify measures which extinguish the very essence of an applicant ’ s defence rights.

- While it is for the national courts to assess the evidence before them as well as the relevance of the evidence which the accused seeks to adduce, the Court must nevertheless determine whether the proceedings considered as a whole, including the way in which evidence was taken, were fair as required by Article 6 § 1 of the Convention.

(b) Application of these principles to the present case

29. As for the fairness of the applicant ’ s own trial on that charge, the core of the present application is C ’ s statements to the police, an investigator and a remand judge on 12, 13 and 15 June 2009 and the fact that they were taken into account for the purposes of his conviction, although neither the applicant nor his lawyer was able to take part in those questionings. In this context, the Court observes that, unlike in cases such as, for example, Ibrahim and Others v. the United Kingdom ( [GC], nos. 50541/08 and 3 others , ECHR 2016), the statements in question here were not given by the applicant, being a defendant in the trial, but by his co ‑ accused. Furthermore, the Court observes that, unlike in cases such as, for example, Navalnyy and Ofitserov v. Russia (nos. 46632/13 and 28671/14, §§ 104 et seq ., 23 February 2016), the statements in question were judicially examined in one and the same set of proceedings to which the applicant was a party.

30. The Court notes that it has not been disputed by the parties that the impugned statements of C concerning the applicant were from the applicant ’ s perspective not as such made in accordance with the principle of an adversarial trial. It has equally not been disputed that they were subsequently admitted and used as evidence at his trial.

31. It accordingly remains to be ascertained whether, in particular, the applicant was given the opportunity to challenge the authenticity of that evidence and to oppose its use, what was the quality of that evidence, and whether the circumstances in which it was obtained cast doubt on its reliability and accuracy.

32. From that perspective, the Court notes that C was questioned again on 25 June 2009 and later at the trial in the presence of the applicant or his lawyer. There is no allegation or other indication of any restrictions on the defence ’ s ability to put questions to C or to contest the evidence that he had given on 12, 13 and 15 June 2009, alone or in conjunction with other evidence, on any other procedural or substantive grounds. The applicant ’ s argument in that respect, both at the national level and before the Court, has however, only been limited to a complaint, without any concrete facts, that he was unable to exercise his rights of defence during those questionings. This is demonstrated, for example, by his submission to the cassation court (see paragraph 17 above) that he did not seek to rely on C being coerced into making the statements in question, his lawyer ’ s absence at some of the procedural steps (see paragraphs 9 and 11), and the complete lack of any indication that he or his lawyer sought to examine C.

33. In the absence of any other elements, the applicant ’ s central argument appears to raise rather an abstract question of domestic law, in particular of compliance with the Supreme Court ’ s opinion of 7 December 2009. In that respect, however, the Court reiterates that it is not its task to deal with alleged errors of law on the part of national authorities, unless and in so far as they may have infringed the rights and freedoms protected by the Convention, and that any rules on the admissibility of evidence as such are primarily a matter for regulation under national law.

34. The Court notes that the applicant has not advanced any arguments as to the quality of the evidence in question and the circumstances in which it was obtained. Nevertheless, it observes that C ’ s allegations of coercion were examined at the pre-trial stage and at trial (see, a contario , Erkapić , cited above, § 88) and that neither they nor any statements concerning intoxication were made out. Moreover, as the domestic courts established, the impugned evidence from C was corroborated by other evidence. Although the Court finds that the weight of that other evidence may be questioned, it notes that the applicant himself has made no specific complaint before the Court in that regard.

35. Thus, in view of the procedural safeguards in place and to the extent that the relevant part of the application has been substantiated and domestic remedies exhausted, the Court finds that the admission of C ’ s impugned statements in evidence against the applicant and the role it played in his conviction did not prejudice the fairness of his proceedings.

B . Other alleged violations

37. The applicant also alleged a separate violation of his rights to a fair hearing before an impartial tribunal under Article 6 § 1 of the Convention and to liberty under Article 5 of the Convention.

38. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the Convention provisions invoked.

Accordingly, these complaints are also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 26 April 2018 .

             Stephen Phillips Helena Jäderblom Registrar President