FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 54334/00 by Ivan LEXA against Slovakia

The European Court of Human Rights (Fourth Section) , sitting on 23 September 2003 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki , Mr J. Borrego Borrego , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 28 September 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Ivan Lexa, is a Slovakian national, who was born in 1961 and resides in Bratislava. He is represented before the Court by MM. Ľ. Hlbočan and J. Cuper, lawyers practising in Bratislava.

A. The circumstances of the case

Between 1995 and 1998 the applicant was the Director of the Slovak Information Service ( Slovenská informačná služba ) which is the Slovakian secret service. In 1998 the applicant was elected as a member of the Slovak National Council (the Parliament) for a four year period. The facts of the case, as submitted by the applicant , may be summarised as follows.

1. The background to the case

On 31 August 1995 Mr M. Kov áč, the son of the then President of the Slovak Republic was forcibly brought from Slovakia to an Austrian village in the vicinity of the Slovakian border. Following a phone call the Austrian police found him intoxicated in a car. He was detained as a German court had issued an arrest warrant against him.

The Slovakian police started an investigation into the incident and expressed the view that several offences had been committed in that context.

On 3 March 1998 and on 7 July 1998 Mr. V. Me čiar, the Prime Minister who then exercised several powers entrusted to the President of the Slovak Republic, delivered two decisions on amnesty. In them it was ordered not to bring and to discontinue any proceedings concerning the possible criminal offences committed in the context of the forcible abduction of Mr. Kov áč . The decisions were published in the Collection of Laws.

On 18 September 1998 the police investigator decided not to pursue the case concerning the above offences which, as the decision stated, had been committed by unknown perpetrators. The decision referred to the decision on presidential amnesty of 7 July 1998 and to Sections 11 (1) (a) and 159 (2) of the Code of Criminal Procedure.

2. Alleged interference with the applicant’s right to be presumed innocent

As from November 1998, following the parliamentary election and the ensuing change of the Government, the Minister of the Interior as well as several high-ranking governmental officials started publicly accusing the applicant of having committed several offences while he had held the post of Director of the Slovak Information Service. They explicitly alleged that the applicant had been involved in the abduction of Mr Ko váč and stated that the applicant would undoubtedly be convicted in that context.

In particular, the Minister of the Interior, in an interview broadcast on 3 February 1999, qualified the applicant’s allegation that he had not been involved in the kidnapping of Mr Kováč as “a statement typical for people who become hysterical and lose control of the situation for which their are themselves responsible”. The Minister further reminded the applicant that confession was considered as an extenuating circumstance. He stated that the authorities dealing with the case had enough evidence to prove false the applicant’s allegations about his innocence, and that the evidence available sufficed for convicting the applicant.

On 2 March 1999 the Head of the Investigation Department of the Ministry of the Interior stated in a radio broadcast that it had been shown with sufficient certainty that the applicant had committed several offences in the context of the forcible abduction of Mr Kováč .

On 7 May 1999 the Minister of the Interior stated in a TV news broadcast that the secret service including the applicant had incontestably been involved in the abduction of Mr Kováč .

On 4 August 1999 the applicant complained to the General Prosecutor that his right to be presumed innocent had been violated by the Minister of the Interior and several governmental officials. On 23 August 1999 the General Prosecutor replied to the applicant that his right to be presumed innocent had not been infringed in that the public had been informed about the conduct of the proceedings.

On 10 September 1999 the Minister of the Interior stated in a radio broadcast that he was prepared to resign should the applicant not be convicted.

On 10 October 1999 the Minister of the Interior stated in a TV broadcast that the information available showed that the Slovak Information Service was responsible for the abduction of Mr Ko váč in 1995 and that the applicant’s share of liability had to be examined in that context.

3. Criminal proceedings against the applicant brought in 1999 and his detention on remand in this context

On 8 December 1998 the Prime Minister delivered a decision by which he quashed the relevant parts of his predecessor’s above decisions on presidential amnesty of 3 March 1998 and of 7 July 1998.

On 9 April 1999 the police investigator started criminal proceedings against the applicant. The applicant was accused of several offences on the ground that he had been involved, in his capacity as Director of the Slovak Information Service, in the abduction of Mr. Kováč in 1995.

On 15 April 1999 the Bratislava 1 District Court detained the applicant on remand. The decision stated that the applicant could influence the witnesses or otherwise hamper the investigation.

The applicant filed a complaint. He argued, inter alia , that the Prime Minister’s above decision of 8 December 1998 was contrary to the Constitution. The Bratislava Regional Court dismissed the complaint on 17 May 1999. The decision stated that the applicant’s objection according to which his detention was contrary to the Constitution fell within the jurisdiction of the Constitutional Court. The Regional Court further held that the applicant had been remanded in custody in accordance with the law.

On 27 May and on 15 June 1999 the applicant filed an application for release. On 15 June 1999 the Bratislava 1 District Court dismissed it. The decision stated that the applicant had attempted to contact other members of the Slovak Information Service and that he could influence witnesses in case of his release.

On 17 June and on 12 July 1999 the applicant filed a complaint against this decision. He argued, with reference to the Constitutional Court’s finding No. I. ÚS 30/99 of 28 June 1999 (see “Relevant domestic law and practice” below), that the decision to quash the relevant part of the presidential amnesty had been contrary to the Constitution. The applicant further argued that there existed no relevant reasons for his detention.

On 19 July 1999 the Bratislava Regional Court ordered the applicant’s release. The Regional Court found that most of the relevant evidence had been taken and that the assumption that the applicant could influence witnesses or his co-accused was no longer justified.

The Minister of Justice filed a complaint in the interest of the law against this decision. On 10 September 1999 the Supreme Court dismissed the complaint. In the Supreme Court’s view, the Regional Court had proceeded in accordance with the relevant provisions of the Code of Criminal Procedure. The Supreme Court’s decision further stated that the case was at a preliminary stage and that it was therefore for the prosecuting authorities dealing with it to decide what conclusions should be drawn from the Constitutional Court’s decision of 28 June 1999 according to which the Constitution did not allow the amendment of an earlier amnesty.

On 27 November 2000 the applicant and several other persons were indicted of several offences before the Bratislava III District Court.

On 29 June 2001 the District Court discontinued the criminal proceedings against the applicant and the other accused persons. The decision referred to the Constitutional Court’s findings No. I. ÚS 30/99 of 28 June 1999 and No. I. ÚS 48/99 of 20 December 1999 as well as to Article 11 (1) (f) of the Code of Criminal Procedure. It stated that the Prime Minister’s decision of 8 December 1998 to quash his predecessor’s decision to grant an amnesty in relation to the offences imputed to the applicant and his co-accused was null and void and that it had no basis in the Code of Criminal Procedure.

On 5 June 2002 the Bratislava Regional Court dismissed the public prosecutor’s complaint against this decision. It also dismissed the complaint filed by the applicant and his co-accused concerning the relevant legal provisions on which the decision to discontinue the proceedings was based.

The General Prosecutor filed a complaint in the interest of the law against the Regional Court’s decision.

The complaint was dismissed by the Supreme Court on 20 December 2002. The decision stated that the amnesty of 3 March 1998 relating to the offences imputed to the applicant and his co-accused prevented the criminal proceedings against them from being pursued. Reference was made also to the Constitutional Court’s finding No. I. ÚS 30/99 of 28 June 1999. The Supreme Court shared the lower courts’ view that the investigator’s decision not to pursue the case delivered on 18 September 1998 was final and that the proceedings concerning the offences in question could not subsequently be resumed as the matter had become res iudicata .

4. Proceedings before the Constitutional Court

On 22 June 1999 the applicant filed a petition with the Constitutional Court. He alleged a violation of Article 17 (2) of the Constitution in that he was prosecuted for offences which fell under the amnesty of 3 March and 7 July 1998. On 18 August 1999 the Second Chamber of the Constitutional Court dismissed the petition as being manifestly ill-founded. In the proceedings the applicant had unsuccessfully requested that the case be dealt with by the other chamber of the Constitutional Court as he considered the presiding judge biased.

On 20 December 1999 the First Chamber of the Constitutional Court delivered decision No. I. ÚS 48/99 on a petition filed by one of the applicant’s co-accused. In it the Constitutional Court found a violation of the petitioner’s rights under Article 17 (2) of the Constitution in that the investigator had brought criminal proceedings against him, on 1 February 1999, notwithstanding that the offences of which he was accused fell under the amnesty of 3 March and 7 July 1998. The Constitutional Court quashed the investigator’s decision in question. As a result, the criminal proceedings against the petitioner were dropped. The Constitutional Court allowed the applicant and the Prime Minister to participate in the proceedings before it as third parties.

B. Relevant domestic law and practice

Constitutional provisions and the Constitutional Court’s practice

Article 17 (2) provides that any person can be prosecuted or deprived of liberty only for reasons and by means provided for by law.

Article 102 (1) ( i ), as in force at the relevant time, entitled the President of the Slovak Republic to grant an amnesty whereby, inter alia , it was ordered not to start criminal proceedings or not to continue criminal proceedings which had already been brought.

In its decision No. I. ÚS 30/99, delivered upon the request of a group of Members of Parliament on 28 June 1999, the First Chamber of the Constitutional Court held that Article 102 (1) ( i ) of the Constitution could not be interpreted as giving the President of the Slovak Republic the right to amend an earlier decision on amnesty which had been published in the Collection of Laws.

The Code of Criminal Procedure

Article 11 (1) (a), as in force until 1 August 2001, provides that criminal proceedings cannot be brought or, if brought, that they should be discontinued when so ordered by the President of the Slovak Republic in the exercise of his right to grant grace or amnesty.

Under Article 11 (1) (f), criminal proceedings cannot be brought or, if brought, they shall be discontinued when, inter alia , earlier criminal proceedings against the same person and concerning the same matter have been discontinued by a final decision with the exception of cases where such a decision was quashed in subsequent proceedings provided for by law.

Pursuant to Article 159 (2), the prosecutor or investigator shall decide not to pursue a case at a stage prior to bringing criminal proceedings where such proceedings are not permissible under Article 11 (1) of the Code of Criminal Procedure.

Article 188 (1) (c) in conjunction with Article 172 (1) (d) provides that a court shall discontinue criminal proceedings, after a preliminary examination of the indictment, where a prosecution is not permissible for reasons set out in Article 11 (1) of the Code of Criminal Procedure.

COMPLAINTS

1. The applicant complains that his prosecution following the amnesty of 3 March and 7 July 1998 was not permissible under Slovakian law and that, therefore, his detention on remand in this context was not in accordance with a procedure prescribed by law. He relies on Article 5 § 1 of the Convention.

2. Under Article 6 § 1 the applicant complains that his right to a fair trial was violated in that he was prosecuted unlawfully and that the Constitutional Court dismissed his petition in this respect.

3. The applicant alleges a violation of Article 6 § 2 of the Convention in that public officials repeatedly stated that he had committed the offences imputed to him and that the General Prosecutor failed to provide him redress in this respect.

4. Under Article 4 § 1 of Protocol No. 7 the applicant complains that he was prosecuted notwithstanding that the investigator had decided not to pursue the case as a result of the amnesty of 3 March and 7 July 1998.

THE LAW

1. The applicant complains that his prosecution following the amnesty of 3 March and 7 July 1998 was not permissible under Slovakian law and that, therefore, his detention on remand in this context was not in accordance with a procedure prescribed by law. He relies on Article 5 § 1 of the Convention the relevant part of which provides:

“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 considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant complains that his right to a fair trial was violated in that he was prosecuted unlawfully and that the Constitutional Court dismissed his petition. He relies on Article 6 § 1 of the Convention the relevant part of which provides:

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

The Court notes that in his petition to the Constitutional Court the applicant challenged his prosecution which he considered contrary to Article 17 (2) of the Constitution. Decision No. I. ÚS 48/99 delivered by a different chamber of the Constitutional Court on a similar petition filed by a co-accused of the applicant indicates that the outcome of the proceedings was, in principle, decisive for the determination of the criminal charges against the applicant and his co-accused. The proceedings before the Constitutional Court leading to the decision of 18 August 1999 do not, therefore, fall outside the scope of Article 6 § 1 of the Convention in the particular circumstances of the case (see, e.g., Gast and Popp v. Germany , no. 29357/95, §§ 64-66, ECHR 2000-II, with further references).

When considering whether Article 6 § 1 has been complied with, account has to be taken of the proceedings as a whole. In this respect the Court notes that after the indictment had been filed the Bratislava III District Court discontinued the proceeding noting that the investigator’s decision not to pursue the case delivered on 18 September 1998 was final and that the prosecution of the persons concerned could not subsequently be resumed as the matter had become res judicata . This view was subsequently upheld by the Bratislava Regional Court and by the Supreme Court. As a result, the criminal proceedings against the applicant were discontinued.

In these circumstances, the Court considers that the applicant can no longer claim to be a victim of a violation of his right to a fair trial under Article 6 § 1 of the Convention (see, mutatis mutandis, Ketenoğlu and Ketenoğlu v. Turkey , nos. 29360/95 and 29361/95, judgment of 25 September 2001, §§ 36 and 37).

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

3. The applicant complains that his right to be presumed innocent was violated in that public officials repeatedly stated that he had committed the offences imputed to him and that the General Prosecutor failed to provide him redress in this respect. He relies on Article 6 § 2 of the Convention which provides:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

4. The applicant complains that he was prosecuted notwithstanding that the investigator had decided not to pursue the case as a result of the amnesty of 3 March and 7 July 1998. He relies on Article 4 § 1 of Protocol No. 7 which provides:

“No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.”

The Court recalls that the aim of Article 4 of Protocol No. 7 is to prohibit the repetition of criminal proceedings that have been concluded by a final decision (see Gradinger v. Austria , judgment of 23 October 1995, Series A no. 328-C, p. 65, § 53).

It is true that following the Prime Minister’s decision of 8 December 1998 to quash his predecessor’s amnesty concerning the offences imputed to the applicant criminal proceedings were brought against him. However, after the filing of the indictment courts at three levels of jurisdiction found that the applicant could not be tried as the decision not to pursue the case delivered on 18 September 1998 was final. As a result, the proceedings brought on 9 April 1999 were discontinued.

In these circumstances, the Court considers that the applicant cannot claim to be a victim of a violation of his right under Article 4 § 1 of Protocol No. 7.

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

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning the lawfulness of his detention on remand and the alleged violation of his right to be presumed innocent;

Declares the remainder of the application inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President