FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36488/02 by Ale Å¡ ROZEHNAL against the Czech Republic

The European Court of Human Rights (Fifth Section), sitting on 17 June 2008 as a Chamber composed of:

Peer Lorenzen, President , Rait Maruste, Karel Jungwiert, Volodymyr Butkevych, Mark Villiger, Mirjana Lazarova Trajkovska , Zdravka Kalaydjieva, judges , and Stephen Phillips , Deputy Section Registrar ,

Having regard to the above application lodged on 10 January 2002,

Having regard to the Court ’ s decision to examine jointly the admissibility and merits of the case (Art icle 29 § 3 of the Convention),

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

The applicant, Mr Ale š Rozehnal , is a Czech national who was born in 1970 and lives in Prague . He was represented before the Court by Mr T. Ott y , a lawyer practising in London . The Czech Government (“the Government”) were represented by their Agent, Mr . V.A. Schorm, from the Ministry of Justice .

A. The circumstances of the case

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

In April 2001 Z., one of the applicant ’ s clients, was detained on suspicion of having attempted to defraud a creditor. On 12 April 2001 the applicant was heard as a witness.

On 3 November 2001 the applicant was charged with an attempt to defraud a creditor together with Z. Being Z. ’ s lawyer, he had allegedly tried to transfer Z. ’ s assets to certain private companies controlled by acquaintances and had prepared documents certifying non-existent rights and obligations to the detriment of not only the creditor, a private company, C., but also of the Czech State in connection with enforcement proceedings.

A search of the applicant ’ s home and office was carried out on 5 and 6 November 2001.

On 7 November 2001 his detention was ordered under sections 67(1)(b) and 67(2) of the Code of Criminal Procedure. The judge at the Prague 1 District Court found that there was a danger of the applicant ’ s influencing witnesses, referring in particular to Z. and three other persons. He did not accept the applicant ’ s pledge and a written guarantee offered in return for his release.

On 4 December 2001 the Prague Municipal Court quashed that order and decided anew, ordering the applicant ’ s pre-trial detention pursuant to sections 67(1)(a), (b) and 67(2) of the Code of Criminal Procedure, finding his detention necessary in order to prevent his absconding and influencing witnesses. The court , having regard to the content s of the file, found that there was a strong suspicion that the applican t had committed the offence. It stated that the applicant might influence witnesses who would have to give evidence again (as their first examination had taken place before the applicant had been charged, which made it inapplicable to his case), that it appeared from a transcript of his telephone conversation with Z. that some documents relating to the criminal proceedings might be concealed, and that he was under the threat of a heavy prison sentence and had contacts abroad, which justified the court ’ s concern that he might abscond and avoid the criminal proceedings. Referring to the applicant ’ s new status as an accused, the court dismissed his argument that should he have wished to abscond, he could already have done so between April 2001 (when Z. had been charged) and November 2001 (when he himself had been charged). The court refused the pledge offered by the applicant as well as the guarantee offered by third persons.

On 5 December 2001 the applicant applied to be released.

On 24 December 2001 the District Court decided to release the applicant on bail, requiring the payment of 5,000,000 Czech korunas (CZK – 166,667 euros (EUR)).

On 22 January 2002 the Municipal Court, on an appeal by the Prague Municipal Prosecutor, quashed that decision for formal shortcomings and remitted the application for release to the Municipal Prosecutor for further consideration.

On 31 January 2002 the Municipal Prosecutor decided that there was no longer any risk that the applicant would influence witnesses, but considered that his continued detention was necessary under section 67(1)(a) of the Code of Criminal Procedure as there was a risk that he might abscond.

On the same day, the prosecutor, further to an application lodged by the applicant on 29 January 2002, decided to release him on bail, requiring the payment of CZK 10,000,000 (EUR 333,333).

On 30 January 2002 the applicant lodged a constitutional appeal against the District Court ’ s decision of 7 November 2001 and that of the Municipal Court of 4 December 2001, alleging that they had violated his rights to a fair trial, judicial protection and personal liberty and invoking, inter alia , Article 5 § 1 and Article 6 § 1 of the Convention. He claimed that the decisions ordering his pre-trial detention were not based on concrete facts indicating a risk of his absconding or influencing witnesses.

On 2 April 2002 the Constitutional Court ( Ústavní soud ) dismissed the constitutional appeal as ill-founded.

The criminal proceedings are still pending.

B. Rele vant domestic law and practice

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court ’ s decision in the case of Vokurka v. the Czech Republic ( no. 40552/02 (dec.), §§ 11-24, 1 6 October 2007).

At the material time, the relevant provisions of the Code of Criminal Procedure read as follows:

Section 67

“(1) An accused person may be remanded in custody only if there exist specific grounds for believing that he or she

(a) will abscond in order to avoid prosecution or punishment, in particular if his or her identity cannot be immediately established, if he or she has no permanent residence or if he or she is liable to a heavy penalty;

(b) will try to influence the witnesses or co-accused who have not been heard yet or otherwise frustrate the investigation into the facts which are of importance for the conduct of the proceedings; or

(c) will carry on the criminal activity for which he or she is prosecuted, will accomplish an offence attempted by him or her or will commit an offence which he or she was preparing or threatening to commit.

(2) At the pre-trial stage of the proceedings the court may remand in custody an accused person or extend his/her detention on remand only if a ground for detention on remand pursuant to subsection (1) is fulfilled and the circumstances of the case which have so far been established indicate that the act of which the person has been accused has been committed and has all the attributes of a criminal act, and there are plausible reasons for a suspicion that the act was committed by the accused person.”

Section 68 provides that only an accused person may be remanded in custody. The relevant decision must be issued by a court or, at the pre-trial stage, by a judge upon a proposal by the public prosecutor, and it must be justified by the particular circumstances of the case.

COMPLAINTS

Relying on Article 5 §§ 1, 3 and 4 of the Convention, the applicant complained that his pre-trial detention ordered by the District Court on 7 November 2001 had been unlawful. He submitted that the reasons for his detention had not been sufficiently substantiated and that his detention was of a preventive nature and disproportionate and merely served the purposes of the investigation. He further submitted that the findings of the Municipal Court on 4 December 2001 were abstract and general as to the risk of interference with evidence.

Relying on Article 6 § 2 of the Convention, the applicant alleged that the District Court had violated the principle of presumption of innocence.

The applicant alleged a violation of Article 8 of the Convention and Article 1 of Protocol No. 1 in connection with the search carried out in his home and office.

He claimed that he had not been provided with a copy of the transcript of his telephone conversation with Z., on which the courts had relied, and submitted that this infringed Article 5 § 4 and Article 6 of the Convention.

The applicant stated that the Municipal Court had not determined his case at a public hearing, thus depriving him of his right to be present and infringing his rights under Article 5 § 4 and Article 6 of the Convention.

Relying on Article 5 § 3 and Article 6 of the Convention, the applicant criticised the Municipal Court ’ s decision of 22 January 2002, by which his case had been remitted to the prosecutor for further consideration. The applicant submitted that the prosecutor could not be regarded as a judge or other officer exercising judicial power who was required to take any decision on detention pursuant to Article 5 § 3 of the Convention.

He also complained that the Constitutional Court had breached his rights under Articles 5, 6, 8 and 13 of the Convention and Article 1 of Protocol No. 1 in rejecting his constitutional appeal.

Lastly, he noted that he had not yet been brought before a court, since the proceedings were still at the pre-trial stage, and alleged that this amounted to a violat ion of his rights under Article 5 §§ 1 and 2 and Article 6 § 1.

In addition, he submitted that his detention had inevitably entailed a violation of his right to freedom of expression and freedom of association within the meaning of Articles 10 and 11 of the Convention. Moreover, unlike Mr Z., a member of the European Parliament, the applicant could not invoke parliamentary immunity. This constituted differential treatment prohibited by Article 14 of the Convention.

THE LAW

1. Relying on Article 5 § 1 , of the Convention the applicant allege d that his detention on remand had not been sufficiently substantiated and that the reasons given by the authorities were too abstract and general. The detention was therefore unlawful and disproportionate.

The relevant part of that provision reads 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:

...

(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; ... ”

The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. However, it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness.

It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. However, since under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention, it follows that the Court can and should exercise a certain power to review whether this law has been complied with (see, among many others, Öcalan v. Turkey [GC], no. 46221/99, § 83-84, ECHR 2005 ‑ IV ).

In the present case the Court finds that the applicant was detained on reasonable suspicion of having committed an offence, as permitted by Article 5 § 1 (c). Concerning the “lawfulness” and observance of the “procedure prescribed by [the domestic] law”, the Court notes that there is no evidence that the applicant ’ s detention was unlawful under Czech law; he was detained on the basis of a court ’ s order referring to the specific circumstances of this particular case and stating sufficient reasons as to why there was a risk of the applicant ’ s influencing witnesses or absconding. The Court accepts those arguments.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant complained under Article 6 § 1 of the Convention about the length of the criminal proceedings. The relevant part of that provision reads as follows:

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

The Government noted that the applicant could have resorted to the compensatory remedy provided for by Law no. 82/1998 as amended . The applicant had not wish ed to use this remedy.

The Court notes that in the case of Vokurka ( cited above, § 65) it found the compensatory remedy provided for by Law no. 82/1998 as amended to be effective for the purposes of Article 35 § 1 of the Convention in respect of complaints about the length of judicial proceedings in the Czech Republic .

In the instant case, the applicant failed to resort to that remedy.

The Court therefore considers that the applicant has not exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention. The complaint must therefore be declared inadmissible in accordance with Article 35 § 4 of the Convention.

3. The applicant alleged a violation of Article 5 §§ 2, 3 and 4, Articles 8, 10, 11, 13 and 14 and Article 1 of Protocol No. 1.

The Court finds, however, that those complaints were not raised – either in form or in substance – in a constitutional appeal to the Constitutional Court .

The Court therefore considers that the applicant has not exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention. The complaints must therefore be declared inadmissible in accordance with Article 35 § 4 of the Convention.

4. Lastly, relying on Article 13 of the Convention, the applicant alleged that the decision of the Constitutional Court had failed to provide an effective legal remedy against the earlier violations of Articles 5, 6 and 8 of the Convention and Article 1 of Protocol No. 1, and had, in effect, allowed them to subsist. The relevant part of that provision reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court recalls that Article 13 applies only where an individual has “an arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom , judgment of 27 April 1988, Series A no. 131, § 52, and Múčková v. Slovakia , no. 21302/02, § 81 , 13 June 2006 ). The Court has found above that the applicant ’ s complaints were inadmissible either for non-exhaustion of domestic remedies or as being manifestly ill-founded. For similar reasons it holds that the applicant did not have an arguable claim for the purposes of Article 13 of the Convention, which is, therefore, inapplicable to this case.

It follows that this part of the application must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

             Stephen Phillips Peer Lorenzen              Deputy Registrar President